By Manny Teodoro

Clean water regulation in Indian Country

Sovereignty isn’t what’s on paper, it’s what flows through taps and rivers

Environmental sovereignty (Photo: nativenewsonline.net)

America is slowly awakening to the dire state of tribal water and sewer systems. Access to drinking water and sanitation services are severely limited on many reservations, and where such systems exist, many are in poor shape. A couple years ago ​the first systematic study of Safe Drinking Water Act (SDWA) and Clean Water Act (CWA) ​implementation for tribal facilities yielded alarming results: tribal systems violated the SDWA 57% more and the CWA 23% more than similar non-tribal facilities. The disparities extended to enforcement, too: formal SDWA enforcement was 12% lower and CWA inspections 44% less frequent for tribal facilities. Evidence of systemic environmental injustice is seldom so glaring.

But there is hope. A new study offers promising evidence for a way to tackle the daunting challenge of tribal water systems. This time instead of comparing tribal and non-tribal systems, ​Mellie Haider and I looked at differences across tribal facilities to see whether regulatory institutions might hold the key to better environmental management in Indian Country. To understand why, we have to start with the foundations of federal environmental regulation and the peculiar legal status of Indian nations.

Environmental federalism & tribal governance

The landmark laws of the 1970s that form the core of American environmental protection (e.g., the Clean Air Act, Resource Conservation & Recovery Act, SDWA, CWA) were built with a system of federal-state cooperative implementation. Under these laws, the U.S. Environmental Protection Agency (EPA) sets rules, and states are responsible for implementation and enforcement of those rules for the facilities operating in their jurisdictions.

Thing is, tribes are sovereign nations under the U.S. Constitution, and so they—and, by extension, their water/sewer systems—are not subject to state laws. Oddly, the major environmental laws of the 1970s ​made no explicit provision for regulation of tribal facilities. As a result, tribal water and sewer systems operated in a regulatory vacuum well into the 1980s.

Introducing tribal primacy

Beginning in the Reagan Administration, a series of amendments and executive orders extended federal environmental laws to tribal lands and gave EPA direct implementation authority over them. Some tribal officials successfully lobbied Congress to treat tribes as states for regulatory purposes. With these new rules, tribes may apply to take primary implementation responsibility, or “primacy,” under federal environmental laws. Tribes applying for primacy authority must demonstrate to EPA that they have the administrative capacity to handle regulatory enforcement.

More scenes like this one, please.

​What difference would implementation primacy make to tribal environmental regulation?

On one hand, tribes might engage in a “race to the bottom,” loosening or neglecting environmental rules in order to avoid regulatory costs and improve ​economic output. But a race‐to‐the‐bottom logic makes little sense for American Indian tribes with respect to environmental regulation. Already occupying the proverbial “bottom,” tribes have little reason to shirk regulatory compliance in a race there.

On the other hand, tribal primacy might lead to more rigorous enforcement, as tribes seek to improve health while maintaining their traditions and cultur​es. Federal regulators have few political incentives for devoting scarce resources to enforcement on tribal land, especially when tribes may lack the political strength to demand strict enforcement. At the same time, many tribal governments serve sparsely populated communities under poor economic conditions, leaving tribes with limited access to the human and financial capital necessary to maintain compliance. Regulatory neglect might be the unfortunate (though understandable) result. Tribes with primacy have more control over their own environmental fates. Moreover, primacy can give tribes an important lever in their environmental conflicts with neighboring firms and jurisdictions.*

What difference does primacy make?

To understand the impact of​ implementation primacy on tribal ​clean water enforcement, we analyzed CWA ​records for ​474 tribal wastewater treatment plants in the United States from 2016-2019. About 15% of these facilities operate under tribal regulatory primacy; the rest are regulated directly by the EPA.** After adjusting for facility size, we found that facilities operated by tribes with primacy were inspected more than twice as often as those regulated by the EPA.†

The enforcement gap between tribal and EPA enforcement ​is greatest for smaller facilities and declines as facility size grows. Over our three-year period of analysis, a very small facility (design capacity 5,000 gallons per day) received an average of 2.75 more inspections under tribal primacy than under EPA oversight. At a moderately large facility (2.5 million GPD), the difference fell to just 0.24, statistically indistinguishable from zero.

