EPA’s Diminishing Environmental Presence in Indian Country

Ken Norton, Chair of NTWC

April 21, 2015

Over the past several years, EPA’s environmental presence in Indian Country and Alaskan Native Villages (ANVs) has steadily been diminishing. Due to reduced appropriations to EPA water programs and less flexibility in using capacity building funds, Tribes are losing their ability to implement programs necessary to fully protect their natural resources.

There is a growing perception throughout Indian Country that continued advancement of Tribal environmental programs has been diminishing due to the lack of prioritization of the resources and infrastructure necessary to effectively serve Tribal communities. Adequate resources are an important demonstration of EPA’s commitment to its responsibilities, including the obligation to protect and preserve Tribal lands.

More and more, shrinking or stagnant EPA allocations to Tribal environmental programs are forcing Tribes and ANVs to make difficult choices in prioritizing which resources to protect for the health and safety of their communities. Increasingly, Tribal nations are becoming limited in their ability to preserve, protect, and restore their water, air, and land resources.

For example, in the Pacific Northwest, climate change stressors of extreme drought conditions have caused an increase of cyanobacteria in rivers that often are the only source of water for Native communities. High temperatures, low water levels, and low flows due to diversion to agricultural areas have led to an increase of the release of cyanotoxins into Tribal waterways. These toxins pose a serious threat to drinking water and human contact during recreational and ceremonial uses. Tribes must decide to address whether to monitor and mediate cyanotoxins or focus on the presence of equally harmful fecal coliform. Both are highly toxic and pose serious health risks to native communities.

EPA Indian Policy

In EPA’s Indian Policy, it clearly states the promises made to Tribes and ANVs. According to the Indian Policy, the Agency recognizes that its trust responsibility derives from the historical relationship between the federal government and Indian Tribes. In keeping with Federal trust responsibilities, EPA has given its assurance that Tribal concerns and interests are considered whenever its actions and/or decisions may affect reservation environments.

Limited flexibility to apply EPA’s restricted funding to a broader range of environmental programs weakens tribal abilities to fully protect their natural resources. Conversely, greater flexibility in using EPA’s funding, strengthens Tribal abilities in the protection of their natural resources.

Federal Trust Responsibility

There is a unique legal and political relationship between the United States government and Indian Tribes across the nation that continues to this day. The government’s authority and obligation to provide programs and services to Native Americans is rooted in long-standing laws, treaties, jurisprudence, and customary practices of Tribal nations.

Over the centuries, Native Americans relinquished or were forced from their traditional territories of great historical and cultural importance and upon which they relied for subsistence. In return for this loss of land, Tribes have relied on the federal government’s agreement to, in perpetuity, assume trust responsibilities on their behalf. This federal trust obligation continues to this day and should not be diminished.

The purpose of this trust has always been to ensure the overall survival and welfare of Native American communities. The trust relationship between the federal government and Tribes includes an obligation to provide assistance to protect and enhance Indian lands, resources and self-governance. It also includes economic programs to help raise the living standard of Tribes to a level comparable to non-Indian communities. This duty has long been recognized implicitly by Congress in numerous Acts. Consequently, the trust relationship preserves the solemn promise of federal protection of Tribal lands and peoples.

Reduced federal funding contributes to the continuing Third World status of many Tribes. In 2012, 16 percent of the population in Indian Country served by community water systems did not receive water that meets EPA health-based safe drinking water standards, compared to 6 percent of the overall U.S. population served by community water systems.

EPA funding levels for Tribal set-a-side programs in support of safe drinking water and the clean water remain below the levels allocated in 2010. Tribes often have trouble meeting drinking water standards due to outdated infrastructure and limited financial capacity to properly operate and maintain the systems. Lack of flexibility in allocating reduced funding is preventing many Tribes from continuing existing programs or implementing new projects to protect their environments.

Factors that Contribute to Diminished EPA Presence in Indian Country

Recurring shortfalls retard progress and reverse gains made by Tribes during stronger funding cycles. Reductions of Tribal appropriations, inflation, and increased administration costs also undermine the success of Tribal environmental programs.

From 2010-2015, there has been a significant increase in the number of Tribes eligible to receive Tribal CWA funds. The likelihood of increased competition between Tribes competing for reduced EPA funds is a reality. There also has been an escalation of new environmental concerns.

