Sovereignty isn’t what’s on paper, it’s what flows through taps and rivers
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.
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 cultures. 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.
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.
Water Sector Reform #5: Environmental Justice
With a major federal investment in water infrastructure possibly on the horizon, the United States has a once-in-a-generation opportunity to leverage that money into a structural transformation of America’s water sector. This is the last in a series of posts outlining broad proposals to reform the management, governance, and regulation of U.S. drinking water, sewer, and stormwater systems. The first proposed reform was consolidation of water utilities; the second was an overhaul of financial regulation; the third was investment in information technology; the fourth was investment in water sector human capital.
My fifth proposal is to build environmental justice into federal water regulations.
Drinking water & environmental justice
It’s difficult to overstate just how much the Flint Water Crisis changed the national conversation on drinking water. As I’ve observed before, Flint’s water contamination wasn’t the first, or worst, or largest drinking water crisis in America in recent years, but for it’s the one that put a spotlight on water infrastructure. Last month a similar lead contamination in Newark grabbed headlines across the country again.
The lead contamination crises in Flint, Newark, and elsewhere turned the spotlight on an uncomfortable reality: America’s water systems problems are not just about infrastructure management, they’re also about institutional politics, race, ethnicity, and poverty. There’s a growing recognition that water infrastructure is an environmental justice issue. That’s expanded the political coalition interested in water infrastructure and raised the stakes in the politics of drinking water.
The color of drinking water
Anecdotes and case studies about drinking water and environmental justice abound. Looking for more rigorous evidence, David Switzer and I conducted the first nation-wide analysis of the relationships between race, ethnicity, socioeconomic status, and Safe Drinking Water Act (SDWA) compliance. Here’s what we found:
The red areas of the graph show high likelihood of drinking water violations, the blue areas show low likelihood. These results provide strong evidence of a systemic injustice in utilities serving low-income communities of color across the United States. In communities with higher populations of black and Hispanic individuals, SDWA health violations are more common. What’s more, race and ethnicity seem to matter most in determining drinking water quality in the poorest of communities. My analysis of public experiences with drinking water service also reveals important disparities by race and income. The racial disparities are far, far worse in Indian Country. My study with Mellie Haider and David Switzer found that Clean Water Act violations are 23% higher and SDWA violations are 59% higher on tribal facilities compared with non-tribal facilities.*
The reasons for these racial, ethnic, and socioeconomic disparities in water quality and utility service are varied and complex. In some cases it’s a familiar tale of urban de-industrialization and white flight; in others it’s a legacy of racial discrimination in housing or infrastructure development programs. Environmental injustices in drinking water aren’t just urban phenomena, either: majority-black and majority-Hispanic communities suffer from poor water quality across vast swaths of rural America—to say nothing of Indian Country.†
Unfortunately, the regulatory response to ongoing water quality problems in poor, minority communities is to loosen regulations or look past violations. Outsiders to the water sector are sometimes surprised to learn that there are no federal laws requiring racial, ethnic, or socioeconomic equity in water quality.
If we are going to pour hundreds of billions of federal dollars into water infrastructure, that money must bring us closer to environmental justice. My final water sector reform proposal, then, is to build environmental justice into federal water regulations. That means, at a minimum:
- Establishing standard metrics to assess racial, ethnic, and socioeconomic equity in environmental conditions and infrastructure investments. I’m working on some new environmental equity metrics that I hope to put into practice soon.
- Utilities must collect and publicly report data on service shutoffs and restorations.
- Regulators must demonstrate racial, ethnic, and socioeconomic equity in inspections and enforcement actions.
Eligibility for all federal infrastructure funding must be contingent on utilities demonstrating equity in conditions, investment, and administration, or adequate progress toward that goal. Extra funding and technical assistance should be targeted at communities that suffer from significant disparities due to historical or structural disadvantages—most obviously tribal systems.
Together with the other systemic reforms I’ve proposed, this commitment to environmental justice can rebuild trust in America’s water systems and build a broad political coalition in support of investment in the nation’s most essential infrastructure.
