Tribes as States: Indian Tribal Authority to Regulate and Enforce Federal Environmental Laws and Regulations

23 ELR 10579 | Environmental Law Reporter | copyright © 1993 | All rights reserved


Tribes as States: Indian Tribal Authority to Regulate and Enforce Federal Environmental Laws and Regulations

David F. Coursen

Editors' Summary: The principles of federalism, state primacy, and tribal sovereignty all impact how federal environmental regulations are implemented and enforced on Indian lands. In recent years, Congress increasingly has crafted environmental protection laws that expressly provide recognized tribes with mechanisms for assuming authority to operate programs under those statutes, similar to provisions for states to obtain such authority. Yet many important federal environmental laws leave uncertain the role of Indian tribes in enforcing federal regulations on Indian lands. The courts, thus, have been left with the task of determining whether tribes may nonetheless receive authority to operate programs established by these laws under other, usually "inherent authority" or treaty-based, theories. The author reviews the environmental laws and regulations, and EPA's policies on treating tribes as states for purposes of assuming program authority. The author describes the federal statutes that expressly authorize EPA to treat tribes as states, including the Clean Water Act, the SDWA, the Clean Air Act, and CERCLA. He next discusses EPA's implementation of regulations to effect this authority, including tribal requirements, the effects of being approved for treatment as a state, EPA's attempt to simplify the process of approval, and the Agency's CERCLA regulations. The author analyzes federal environmental laws that do not expressly authorize treating tribes as states, including RCRA, FIFRA, TSCA, EPCRA, and the Pollution Prevention Act. He then discusses the key legal issues surrounding treating tribes as states, including jurisdiction over programs through inherent, or aboriginal tribal authority, and through delegated authority from Congress. The author concludes with a discussion of EPA's Indian policy to encourage tribal self-determination, including tribal assumption of regulatory and program management on Indian lands.

Mr. Coursen has been an attorney for the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C., since 1987. Previously, he was a staff attorney for the U.S. Court of Appeals for the Fifth Circuit. He graduated from the University of Oregon Law School. Mr. Coursen most recently authored Institutional Controls at Superfund Sites, 23 ELR10279. The views expressed in this Article are solely the author's and do not represent the views of EPA.

[23 ELR 10579]

Environmental regulation is a complex process involving legislative mandates, agency interpretations and rules, and administrative and judicial enforcement. The process is made more complex by the United States' system of federalism, which recognizes the sovereign nature of the federal government, state governments, and Indian tribes.1 Thus, federal environmental laws put the federal government in a leadership role in environmental management, but preserve the concepts of state primacy and tribal sovereignty. This means that the U.S. Environmental Protection Agency (EPA or the Agency) often shares its responsibilities under environmental laws with state or Indian tribal governments.

Generally, environmental statutes define a federal, or a joint state and federal, role in environmental management, [23 ELR 10580] often providing authority for the states to take the lead. These statutes, however, are not all equally clear in defining the authority and role of Indian tribes in managing reservation lands. Although several environmental statutes are partially or completely silent about the role of Indian tribes, other major environmental laws define a tribal role and explicitly authorize EPA to treat Indian tribes in a manner similar to the way it treats states. Moreover, agency regulations promulgated under several environmental laws define how tribes are treated as states.

Statutes Expressly Authorizing EPA to Treat Tribes as States

The Clean Water Act (CWA),2 the Safe Drinking Water Act (SDWA),3 and the Clean Air Act (CAA)4 all authorize EPA to promulgate regulations specifying how the Agency will treat tribes in the same manner in which it treats states.5 All three statutes require that a tribe, in order to be treated as a state, must be federally recognized,6 have a governing body carrying out substantial duties and powers,7 have jurisdiction over the area it proposes to regulate,8 and be capable of the activities it proposes to undertake.9 All three also recognize the possibility of federal program implementation.10 The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)11 also authorizes EPA to treat Indian tribes as states for specified purposes, and also contains additional provisions specifically addressed to tribes.

Clean Water Act

The CWA authorizes EPA12 to treat tribes13 as states for the following specific purposes: grants;14 water quality [23 ELR 10581] standards;15 clean lakes;16 nonpoint source management;17 certification;18 the national pollutant discharge elimination system (NPDES);19 and regulating the discharge of dredged or fill material into waters of the United States (the § 404 program).20 EPA has not treated the CWA's list21 as exhaustive.22

Safe Drinking Water Act

The SDWA provides that a tribe treated as a state may apply for grant and contract assistance that is available to states, and for delegation of primary enforcement responsibility for public water systems (PWS) and underground injection control (UIC).23 Although a tribe need not have criminal enforcement jurisdiction to obtain treatment as a state, EPA may not allow a tribeto operate a tribal program that will be "less protective of the health of persons" than would be a minimally acceptable state program.24

Clean Air Act

The CAA authorizes EPA to treat Indian tribes as states for those purposes that EPA deems appropriate, and to provide such tribes with grant25 and contract assistance.26 Unless regulations provide otherwise, the Agency should review tribal plans for implementing air quality standards under the same provisions that govern review of state plans.27 The Act also provides that tribes may redesignate areas within reservations for purposes of prevention of significant deterioration of air quality.28

CERCLA

CERCLA differs slightly from the previously listed Acts in the way it defines a tribal role.29 Like the other Acts, CERCLA contains an Indian section30 that authorizes EPA to treat a tribe31 substantially the same as a state32 for certain specific purposes: notification of releases,33 consultation on remedial actions,34 access to information,35 health authorities,36 roles and responsibilities under the national contingency plan (NCP), the regulation that governs Superfund cleanups ("response actions," including "remedial actions"),37 and establishing priorities for remedial action.38

Unlike the other statutes, CERCLA contains several additional provisions, not referenced in its Indian section, that specifically address tribes.39 CERCLA authorizes EPA to enter into cooperative agreements with, and provide financial [23 ELR 10582] assistance to, tribes,40 authorizes tribes to recover costs incurred in carrying out response actions from persons responsible for releases,41 and addresses the tribal role in other ways.42 CERCLA also treats tribes differently than states by waiving, for remedial actions on tribal lands, requirements that apply to such actions within states.43

EPA Implementation of Authority to Treat Tribes as States

To date, EPA has promulgated four regulations specifically focusing on how Indian tribes can be treated as states.44 Three of these have been issued under the CWA: one governing Water Quality Standards (WQS) for Indian reservations,45 one for the § 404 program regarding the dredging and filling of waters of the United States,46 and one for grants to tribes.47 The fourth was issued under the SDWA.48

Requirements for Treatment as a State

All four regulations listed above contain approval processes for treating Indian tribes as states that are relatively formal and virtually identical.49 A tribe seeking treatment as a state must submit an application, which EPA reviews to ensure that the tribe meets the applicable requirements, including recognition,50 a functioning government,51 jurisdiction,52 and capability.53 A tribe that meets those [23 ELR 10583] requirements is then approved for treatment as a state and becomes eligible to seek applicable grants and program approvals.