For example, existing and upcoming state and tribal initiatives supporting the legalization and cultivation of marijuana pose new threats to the natural resources of tribes across the nation. Tribes face the very real prospect of hazardous contamination of their soil and water from runoff of pesticides and fertilizers used in growing marijuana.

With diminished funding and limited flexibility in using those funds, Tribes will have to make hard choices. Should they use their limited funds to address new threats to the health and safety of their communities and discontinue an existing environmental program, or should they ignore a new threat in favor of completing a current program? These are the tough decisions that Tribes face today.

The 2016 president’s budget for Tribal and ANVs environmental programs is projected to change very little from previous years funding levels. In order to address this restricted budget horizon, Tribes and ANVs fully recognize that overall increases to national allocations are not likely to happen. However, Tribes are requesting greater flexibility in how EPA funds are utilized and distributed within Tribal programs.

A disproportionately high number of Tribes are beginning to report negative impacts to their environmental programs and problems due to EPA’s reductions in funding and limited flexibility in applying those funds to Tribal programs. Tribes cite an apparent shift in the Agency’s approach to working with Tribal Governments to find adequate sources of funding for their environmental programs as a contributing factor.

The concept of flexibility is clearly recognized in EPA’s 1984 Indian Policy. The principles set forth in this policy are founded on general provisions of federal trust responsibility and statements which support Tribal environmental protection goals. EPA stated goals have been:

  • Assist Tribes in addressing Tribally defined priorities and needs;
  • Remove barriers leading to a effective EPA-Tribal partnerships;
  • Encourage Tribal environmental program success, and;
  • Work with Tribes to interpret applicable laws and policies in favor of Tribal interests.

Tribes are in favor and interested in working with the Agency in finding ways to assist Tribes in meeting their environmental protection goals. Tribes look to EPA for guidance in finding ways to break down barriers to obtain other types of environmental funding such as assistance with creating a pathway to uncommitted state revolving funds for use with shovel-ready projects. This is a conversation that needs to occur.

Tribal Water Programs – The Role of NTWC

Tribal water programs are overwhelmingly important to Tribal nations. The NTWC is requesting EPA’s Office of Water assistance in addressing these matters, with an overall goal to improve flexibility and restore an effective working relationship between EPA and Tribal Governments in order to counter a perception that EPA is losing its environmental presence throughout Indian Country.

Tribes are grateful for the Office of Water’s efforts to protect Tribal program budgets. We recognize the challenges posed by the current economic climate and the reality of federal funding limitations. It is precisely in this context that we request greater flexibility in use of these limited resources and that we be permitted to be more creative in defining and implementing community-appropriate solutions to our environmental challenges.

The NTWC looks forward in working closely with the Office of Water to strengthen and improve this relationship to enhance long-term Tribal water program sustainability. By working together, we will build a stronger relationship to increase both EPA’s and Tribal environmental presence in Indian Country and Alaskan Native Villages.

In further discussions today, we hope to define Tribal goals of greater flexibility in use of EPA water funds. The NTWC requests a working partnership with the Office of Water on the following initiatives:

  • OW to support greater flexibility to AIEO’s GAP guidance, providing for choice of implementation activities for Tribal water protection;
  • Request EPA to explore options in working with States and Tribes in accessing State Revolving Capital Loan funds to Tribes and ANVs to address disparity in access for safe drinking water and basic sanitation needs in Indian country;
  • Establish future strategies and options for direct funding allocations to mature Tribes administering TAS for water quality standard under CWA Section 106 program;
  • Support Tribal initiatives that remove regulatory barriers under CWA authorizations, such as the re-interpretation of jurisdictional authority for eligibility under Tribal WQS program and TAS for Tribes to participate in the 303 (d) impairment program. Both of these initiatives are examples which exemplify the partnership between the OW and NTWC;
  • Continued EPA support in the flexibility to transfer funds between Drinking Water & Clean Water State Revolving Fund Tribal Set-Aside Programs based upon priority and human health needs;
  • Continued support to establish a funding floor of 2 percent of the 2010 allocation as the baseline for Drinking Water & Clean Water State Revolving Fund Tribal Set-Aside Programs.

In conclusion, the NTWC requests the assistance of the OW in the spirit of partnership, to promote Greater flexibility in using EPA’s funding to Strengthen Tribal abilities to protect and preserve their natural resources.

Categorised in: Council News, EPA

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