Washington Law Review


Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes craft the standards carefully. The tribes' successful exercise of this new regulatory authority will depend on the recognition and successful negotiation of potential obstacles posed by the regulatory mechanism itself and the case law addressing interstate disputes under the Clean Water Act and state-tribal disputes.

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