Before it will conclude that a tribe meets the jurisdictional requirement, EPA notifies "appropriate governmental entities" such as states, other tribes, and federal land management agencies,54 as to the substance of the jurisdictional assertions the tribe offers in its application. EPA invites comment on those assertions, but not on any other aspect of the application.55 Where another government raises a competing or conflicting jurisdictional claim, EPA will consult with the Department of the Interior and then make a final decision on the tribe's jurisdiction for the particular function in question.56 This is not a determination of the tribe's general regulatory authority.57

The Effects of Being Approved for Treatment as a State

Although a tribe may have been approved for treatment as a state under a particular program, it must obtain a separate approval under each new program in which it seeks to function as a state. After an initial approval, however, a tribe generally need submit only that additional information unique to the additional program.58 Once a tribe meets the regulatory requirements and obtains approval for treatment as a state it will generally be treated in the same manner as a state.59 Thus, a tribal application for program responsibility will be subject to the same requirements as a state application. For example, before a tribe or a state can assume primary enforcement responsibility for drinking water, under existing regulations it must demonstrate legal "authority to compel compliance with [its] primary drinking water regulations."60

Simplifying the Process

EPA has recognized that its procedures for processing tribal grant and program applications are cumbersome. Reflecting this, it issued a memorandum in late 1992, directing that the application process be simplified and standardized.61 This memorandum provides that EPA will move toward the use of a one-step approval process, determining whether to approve a tribal program or grant application without the separate step of formally determining whether the tribe is eligible for treatment as a state. Further, the Agency will reduce the use of consultations with interested states and tribes regarding tribal jurisdiction;62 this process is often time-consuming and tribes may find it demeaning, since EPA generally does not seek the comments of tribes regarding state jurisdiction before approving an element of a state's program.63 EPA will implement those changes by developing new regulations, and by amending existing regulations.64

EPA's CERCLA Regulations

Under the NCP, which governs CERCLA cleanup processes, tribes ordinarily have the same roles and responsibilities as states.65 EPA's regulations provide that to be treated in the same manner as a state for certain purposes, a tribe must be federally recognized, have a governing body currently performing governmental functions either to promote [23 ELR 10584] public health, safety, and welfare or to protect the environment, and have jurisdiction over a Superfund site.66

EPA's regulations provide that the Agency will act to ensure meaningful tribal involvement in the cleanup process,67 and tribes may participate significantly in decisions regarding selection of cleanup alternatives.68 Also, reservation cleanups must be performed in compliance with tribal standards to the extent they would have to be performed in compliance with state standards if performed on nonreservation land.69 In addition, EPA and eligible tribes70 may enter into a wide range of cooperative agreements under which tribes receive financial assistance and participate in various types of response activities, as either the lead or support agency.71 Tribes may also enter into core program cooperative agreements to receive financial assistance in developing the general ability to participate in the response process.72

Grant Programs Not Requiring Treatment as a State

Under all four statutes authorizing treatment as a state, EPA administers grant programs for which tribal groups not treated as states appear to be eligible.73 Tribes can assume a role under, or benefit from, those provisions without receiving treatment as a state.

In addition, the Indian Environmental General Assistance Program Act of 199274 authorizes EPA to provide general assistance grants to federally recognized Indian tribal governments to build environmental capacity without any requirement to treat recipient tribes as states.75 Indeed, grants of this type are not available to states.

Acts Not Expressly Authorizing Treatment of Tribes as States

RCRA

The Resource Conservation and Recovery Act (RCRA)76 refers to Indian tribes only once when it defines "municipality" to include Indian tribal governments.77 The Act provides no explicit provision authorizing EPA to treat tribes as states.78 Nonetheless, the Agency has decided to issue rules that permit eligible Indian tribes to administer RCRA subtitle C and D hazardous and solid waste programs79 in the same manner as states.

FIFRA

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)80 authorizes EPA to enter into cooperative agreements with Indian tribes delegating to them the authority to cooperate in enforcement actions, and develop and administer pesticide applicator training and certification programs.81 This is the sole reference to tribes in FIFRA.82

EPA's regulations under FIFRA govern EPA's approval of tribal requests for pesticide applicator certification programs.83 [23 ELR 10585] Under these regulations, EPA has authorized the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota to certify applicators of restricted use pesticides.84

TSCA

The Toxic Substances Control Act (TSCA)85 does not mention tribes directly. However, it does allow tribes to assume a local regulatory role. Tribes that run their own schools are treated as local education authorities, and assume responsibility to inspect their schools for asbestos and develop plans for managing asbestos problems.86

Other Statutes

The Emergency Planning and Community Right-To-Know Act (EPCRA),87 which created new rights for local governments and members of the public to obtain information on potential hazardous substance threats in their neighborhoods, does not mention Indian tribes. Nevertheless, EPA concluded that the purposes of EPCRA were best served by providing a tribal role, comparable to the role a state assumes, in planning and gathering information. EPA used its authority to fill statutory gaps to define this role, which tribes may assume on a reservation-wide basis.88

EPA has also solicited applications from tribes for grants under the Pollution Prevention Act.89 The Act authorizes grants to states for technical assistance programs,90 but does not mention Indian tribes.91

Legal Issues

Jurisdictional Analysis

Inherent Tribal Authority. A key issue in defining and implementing a tribal role in reservation management is the extent and nature of tribal jurisdiction over environmental activities on reservations. Tribes almost invariably have such jurisdiction over lands owned by the tribe or held in trust for the tribe by the United States.92 In a few specific cases, however, EPA has recognized state authority on tribal lands where federal statutes so provide.93

Jurisdiction is more complex with regard to lands located within reservation boundaries that are owned in fee by non-Indians. Thus, in the controversial and divided decision of Brendale v. Confederated Tribes and Bands of the Yakima Nation,94 the U.S. Supreme Court found that such jurisdiction often depends on the facts in a particular case. In Brendale, the Court ruled that a tribe had authority to zone fee lands located in an area of its reservation heavily populated by Indian tribal members, but that the state had zoning authority over fee lands on a part of the reservation in the suburbs of Yakima, Washington, where there was substantial non-Indian land ownership.

In developing regulations for water quality standards on reservations under the CWA, EPA addressed the question of tribal authority over environmental activities on reservation fee lands. The Agency read Brendale narrowly, finding primary significance in its result,95 which was to apply the rule announced in the earlier case of Montana v. United States.96 The Court has consistently stated that "[a] tribe may … retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."97 EPA found some ambiguity in how significant or direct the effect from non-Indian conduct must be to support jurisdiction under this test, and decided "as an interim operating rule, [to] require a showing that the potential impacts of regulated activities on the tribe are serious and substantial" before authorizing a tribal program.98 EPA adopted this standard "solely as a matter of prudence in light of judicial uncertainty" as to the precise formulation courts should employ.99

In applying its jurisdictional test, EPA will conduct a fact-specific analysis, but one that also recognizes that activities relating to water quality standards generally have [23 ELR 10586] serious and substantial impacts on human health and welfare.100 EPA also has recognized that congressional enactment of a federal statute reflects a belief that the regulated activities are important.101 Finally, the fact that Congress has specifically authorized treatment of tribes as states with regard to regulation of particular activities effectively expresses a preference for tribal regulation of those activities.102

These factors, however, do not preclude the possibility that, under some unusual fact patterns, states may be able to demonstrate authority over some reservation fee lands. Indeed, a number of EPA's regulations recognize, at least implicitly, the possibility that a state may attempt to establish regulatory authority on Indian lands.103 EPA has also expressly recognized that, in some cases, tribes may be unable to demonstrate jurisdiction on some reservation lands; in such cases, the Agency will limit its approval of the tribal program to those areas for which the tribe does have jurisdiction.104

Delegated Authority. Congress has broad authority over tribal affairs and may, by statute, delegate federal authority to a tribe.105 Such a delegation could provide a federal statutory source of tribal authority, at least partially independent of the tribe's inherent authority.106 EPA has recognized that construing the CWA as a delegation would support tribal authority over all water resources within the exterior boundaries of a reservation, regardless of whether the tribe's inherent authority covered the resources.107

The Clean Water Act

EPA analyzed the language and legislative history of the CWA to determine whether to treat the Act as a delegation of authority. The Agency recognized that language in Brendale108 could be construed as characterizing the Indian provisions of the CWA as an express delegation of federal authority.109 EPA declined to rely on this language, however, noting that it was offered in dicta, was not adopted by a majority of the Court, and did not discuss the confusing legislative history of the Indian provisions of the CWA.110

The Agency's own analysis led it to conclude that the language and the legislative history were ambiguous and inconclusive regarding any congressional intent to delegate authority. EPA also expressed the view that "if Congress had intended to make a change as important as an expansion of Indian authority to regulate nonmembers, it probably would have done so through statutory language and discussed the change in the committee reports."111 Accordingly, the Agency declined to construe the CWA as a delegation.112 EPA likewise has not implemented the SDWA as a delegation.113

[23 ELR 10587]

The Clean Air Act

EPA has not yet published regulations for implementing the Indian provisions of the CAA. Accordingly, it has neither announced its views on jurisdiction under that Act nor determined whether to construe the Act as a delegation. Based on the tests EPA used in analyzing the CWA, however, it appears that the CAA could be construed as delegating to approved tribes authority over all air resources within reservation boundaries.

