EPA’s “Treatment Similar To States” (TSTS) Policy
- Treatment Similar To States policy, gives Indian tribes control over
is the acronym for “Treatment Similar To States”.
TSTS, the U.S. Environmental Protection Agency (EPA)
is currently setting up for Indian tribal governments a status known as
“Treatment Similar To States.”
TSTS gives Indian tribes jurisdiction over both air AND water quality, Superfund cleanup, and pesticide use on ALL lands (including privately-owned properties).
TSTS gives Indian
tribes jurisdiction over ALL private, non-Indian owned and operated
businesses (including agriculture), and over ALL citizens, including
non-tribal U.S., citizens (both
members and non-member U.S. citizens) who live, work, or travel within
the historic borders of Indian reservations.
TSTS water quality statutes, this means anywhere upstream on rivers
flowing through reservations.
For air quality, this means within a 50-mile radius of reservation borders or Indian Country -- which is defined in the broadest possible terms -- often including lands sold to non-Indian citizens before 1900 and owned in good faith by millions of non-tribal taxpaying landowners for generations.
dangerous policy was formerly known as “Treatment As States” (TAS)
but is now officially referred to as TSTS.
in 1970, EPA is responsible for protecting the environment and human
health. The Agency enforces federally-enacted air, water, and land
use/waste disposal related laws and ensures that designated public
health and environmental standards are met.
The EPA became operational in concert with Congressional
Clean Air Act [CAA] passed
Clean Water Act [CWA] passed in 1972
Safe Drinking Water Act [SDWA] passed In 1974
Federal Insecticide, Fungicide, and Rodendicide Act [FIFRA]
Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA
or Superfund] passed in 1980
passing these bills, Congress empowered the EPA with implementation,
administration, regulatory, and enforcement authority over the above
pieces of legislation, within the various states of the United States.
did not, however, delegate jurisdictional
authority to the EPA.
recognized that these Acts did not include federally recognized Indian
proceeded to fix that gap in the 1990s by amending the above Acts,
beginning with changes to the Clean Air Act.
all states must comply with mandated Congressional Acts administered
through the EPA, common sense correctly dictated that Congress enable
the EPA to administer smaller, customized program implementation of
these Acts on lands held in "trust" or "restricted
fee" or otherwise under the control of the respective Indian
tribes in Oklahoma have applied for TSTS authority. This would mean
tribal regulatory control over more than half of that state. Not only
are the impacts on agriculture there gutting, but also bad for other
businesses, including the oil and gas industry. There are 39 tribes in
currently have TSTS applications pending in dozens of other states
across the nation.
situation is not without remedy.
can be changed by congressional action, Executive Order, agency
rulemaking authority, as well as by being federal court order. TSTS
problems are being experienced in a number of states across America.
(See listing at this button at http://www.PropertyRightsResearch.org
of states with Indian tribes).
EPA’s actual written policy on TSTS is narrow in scope and takes into
account local concerns. In a December 12, 1991, federal regulation
publication, EPA states: "Whether
a tribe has jurisdiction over non-members will be determined
case-by-case, based on factual findings."
But the EPA has, in fact, seldom attempted to follow its own
case-by-case, localized policy! Instead, EPA has taken the principle of
TSTS and painted it with a very broad brush.
Clean Air Act (at Section 301), the Clean Water Act (at Section 518),
and the Safe Drinking Water Act (at Section 1451) are the statutory
locations of TSTS. There is nothing, however, in the language of these
sections that authorizes EPA's TSTS programs to remove,
substitute or replace current local environmental programs
operating in the respective states.
To the contrary, there is clear language in the SDWA Act that
says: "It is the policy
of Congress that the authority of each state to allocate quantities of
water within its jurisdiction shall not be superseded, abrogated, or
otherwise impaired by this Act.”
EPA’s TSTS policy is of great concern because it gives Indian tribes
regulatory jurisdiction over water and air quality, Superfund cleanup,
and pesticide use on ALL lands (including privately-owned lands), over
ALL businesses (including ALL non-tribally owned or operated
businesses), and over ALL citizens (both tribal members and ALL
non-member U.S. citizens) who live, work, or travel across the historic
borders of “Indian Country” or within 50 miles of Indian
reservations. For water quality, of course, this means anywhere upstream
of tribal lands. For air quality, of course, tribal jurisdiction extends
50 miles beyond Indian trust land boundaries.
legal challenge to TSTS was initiated by several states, resulting in a
clear ruling found in District of Columbia Circuit case decided on
October 30, 2001, State of
Michigan v. EPA (U.S. Court of Appeals, No. 99-1151) to which EPA
formally published compliance with the Court's ruling on June 3, 2002.
(Consolidated with 99-1152, 99-1153, 99-1154, and 99-1155)
Court ruled that EPA either stands in the jurisdictional
"shoes" of a State or the “shoes” of an Indian tribe --
but that EPA has no jurisdictional "shoes" of its own.