*We’ve got more research on tribal water issues in the, er, pipeline.
†Environmental injustice in rural America often come as a surprise to big city folks, who often seem to think that “rural” means “white.” Racial/ethnic disparities in water quality don’t surprise anyone who’s spent time in South Texas, Northern Arizona, or Alabama’s Black Belt.
© 2019 Manny P. Teodoro
Black, White, and Hispanic Americans experience water utility service differently
Over the past couple of years there’s been a growing recognition that drinking water policy is an environmental justice issue in the United States; my research with David Switzer showed racial, ethnic, and socioeconomic disparities in drinking water quality at the community-level—findings that have since been affirmed by other researchers. Identifying racial and ethnic disparities in drinking water service at the individual level is harder. Do people of different races and ethnicities experience water service in markedly different ways?
A few months ago I posted some findings from a Texas A&M Institute for Science, Technology & Public Policy (ISTPP) national public opinion survey. The survey’s carefully-designed sample of nearly 2,000 individuals is representative of the US population, and so offers an extraordinary look at public perceptions about water service. Earlier posts reported on attitudinal differences between water professionals and the general public, how gender predicts opinion on water issues, and the correlation between income and water service experiences.
Today I’m looking at race and ethnicity.
Water service problems
The ISTPP survey asked respondents to say whether they had experienced specific kinds of problems with their drinking water with a simple yes/no answer:
- The water does not taste good (31.5% yes)
- The water is cloudy or dirty (19.5%)
- Water pressure is low (29.2%)
- The water causes sickness (3.8%)
- Water billing or payment problems (10.2%)
56.7% of respondents reported experiencing none of these problems. It’s important to remember that the survey captures perceived water service problems, not actual problems—for example, we don’t know whether a respondent actually experienced low water pressure, we only know whether a respondent thinks (s)he experienced a problem. Happily, a large majority of respondents said that they had not experienced each of these problems.
Less happily, there were notable racial differences in the “yes” responses across all five items, and ethnic differences in two of them. The graph below shows the percent reporting each type of water service problem for Black, Hispanic, and non-Hispanic White respondents (vertical spikes represent 95% confidence intervals).*
It’s not a pretty picture. A generally ordered relationship emerges, with Black respondents reporting the most water problems, followed by Hispanics, with non-Hispanic Whites reporting the fewest in four of the five categories. Non-Hispanic whites were most likely to report no problems at all.
Black respondents reported experiencing water service problems much more frequently than did respondents of other races across all five categories. The differences between Black and non-Hispanic White respondents were large and statistically significant in all categories. For example, 37% of Black respondents reported experiencing low water pressure, compared with 28% of non-Hispanic Whites. 29% of Blacks reported cloudy or dirty water, compared with just 18% of non-Hispanic Whites.
The disparities between Hispanic and non-Hispanic White respondents were less stark, although significantly more Hispanic respondents reported experiencing water bill problems and illness compared with non-Hispanic Whites.
How much do racial/ethnic patterns just reflect income?
Since race and ethnicity correlate with income in the United States, it’s possible that the racial/ethnic disparities are just artifacts of income disparities I discussed in my earlier post. Statistical modeling can help tease out the degree to which race/ethnicity relates to water service experiences after accounting for income. So I fitted logistic regression models to identify correlates of water service experiences by race and ethnicity, while accounting for income, age, urban/rural location and region. These models estimate the likelihood of experiencing each of the five service problems, or no problems. The graph below shows the results, with estimates of racial/ethnic groups at an annual income of $27,500–a relatively low income where we’d expect problems to be most frequent:
When adjusting for income, age, and region, the racial and ethnic disparities persist, but are less pronounced and in most cases not statistically significant by the conventional standard. So while there are clear racial and ethnic differences in water service experiences in the United States, these data suggest that much–but probably not all–of those differences reflect racial/ethnic income disparities.
*The survey captured only two racial categories (Black & White) and one ethnic category (Hispanic), so we can’t analyze other racial or ethnic groups.