The language of the CAA, which is similar to that of the CWA, authorizes a tribe to regulate "air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction."114 However, the CAA also includes two additional provisions that expressly recognize tribal authority over all areas within the exterior boundaries of the reservation. One provides that approved tribal implementation plans are "applicable to all areas … located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent."115 The other provides that "[l]ands within the exterior boundaries of reservations … may be redesignated [with regard to the prevention of significant deterioration of air quality] only by the appropriate Indian governing body."116 The legislative history of the CAA also contains language that appears to reflect Congress' intent to effect a statutory delegation of authority.117

Tribal Liability Under CERCLA

Although tribal participation in CERCLA response activities is well defined by statute and regulation, the extent to which a tribe may be liable for the cost of responding to a release under CERCLA is not. CERCLA imposes liability for response costs on any "person" who plays a specified role with regard to a release.118 CERCLA's definition of "person"119 does not include an "Indian tribe," although that term is, as noted above, expressly defined.120 Further, CERCLA does not expressly provide that tribes may be treated as states for purposes of imposing liability.121 Indeed, CERCLA provision on liability mentions tribes in four separate provisions, all of which describe liability to tribes, rather than the liability of tribes.122 Two provisions of CERCLA suggest that the statute's silence as to tribal liability reflects congressional intent that tribes not be liable for response costs. First, although CERCLA § 107(a)(4)(A) recognizes that tribes, as well as states, will carry out emergency response actions,123 it includes a provision expressly limiting liability arising from such actions, but extends that limitation only to states and local governments, without mentioning tribes.124 The omission of tribes from this provision appears to be predicated on the assumption that tribes are generally not subject to liability; accordingly they would have no need for the specific protection of this limitation. Otherwise, subjecting tribes to such liability could conflict with the apparent policy goal of this provision, to encourage emergency response activities by alleviating fears of liability arising from such actions. Moreover, the four specific references to tribes elsewhere in § 107 suggest that the omission of tribes from this provision was probably not a drafting oversight.

Second, CERCLA generally requires that a state pay 10 percent of remedial action costs for cleanups within the state.125 Where a facility was operated by a state or a political subdivision, a state must pay 50 percent of all response costs;126 response costs are broader than costs of remedial action, covering both remedial and removal costs.127 Under [23 ELR 10588] this provision, a state may also be required to pay a sum greater than 50 percent, as "appropriate, taking into account the degree of responsibility of the State or political subdivision for the release."128 This provision does not require a tribe to pay any share of any response cost, regardless of the tribe's responsibility for the release. This seems most consistent with a congressional assumption that tribes, regardless of their responsibility for releases, are not required to help pay for cleanups.

There could also be some practical difficulties with attempting to subject tribes to liability. CERCLA imposes liability through cost recovery litigation.129 However, "[s]uits against Indian tribes are … barred by sovereign immunity absent a clear waiver [of that immunity] by the tribe or congressional abrogation."130 Although this may not preclude the federal government from maintaining an action against a tribe,131 CERCLA's silence as to tribal liability, to the extent it cannot be characterized as a "clear waiver" of tribal immunity, may preclude any nonfederal party from initiating an action asserting tribal liability. At best this could create the apparent anomaly that a tribe might be liable if named by the United States, but insulated by sovereign immunity when named by a third party.

Finally, as a general principle of statutory construction, statutes are to be construed liberally in favor of tribes, with ambiguous provisions interpreted in their favor.132 Moreover, statutes are to be construed in ways that promote tribal self-government.133 On the basis of these constructs, the CERCLA Indian provisions discussed above appear to relate to tribes and are ambiguous as to tribal liability.

EPA's Indian Policy

EPA's implementation of its various statutory authorities on Indian land is governed by the Agency's 1984 Indian Policy.134 The thrust of the Policy is to encourage tribal self-determination and to "work directly with Indian Tribal Governments on a one-to-one basis (the 'Government-to-Government' relationship)."135 It also "recognizes Tribal Governments as sovereign entities with primary authority and responsibility for the reservation populace."136 It commits EPA to "encourage and assist tribes in assuming regulatory and program management responsibilities for reservation lands."137

Conclusion

The environmental statutes that authorize EPA to treat tribes as states effectively ratify the approach EPA adopted in its 1984 Indian Policy. Indeed, if tribes are to remain self-governing, the only viable approach to reservation management is one that, like the Indian Policy and the statutes, looks to tribes to fill the same role for reservations that states fill elsewhere.

1. The sovereignty of Indian tribes is well-established both in federal statutes and common law, and is at the heart of modern Indian law. Yet, it is well-established in case law that Indian tribes are subject to the U.S. Constitution and Congress' comprehensive system of laws established to regulate Indian affairs. See Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573-74, 591-92 (1823) (doctrine of discovery through which United States obtained title to land); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17-18 (1831) (tribes are domestic dependent nations); Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903) (tribal lands transferred into allotments; treaty abrogated). It is also well-established that federal laws also apply to Indians and to Indian lands. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

2. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 1-110. Pub. L. No. 95-217, § 2, 91 Stat. 1566 (1977) states that "[t]his Act may be cited as the 'Federal Water Pollution Control Act' (commonly referred to as the Clean Water Act)." The 1972 amendments, Pub. L. No. 92-500, 86 Stat. 816, so thoroughly changed the federal law of water pollution control that the post-1972 FWPCA simply came to be known as the Clean Water Act. For ease of reference and to avoid confusion, this Article will refer to the statute in its current form as the Clean Water Act (CWA).

3. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA 001-024 (also known as the Public Health Service Act, Title XIV).

4. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 1-194.

5. The CWA directs EPA "in consultation with Indian tribes, [to] promulgate final regulations which specify how Indian tribes shall be treated as States" under the Act. CWA § 518(e), 33 U.S.C. § 1377(e), ELR STAT. FWPCA 106. The SDWA and the CAA both direct EPA to issue regulations "specifying those provisions of [the respective Acts] for which it is appropriate to treat Indian tribes as States." SDWA § 1451(b)(1), 42 U.S.C. § 300j-11(b)(1), ELR STAT. SDWA 021; CAA § 301(d)(2), 42 U.S.C. § 7601(d)(2), ELR STAT. CAA 141.

6. CWA § 518(h)(2), 33 U.S.C. § 1377(h)(2), ELR STAT. FWPCA 107 (defining "tribe" as entity "recognized" by the secretary of the Interior); SDWA § 1401(14), 42 U.S.C. § 300f(14), ELR STAT. SDWA 002 (definition of tribe as entity with federally recognized governing body) and SDWA § 1451(b)(1)(A), § 300j-11(b)(1)(A), ELR STAT. SDWA 021 (identifying recognition as prerequisite to eligibility for treatment as state); and CAA § 302(r), 42 U.S.C. § 7602(r), ELR STAT. CAA 142 (definition of "tribe" as federally recognized entity).

7. CWA § 518(e)(1), 33 U.S.C. § 1377(e)(1), ELR STAT. FWPCA 106; SDWA § 1451(b)(1)(A), 42 U.S.C. § 300j-11(b)(1)(A), ELR STAT. SDWA 021; and CAA § 301(d)(2)(A), 42 U.S.C. § 7601(d)(2)(A), ELR STAT. CAA 141.

