The EPA’s “Treatment Similar To States” (TSTS) Policy

TSTS - Treatment Similar To States policy, gives Indian tribes control over private property.

TSTS is the acronym for “Treatment Similar To States”.

Under 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.

Under 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.

This dangerous policy was formerly known as “Treatment As States” (TAS) but is now officially referred to as TSTS.

Founded 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 enactment of:

The Clean Air Act  [CAA] passed in 1977

The Clean Water Act [CWA] passed in 1972

The Safe Drinking Water Act [SDWA] passed In 1974

The Federal Insecticide, Fungicide, and Rodendicide Act [FIFRA]

The Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA or Superfund] passed in 1980

By 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.

Congress, did not, however, delegate jurisdictional authority to the EPA.

Congress recognized that these Acts did not include federally recognized Indian tribes.

Congress proceeded to fix that gap in the 1990s by amending the above Acts, beginning with changes to the Clean Air Act.

Since 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.

Thirteen 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 Oklahoma alone.

Tribes currently have TSTS applications pending in dozens of other states across the nation.

This situation is not without remedy.

TSTS 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).

The 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.

The 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.”

The 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.

A 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)

The 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. 

The 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.

One 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.

The EPA’s TSTS policy violates Executive Orders on Federalism by the intentional removal of State authority within Indian reservation borders.

A 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.

Congress 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.

This issue deserves your immediate attention!

The 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.

When 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.

The 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 businesses.

An 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.

In 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).

To 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 exemptions.

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 Thurston County.

TSTS 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.

TSTS 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.

No federal policy should remove any citizen's participatory involvement and constitutional right to a republican form of government.