State and Tribal Water Quality Standards Under the Clean Water Act: A Case Study

With the congressional determination that tribes would be treated like states for purposes of the Clean Water Act, Congress greatly increased the potential for conflict between standards set by states and those set by neighboring tribes. The dispute between the City of Albuquerque, New Mexico, the Environmental Protection Agency, and the Isleta Pueblo provides a case study of the legal issues that these disputes raise. This case study exposes deficiencies in our national structure for the protection of water quality. Interjurisdictional conflicts are not clearly addressed by Congress in the Clean Water Act, whether they occur between states or between dischargers and tribes. EPA has stepped into this opening and enacted regulations that provide a predictable, if not mandated, decision rule, and that rule has been upheld by the Supreme Court. Under this rule, the water quality of downstream states must be protected in the permitting process. The Clean Water Act lets states, and now tribes, determine their own uses for water, and hence what constitutes polluted waters. When a tribe adopts more protective standards than the state did previously,the quiet discretion in standard setting enjoyed by states under the Act is highlighted. Finally, because of the economic costs of controlling water pollution, tensions between tribal entities and dischargers can be expected to persist. It is questionable whether the rules adopted by EPA are best calculated to create good working relationships and the improvement of water quality. EPA should consider refining its regulations to avoid wholesale legislative revision of this provision of the statute