TRIBAL WATER QUALITY GOVERNANCE Haley Miller Mervin Wright Buena Vista Rancheria Pyramid Lake Paiute Tribe

Introduction Water is life, without it there can be no life. • Current and future demands in the west, climate change, and increasing populations focuses more attention toward water. • Inherent tribal sovereignty provides the means to control tribal water resources. • Exercising sovereignty implicates neighboring jurisdictions: Federal, State, and Local governments

Government to Government for a Common Goal Water Rights Federally Recognized Tribes gain Treatment Similar to a Manner As State (TAS) 2. Water Quality Pollution Control Programs- States/Tribes with TAS provide for the operations - conduct monitoring/ sampling of water, planning/ implementation and the evaluation for water quality Development and Enforcement Programs and 401 Certification With Goals, Monitoring Strategy, and EPA-Approved QAPP Acquire defensible DATA Data used for Regulatory Authority

Tribal Sovereignty Each Tribe has the inherent right to govern itself. Only as sovereign as Congress will permit. Marshall Trilogy; the Supreme Court set the foundation of tribal sovereignty. Johnson v. McIntosh (1823), “…discovery gave exclusive title to those who made it.” Cherokee Nation v. Georgia (1831), “…domestic dependent nations… resembles that of a ward to his guardian.” Worcester v. Georgia (1832), “…Congress [has] plenary, or overriding power regarding Indian tribes.”

Prior Appropriation Doctrine A concept of water ownership where the landowner's right to use available water is based on a government-administered permit system. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) A user with an earlier appropriation date is the “senior appropriator,” while those with later appropriation dates is a “junior appropriator.” Founded on “First in Time, First in Right” principle. Each water right has an annual quantity and priority date.

“First in Time First in Right” The first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that quantity of water for that purpose. In the early years, beneficial uses were restricted to mining and agriculture. Ecological demands were considered, “water wasted to the thirsty sun,” and therefore ignored. The earlier (senior) priority date water right is first in right, while the later (junior) priority date water right is second to receive their water right entitlement.

Beneficial Use Cardinal Principle of the Prior Appropriation Doctrine. Beneficial Uses Include: Agriculture – Crop Production/Stock Watering Municipal – Domestic/Residential Industrial – Mining Cultural – Ceremonial Uses Water Quality – Ecological & Water Quality Standards Instream Flow – Fishery & Environmental/Riparian

Federal Water Regulations Rivers and Harbors Act of 1899 Federal Water Pollution Control Act Amendments of 1972 AKA CLEAN WATER ACT “…to restore and maintain the chemical, physical and biological integrity of the Nation’s waters 1977 Clean Water ACT (CWA) -Reauthorized and expanded the 1972 Act

Two Types of TAS Funding – Specific Environmental Programs implementing and management Regulatory Programs and functions -must have enforcement authorities that are at least as stringent as federal law -where tribal implementation authority is lacking or unavailable, EPA directly implements federal environmental programs and ensures compliance with federal environmental laws EPA approves tribe for TAS, under several environmental laws

Water Quality Operation Flow CONGRESS makes laws USEPA implements law over state/tribal government water quality programs and provides oversight in a partnership STATES/ Tribes Provide operations of WQ programs - use TAS to fund operations and a maintenance for pollution and water quality goals with EPA Approved QAPP/SOPs sample water in-house or analyzed in a lab process data and assessment in Tribal and EPA database have jurisdiction once they obtain beneficial uses and approved standards get Regulatory TAS Authority USERS AND STEWARDS Read assessments and consumer confidence reports Participate in committee/community input/volunteer in Tribal water management plans

On the Ground: Conduct Assessments: Monitoring Strategy/ Nonpoint source pollution/ who are the Tribes alliances? What is the Source Water? Identify all the water resources “surface water (streams, rivers, and lakes) or ground water (aquifers)” that “can serve as sources of drinking water…” Determine threats to a water supply -Illegal activities, dumping, fertilizer, pesticides, herbicides, recreation Design a monitoring strategy -Make a QAPP for defensible data Test the Waters/ Do other assessments

Water Pollution the addition of sewage, industrial wastes or other harmful or objectionable material to water in concentrations or in sufficient quantities to result in measurable degradation of water quality. [aquatic biodiversity glossary] the presence in water of enough harmful or objectionable material to damage the water’s quality. [terms of environment] EPA definitions

Water Degradation Contributors Possibilities: 1. Atmospheric deposition- carbon and sulfur are primary pollutants from vehicle emissions and coal-fire plants 2. Toxic chemicals- heavy metals, gasoline and motor oil products, agricultural lands 3. Water treatment methods- byproducts to treating water for biological disinfection and corrosion to infrastructure 4. Nutrients- nitrates or algal blooms that form in thermal heated waters and reduce oxygen leading to toxic organisms

Classifications of Pollution:

DATA: Approved QAPP and SOPs – same techniques, legally defensible data Data required by the grants & used for our future generations & for the protection of our natural environment Tribes make their own assessments, or can ask for technical assistance, or EPA can help. -Water Quality Assessment Software Programs save time After WQX, the data is stored in a central data storage system through EPA data management and data quality from USGS and STORET combined can be accessed at waterqualtydata.us. This can progress to a nationwide assessment of waters across the US in the future

WQS Water Quality Standards for your unique location Designated Uses (e.g., recreation, water supply, aquatic life) 2. Water Quality Criteria to protect Uses (numerical concentration and narrative pollutants and requirements) 3. Antidegradation Policy Maintain and protect existing uses and water quality and address short-term variances in water quality standards (e.g., low-flow conditions or mixing near point source discharges, etc.) TMDL Total Maximum Daily Load: -Calculation of Maximum amount of a pollutant allowed to enter a water body in order to meet WQS (Required for categorized 303d Impaired waters)

Water Quality Ordinance Tribal Government Approved Tribe has the capability of enforcement Ensures the WQS protect the waters and method of notification and remediation is taken Enforcement

401 Certification -Section 401 Water Quality Certification authority – to control discharges on Tribal lands -Tribes can review federal permits or licenses that may result in a discharge to Tribal Waters 40 CFR 131.4 Tribe is eligible once determined eligible for TAS for WQS Program Tribes can Grant (issue permit with or without conditions), Deny or Waive (purposefully or by time) 402- NPDES 404- Regulation of dredged or fill material into waters of US -Permitting A, b, c, f, q

Authority Process After you get your Data and Tribal Approved WQS based on the data, tribes should apply for the regulatory TAS. Or fall under the blanket of the federal jurisdiction, federal WQ limits, but tribes can set more stringent limits and achieve better quality for future generations. The EPA takes about a year to process an application. The application goes out as a package for public notice and by notifying bordering jurisdictions, then the draft for decision package is made which HQ reviews (Counsel Review) and eventually, hopefully APPROVAL