This piece was written by Ted Knight and Brian Crossley.

The People

Source: spokanetribe.com

The Spokane Tribe of Indians is a federally recognized Indian Tribe. The Tribe’s Reservation was established by Executive Order on August 18, 1877 after the Tribe was forced from parts of its homeland by the United States government. The Tribe’s Reservations’ boundaries are the East Bank of Tshimakain Creek, the South Bank of the Spokane River, the West Bank of the Columbia River and the Northern Border is the 48th parallel. The Tribe’s ancestral lands as found by the Indian Claims Commission and affirmed by the United States Court of Claims include the entirety of the Spokane River as it flows through what is now Washington State and portions of the Columbia River encompassing an area of almost 3 million acres. The Tribe has quantified water rights that include a right to water of a quality that can sustain fish and other aquatic life and the Tribe retains ownership of the original beds and banks of its Reservations’ boundary waters (Spokane River, Columbia River and Tshimakain Creek). 

In addition to the fishing and hunting rights the Tribe retains within its Reservation, the Tribe was granted “paramount use” rights for a portion of Lake Roosevelt for fishing, hunting, and boating when the construction of Grand Coulee Dam inundated a portion of the Tribe’s Reservation creating what is now called Lake Roosevelt. Lake Roosevelt encompasses parts of the Spokane and Columbia Rivers.

Prior to being forced onto the Spokane Indian Reservation after many battles with the United States government, the Tribe, comprised of the Upper, Middle, and Lower Bands of the Spokane Tribe, lived and thrived from what is now the Idaho state line all the way to the confluence of the Spokane and Columbia Rivers. At times the Tribe extended their hunting, fishing, and gathering grounds into Idaho and Montana. 

Spokane ancestors were, and the Tribe continues to be, a river people. Their primary diet before the arrival of settlers consisted of what was taken from the water ways in the form of salmon, steelhead, lamprey, and shellfish which made up 80% of their diet. This continued until the construction of Little Falls and Grand Coulee Dams which blocked anadromous fish from making their return to the Tribe’s lands and waters.

For the Spokane Tribe, returning and restoring anadromous fish to their Reservation’s waters and ancestral homelands is among its highest priorities. As the current Spokane Tribe’s Chairwoman Carol Evans has stated, “bring back the salmon then our people will heal.” From the Tribe’s perspective, the salmon restoration effort within the Columbia River Basin can be considered successful only when there are healthy and harvestable populations of anadromous fish above Chief Joseph and Grand Coulee Dams. For the Tribe it is simple: the area above Chief Joseph and Grand Coulee Dams includes over 40% of the previously occupied anadromous habitat in the Columbia River Basin that is currently blocked, and until anadromous fish are reestablished in these previously occupied habitats the salmon and steelhead restoration effort in the Columbia River Basin will continue to fail to meet regional goals.  Part of this effort includes ensuring that the Tribe’s waters are safe for the salmon’s return, and to protect the Tribe’s current resident fish and aquatic resources.  

Developing Legal Tools to Protect Ways of Life

One of the federal government’s adjudicated purposes when establishing the Spokane Tribe’s Reservation was to ensure the Tribe could have access to fish for food in perpetuity. For this reason, the Reservation’s boundaries explicitly include the Tribe’s boundary waters (Tshimakain Creek, the Columbia River and the Spokane River). 

The Tribe adopted new standards in 2010 based on a fish consumption rate of 865 grams of fish per day to recognize a subsistence quantity of fish consumption and 4 liters per day of water intake, both calculated utilizing a 1/1,000,000 cancer risk rate. These assumptions resulted in a PCB surface water quality standard of 1.3 pg/L for total PCBs, contrasted with Washington’s much higher PCB water quality standard (as of October 2022) of 170 pg/L. These new standards were approved by EPA in December of 2013. 

The Tribe is treated as a downstream state and has options to force the State of Washington and Idaho to prohibit discharges of pollution that will not meet the Tribe’s standards. 

The Problem

Sections of the Spokane River have been on Washington State’s Impaired Waters List for decades due to dangerous levels of PCBs in fish tissue. Washington only recently increased its fish consumption rate to 175 grams per day, and when they did so, they also altered the cancer risk rate for certain parameters (meaning more tolerant of higher rates of cancer) such as PCBs so that the water quality standards did not become more protective. 

Five pollution discharge permits were updated in 2022 after being administratively extended for seven years. These permits must set limits that protect the downstream uses in the Spokane Indian reservation by meeting the PCB standard of 1.5 pg/L, among others. These permits are not allowed to permit discharges that might cause or contribute to the PCB impairment in the Spokane River^[1]. The renewed permits upstream of the reservation are only required to control their discharge of PCBs to meet the water quality criterion of 170 pg/L, based on Washington State’s current water quality standards. This criterion may be changed within the next two years, however, as EPA develops new human health criteria for Washington. These permits have been granted acute and chronic mixing zones that allow for violations of water quality standards in limited areas around the outfall. 

The Path to Solutions

The Tribe intervened as plaintiff in a lawsuit brought by Sierra Club and the Center for Environmental Law and Policy to require EPA to develop and adopt a PCB TMDL for the Spokane River. The Consent Decree from February of 2022 names December 29, 2024 as the deadline. The waste load allocations must result in the attainment of the Tribe’s downstream water quality standards.

The general conditions of the permits allow the state agency to modify, revoke, reissue or terminate and permit under certain conditions. Once EPA finalizes new water quality standards, the state agency will evaluate the impact on these permits and could modify them before the next 5-year permit cycle. 

Source: Spokane River PCB Source Assessment, 2003-2007; arrows added.

Footnotes

[1] 40 CFR122.4(i)