8. CWA § 518(e)(2), 33 U.S.C. § 1377(e)(2), ELR STAT. FWPCA 106 (requirement that tribe be proposing to manage water resources within the borders of a reservation); SDWA § 1451(b)(1)(B), 42 U.S.C. § 300j-11(b)(1)(B), ELR STAT. SDWA 021 (requirement that functions which tribe proposes to exercise must be within area of tribal government's jurisdiction); and CAA § 301(d)(2)(B), 42 U.S.C. § 7601(d)(2)(B), ELR STAT. CAA 141 (requirement that tribe be proposing to manage air resources within the borders of a reservation or in other areas within tribe's jurisdiction).

9. CWA § 518(e)(3), 33 U.S.C. § 1377(e)(3), ELR STAT. FWPCA 106; SDWA § 1451(b)(1)(C), 42 U.S.C. § 300j-11(b)(1)(C), ELR STAT. SDWA 021; and CAA § 301(d)(2)(C), 42 U.S.C. § 7601(d)(2)(C), ELR STAT. CAA 141.

10. CAA § 301(d)(4) is the most explicit in recognizing potential federal program implementation. It provides that "[i]n any case in which [EPA] determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, [EPA] may provide, by regulation, other means by which [EPA] will directly administer such provisions so as to achieve the appropriate purpose." 42 U.S.C. § 7601(d)(4), ELR STAT. CAA 141. Similarly, SDWA§ 1451(b)(2) provides that for any provision for which it is not appropriate to treat tribes identically to states, regulations may provide "other means for administering such provision in a manner that will achieve the purposes of [the] provision." 42 U.S.C. § 300j-11(b)(2), ELR STAT. SDWA 021. CWA § 518(e) addresses direct implementation only by authorizing treatment of tribes as states "to the degree necessary to carry out the objectives" of the Act. 33 U.S.C. § 1377(e), ELR STAT. FWPCA 106.

11. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 1-61.

12. CWA § 518(d) also provides for states and tribes to enter cooperative agreements, subject to EPA's approval, for jointly planning and administering the provisions of the Act. 33 U.S.C. § 1377(d), ELR STAT. FWPCA 106.

13. CWA § 518(h)(2) defines a "tribe" as an entity with a "reservation." 33 U.S.C. § 1377(h)(2), ELR STAT. FWPCA 107. It also defines a reservation to include "all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent." CWA § 518(h)(1), 33 U.S.C. § 1377(h)(1), ELR STAT. FWPCA 107. EPA has concluded that it will define the term "reservation" consistently with relevant statutes and case law. This means that trust lands formally set apart for the use of tribes may meet the CWA definition of "reservation" even where those lands have not been formally designated as reservations. 56 Fed. Reg. 64875, 64881 (1991), relying on Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S. Ct. 905, 910 (1991).

However, the CWA's definition apparently might not apply in Alaska. Pursuant to the Alaska Native Claims Settlement Act, with one exception, there are no reservations in Alaska. 43 U.S.C. § 1618(a). See CWA § 518(g), 33 U.S.C. § 1377(g), ELR STAT. FWPCA 107 (provision entitled "Alaska Native organizations," stating that the Act does not affect the governmental authority of Indian entities in Alaska or address whether Indian country exists in Alaska). See also CWA § 518(c), 33 U.S.C. § 1377(c), ELR STAT. FWPCA 107 (reserving funds for sewage treatment facilities to serve Indian tribes, and, in addition, former reservations in Oklahoma and Alaska Native villages).

The other environmental statutes vary in their treatment of entities in Alaska. SDWA § 1401(14) definition of "tribe" makes no reference to Alaska entities. 42 U.S.C. § 300f(14), ELR STAT. SDWA 002. The CAA defines "tribes" at § 302(r) to include Alaska Native villages, but is silent regarding Alaska corporations. 42 U.S.C. § 7602(r), ELR STAT. CAA 134. CERCLA § 101(36) defines "tribes" to include Alaska Native villages, but expressly excludes Alaska Native regional or village corporations. 42 U.S.C. § 9601(36), ELR STAT. CERCLA 9.

14. These grants may be provided for waste management treatment works under Title II of the Act, CWA §§ 201-219, 33 U.S.C. §§ 1281-1299, ELR STAT. FWPCA 32-49. See also CWA § 518(b), (c), and (e), 33 U.S.C. §§ 1377(b), (c), and (e), ELR STAT. FWPCA 106 (directing EPA and the Indian Health Service to assess the need for sewage treatment works to serve Indian tribes; setting aside share of total appropriation for development and construction of sewage treatment facilities for tribes, former reservations in Oklahoma, and Alaska Native Villages; and authorizing direct provision of funds reserved under subsection (c) to tribal governing bodies; respectively). Grants may also be provided for a research and training program (CWA § 104, 33 U.S.C. § 1254, ELR STAT. FWPCA 16-19) and for pollution control (CWA § 106, 33 U.S.C. § 1256, ELR STAT. FWPCA 21).

15. Under such a program, a tribe can be treated as a state for purposes of the establishment and operation of a water quality standards program, CWA § 303, 33 U.S.C. § 1313, ELR STAT. FWPCA 55-57; reporting, CWA § 305, 33 U.S.C. § 1315, ELR STAT. FWPCA 60; recordkeeping and inspection, CWA § 308, 33 U.S.C. § 1318, ELR STAT. FWPCA 63; and enforcement, CWA § 309, 33 U.S.C. § 1319, ELR STAT. FWPCA 63-65.

16. CWA § 314, 33 U.S.C. § 1324, ELR STAT. FWPCA 80-81.

17. CWA § 319, 33 U.S.C. § 1329, ELR STAT. FWPCA 82-86. See also CWA § 518(f), 33 U.S.C. § 1377(f), ELR STAT. FWPCA 107 (authorizing nonpoint source management grants to tribes as if they were states).

18. CWA § 401, 33 U.S.C. § 1341, ELR STAT. FWPCA 89-90.

19. CWA § 402, 33 U.S.C. § 1342, ELR STAT. FWPCA 90-92.

20. CWA § 404, 33 U.S.C. § 1344, ELR STAT. FWPCA 94-97.

21. The CWA formally disclaims any intent to affect existing state authority to allocate quantities of water in § 101(g), which also applies to existing tribal authority. See CWA § 518(a), 33 U.S.C. § 1377(a), ELR STAT. FWPCA 106 (express statement that Indian amendments to the CWA do not affect § 101(g), except to provide that tribes should be treated as states for purposes of this provision). As noted in the text, the Act also provides for states and tribes to enter cooperative agreements, subject to EPA's approval, for jointly planning and administering the provisions of the Act. CWA § 518(d), 33 U.S.C. § 1377(d), ELR STAT. FWPCA 106.

22. Thus, for example, EPA will treat tribes as states for purposes of administering a sewage sludge management program under CWA § 405, 33 U.S.C. § 1345, ELR STAT. FWPCA 97, a purpose that is not explicitly mentioned in the CWA. See 54 Fed. Reg. 18782 (1989).

23. § 1451(a), 42 U.S.C. § 300j-11(a), ELR STAT. SDWA 021.

24. SDWA § 1451(b)(2), 42 U.S.C. § 300j-11(b)(2), ELR STAT. SDWA 022.

25. EPA is currently authorized to make grants for support of air pollution planning and control programs to tribal agencies without treating the tribes as states. CAA §§ 105 and 302(b)(5), 42 U.S.C. §§ 7405, 7602(b)(5), ELR STAT. CAA 26, 142. CAA § 301(d)(5) authorizes EPA to continue awarding such grants in the absence of regulations. 42 U.S.C. § 7601(d)(5), ELR STAT. CAA 141. Tribes may not be treated as states for purposes of CWA § 105(b)(2), ensuring each state at least one-half of 1 percent of total money appropriated under that section.