The fact that the biggest differences are in the smallest systems underscores the impact of tribal primacy as an administrative phenomenon: it stands to reason that EPA officials spend their limited resources on larger tribal facilities. But in the water sector, the greatest environmental​ injustices are often in the smallest, most isolated communities. ​Our evidence shows that tribal primacy has its greatest impact in those small, isolated communities that are otherwise easily neglected.

More of these people, please.

Effective sovereignty

Implementation authority over environmental regulation gives tribal governments effective sovereignty. Sovereignty turns from mere legal assertion to real, practical impact when tribal officials have greater control over their own destinies. Along with money for pipes and plants, efforts to improve tribal water systems must build human capital and organizational capacity to operate and regulate those facilities. Recognizing this reality, the EPA and the Indian Health Service, along with Indian organizations like Native American Water Association and Intertribal Council of Arizona, run programs aimed at building tribal capacity. In the long run, empowering and building ​tribal governance capacity offers perhaps the most promising avenue for improving the environment in Indian Country.



*In fact, we found that tribes with a history of frequent federal litigation were more likely to seek primacy. A history of litigation indicates tribal independence, nationalism, and other political factors related to assertions of sovereignty.

**At the time of our study, only one tribe (the Navajo Nation) held SDWA primacy, so we couldn’t analyze variation in drinking water regulation.

†Our analysis also adjusted for differences in the characteristics of tribes with and without primacy.

40 Degree Day

The congressional COVID cavalry isn’t coming to save the water sector

"Nobody got nothing to say about a 40-degree day."

The ink was barely dry on a $2 trillion coronavirus response law when Congress started working on a second massive coronavirus relief bill. Water infrastructure was initially high on the congressional priority list for the next phase, with rumors of perhaps hundreds of billions of dollars for water and sewer systems. Structured carefully, a massive infusion of federal funds could help end shutoffs that threaten public health, give immediate relief for utilities reeling from lost revenue, help spur economic recovery through investment in badly-needed infrastructure, and maybe even drive fundamental structural reforms to the water sector. There was palpable excitement in the water sector as legislation was taking shape in April and early May. ​I even fielded a few inquiries from policymakers looking for guidance on structuring the bill!

On May 15 the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) bill—an unprecedented $3 trillion package of programs to aid “the economy, public health, state and local governments, individuals, and businesses” in response to the COVID-19 crisis. The bill now sits in the Senate, its final shape and prospects ​uncertain.

The outcome probably won’t matter much for the water sector, however: the HEROES bill passed by the House provides next to nothing for water and sewer systems, and provisions for low-income water bill assistance are structured in a way that will mainly help customers in large utilities with existing assistance programs. That, my friends, is what Stringer Bell would call a 40-degree day.

Aid for utilities?

Back in late March I argued for a formulaic, conditional grant program that would channel $70 billion in federal assistance directly to utilities that agreed to end shutoffs, ensure service to all occupied residences, forgive financial penalties accrued during the pandemic, and restructure prices to maintain affordability. Grants would be based on the poverty rates of utilities’ service areas. The main merits of the conditional grant model are reach and speed: the program would help nearly everyone, minimize administrative costs to utilities, eliminate qualification processes, and get the water flowing fast to stave off a public health emergency. It would also provide an immediate and durable economic stimulus, as utilities could use these funds flexibly to support jobs and capital investment.

Unfortunately, HEROES provisions for water systems are all conditions and no grants. The bill requires water systems that receive HEROES funds to end shutoffs, safely restore service to customers who had been shut off, and forgive penalties (😃).

And what do water and sewer utilities receive in exchange for giving up the main mechanism they have for ensuring timely payment? Limited subsidies for low-income assistance programs, and a boatload of administrative work (😐).

That’s it. That’s all. HEROES includes no categorical grants to water or sewer systems.*

I've never identified so much with a gymnast.

​Wither customer assistance?

