New Scholarship Supporting Tribal Authority under the Clean Water Act
Sulfide mining and other industrial activities that destroy wetlands have the potential to affect tribal waters both where the discharge originates and downstream. Pollution and destruction of habitats can impair treaty rights to hunt, fish and gather.
Since 1987, federally-recognized tribes have had the right to apply for and obtain Treatment as a State authority under the Clean Water Act. Several Bands of the Lake Superior Chippewa have secured the right to regulate water quality and object to Clean Water Act Section 404 permits that allow wetlands destruction and pollution.
The Clean Water Act allows tribes to object to projects located on the reservation and allows downstream tribes to object to federal permits and enlist the Environmental Protection Agency in determining whether the action will harm reservation water quality. However, this tribal authority has never been exercised.
In addition, although many cases recognize a theoretical trust obligation on the part of the federal government to Indian tribes, this obligation is rarely applied to protect tribal resources.
After several months of research, I published an article in the spring 2015 issue of the William Mitchell Law Review (TRIBAL AUTHORITY TO PROTECT WATER RESOURCES AND RESERVED RIGHTS UNDER CLEAN WATER ACT SECTION 401 ) recommending an expansive view of tribal authority under the Clean Water Act to veto, condition, or deny federal permits affecting water quality and reserved tribal treaty rights to hunt, fish and gather.