26. CAA § 301(d)(1), 42 U.S.C. § 7601(d)(1), ELR STAT. CAA 141.

27. CAA § 110(o), 42 U.S.C. § 7410(o), ELR STAT. CAA 36.

28. CAA § 164(c), 42 U.S.C. § 7474(c), ELR STAT. CAA 76. EPA is responsible for resolving disputes between tribes and states arising from the actions of either with regard to redesignations or permits. CAA § 164(e), 42 U.S.C. § 7474(e), ELR STAT. CAA 76.

29. CERCLA is not primarily a regulatory program, but a cleanup program, which addresses how to respond to, or clean up, hazardous substances that have been released into the environment. See § 101(23), 42 U.S.C. § 9601(23), ELR STAT. CERCLA 8. CERCLA involves two types of cleanup action. Removals, as defined in § 101(23), are relatively short-term actions to control the threat from a release. 42 U.S.C. § 9601(23), ELR STAT. CERCLA 8. Remedial actions are actions consistent with a permanent remedy that are taken instead of, or in addition to, removals. CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. CERCLA 8. The term "response" encompasses both types of action. CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. CERCLA 8.

30. § 126, 42 U.S.C. § 9626, ELR STAT. CERCLA 47.

31. CERCLA § 101(36) defines a "tribe" as a federally recognized entity. 42 U.S.C. § 9601(36), ELR STAT. CERCLA 9. However, the statute does not establish formal prerequisites for treatment as a state (e.g., a government, jurisdiction, and capability). See §§ 101(36) and 126, 42 U.S.C. § 9601(36) and 9626, ELR STAT. CERCLA 9, 47.

32. In addition to authorizing treatment of tribes in a manner equivalent to that provided to states, § 126 also addresses the tribal role in other ways. Specifically, § 126(b) provides for a tribal role in any decision to relocate tribal members away from a contaminated site; § 126(c) mandates a study to determine the extent of hazardous wastes on Indian lands; and § 126(d) extends all applicable limitations periods as necessary to ensure that at least two years after the United States notifies a tribe that it will not commence an action on behalf of the tribe, for the tribe to commence an action on its own behalf.

33. § 103(a), 42 U.S.C. § 9603(a), ELR STAT. CERCLA 10.

34. § 104(c)(2), 42 U.S.C. § 9604(c)(2), ELR STAT. CERCLA 12.

35. § 104(e), 42 U.S.C. § 9604(e), ELR STAT. CERCLA 13.

36. § 104(i), 42 U.S.C.§ 9604(i), ELR STAT. CERCLA 15.

37. § 105, 42 U.S.C. § 9605, ELR STAT. CERCLA 18-20.

38. § 126(a), 42 U.S.C. § 9626(a), ELR STAT. CERCLA 061. Unlike states, however, tribes are not assured of having at least one site within their jurisdiction included on the national priorities list for remedial action.

39. But see CAA § 164(c) and (e), 42 U.S.C. § 7474(c) and (e), ELR STAT. CAA 47 (regarding prevention of significant deterioration that address the tribal role separate from provisions authorizing the treatment of tribes as states).

40. § 104(d), 42 U.S.C. § 9604(d), ELR STAT. CERCLA 13.

41. § 107(a)(4), 42 U.S.C. § 9607(a)(4), ELR STAT. CERCLA 21.

42. CERCLA §§ 107(f) and 111(b)(1) authorize tribes to act as trustees for tribal natural resources and to seek recovery for damages to such resources. 42 U.S.C. §§ 9607(f) and 9611(b)(1), ELR STAT. CERCLA 22, 27. The Act also precludes tribes from recovering costs or damages arising from application of registered pesticides, § 107(i), 42 U.S.C. § 9607(i), ELR STAT. CERCLA 22, and specifies that tribal recovery for costs or damages in connection with federally permitted releases must be pursuant to existing law, not CERCLA. § 107(j), 42 U.S.C. § 9607(j), ELR STAT. CERCLA 22.

43. These requirements involve payment of a share of the costs of remedial actions, assurance of future maintenance of a remedy, and assurance that a suitable facility is available for disposing of the wastes at the site. § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. CERCLA 12.

44. EPA has not developed Indian regulations under CERCLA, but instead has addressed the tribal role in two generally applicable regulations. See 40 C.F.R. pt. 35, subpt. O (Cooperative Agreements and Superfund State Contracts for Superfund Response Actions); 40 C.F.R. pt. 300 (National Oil and Hazardous Substances Pollution Contingency Plan (NCP)).

45. 40 C.F.R. pt. 131 (1992), 56 Fed. Reg. 64875-96 (1991).

46. 40 C.F.R. pts. 232 and 233 (1992), 58 Fed. Reg. 8171 (1993).

47. 40 C.F.R. pts. 35 and 130 (1992), 54 Fed. Reg. 14354-60 (1989).

48. 40 C.F.R. pts. 35, 124, and 141-46 (1992), 53 Fed. Reg. 37395-414 (1988).

49. 40 C.F.R. pts. 35, 124, and 141-46 (1992), 53 Fed. Reg. 37396-414 (1988) (the SDWA, the PWS, and UIC regulations); 40 C.F.R. pts. 35 and 150 (1992), 54 Fed. Reg. 14354-60 (1989) (the CWA grant regulations).

50. The SDWA, and the CWA Water Quality Standards (WQS) and § 404 regulations, require submission of a "statement that the tribe is recognized by the Secretary of the Interior." 40 C.F.R. §§ 131.8(b)(1) (WQS); 233.61(a) (§ 404); 142.76(a) (PWS); and 145.56(a) (UIC). The CWA grant regulation requires "documentation that [the Tribe] is recognized by the Secretary of the Interior." See 54 Fed. Reg. 14355 (1989). This can ordinarily be met by showing the applicant's inclusion on a list of federally recognized tribes published by the Interior Secretary. Id.

51. To meet the functioning government requirement, a tribe must submit a statement describing its government. Under the SDWA, the WQS, and § 404 regulations, a tribe must submit "[a] descriptive statement demonstrating that the tribal governing body is currently carrying out substantial governmental duties and powers over a defined area." 40 C.F.R. §§ 131.8(b)(2) (WQS); 233.61(b) (§ 404); 142.76(b) (PWS); and 145.56(b) (UIC). This statement must describe the form of the tribal government and the types of governmental functions it performs, and must identify the sources of its authorities to perform those functions. Id.

The CWA grant regulations require submission of a narrative statement describing the form, functions, and sources of authority (e.g., tribal constitutions, codes, etc.) of the tribal government. See 54 Fed. Reg. 14355 (1989). This language is from the preamble of the regulation, but there is no regulatory text specifically addressing this matter. EPA believes that it should be relatively easy for most tribes to make the required showing. 53 Fed. Reg. 37399 (1988) (SDWA); see also 54 Fed. Reg. 14355 (1989) (the CWA grants). The requirements in the CWA grant regulations were developed with the expressed intent to "minimize the burdens to a Tribe in demonstrating that it is carrying out substantial governmental duties and powers." Id.

52. Under the SDWA, the WQS, and § 404 regulations, a tribe must submit various documents to establish its jurisdiction. These required documents include: a map or legal description of the area over which the tribe has authority; a statement by a tribal legal official describing the basis, nature, and subject matter of the tribe's jurisdictional authority; a copy of all documents supporting the jurisdictional assertions (e.g., tribal constitutions, codes, bylaws, charters, etc.); and a description of the locations of the systems or sources the tribe proposes to regulate. 40 C.F.R. §§ 131.8(b)(3) (WQS); 233.61(c) (§ 404); 142.76(c) (PWS); and 145.56(c) (UIC).

The CWA grant regulations do not mandate the submission of any specific documents. However, the preamble to the regulation requires submission of "a statement signed by the Tribal Attorney General or an equivalent official explaining the legal basis for the Tribe's regulatory authority over its water resources." 54 Fed. Reg. 14355 (1989).

