Potentially toxic wastewater discharges from hydraulic fracturing–known as “produced water”–are not subject to RCRA’s or the CWA’s permitting requirements. This is because the EPA has categorized produced water as a “special waste” when put to “beneficial uses” in arid regions. Some chemical components in produced water, however, are patented trade secrets that may prove injurious to human health.
This Article addresses the issue of produced water as it relates to Native American tribal lands, where fracking activity is increasingly common. Despite their status as sovereign nations, Native American tribes neither have the authority to impose their own produced water permitting standards under RCRA, nor the ability to meet financially burdensome standards in order to regulate water quality under the CWA. Together, these regulatory exemptions and unrealistic standards form a “livestock loophole” that allows untreated produced water disposal onto Native American lands.
This Article, at the nexus of environmental law and Indian law, argues that tribes have an important and distinct role in both accepting or declining produced water discharges on tribal lands, and in setting their own water quality standards under the CWA. This Article then makes recommendations consistent with such an account of tribal sovereignty and the federal government’s responsibility under the Federal Trust Doctrine.