Six tribes say disbursement of up to $4 billion would benefit for-profit entities instead of native people during the coronavirus emergency.
The Keweenaw Bay Indian Community, on the shores of one of the largest freshwater lakes in the world, is petitioning the federal government to hand over control of setting water quality standards.
Credit: KBIC Natural Resources Department<p>Keweenaw Bay Indian Community would join tribes across the country who, for reasons of cultural and environmental protection and tribal sovereignty, have successfully applied for the right to influence their water's regulation.</p> <p>It's part of tribes exercising their rights as sovereign governments and it can't be understood without knowing two key cases, Heather Whiteman Runs Him, an attorney with the Native American Rights Foundation and member of the Crow Tribe, told EHN.</p> <p>In a legal battle spanning the late 1990s and early 2000s, the Pueblo of Isleta in western New Mexico, under the treatment in a manner similar as states provision, gained the right to set water regulations for the Rio Grande within the pueblo boundaries and what was dumped into the river upstream.</p> <p>Shortly after <a href="https://law.justia.com/cases/federal/district-courts/FSupp/865/733/1506274/" target="_blank">the ruling</a>, Albuquerque <a href="https://www.abcwua.org/education/30_SWRP.html" target="_blank">updated their wastewater treatment plant</a> to meet the standards necessary for Pueblo of Isleta's cultural needs.</p> <p>Pueblo of Isleta was one of the first tribes to receive treatment in a manner similar as states.</p> <p>Second, the Sokaogon Chippewa Community Mole Lake Band in northern Wisconsin leveraged their power under the same provision to put the regulatory brakes on the proposed Crandon Mine that threatened the quality of water needed to grow wild rice, <a href="http://sokaogonchippewa.com/remembering-the-end-of-the-crandon-mine/" target="_blank">a crop similarly tied</a> to the tribe's long history in the area.</p> <p>The tribe regulates their waters as Outstanding National Resource Waters, the most stringent federal water regulation allowed, which means <a href="https://www.epa.gov/wqs-tech/key-concepts-module-4-antidegradation" target="_blank">water quality cannot be lowered</a>, except temporarily. This allowed them to legally challenge the Crandon Mine on the grounds that discharge from the mine <a href="https://www.epa.gov/sites/production/files/2014-11/documents/casestudy-sokaogon.pdf" target="_blank">would adversely affect their water bodies</a>.</p> <p>Since then, Sokaogon Chippewa Community and others purchased the site and halted its development as a mine, ending one of the <a href="https://www.bizjournals.com/milwaukee/stories/2003/10/27/daily13.html" target="_blank">longest battles over regulation in Wisconsin's history.</a></p> <p>These two significant cases show how tribes have established their standards under treatment in a manner similar as states in different ways and for different reasons throughout the country. </p> <p>Other examples include: </p><ul><li>The Confederated Salish and Kootenai Tribes of the Flathead Reservation in western Montana sought, and gained the authority to <a href="https://www.epa.gov/sites/production/files/2014-11/documents/casestudy-flathead.pdf" target="_blank">regulate Flathead Lake</a> to preserve its low levels of pollution. </li><li>The Seminole Tribe in Florida set standards to address <a href="https://www.epa.gov/sites/production/files/2014-11/documents/casestudy-seminole.pdf" target="_blank">a high level of phosphorus</a> in their water and worked with the state to improve water quality.</li><li>The Fort Peck Tribes in northeastern Montana set <a href="https://www.epa.gov/sites/production/files/2014-11/documents/casestudy-fortpeck.pdf" target="_blank">standards that included targets</a> for plant and animal life within the water. Including plant and animal populations in water quality standards can get at issues affecting water quality like habitat loss and erosion, not just the presence of pollution.</li></ul>
Kathleen Smith and Terri Denomie during a water ceremony on Lake Superior last summer. (Credit: KBIC Natural Resources Department)<p>Given the protracted legal and regulatory struggles of Pueblo of Isleta and the Sokaogon Chippewa Community, it's not surprising to find opposition to the Keweenaw Bay Indian Community's application.</p> <p>Perhaps the most notable came from Michigan's Senate Natural Resources Committee, which passed a <a href="http://www.legislature.mi.gov/(S(habt4t0s2u15agqv0swyxz3e))/documents/2019-2020/Journal/Senate/pdf/2019-SJ-05-23-051.pdf" target="_blank">resolution in opposition</a> to the tribe's application. </p> <p>The resolution, which doesn't have any legal weight behind it, states that "concerns exist that approval—particularly approval of the water quality request—would inevitably lead to unreasonable consequences, create a patchwork of regulations, and be inappropriate for nontribal property owners within and outside of the reservation borders."</p> <p>It goes on to say that the state is already doing a good job protecting water.</p> <p>Republican Senators Ed McBroom and Curt VanderWall sponsored the resolution. Neither responded to requests for comment.</p> <p>Challenges like this are not uncommon, but usually unsuccessful, Elizabeth Kronk Warner, a law professor and the Director of Tribal Law and Government at University of Kansas and member of the Sault Ste. Marie Tribe of Chippewa Indians, told EHN.</p> <p>Treatment in a manner similar as states is not something states should be afraid of, she said. It's an opportunity for states to work with tribes that has generally worked really well.</p> <p>"Especially in the state of Michigan, with Flint and water quality issues, I would argue it's a good thing," she said.</p> <p>The treatment in a manner similar as states provision changes who suggests regulations, not who enforces them. Citizens concerned by proposed regulations can still submit comments to EPA and participate in the process that way, she said.</p> <p>"We think this is an opportunity to work together with the state of Michigan, the federal government and the Keweenaw Bay Indian Community to help those clean water standards so my people can live a clean life," <a href="https://www.uppermichiganssource.com/content/news/Discussion-regarding-permit-for-deer-baiting-continues-509982681.html" target="_blank">said Tribal Council President Warren Swartz</a> in a statement to Michigan's Senate committee on natural resources. </p> <p>Water quality standards, which the KBIC will craft should EPA approve their application, can be set to meet the needs of the tribes and the water bodies in question.</p> <p>The Keweenaw Bay Indian Community hasn't said what standards they'll set, though they've indicated they will be based in over a decade of water monitoring the tribe has conducted.</p> <p>"We want to set standards that fit our community," Cree said.</p> <p>If the tribe's application is approved by the EPA, Cree hopes other tribes in Michigan follow suit. She says tribes themselves have the regional, scientific and cultural knowledge to best set water quality standards. </p>
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Last month more than 100 Seneca Nation tribal members showed up at the monthly meeting of the local municipal authority in the small town of Coudersport, Pennsylvania, carrying protest signs and ceremonial drums.