​For a few years now, House Democrats have been pushing for a $1.5 billion Low-Income Household Drinking Water and Wastewater Assistance Program (LIWAP?), a LIHEAP-style policy for water bill assistance. I’ve argued before that a LIHEAP-style program isn’t an awful idea but has some pretty severe limitations. Congress apparently heeded that warning, as §190703 retains the LIWAP label but doesn’t build a new LIHEAP-style program. Instead, it would channel funds through state and Tribal governments to utilities to support water and sewer bill reductions for low-income customers.

Allotments to utilities would be based on federal income and poverty guidelines. In addition to ending shutoffs, restoring service, and forgiving nonpayment penalties, utilities that receive bill assistance funds would be subject to audit. To its credit, the House bill seems to acknowledge administrative burdens on customers associated with such programs: §190703(g) requires utilities to “conduct outreach activities designed to ensure that such households are made aware of the rate assistance” and to notify customers of the assistance that they receive. HEROES allows utilities to spend up to 8% of federal funds on support for administrative processes, but participating utilities would also be subject to mandated state audits.

The main problem with this approach is that it puts significant administrative obligations on utilities with relatively little payoff. It is difficult to see why small or medium-sized water and sewer utilities would opt to participate in a program that carries such onerous requirements for a program that will in most cases benefit a small, politically weak minority of their customers. Why would utilities with little organizational capacity agree to heavy shackles with so few shekels? Unfortunately, water/sewer affordability is, on average, worse in smaller systems. HEROES is unlikely to do much for the nation’s neediest water customers.

San Antonio has a good assistance program, and HEROES could make it better.

​The main beneficiaries of the $1.5 billion HEROES water assistance program will be large systems that already run assistance programs, since their administrative and audit processes are already in place.**

​HEROES funding would allow those large utilities to expand or extend benefits, and maybe boost their administrative capacity.

HEROES act? More like ZEROES act, amirite?

I dunno, man. The bill is more than 1,800 pages and funds everything from unemployment insurance to suicide prevention to wildlife biosurveillance. I sure didn’t read the whole thing, and there’s undoubtedly a lot of good stuff in there. The direct cash benefits at the heart of the bill will surely help lots of people. But the HEROES bill that emerged from the House of Representatives does little for water affordability directly, doesn’t help water/sewer systems generally, and certainly does not provide sufficient leverage to achieve more fundamental reforms to the water sector. The bill does give members of Congress the chance to take a position on water affordability and claim credit for tackling shutoffs. Whatever its fate in the Senate, the HEROES bill has accomplished those political goals.

​Systemic reforms ​to the U.S. water sector remain needed and possible, but will likely have to wait until COVID-19 recedes and a new Congress arrives.



*There’s one exception: HEROES allocates $20 million to the Bureau of Indian Affairs to support Tribal water provision, which really need help with capacity. More on this topic coming soon!

**Friends on Capitol Hill tell me that large utilities lobbied for this program.

Superhero

My brother lost his long battle with cancer last week.

Happier Days

I was three years old when my brother Tim was born, and my earliest memories include the excitement about the arrival of a “bicentennial baby” in July 1976. For those who knew him later in life, it might come as a surprise that Tim was a pudgy little kid. He was a playful and loyal younger brother. In 1978 our family moved from New York to Seattle. We settled in the suburb of Renton, and our brother George was born there in 1979. We grew up in a tight-knit suburban neighborhood called Rolling Hills. It was a time when kids spent days playing in the backyard, riding bikes around the neighborhood, playing ball in the cul-de-sac, and wandering through the nearby woods. In most ways, ours was a pretty ordinary 1980s suburban existence. But the hints of the man that Tim would become were there when he was a kid.

