Fracking in Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Beneficial Use of Produced Water

Abstract

This Article focuses on wastewater discharges generated by hydraulic fracturing, otherwise known as “produced water,” onto Native American lands. Produced water discharges are a hazardous byproduct of hydraulic fracturing operations, and current federal laws do not require operators to disclose all contents of produced water, or any associated health and safety risks. This Article will explore the legal landscape that evolved to allow produced water discharges in Indian Country, using the Wind River Reservation’s history to explain how such a system develops. That system, today, includes a statutory and regulatory framework under two major environmental laws. First, the Resource Conservation and Recovery Act (RCRA) ordinarily prohibits toxic waste discharges, but EPA’s regulations define compounds contained in produced water as a “special waste,” exempting them from the permitting requirements of the statute. Furthermore, despite their sovereign status, because Congress did not delegate regulatory authority under RCRA to tribes, courts have held that they therefore lack authority under RCRA to impose permitting standards of their own. Second, the Clean Water Act (CWA) prohibits water-based discharges of toxics contained in produced water, but EPA’s regulations allow produced water to be used “in agricultural and wildlife propagation” west of the 98th meridian, including in Indian Country. Theoretically, Congress has delegated authority to tribes to regulate water-based discharges under the Clean Water Act, but has imposed a series of standards that are financially burdensome and difficult for many tribes to meet, leaving many tribes, such as the Wind River tribes, unable to regulate because they lack this special status. Together, these statutory and regulatory exemptions under RCRA and the CWA form a “livestock loophole,” allowing untreated produced water disposal in Indian Country. In Part I, this Article describes the fracking process, how produced water is generated, and the toxins known to occur in produced water discharges. Part II will discuss the legal components of the livestock loophole, from RCRA, the CWA, and the regulations under each statute that allow produced water discharges on native lands and in native waters. Part III discusses the Wind River Tribes’ history, including various treaty negotiations with the federal government and the concurrent development of the federal trust responsibility to these tribes. Part IV will discuss the Federal Trust Doctrine and relevant provisions of RCRA and the CWA, as well as trade secrets laws, which serve to undermine the effective implementation of both statutes. Part V will discuss necessary changes to the RCRA and CWA regulatory structures to eliminate the livestock loophole and curb unregulated produced water discharges. Part VI concludes by encouraging federal officials at EPA to implement the suggestions from Part V to improve water quality, human health, the health of wildlife and domestic livestock throughout Indian Country.