Drinking Water on Indigenous Land: More Violations, Less EPA

Editor’s Note: This story is part of “Sacred Water,” EHN’s ongoing investigation into Native American struggles — and successes — to protect culturally significant water sources on and off the reservation

Tribal drinking water utilities and wastewater treatment plants are far less likely to be federally inspected or receive enforcement despite more violations than non-tribal facilities, according to a new analysis of federal water laws done by Texas A&M University researchers.

They report that tribal facilities received about 44 percent fewer inspections under the Clean Water Act — which regulates pollution discharged into water — from 2010 to 2015 compared to treatment and drinking water plants not on tribal land. Tribal facilities were also 12 percent less likely to face federal enforcement — such as fines and other measures to encourage compliance — under the Safe Water Drinking Act than non-tribal counterparts.

During that time tribal utilities had 57 percent more drinking water health violations than non-tribal facilities, according to the researchers’ data.

The findings suggest that bedrock laws safeguarding the nation’s water supplies and enforced by the US Environmental Protection Agency — the Clean Water Act and Safe Water Drinking Act, both passed in the 1970s — are not carried out equally on tribal and non tribal lands. This could be a significant reason that Indian Country drinking water and pollution control lags behind the rest of the US, the authors of the new study say.

“This suggests regulatory neglect,” said Manny Teodoro, an associate professor and researcher at Texas A&M University and lead author of the study published in the Policy Studies Journal last month.

The two water laws made no mention of American Indian tribal lands when written. During the 1980s and 1990s, national environmental laws were extended to tribal land. This lag caused tribes to be latecomers in meeting federal water standards, said David Konisky, an associate professor at Indiana University Bloomington.

“This suggests regulatory neglect.”-Manny Teodoro, Texas A&M University “Part of the idea was to distribute federal resources to state and local governments to meet the new standards,” said Konisky, who was not involved in the current study. “Tribal governments were not part of that process and missed out on a lot of that infrastructure spending.”

In addition, many tribes suffer from lackluster economies, which limits their abilities to bolster water quality staff and programs.

But why so little federal enforcement?

It’s a microcosm of a seemingly larger issue: Government agencies — tribal and non-tribal — are less rigorously regulated than private companies.

From 2010 to 2013 public water utilities that violated Safe Water Drinking Act standards were 3 percent less likely to receive federal enforcement than private utilities, according to a study Teodoro co-authored with Konisky last year.

“Tribal facilities are government facilities and some of this [lack of enforcement] is just one government agency not being able to regulate another government agency very effectively,” Teodoro said.

He said tools the EPA uses on private companies — such as levying heavy fines that could put them out of business — simply don’t work on other governments, such as tribes.

“Let’s say a Navy base is spilling pollution. EPA or other agencies can’t say, ‘We’ll put you out of business’ to the Navy,” Teodoro said.

Inspections are also costly. And many tribes are located in more remote locations, far from regional EPA offices.

The EPA did not comment on the new study but issued a statement that they have “a longstanding commitment of working with Tribes to ensure protection of water resources and access to safe drinking water.”

In addition, the EPA may not want to be “heavy handed” with tribes who may not have adequate money and people to tackle enforcement, said Konisky, who studies environmental policy and regulation.

“They [EPA regulators] know the constraints other governments are working under,” he added.

Darren Ranco, an associate professor of anthropology at the University of Maine, cautioned against conflating the lack of enforcement on reservations with indifference. “The EPA as an agency has done a lot of work to be pro-tribal, recognizing the [tribes’] limited resources,” he said.

Ranco, who also coordinates the university’s Native American Research program, said some of the inspection and enforcement snags might stem from poor coordination with the EPA and tribal agencies such as the Bureau of Indian Affairs or the Indian Health Services.

The EPA has shifted some water enforcement directly to certain tribes. Last year the agency revised an application process for tribes to manage their own Clean Water Act regulation, easing some requirements to encourage more tribes to take authority over their own water quality standards.

And that might be a good thing for tribal water quality.

Of the 567 recognized tribes just 7 percent — 42 — have been found eligible to carry out their own water quality standards under the Clean Water Act. Teodoro said early, unpublished data he’s looking at suggests tribes that have Clean Water Act authority are “much more aggressive” in enforcement.

Only one tribe, the Navajo Nation, has authority over their Safe Water Drinking Act compliance and enforcement.