Our neighborhood’s signal feature is a competition-length neighborhood pool, and from ages six through eighteen, we were all part of the neighborhood swim team with scores of other kids. George and I were decent swimmers, but Tim outshone us in and out of the pool. Eventually my younger brother broke every one of my records and many others. But far more than a competitor, Tim was a natural leader. Kids of all ages were naturally drawn to his enthusiasm, kindness, and goofy sense of humor. By his teen years, Tim could often be seen at the pool with a half-dozen kids draped all over him in some kind of game. When he became team captain, Tim knew each kid by name and had inside jokes with most. His penchant for industry and enterprise were also evident early on. He rode a paper route on his bicycle every day and socked away the money he earned. So beloved was Tim to the neighborhood kids ​that they’d often line up on curbs and doorsteps to receive their daily papers or ride along with him for fun. One neighborhood parent called Tim the “Pied Piper of Rolling Hills.”

And indeed, teenage Tim’s almost supernatural way with kids reflected something kind of magical about Tim’s entire life. Children were attracted to Tim for the same reason so many others were. He had natural empathy and an instinct for others. He had the politician’s gift of making every person he met feel important and valued.

Tim’s way of winning easy friendships was a kind of super power that amazed and perplexed me as his stern and socially awkward older brother. Later in life I came to understand the secret to Tim’s interpersonal superpower: Tim made people feel valuable because he genuinely valued them, wanted to know them, and wanted to help them.

Kids understood that about Tim intuitively.

Eventually, so did everyone else.

Those qualities carried through Tim’s teen years. He was a standout two-sport athlete in high school, was band president, homecoming king, and general big man on campus. Like his brothers, Tim eventually went to Seattle University where he graduated with a degree in finance in 1999. He was on the swim team and played varsity soccer at Seattle U. He competed in the national championship swim meet, and played on the soccer team that won Seattle U.’s first national championship in 1997. Tim formed deep and lasting friendships with classmates and teammates in those college years. He spent summers working and coaching youth swimming and soccer, which he continued into his early working life. After graduation, Tim worked in insurance and finance in the Seattle area.

Uncle Tim with Tess & Tony.

​I got married in 1997 while Tim was still in college, and when I became an expectant father I was anxious. Although he was my younger brother and still just a college student, I looked to Tim for confidence. Brother Tim became Uncle Tim in 1998 when my daughter Tess was born. Like every child, Tess adored Tim, and Tim adored her right back. My son Antonio was born two years later and soon was just as smitten.

When we moved from Seattle to Michigan in 2001, Tim sent my kids an Advent Calendar. But instead of angels, or shepherds, or stars, or crosses, or the usual Christmas stuff, each day had a picture of Tim’s face on it. Beneath each picture was a piece of chocolate. “I want the kids to associate me with good things,” he said. Tim’s trademark loving attention and goofy humor endeared them for life.

Following the old Alcoholics Anonymous advice to “fake it till you make it,” I learned to be a father by imitating my younger brother. His silly, playful and patient love for my kids helped me gain confidence as a young father—and presaged his own remarkable fatherhood.

 It turns out that making others better was another one of Tim’s superpowers. In the week since his passing, I’ve heard from more and more people stories of how Tim helped them become better human beings.

In 2004 Tim moved to San Diego. When he made the move, he told me that he fell in love with this city years before and felt drawn to it. He learned the joys of fish tacos and took up surfing. He told me once: “The best part of being a surfer is walking up and down the beach looking like a surfer.”

​To support his beach lifestyle, Tim first worked at Nordstrom before moving into mortgage banking. His combination of financial acumen and interpersonal grace made him a successful mortgage banker.

​While working at Nordstrom he​ met Lisa. Having fallen in love with this beautiful city, it should be no surprise that Tim fell in love with one of its most beautiful women.  They struck up a friendship, and then a romance, and then a marriage in 2012.

Falling in love in San Diego

In 2013 Tim finally got the chance to fulfill the role that he was meant for when Audrey Grace was born and Tim became a dad. He got to be a dad for the second time when Hannah Faith joined the fun in 2016.

Everything that made Tim the Pied Piper of Rolling Hills, an inspiring youth soccer coach, and beloved Uncle Tim emerged a thousand fold in Tim the silly daddy. Tim was a hands-on dad: reading stories, down on all fours playing with his girls, bouncing them on his knee, and generally being his attentive, affectionate self. Tim would compose silly songs extemporaneously to lend fun to everyday life. He was utterly devoted to his daughters.

