Water Quality Standards Program

Protecting and improving water quality on tribal lands is an important goal for many tribes. One critical tool available to tribes is a tribal water quality standards (WQS) program. WQS programs allow tribes to directly regulate projects on tribal land that impact water quality and just as importantly, take proactive steps to protect against water quality impacts from proposed activities outside the tribe's jurisdiction, including dams, mines, power plants, wastewater treatment plants and other projects.

Adopting a WQS program generally involves two steps. First, a tribe obtains authorization from the U.S. Environmental Protection Agency (EPA) to administer the WQS program. To receive authorization, a tribe must show that (a) it is federally recognized, (b) has an appropriate governing body, (c) has authority to regulate the quality of reservation waters, and (d) has the technical capability to administer the WQS program, or can acquire such capability. The second step is to develop a WQS program and receive approval from EPA. Tribes may file an application for authorization and for approval of a WQS program either together or separately, but EPA must authorize a tribe prior to approving its WQS program.

The federal Clean Water Act (CWA) permits tribes with authorized WQS programs to have heightened standing in addressing potential water quality impacts for projects that require a federal license or permit. Under Section 401 of the CWA, a tribe with an authorized WQS program has the ability to stop any project on tribal land that does not comply with its standards. It also allows a tribe to regulate a project based upon the WQS standards.

Equally important, where tribal land is downstream from or otherwise near a proposed off-reservation project, CWA Section 401(a)(2) allows tribes with authorized WQS programs to object to EPA and to make recommendations for changes to federal licenses and permits based on the tribe's water quality standards. This is potentially a very powerful tool for tribes concerned about proposed projects that have the potential to impact tribal waters as well as tribal environmental values. WQS can be particularly valuable in protecting tribal water, since tribes may develop water quality standards that are more stringent than federal or state standards. For example, tribes can develop WQS that do not allow for degradation of pristine tribal waters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.