Court was extremely clear in stating that when there arises a
jurisdictional "question" [as to whether a given parcel or
land area is to be governed by a State or by a Tribe] the
jurisdictional question must be decided first,
before the EPA can determine appropriate air, water, cleanup, or
pesticide program activities.
example of EPA’s refusal to follow congressional intent and court
rulings on their misguided TSTS policy is the Michigan
v. EPA ruling, issued on October 30, 2001. EPA Court compliance
was filed on June 3, 2002. But
between the date the Court ruled and the date the EPA filed notice of
Court compliance (on March 15, 2002), EPA Region 10 published its
"Proposed Tribal Air Rules" -- granting 47 tribes in Idaho,
Oregon and Washington, jurisdiction over "all lands" within
reservation boundaries -- clearly contradicting the Court's instruction
as to lands of "questionable" jurisdiction.
EPA’s TSTS policy violates Executive Orders on Federalism by the
intentional removal of State authority within Indian reservation
national legal and legislative effort is now urgently needed to hold the
EPA accountable to the actual intent of Congress when it authorized EPA
with regulatory authority on Indian reservations.
did not delegate jurisdictional authority for EPA to empower Indian
tribal governments with authority over State public or privately owned
properties or over citizens who are not enrolled members of that
particular federally recognized Indian tribe.
issue deserves your immediate attention!
ability of Indian tribes to be used by the EPA to overwhelm both a state
and local government’s authority to protect and regulate its
environment and resources is a huge wrong.
Congress amended major environmental laws to apply also to Indian
reservations, there was no Congressional intent to remove any State’s
authority to protect its citizens, regulate local businesses, or to
regulate natural resources within sovereign state borders. This often
secretly negotiated TSTS policy between Indian tribes and the EPA, is
causing an escalation of unnecessary divisiveness in a growing number of
states, including Idaho, Minnesota, Nebraska, Oklahoma, South Dakota,
Washington, and Wisconsin. Americans are gradually losing our
constitutionally guaranteed right to self-government.
Pawnee Nation was approved for TSTS authority in Oklahoma in May 2004 to
administer tribal water quality standards and 401 certification programs
on their tribal trust lands, which could give that Tribe
regulatory authority over more than half the State’s land base. Tribal
governments in other states who have been awarded TSTS by the EPA have
set very strict environmental standards that landowners and industry are
finding difficult to achieve.
There is grave concern over how the Pawnee's standards will affect
production in agriculture, the oil and gas industry, and other
example is the Isleta Pueblo Tribe in New Mexico, which set a water
quality standard for arsenic of 0.0175 parts per billion, about 3,000
times more stringent than the Safe Drinking Water Act standard at that
time of 50 parts per billion.
1999, it was estimated the cost for Albuquerque to comply with the
downstream arsenic standard established by the Isleta Pueblo would be
$250-$300 million dollars. Albuquerque challenged the standard in court,
but lost. (Although lawyers familiar with the case say it had been
negotiated away before it went to trial).
date, Albuquerque has spent $60 million to build a wastewater treatment
facility that would meet tribal nitrogen and ammonia standards.
Albuquerque has not yet begun to comply with the tribal arsenic
standards. Tribes can also ignore existing state agricultural stormwater
The EPA Region 7 is currently assuming TSTS status for Indian tribes in Nebraska. Thurston County, Nebraska, is entirely an historic Indian reservation, in which two tribes reside within county borders. Due to Acts of Congress, non-Indian United States citizens own over 70% of the historic reservation land. Until recent years, the State of Nebraska had authority over environmental programs on non-Indian land. In the last three years, EPA has determined that the State of Nebraska “lacks authority to regulate activities on Indian lands” and that “EPA will administer the programs on Indian lands if a State (or Indian tribe) does not seek or have authority to regulate activities on Indian lands.”
In April 2001, EPA
Region 7 determined that the State of Nebraska did not have the
authority to issue national Pollutant Discharge Elimination System
Permits. In 2002, Region 7 began assisting both tribes to gain primacy
over regulating FIFRA, pesticide use, in all areas of the historic
reservations. In 2003, EPA began requiring that EPA, rather than the
Corps of Engineers issue 401 permits, in order to seek comments from the
tribes before bridge or culvert work could be completed in the County.
In the last five years, EPA Region 7 has granted the two Indian tribes
in Thurston County 4.4 million dollars for environmental programs.
Currently, EPA regulates environmental activities on behalf of the
tribes and intends to turn that authority over to the tribes when the
tribes are ready to assume that responsibility. Region 7 no longer
considers the State of Nebraska a ‘principal’ form of government in
represents a direct threat to private property rights because a tribal
government -- in which non-Indian businesses and property owners have no
voice or vote -- will regulate non-Indian businesses.
TSTS actually removes the
governing authority for municipalities, counties, and states with regard
to the health and well being of hundreds of thousands of non-enrolled
U.S. citizens who own property or operate businesses within range of
"Indian Country" checkerboarded across America.
is a clearly unconstitutional policy that treats Indian tribes as
superior to, not similar to, state governments. TSTS is a very real
threat to state sovereignty and local self-government.
federal policy should remove any citizen's participatory involvement and
constitutional right to a republican form of government.
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