water gap

The St. Regis Mohawks disagree. They say that although tons of toxic waste has been removed from these places over the years, there is still much more left. This includes waste in a 12-acre landfill on former GM property that has been covered with a layer of clay and planted with trees and grass.

“Their idea of ​​cleaning is more or less concealment. It’s not really a cleanse,” Thompson says. Thompson and her husband have since “separated” from the tribe over disagreements, but Tribal Police Officer Willie Ransom echoes that sentiment. He was part of the team responsible for cleaning up the General Motors factory in the early 2000s. “Look, it didn’t work. The stuff they made us do. It didn’t work,” he said.

Others agree, including David Tracy, a water biologist for the tribe, who says he still finds “sturgeon, tons of catfish, even bass, with tumors and so on. suite” in certain parts of the St. Lawrence River downstream from the GM site. “I wouldn’t believe I was eating anything from that part of the river,” he says.

The St. Regis Tribal Council has long demanded the complete removal of all contaminated materials from the reservation’s watershed. He wants the water quality in his territory to meet the tribe’s stricter drinking water standards – standards the tribe has the right to set under the Clean Water Act. But given the confusing quagmire of overlapping state, federal and tribal jurisdictions over this country’s rivers and watersheds, asserting this right has proven incredibly difficult, not only for the Akwesasne, but for most others. tribes of the country.

THE CLEAN WATER ACT (CWA) is the primary federal law governing water pollution in the United States. Administered by the EPA, it aims to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters” by regulating and, ideally, eliminating the discharge of pollutants into these waters.

The law gives states the power to regulate pollution from “point sources,” such as industrial waste lines. While the EPA sets the basic water quality standard (WQS) for each of these water bodies, states have the right to set higher standards for rivers, streams, wetlands, and marine waters under their jurisdiction if they so wish. And since water pollution doesn’t register at the border, if a state has a stricter water quality standard than its upstream neighbor, the law requires the upstream jurisdiction to meet and maintain the standards. downstream.

Many tribes also have this right. A 1987 amendment to the law, known as Section 303, allows tribes to set their own water quality standards. The EPA estimates that about 300 of the 574 federally recognized tribes have formal or informal reservations, making them eligible to set their own WQS. But to do so, they must first apply for “Treatment as a State” (TAS) with the EPA. So far, only 15% of eligible tribes, or about 40, have completed the process of obtaining TAS status. (These numbers do not include the hundreds of tribes that lack federal recognition due to size, resources, geographic concentration, or a host of other factors.)

Meanwhile, since the law also recognizes that states “have no regulatory authority over Indians in Indian Country unless clearly authorized to do so”, water quality standards approved by the EPA do not apply to Indian lands. Tribal treaty rights also supersede EPA jurisdiction, so the agency does not set baseline WQS for reservations. As a result, other than rivers and streams on the lands of 40 tribes who have set their own standards, water bodies on Indian reservations have no any enforceable water quality standards under the CWA.

Setting and enforcing water quality standards requires resources that many tribes do not have.

This regulatory gap poses a significant environmental justice problem because it means people living on reservations have fewer environmental protections than those living in any other part of the country. Since most tribal nations look to their local lands and waters for food, livelihood, and cultural sustenance, lack of access to clean water also has significant biocultural implications.

INDIGENOUS RIGHTS ACTIVIST Julia Bernal, whose Sandia Pueblo reservation community in New Mexico went through the “red tape-intensive” process to establish its own WQS, says eligible tribes are likely reluctant to apply for status TAS for capacity reasons.

Setting and enforcing water quality standards requires resources and infrastructure that many tribes don’t have, says Bernal, who is the director of the Pueblo Action Alliance, a grassroots organization that protects sustainability. culture of the Pueblo people. In addition to the lengthy process of applying for TAS status, tribes need a dedicated department for water resource management and restoration programs, an administrative team to file documents and make frequent reports to the EPA, a legal team to handle potential litigation, and quite a bit of financing. Essentially, Bernal says, they need all the structures required for larger, better-funded state environmental services.

The low number of CAS-approved tribes could also stem from a lack of awareness of contamination issues, Bernal adds. “It could also be [a tribe thinking]: Well, we weren’t really seeing any impacts on our watersheds, so is there a need?” she says.

Additionally, many tribes have avoided issuing their own water standards for fear of lawsuits from states challenging their sovereignty, notes James Grijalva, director of the Tribal Environmental Law Project at Dakota University School of Law. North. “Some states still resent the presence of Indian Country within their borders and their limited authority there, and respond robotically to tribal exercises of governmental authority with taxpayer-funded lawsuits,” he writes. in a report published last year in the Harvard Environmental Law Review.

The Sandia Pueblo, a 22,877-acre reservation of the Sandia people on the banks of the Rio Grande and downstream from Albuquerque, sought to regulate its own waters in 1993 because the Sandia use the waters of the Rio Grande not only for daily household but also for agriculture, fishing and traditional ceremonies. Which means they are exposed to water pollution at a higher frequency than the general population. “There are all these water utilities all along the Rio Grande that collect sewage, treat the water, and then discharge that effluent back into the main tributary, and, you know, that’s not a process 100% cleaning,” says Bernal. So, “the need was to hold urban areas that are upstream of us accountable for their own water quality standards,” she says. The best way for the tribe to do this was to set their own standards, which would then be enforceable against upstream jurisdictions.

But enforcing the water quality standards of an independent tribal nation can be extremely difficult given both the regulatory framework within which it must operate and the fact that it shares that water with states that, most often have different needs and economic conditions. interests.

In upstate New York, these economic interests have been largely illuminated by industry giants like GM and Reynolds, who have lobbied for states to lower pollution control standards to reduce their overhead costs. The St. Lawrence River is also the gateway to the Atlantic from Lake Ontario, so the Mohawks also have to deal with the degradation of water quality caused by the shipping industry of the Big lakes. Abraham Francis, Akwesasne’s environmental services manager, says that when this level of industry moves into their waters, there is only a certain limit of anti-degradation that is even possible. So, although the Akwesasne have set higher WQS, it is actually almost impossible to enforce them. Additionally, the St. Lawrence marks the border between the United States and Canada at Akwesasne, and the reservation literally straddles that border – part of the reservation is in Canada. This adds an extra level of complexity when trying to apply WQS.

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