53. The SDWA, the WQS, and § 404 regulations require that a tribe submit a narrative statement describing tribal capability to administer an effective program. 40 C.F.R. §§ 131.8(b)(4) (WQS); 233.61(d) (§ 404); 142.76(d) (PWS); and 145.56(d) (UIC). All three regulations provide an expansive and detailed list of materials the tribe must provide in support of this statement. The narrative statement must include:

(1) a description of the tribe's previous management experience, including but not limited to its administration of programs authorized under certain specified statutes;

(2) a list of tribally administered environmental or public health programs, and copies of related tribal laws, policies, and regulations;

(3) a description of tribal procurement and accounting systems;

(4) a description of the entity or entities that exercise the tribe's executive, legislative, and judicial functions;

(5) a description of the existing or proposed tribal agency that will assume primary responsibility for the program, which addresses the relationships between owners and operators of regulated facilities and that agency; and

(6) a description of the technical and administrative capabilities of the staff to administer the program, or a plan describing how the tribe will acquire the needed capability and how it will fund that acquisition. 40 C.F.R. §§ 131.6(b)(4) (WQS), 233.61(d) (§ 404), 142.76(d) (PWS), and 145.56(d) (UIC).

The CWA grant regulations do not require a tribe to submit any particular materials in order to establish capability. See 54 Fed. Reg. 14356 (1989). However, the requirement in CWA § 106 that the tribe have injunctive relief-type authority comparable to that in CWA § 504, is relevant to the capability requirement for treatment as a state, although it is identified as a grant limitation in both the regulation and the preamble. See 40 C.F.R. § 35.260 (1992), 54 Fed. Reg. 14357 (1989).

Moreover, EPA's regulations governing approval of state grant or program applications will apply to tribes. These regulations are designed to preclude the awarding of a grant or the approval of a program for which the state lacks capability. See, e.g., 40 C.F.R. pt. 31 (grant regulations applicable to states).

54. 56 Fed. Reg. 64084 (1991) (the WQS preamble stating that "EPA defines the phrase 'governmental entities' as States, Tribes, and other Federal entities located contiguous to the reservation of the Tribe which is applying for treatment as a State.").

55. 53 Fed. Reg. 37400 (1988); 54 Fed. Reg. 14355 (1989); 40 C.F.R. §§ 131.8(c)(2) and 233.62(c) (1992).

56. The CWA grant regulations provide that EPA may determine that a tribe does not have jurisdiction over some of the water resources covered in its application, and may approve the application for those resources for which the tribe does have jurisdiction. 54 Fed. Reg. 14355 (1989). EPA also has indicated it will follow this approach for the WQS (54 Fed. Reg. 39097, 39102 (1989)) (proposing WQS regulation), and § 404 (58 Fed. Reg. 8171, 8176 (1993)).

57. 53 Fed. Reg. 37402 (the SDWA regulations).

58. 40 C.F.R. §§ 131.8(b)(6); 233.61(f); 142.76(f), 145.56(f)(1992). See 54 Fed. Reg. 14356 (1989).

59. See, e.g., 53 Fed. Reg. 37403 (1988) (the SDWA preamble). See also 54 Fed. Reg. 39103-04 (1989) (the WQS proposal discussing ways in which tribes are subject to the same requirements as states). Tribes are typically treated differently than states with regard to such matters as grant match requirements, developmental grant time frames, and primary enforcement responsibility requirements. See, e.g., 53 Fed. Reg. 37403 (1988).

60. 40 C.F.R. § 142.10(b)(6)(1992). See generally 40 C.F.R. §§ 142.10-11 (PWS); 145.21-25, 145.31 (UIC). See also discussion of effects of treatment as state approval in EPA Brief in South Dakota v. EPA, No. 89-2772 (8th Cir. Mar. 19, 1990) at 7-8, 13-19 (state petition for review of EPA's decision to approve Standing Rock Sioux Tribe for treatment as state as to public water system program under the SDWA).

61. Memorandum from F. Henry Habicht II, Deputy Administrator, U.S. Environmental Protection Agency, to Assistant, Associate, and Regional Administrators, General Counsel, and Inspector General, Simplification of EPA's Process for Treating Indian Tribes as States (Nov. 10, 1992) [hereinafter TREATMENT MEMO].

62. Specifically, EPA will no longer solicit comments regarding tribal jurisdiction with regard to tribal grant applications: "The Agency now has experience awarding grants to more than a hundred tribes, and is fully capable of evaluating tribal applications to ensure that the tribe has adequate jurisdiction to receive a grant." TREATMENT MEMO supra note 61, at 2-3.

In addition, where the existing process for reviewing state or tribal applications for program approval involves a searching inquiry into jurisdictional authority, a separate review, for purposes of determining tribal eligibility for "treatment as a state," is duplicative. EPA will identify those programs for which such reviews are duplicative and eliminate them. Under the revised approach, however, no tribe will "receive program approval until the Agency has received full and adequate input concerning the scope and extent of the tribe's jurisdiction and program and administrative capabilities." Id. at 3.

63. See, e.g., 56 Fed. Reg. 64884 (1991) (describing comments on the WQS proposal to this effect).

64. See TREATMENT MEMO supra note 61. EPA could also adopt identical procedures for all programs, rather than having two separate, but similar, processes. Id. Compare 40 C.F.R. §§ 131.6, 233.62(c), 142.78, 145.58 (the CWA, the WQS, and the SDWA regulations providing 30 days for states to comment on tribal jurisdiction) with 40 C.F.R. § 130.15 (the CWA grant regulations giving 15 days).

These changes seem legally defensible. The applicable statutes do not compel the adoption of a two-step approval process, consultation with states regarding tribal jurisdiction, or consultation with the Department of the Interior before resolving a disagreement as to jurisdiction.

65. 40 C.F.R. § 300.5 (1992) (defining "state" to include Indian tribes "except where specifically noted" to the contrary). Tribes are also treated as states for purposes of assurances regarding property acquisition. See CERCLA § 104(j)(2), 42 U.S.C. § 9604(j)(2), ELR STAT. CERCLA 18. Thus, before EPA acquires an interest in real property on a reservation to conduct a remedial action, the tribe must assure, to the extent of its authority, that it will accept transfer of that interest on or before completion of the remedial action. 40 C.F.R. §§ 300.510(f) and 300.6110(b)(2) (1992). The Agency has not yet "address[ed] whether tribes are states for purposes" of the state obligation under CERCLA § 104(c)(9), which requires an assurance of the existence of adequate capacity to process hazardous waste expected to be generated in a state in the next 20 years. 40 C.F.R. § 300.510(e)(2) (1992).

66. 40 C.F.R. § 300.515(b) (1992). A tribe must meet these requirements to be treated in the same manner as a state for purposes of CERCLA § 104, which is not included in the list of purposes for which § 126 expressly authorizes that tribes may be treated as states. Because these requirements are imposed by regulation, not by statute, a tribe need not undergo any formal prequalification process or qualify for "treatment as a state" so long as it meets those requirements.

67. This will apply whether the cleanup is conducted by a governmental entity or the person responsible for the site. 40 C.F.R. § 300.500(a) (1992).

68. A tribe will be given the opportunity to review site documents, consult with EPA at least annually, concur in various decisions relating to the response process, and be formally involved in the selection of the cleanup. 40 C.F.R. §§ 300.515(c), (d), (e), (h), and 300.525 (1992).

69. Specifically, CERCLA response actions must attain (or waive) legally applicable, or relevant and appropriate requirements (ARARs) of tribal law that are promulgated, more stringent than federal requirements, and identified in a timely manner. See § 121(d), 42 U.S.C. § 9621(d), ELR STAT. CERCLA 41. A key element in the EPA-tribal partnership will be the communication of potential ARARs and other pertinent advisories, criteria, or guidance to be considered in selection of the remedy. 40 C.F.R. §§ 300.515(d) and 300.525 (1992). Tribes have the opportunity to comment on proposals to waive ARARs. 40 C.F.R. §§ 300.515(e) and 300.525 (1992).

