New rule gives tribal governments more input on state water quality standards

Minnesota has long collaborated with tribal governments on water quality issues. But a new federal rule could give tribes a stronger voice in that process.

The new Environmental Protection Agency rule is designed to protect the reserved rights of tribal members. Reserved rights are the rights to hunt, fish and gather resources. Tribes commonly reserved, or did not give up, those rights when they signed treaties ceding land to the federal government.

“This rule is laying out a standard and a way for the EPA to require states to protect those resources that the federal government has a trust responsibility to protect and standardizes that in a way that will make it clear and more effective for that protection to be guaranteed,” said Leech Lake Band of Ojibwe Environmental Deputy Director Craig Tangren.

The regulation affects water quality standards outside of reservations in ceded territory. Most of Minnesota is territory ceded in treaties signed in the mid 1800’s. Some treaties involve multiple tribes and some tribes in other states also hold reserved rights on lands in Minnesota.

In 1990, the Mille Lacs Band of Ojibwe filed suit asking a federal court to find that they retained rights to hunt, fish and gather in territory ceded under an 1837 treaty.

The Supreme Court ruled in favor of the Mille Lacs Band. The court also said tribes retain hunting and gathering rights unless those rights were specifically given up in the treaty.

Many tribal governments already have authority to set their own water quality standards within reservation boundaries, but important wild rice lakes and fishing waters are outside reservation boundaries in ceded territory.

State officials say they’re still working to understand the new regulation and how it might affect state water quality standards.

“We think we do a good job of working with tribes, we view them as critical partners,” said Dana Vanderbosch, the Minnesota Pollution Control Agency assistant commissioner.

But Vanderbosch, who oversees water policy and agriculture, acknowledges the new rule could require the state to modify the process for establishing water quality standards to give tribes more input. State officials are still working to understand the details of the new rule, finalized earlier this month.

“It’s difficult for us to know how we might need to modify or change our existing process to accommodate the goals of this tribal reserved rights rule,” said Vanderbosch. “So that just makes it very difficult for us to know if we've got the right number of staff, or if we're properly resourced to be able to carry out this work.”

States are required to review water quality standards every three years and Minnesota is scheduled to conduct its triennial review this year.

Bill Cole leads that process as supervisor of the MPCA water quality standards unit.

Under the new rule, tribal governments can assert a tribal reserved right during the triennial review process and any time the state develops a new standard or updates an existing standard.

“We want to make sure that we understand the rule entirely and then have plans in place when we do get written assertion so that we can move as quickly as possible and make sure that we're doing things right to begin with,” said Cole.

The federal rule also requires the state to include Traditional Ecological Knowledge, or Indigenous knowledge, in the standard setting process. Cole said the state has not done that in the past and will need to develop a process for including that information.

“We want to make sure that whenever we propose a new or revised water quality standard that it's defensible from a legal point of view,” said Cole, “That’s one of the lenses that we use to do our work. And we will consider tribal knowledge in that process.”

Craig Tangren believes in some cases water quality standards might need to be changed to protect tribal members. He cites mercury standards when tribal members regularly consume fish.

“The treaties guarantee the opportunity to subsist in many cases,” said Tangren, “And so if tribal members choose to exercise their rights to subsist off of fish, for example, they need to be consuming a much lower level of mercury in that fish in order to avoid deleterious effects.”

State officials said how the new federal rule affects state regulations will depend on how tribal governments decide to use it.

Earthjustice attorney Gussie Lord thinks the rule could have less impact in Minnesota than in other states because the state and tribes already collaborate on environmental issues. But she said the rule is important because it provides a clear mandate for states to be responsive to tribes.

“Are tribes fishing in certain areas, are tribes using certain waters for ceremonial purposes or harvesting wild rice,” said Lord. “What water quality standards does the state need to impose to make sure the tribes and the tribal citizens can continue to use those waters for those purposes.”

Some tribal officials believe there are many cases where Minnesota waters are not adequately protected.

“I think it’s important, we’re going to be forming newer, stronger partnerships with the state and other agencies,” said Leech Lake Band of Ojibwe Water Resources Program Manager Jeff Harper.

“We never said that we would give up hunting, fishing, gathering,” said Harper, “And to be able to do that we need to protect and have safe and usable water.”

Implementing this rule will take some time, according to state officials.

Craig Tangren agrees everyone is still in the process of understanding the implications.

But he said the state has moved too slowly at times on water quality standards. He points to a sulfate standard designed to protect wild rice that he said took decades for the state to enforce.

Tangren said tribal officials are discussing how best to expand engagement with the state on water quality standards.

“But I’m optimistic that this rule presents an opportunity for tribes throughout the state to protect resources that they feel need protection, and have been lacking that to date,” he said.

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