Tribe wants to set water standards in reservation

KBIC graphic A map of tribal territory, submitted with the KBIC application, of the territory where the tribe is seeking to implement water quality standards.

The Environmental Protection Agency (EPA) is seeking public comment on the Keweenaw Bay Indian Community’s (KBIC) application to implement water quality standards under the Clean Water Act.

If approved, the KBIC would be allowed to develop and maintain its own water-quality standards for surface waters on its reservation like the Department of Environmental Quality (DEQ) does for the state of Michigan.

The tribe seeks authority to issue water quality certifications required for federal licenses or permits and be eligible to submit water quality standards to the EPA, including the designation of impaired waterways, which can make funds for cleanup available.

The tribe’s application is to apply standards to surface waters within the reservation boundaries set forth in the Treaty of 1854 as well as land held in trust for the tribe. The KBIC is not seeking to assert jurisdiction over Keweenaw Bay.

The application was originally submitted in May of 2013, with a letter from KBIC Tribal Council President Warren “Chris” Swartz and a legal opinion from the law firm of Dorsey and Whitney supporting the legal basis of the application.

The legal opinion asserts KBIC’s inherent authority to regulate water on the reservation based on several court cases. Among them, United States v. Wheeler is used to establish the right of the tribe to regulate activity, even by non-Indians, on the reservation, and Unites States V. Kagama to establish the tribes authority to regulate internal and social relations outside those outlined in the Major Crimes Act.

The legal opinion also assets the economic, cultural and spiritual importance of the surface waters to the tribe. The water is used for fishing, growing wild rice, foraging along the banks and the water itself is part of religious ceremonies as well.

“Unfortunately, the conduct and activities of non-Indians threatens water quality on the Reservation and, if left unregulated, would have a serious and substantial deleterious effect on the health and welfare of KBIC, its members, and would also negatively affect tribal culture and customs,” the legal opinion summarized.

Threats listed in the document include cattle farming, deforestation by commercial logging, sand and gravel mining, run-off from road salt, illegal dumping, industrial discharge, septic systems lawn chemicals and mining.

Swartz could not be reached for comment.

The DEQ does not know how this will effect permits already issued to businesses and individuals on the reservation yet.

“The DEQ is in the process of evaluating the petition,” said Jay Parent, the district supervisor for the Upper Peninsula Water Quality Division of the DEQ.

The public comment period is open until May 23.