70. To be eligible to enter these agreements, a tribe must be federally recognized and meet the criteria established in 40 C.F.R. § 300.515(b). 40 C.F.R. § 35.6010 (1992).

71. Such agreements include preremedial response cooperative agreements, 40 C.F.R. § 35.6050-70, remedial response cooperative agreements, 40 C.F.R. § 35.6100-20, enforcement cooperative agreements, 40 C.F.R. § 35.6145-55, and removal response cooperative agreements, 40 C.F.R. § 35.6200-05.

72. 40 C.F.R. § 35.6240-55 (1992).

73. See, e.g., SDWA § 1442(b)(3), 42 U.S.C. § 300j-1(b)(3), ELR STAT. SDWA 015 (authorizing grants to "any organization."); CWA § 104, 33 U.S.C. § 1254, ELR STAT. FWPCA16-19 (authorizing grants to wide range of entities, including "institutions, organizations, and individuals"); CAA §§ 103(b)(3), 105, and 302(b)(5), 42 U.S.C. §§ 7403(b)(3), 7405, and 7602(b)(5), ELR STAT. CAA 21, 26, and 142 (authorizing grants to air pollution control agencies, defining agency of tribe as pollution control agency); CERCLA § 311(b)(3), 42 U.S.C. § 9660(b)(3), ELR STAT. CERCLA 55 (authorizing grants for development and demonstration of alternative or innovative cleanup technologies to variety of entities). See also RCRA § 8001, 42 U.S.C. § 6981, ELR STAT. RCRA 60 (authorizing grants to broad range of entities for research, demonstrations, training, activities).

74. Pub. L. No. 102-497 (codified at 42 U.S.C.A. § 4368b (Supp. 1993).

75. This authority is very similar to that which Congress provided to EPA in appropriations acts, beginning with fiscal year (FY) 1991, to make grants to tribes for the development of multimedia environmental programs. See, e.g., Pub. L. No. 191-507 (FY 1991 Appropriations Act authorizing EPA Administrator "to make grants to 'Federally recognized Indian tribes' on such terms and conditions as he deems appropriate for the development of multi-media environmental programs.")

76. 42 U.S.C. §§ 6901-6991i, ELR STAT. RCRA 1-78. Originally the Solid Waste Disposal Act, Congress amended it in 1976 with the Resource Conservation and Recovery Act.

77. § 1004(13), 42 U.S.C. § 6903(13), ELR STAT. RCRA 13.

78. But see Memorandum from Bertram Frey, Regional Counsel, U.S. Environmental Protection Agency Region 5, to Valdas Adamkas, Regional Administrator, U.S. Environmental Protection Agency Region 5, Legal Opinion Regarding Delegation of Partial RCRA Program to Menominee Indian Tribe of Wisconsin (Nov. 3, 1989) (concluding that EPA has legal authority to delegate program to tribe).

79. §§ 3006 and 4007, 42 U.S.C. §§ 6926 and 6947, ELR STAT. RCRA 32-33, 47.

80. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 001-034.

81. § 23, 7 U.S.C. § 136u, ELR STAT. FIFRA 030.

82. Further, Indian tribes have not been carrying out other activities that FIFRA authorizes states to carry out, such as issuing special local need registrations.

83. Ordinarily, a tribe has the option of adopting a tribal certification plan or using a plan previously adopted by the state in which the reservation is located. 40 C.F.R. § 171.10(a) (1992). Where a tribe does not adopt either option, EPA will implement a plan for federal certification of applicators or restricted use pesticides. Id. The regulations describe the types of persons subject to the rules; applicable standards; recordkeeping requirements; recognition of other certificates; procedures for denial, suspension, modification, or revocation of certificates; and pesticide dealer requirements. Id.

84. 51 Fed. Reg. 43662 (1986); Proposal at 50 Fed. Reg. 31011 (1985), and Supplemental Notice of Intent at 51 Fed. Reg. 22860-61 (1986). This was the first formal authorization of a tribe to operate a program under an EPA statute. Until the December 1991 promulgation of the WQS regulations (56 Fed. Reg. 64875 (1991)) the FIFRA regulations were the only regulations under which EPA had authorized a tribe to operate a federal program.

85. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 001-056.

86. See § 202(7), 15 U.S.C. § 2642(7), ELR STAT. TSCA 046.

87. Superfund Amendments and Reauthorization Act, Title III, Pub. L. 99-499, 100 Stat. 1613 (1986), 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 1-16.

88. "EPA believes that in the absence of clear legislative intent on who should implement the statute on Indian lands, EPA has the discretion to designate the Indian Tribes as the implementing authority." 55 Fed. Reg. 30641 (1990) (implementation of Title III by Indian Tribes on Indian lands). EPA previously described its reasoning as follows:

The requirements of an effective Title III program indicate that Congress intended that only one governing authority implement the program within a given area. Implementation of Title III by more than one governing authority would be unwieldy and contrary to the dictates of local emergency response planning…. In summary, because Congress envisioned effective and comprehensive emergency response planning under Title III it is reasonable to interpret the statute … as contemplating only one governing authority implementing the Act within a single geographic area.

54 Fed. Reg. 12992, 13001 (1989).

89. 42 U.S.C. §§ 13101-13109.

90. Id. § 13104.

91. See 56 Fed. Reg. 11553, 11554 (1991) (announcing availability of grants to states and tribes).

92. Tribes have broad authority on such lands, including the power "to exclude persons whom they deem to be undesirable" from entry. Duro v. Reina, 110 S. Ct. 2053, 2065 (1990).

93. See, e.g., 40 C.F.R. § 147.1851 (1992) (state of Oklahoma administers Class II wells on lands of some Oklahoma tribes under the UIC program).

94. 492 U.S. 408 (1989).

95. 56 Fed. Reg. 64877-78 (1991).

96. 450 U.S. 544 (1981).

97. South Dakota v. Bourland, 61 U.S.L.W. 4632, 4637, 23 ELR 20972, 20976 (U.S. June 14, 1993), quoting Montana v. United States, 450 U.S. 544, 566 (1981); also quoted in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 428-29, (White, J.), 457 (Blackmun, J.).

98. 56 Fed. Reg. 64878 (1991).

99. Id.

100. See 56 Fed. Reg. 64878; 58 Fed. Reg. 8174.

101. See, e.g., id. ("Congressional enactment of the Clean Water Act establishes a strong Congressional interest in effective management of water quality.").

102. Id. EPA's analysis of inherent tribal sovereignty in the WQS regulations does not appear to differ substantially from the less detailed position it announced nearly two years earlier in its brief filed in South Dakota v. EPA, supra note 60, at 29-30, 34-40.

In the WQS regulation, EPA expressed its awareness of the political cross-currents that often revolve around issues of tribal and state jurisdiction:

The Agency recognizes that jurisdictional disputes between tribes and states can be complex and difficult and that it will, in some circumstances, be forced to address such disputes. However, EPA's ultimate responsibility is protection of the environment. In view of the mobility of environmental problems and the interdependence of various jurisdictions, it is imperative that all affected sovereigns work cooperatively for environmental protection, rather than engage in confrontations over jurisdiction.