Every community on the Allegheny River between New York and Pittsburgh is downstream of the proposed wastewater treatment plant. (Credit: jpellgen/flickr)<p>The Seneca Nation has other concerns, too—about how the buildup of heavy metals and radioactive materials removed through the distillation process will be stored and disposed of, and about the site being on a 100-year floodplain, to name a few. </p><p>And the Seneca Nation isn't the only group skeptical about the plan.</p><p>The DEP received more than 3,000 public comments about the project during a 30-day period. </p><p>Pittsburgh representatives of the US Army Corps of Engineers, the Pennsylvania Fish and Boat Commission, the American Indian Law Alliance and the New York State Department of Environmental Conservation all sent letters expressing concern about Epiphany's permit application.</p><p>The U.S. Army Corps of Engineers questioned Epiphany's water quality monitoring system and about the site being on a 100-year floodplain, noting that "in the event of a flood or spill resulting in the loss of the stored material into the Allegheny River, the risk to water resources is high." </p><p>The New York State Department of Environmental Conservation also urged the DEP to require more stringent water quality monitoring than was proposed in Epiphany's permit application, suggesting that even if the water was tested after leaving Epiphany, it should be re-tested for radioactive elements, heavy metals, and total dissolved solids right before entering the Allegheny River to "provide assurance to downstream communities."</p><p>The <a href="http://www.salamancapress.com/news/coudersport-borough-council-opposes-treatment-plant/article_add6ebba-2e9e-11e8-ab1f-87c97e36ae63.html" target="_blank">Coudersport Borough Council</a>, a <a href="https://www.nysenate.gov/newsroom/press-releases/catharine-young/senator-young-joins-seneca-nation-and-others-opposing" target="_blank">Senator from New York</a>, at least <a href="https://drive.google.com/file/d/1lw48oTl9Jx_10h9_QhT4N2QUOIKIaFFd/view" target="_blank">one physician</a>, and <a href="http://www.salamancapress.com/news/salamanca-officials-support-sni-county-opposition-to-fracking-plant/article_900214e4-291b-11e8-af5f-7f5790217a6d.html" target="_blank">the government of Cattaraugus County</a>, which neighbors the Seneca Nation in New York, have stated their opposition to Epiphany's project, and a community activist group called <a href="http://www.savetheallegheny.org/" target="_blank">Save the Allegheny</a> has raised the alarm that the proposed plant is less than a mile from the local elementary school.</p><p>"When we learned about the proposal, our first concern was 'oh my god, look how close this is to the school,'" Laurie Barr, a Potter County resident and the founder of Save the Allegheny, said. </p><p>Barr points to Epiphany's failed phone charger Kickstarter as evidence that the company has a track record of poor communication and breaches of trust with stakeholders. </p><p>"If this project goes badly, Epiphany can just pack up shop and go open some other business in another name," Barr said. "Coudersport can't do that."</p><p>Joseph accused Barr and her group of intentionally spreading false information as a fear tactic.</p><p>"We've been in touch with [Save the Allegheny] from the beginning," Joseph said. "And what you have to know is that these are not good people. These are anti-fracking fanatics. They don't care about the community. They don't care about the environment."</p><p>Joseph also said the Seneca Nation is only concerned about the plant because they've received false information from members of Save the Allegheny. He said the Seneca Nation recently pushed back their scheduled meeting with Epiphany.</p><p>"They continue to make incorrect statements about Epiphany's facility and have not yet given us the opportunity to provide them with the facts and scientific data that would eliminate their concerns," he said.</p><p>Since we spoke with Joseph, a law firm representing Epiphany has sent <a href="http://publicherald.org/award-winning-filmmakers-seneca-nation-threatened-fracking-industry-defamation/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+publicherald+%28Public+Herald%29" target="_blank">cease and desist letters</a> to the Seneca Nation and a pair of investigative journalists at the Public Herald who've written about the proposed treatment plant.</p>
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