Tribe asks EPA to treat it as a state - Coeur d'Alenes looking for greater role in decisions about quality of their water

Susan Drumheller
Spokesman-Review Staff writer

8/2/03

Coeur d'Alene _ The Coeur d'Alene Tribe wants control over the quality of its water, but

At a glanceComment periodThe EPA has offered the state of Idaho a 30-day comment period on the Coeur d'Alene Tribe's application for treatment as a state. Comments are due by Aug. 27.Information about the application is available at the St. Maries Public Library, the Plummer Public Library and the Coeur d'Alene Tribe NRDA Office at 424 Sherman Ave. in Coeur d'Alene.The public can submit comments to the State of Idaho through Paula J. Gradwohl, Environmental Quality Section, Office of the Attorney General, 1410 N. Hilton, Boise, Idaho, 83706-1255, or e-mail her at pgradwoh@deq.state.id.us.

some Benewah County residents fear that would water down their rights as citizens.

The tribe has applied to the Environmental Protection Agency for "treatment in the same manner as a state" under the Federal Clean Water Act. The change wouldn't necessarily bring about noticeable differences in water regulation, but would give the tribe a central role in decisions.

"It's important because it allows the tribe to protect water quality on the reservation, at least with respect to the lower third of the lake and the St. Joe River," said Eric Van Orden, attorney for the tribe.

The last time the tribe made this request, its lawsuit for ownership of the southern third of Lake Coeur d'Alene was wending its way to the U.S. Supreme Court.

The state of Idaho and individuals objected to the application, in part because the ownership issue was unresolved, and the matter was put on hold.

"We got a number of comments from the public who said they didn't think the tribe should have that authority," said Rich McAllister, an attorney with the EPA's Region 10 office.
Now that the Supreme Court ruled in favor of the tribe, the Coeur d'Alenes are again requesting regulatory control over water quality within reservation boundaries.
If approved, the Coeur d'Alene Tribe could establish water quality standards for those waters.

"Having their standards apply in Lake Coeur d'Alene is very important to the tribe," McAllister said.

Treatment as a state "just recognizes the tribe's authority to have their own water quality standards," even though it might not make any tangible difference in what's enforced by the EPA on the lake, Van Orden said.

The tribe has a meeting with the state DEQ on Aug. 12 to compare the its proposed water-quality standards with the state's and make sure they're consistent.

Benewah County Commissioner Jack Buell is wary of the proposal.

"I was very upset when we lost the lower end of the lake to the tribe, and it appears that what's going on with the tribe is what we suspected," he said. "Any more restrictions that they would put on us would probably be pretty tough to deal with."

Since the tribe's lake jurisdiction was sealed by the Supreme Court in 2001, the tribe has started regulating activities on the lower third of the lake, including requiring tribal fishing licenses and permits for any docks or other encroachments.

Some waterfont owners have balked at the annual encroachment fees, which are significantly higher than what the state charged.

The tribe also isn't permitting new encroachments until it completes an inventory on what's already on the lake and riverfront.

"The moratorium on any more pilings and any more docks, of course that affects taxes in Benewah County," Buell said. "When people build a house on the river, they probably want a dock and pilings on it."

Buell said he doesn't understand why the lake's water quality can't be regulated by the state. "This is Idaho, isn't it? Or am I missing something?"

Well, yes, according to McAllister.

"State standards don't apply to waterways within the reservation," McAllister said. "This is not necessarily something the state agrees with, but this is our position. When we approve state programs, we try to make it clear that it doesn't extend into Indian Country."

If treated as a state, the tribe would establish the water quality standards, which would be subject to approval by the EPA. The EPA would then enforce those standards through the discharge permits it issues to entities such as sewage treatment plants and paper mills.
That's how the process works with the state.

The tribe and state also have the opportunity to apply for the ability to administer the discharge permits.

The state has not applied for financial reasons, said Dave Mabe, the Idaho Department of Water Quality's administrator of water quality programs.

Mabe also said that the state does not regulate water quality on tribal lands.

"The fact that they are not treated as a state right now does not mean the state of Idaho promulgates standards for them," Mabe said.

The tribe's proposed water quality standards are not more stringent than the state's standards for the rest of the lake, McAllister said.

"The fact is, the state's standards aren't being met, either," McAllister said.

According to the EPA, the tribe's standards would have little effect on the plans being developed to manage Lake Coeur d'Alene or the Superfund cleanup of the Coeur d'Alene Basin.

Mabe said his agency has not yet completed its review of the tribe's proposed standards, and could not comment on how closely they align with the state's.

"The DEQ's interest is in making sure that the tribal standards and the state standards and the processes for implementing those standards can work together," Mabe said. "In some cases we will be the upstream entity and in other cases, we'll be the downstream entity."
Toni Hardy, a Benewah County resident and Lake Coeur d'Alene property owner, is primarily concerned about the potential erosion of rights for non-tribal members.

Hardy and her husband, Roger, have been outspoken critics of the process that led to the conversion of the Union Pacific Railroad line into a recreation trail.

They believe the public interest was not served when the railroad was allowed to turn over the rail line to the state of Idaho and tribe without a thorough cleanup of historic mining pollution.

"We don't think the Coeur d'Alene Tribe has demonstrated that they are capable of caring for the lake they call their mother," Toni Hardy said. "We do not want them controlling our land, what we can and cannot do."

Hardy said her attempts to get minutes of the tribe's Lake Management Board have been unsuccessful. She said she's been called disruptive when she's demanded information from the tribe.

"If asking for accountability is disruptive, yeah we are," she said. "Tribal governments are cloaked in secrecy."

When asked about the Hardy's concerns, Van Orden said, "The tribe has always been open to hearing the public's concerns. The tribe is sensitive to those concerns, even with the docks. The ultimate goal of the tribe is to protect the lake, not antagonize the people who live within the reservation."

Van Orden said the tribe's lake management board is not subject to the same sunshine laws as other governing entities in the state.

The Coeur d'Alene Tribe isn't the first tribe to apply for the right to establish water quality standards in its own waters.

The Confederated Salish and Kootenai Tribes applied to develop water quality standards for all surface waters on their reservation in Montana. The state of Montana challenged the EPA's process in court, but it was upheld in the 9th Circuit Court of Appeals.

Similar challenges have been made by other states, but the courts thus far have backed the process made possible by Clean Water Act amendments passed in 1987.