56 Fed. Reg. 64879 (1991).

103. See 40 C.F.R. §§ 123.23(b) (requirement that state seeking an NPDES program approval under the CWA to cover Indian lands must submit statement analyzing legal basis for state's authority); 145.24(b) (when state submission for approval of the SDWA UIC program "seeks authority over activities on Indian lands, the [state submission] shall contain an appropriate analysis of the State's authority."). See also 40 C.F.R. §§ 142.3(b)(2) and .10(b)(6)(i) (specifying that a state can obtain program approval without showing authority over "[p]ublic water systems on Indian lands with respect to which the State does not have the necessary jurisdiction or its jurisdiction is in question."); 271.1(h) (state can obtain approval of RCRA hazardous waste program without obtaining authority on Indian lands and "EPA will administer the program on Indian lands if the State does not seek [such] authority"); and 281.21(a)(4) (requiring state seeking approval of underground storage tank program under RCRA to declare whether "the state has any existing authority over Indian lands").

104. See 53 Fed. Reg. 37395, 37402 (1988) (SDWA); 54 Fed. Reg. 14353, 14355 (1989) (CWA Grants); 54 Fed. Reg. 39097, 39102 (1989) (WQSs); 58 Fed. Reg. 8171, 8176 (1993) (CWA § 404).

105. United States v. Mazurie, 419 U.S. 544, 557 (1975). See also Brendale, supra note 94 (White, J., for four justice plurality identifying CWA §§ 518(e) and 518(h)(1) as delegating to tribes the authority over entire reservations).

106. See 56 Fed. Reg. 64880 (1991).

107. 54 Fed. Reg. 64879-81 (1989).

108. The Brendale Court reasoned that:

There is no contention here that Congress has expressly delegated to the Yakima Nation the power to zone fee lands of nonmembers of the Tribe. Compare 18 U.S.C. §§ 1151, 1161 (1982 ed, and Supp V) [18 U.S.C. §§ 1151, 1161]; 33 U.S.C. § 1377(e) and (h)(1) (1982 ed, Supp V) [33 U.S.C. § 1377(e) and (h)(1)]. Therefore under the general principle enunciated in Montana, the Yakima Nation has no authority to impose its zoning ordinance [on the fee lands in question].

Brendale, supra note 94, at 428.

The first statutory provision the Court cites as a delegation involves liquor regulation, and was found to be a delegation in United States v. Mazurie, 419 U.S. 544 (1975). The second provision is from CWA § 1377(e), which provides that a tribe may be treated as a state for functions that "pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation." CWA § 1377(h)(1) defines a reservation as "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation."

109. 56 Fed. Reg. 64880 (1991).

110. Id.

111. Id.

112. See, e.g., 54 Fed. Reg. 39101 (1989) (the WQS proposal stating that "Clean Water Act authorizes use of existing tribal authority … but it does not grant additional authority to Tribes.").

113. See 52 Fed. Reg. 28111, 28113 (1987) (proposal for the SDWA Indian regulations, stating that tribe must have its own authorities to operate the program: "EPA does not delegate its own authority. Nothing in this proposal is intended to alter any pre-existing authority or immunity any Indian tribe may have by way of third parties.").

114. § 301(d)(2)(B), 42 U.S.C. § 7601(d)(2)(B), ELR STAT. CAA 133.

115. § 110(o), 42 U.S.C. § 7410(o), ELR STAT. CAA 36 (emphasis added).

116. § 164(c), 42 U.S.C. § 7474(c), ELR STAT. CAA 76 (emphasis added). This provision has been part of the Act since 1977 and was not added to the Act by the 1990 Amendments.

117. The report of the Senate Committee on Environment and Public Works on the CAA amendments characterizes proposed amendatory language as expressly delegating to tribes the power to administer and enforce the CAA on Indian lands:

These amendments are intended to provide Indian tribes the same opportunity to assume primary planning, implementation and enforcement responsibilities for programs under the Act as they are presently accorded under the Safe Drinking Water Act and Clean Water Act. Subsection 328(a) [containing language identical to that in the SDWA] authorizes the Administrator to treat Indian tribes as States and to provide grant and contract assistance to tribes to carry out functions provided by the Act. Thus, new section 328(a) of the Act constitutes an express delegation of power to Indian tribes to administer and enforce the Clean Air Act in Indian lands, as Indian tribes were delegated the power to administer and enforce the Safe Drinking Water Act and Clean Water Act. See Brendale v. Confederated Yakima Indian Nation [sic], U.S. 109 S. Ct. 2994, 3006-07 (1989) (emphasis added).

This statement was offered at the time the CAA was being developed. It was offered several years after the enactment of the relevant provisions of the Water Acts, and its relevance to a proper construction of those Acts is accordingly limited. See Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 365, 19 ELR 21398, 21402 (D.C. Cir. 1989).

The report does not expressly address whether tribes would have delegated authority over all sources within reservation boundaries. At least arguably, however, the report could be read to reflect an intent to provide tribes with full authority over all reservation sources, including those that might not fall within the tribe's inherent authority.

Finally, this language was offered to describe the Senate CAA amendments, which were not enacted, but contained jurisdictional language authorizing a tribe to exercise regulatory functions "within the area of the tribal government's jurisdiction." S. 1630, § 113, p. 165, 101st Cong., 2d Sess., Apr. 3, 1990, printed as passed legislative day Jan. 23, 1990. Cf. SDWA § 1451(b)(1)(B), 42 U.S.C. § 300j-11(b)(1)(B), ELR STAT. SDWA 021 (identical language in the SDWA). The actual CAA language Congress adopted, similar to that in the CWA, would, if anything, support a characterization as a delegation of authority over all sources within reservation boundaries more readily than the language to which the report refers.

118. § 107(a)(2)-(4), 42 U.S.C. §§ 9607(a)(2)-(4), ELR STAT. CERCLA 20-21. CERCLA § 107(a)(1) also imposes liability on "the owner and operator of a … facility," 42 U.S.C. § 9607(a)(1), ELR STAT. CERCLA 20. It further defines an "owner or operator" as a "person." § 101(20)(A), 42 U.S.C. § 9601(20)(A), ELR STAT CERCLA 8.

119. CERCLA § 101(21) defines a person as an "individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or an interstate body." 42 U.S.C. § 9601(21), ELR STAT. CERCLA 8.

120. § 101(36), 42 U.S.C. § 9601(36), ELR STAT. CERCLA 9.

121. § 126, 42 U.S.C. § 9626, ELR STAT. CERCLA 47.

122. § 107(a)(4)(A), (f)(1), (i), and (j), 42 U.S.C. § 9607(a)(4)(A), (f)(1), (i), and (j), ELR STAT. CERCLA 21, 22.

123. See 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA 21.

124. § 107(d)(2), 42 U.S.C. § 9607(d)(2), ELR STAT. CERCLA 21.

125. § 104(c)(3)(i), 42 U.S.C. § 9604(c)(3)(i), ELR STAT. CERCLA 12.

126. § 104(c)(3)(ii), 42 U.S.C. § 9604(c)(3)(ii), ELR STAT. CERCLA 12.

127. See § 101(23)-(25), 42 U.S.C. § 9601(23)-(25), ELR STAT. CERCLA 8.

128. § 104(c)(3)(C)(ii), 42 U.S.C. § 9604(c)(3)(C)(ii), ELR STAT. CERCLA 12.

129. See § 107(a), 42 U.S.C. § 9607(a), ELR STAT. CERCLA 20.

130. Oklahoma Tax Commission v. Citizen Band Potawotomi Indian Tribe of Oklahoma, 111 S. Ct. 905, 909 (1991).

131. See United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987); United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986).

132. County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 112 S. Ct. 683, 693 (1992).

133. Ramah Navajo School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 846 (1982).

134. Policy for the Administration of Environmental Programs on Indian Reservations, U.S. Environmental Protection Agency (Nov. 8, 1984). None of the statutory provisions authorizing treatment of tribes as states had been enacted at the time EPA promulgated its Indian Policy. Amendments addressing Indians were added to the SDWA and CERCLA in 1986, to the CWA in 1987, and to the CAA in 1990.

135. Id.

136. Id.

137. Id.


23 ELR 10579 | Environmental Law Reporter | copyright © 1993 | All rights reserved