Up to the highest height!

Tim became a father and a cancer patient almost simultaneously; it is impossible to appreciate what an extraordinary father he was without the context of that horrible disease.​

​Tim got his cancer diagnosis at age 36, with his first baby on the way. The cancer was quite advanced by the time it was diagnosed. Physicians gave him little hope after initial treatment, but Tim was determined to find a way to live. For the next seven years, Tim sought every angle and avenue to survive. He read voraciously. He sought second and third and fourth opinions, traveling to specialists in Seattle and Houston to help him fight his disease. At least four times over the past seven years Tim was given grim warnings that he had just months or weeks to live. Each time he defied the odds, seeking out another treatment, another therapy, another surgery, anything to keep himself alive.

​Through it all he kept an almost unbelievably positive, optimistic attitude. Privately, I know my brother was often plagued by fear and doubt, but to his friends, to me, and to my children, he was cheerful and resilient. For his girls, he was still silly daddy: trips to the beach, pool, playground, and zoo filled their days.

Selfie with Silly Daddy!

But that resilience ​carried a terrible cost.

The cancer treatments that Tim received were physically, mentally, and emotionally exhausting. Discomfort, fatigue, pain, and loss of strength and mobility were his daily reality. These were difficult adjustments for a man who had been vigorously athletic for virtually his entire life. It’s impossible to overstate just how much devotion to family kept Tim fighting cancer. As Tim was struggling to recover from another round of treatment, he told me more than once that if he were alone, or in his seventies or eighties, he would never endure the pain and indignities of cancer treatment. But in his daughters he had a reason to keep at it for the chance at another birthday, another silly song, another moment with the family that he loved so much.

​Watching him these past seven years, I learned that Tim had yet another super power: an inexhaustible reservoir of courage and will to endure where most others would give up. Paternal love was the wellspring of that courage.

Lullabies with Silly Daddy.

Last September I visited my brother in San Diego for a few days. While I was here, he got some bad news from his oncologist. Tim and I had lunch on the last day of my visit and he told me: “I’ve been dodging bullets for six years. I’m just going to have to dodge another.”

​That image stuck with me ever since. Every time someone asked me about how about Tim was doing, I told them he was dodging bullets. Tim was so strong, so resilient, so graceful and athletic—I’d smile as I imagined him dodging, weaving, dancing, almost playfully evading cancer to the squealing delight of his daughters.

​Two weeks ago I came to San Diego when Tim had been hospitalized again.​ This time there were no more therapies, no more surgeries, no more room to dodge or dance.

Among the many cruelties of coronavirus, children were forbidden from visiting the hospital. That made Tim desperate to return home where he could be with Audrey and Hannah, even as he saw the end approaching. Thank God, he was finally given permission to let us care for him at home.

​Only when I began to help care for Tim at home did I come to appreciate the true costs of Tim’s devotion. His strong, athletic frame had been decimated. In his prime, Tim was a strapping 200 pounds; in his last days I held him in my arms and he could not have been more than 130. His body was riddled with more than two dozen scars from seven years of surgeries and treatments. The terrible truth became clear: Tim had not been dodging bullets; he’d been taking them.

​Martial metaphors are cliché when describing people’s struggles with disease, but seeing, touching, and holding Tim in his last days revealed a man who had indeed been fighting in every way he could with everything he had. He wasn’t dodging or dancing, he was standing and fighting desperately for every moment another moment with his family.

​Each scar on Tim’s body was a monument to that devotion.

In his last days, Tim’s only thoughts were for his family. At times he felt like a failure for leaving them behind. In reality, Tim was victorious in creating two precious new lives and building a community, weaving a blanket of love around his family that will care for and sustain them always. In his last hour on this earth, I told him so.

Three days ago we laid my brother Tim to rest in a COVID-era service that gave a strangely sparse sendoff to an intensely social life. He was a son, a brother, a husband, and a friend. He was a leader. He was a courageous father and a silly daddy.

Tim's burial during COVID-19

And he was my hero.

​Rest easy, brother.