EPA Proposes to Amend its Water Quality Standards Regulation to Better Protect Tribal Reserved Rights

January 18, 2023
Brenda Hustis Gotanda, Esq.
MGKF Special Alert - Federal Forecast 2023

The United States Environmental Protection Agency (EPA) has proposed amendments to its federal water quality standards (WQS) regulation at 40 C.F.R. Part 131 that are intended to better protect tribal reserved rights by setting forth a uniform approach for establishing WQS in waters where tribal reserved rights to aquatic or aquatic-dependent resources apply. The proposed rulemaking would require that WQS protect water and water-dependent resources reserved to tribes through federal law (e.g., treaties, statutes, executive orders, etc.) in waters of the United States and clarify how EPA and the states must ensure protection of those rights. Some examples of tribal reserved rights identified by EPA include the rights to fish, gather aquatic plants, and to hunt for aquatic-dependent animals. Whereas protection of such reserved rights has previously been addressed on a case-by-case basis, the proposed requirements would establish a nationally-applicable regulatory framework, which EPA believes would provide clarity, predictability and transparency in its review of state WQS and in its own promulgation of WQS in waters where reserved rights apply.

Under the Federal Clean Water Act (CWA), states are required to establish WQS for rivers, lakes, estuaries, and other waters of the United States within their jurisdiction. EPA’s regulations set forth certain baseline federal requirements for WQS, which include the designated uses of the waterbody (such as fishing, drinking supply or other uses), water quality criteria necessary to support those uses (such as pollutant limits), and anti-degradation requirements to protect water quality. States must review their WQS at least every three years (triennial review) and, if appropriate, revise or adopt new standards. Any new or revised state WQS must be submitted to EPA for review. In cases where states do not establish required WQS or where state WQS fail to meet applicable requirements, EPA is required to establish WQS under the CWA.

In its rulemaking, EPA proposes to specifically require that WQS protect tribal reserved rights where applicable and to clarify and prescribe regulatory requirements for setting WQS that provide such protection. EPA proposes to define “tribal reserved rights” as “any rights to aquatic and/or aquatic-dependent resources reserved or held by tribes, either expressly or implicitly, through treaties, statutes, executive orders or other sources of Federal law.” EPA, however, is not proposing to require WQS that protect the waterbody condition that may have existed at the time a reserved right was established. Rather, EPA intends to protect reasonably anticipated future uses, taking into account factors that may have substantially altered a waterbody. (Relatedly, EPA’s regulatory agenda indicates that it plans to issue a separate proposed rulemaking in March 2023 to establish baseline WQS to protect waters on Indian reservations that do not currently have WQS under the CWA. EPA states that over 80 percent of Indian reservations lack such CWA protections.)    

In the preamble to the proposal, EPA observes that tribal reserved rights could potentially be impaired by decreased water quality and that some courts have recognized that the right to a specific resource necessarily includes attendant protections in order to be rendered meaningful. As such, the proposal would also require that, to the extent supported by available data and information, WQS protect the exercise of tribal reserved rights unsuppressed by water quality or availability of the aquatic or aquatic-dependent resource. EPA has stated that the unsuppressed level should balance heritage use of a resource with what is currently reasonably achievable for a particular waterbody. Further, determining the unsuppressed level requires consideration of past, present, and reasonably-anticipated future use of the resource, together with what is currently reasonable to achieve for the waterbody.

EPA’s proposed rulemaking would also require that WQS protect the health of the tribal reserved right holders to at least the same risk level as provided to the general population of the state. EPA anticipates that this new provision will primarily be used in determining cancer risk levels for purposes of calculating human health criteria. EPA does not propose treating rights holders as a highly exposed population. EPA notes, however, that there may be circumstances where WQS may need to be adjusted to protect tribal reserved rights such as where tribes with reserved fishing rights consume more fish and, therefore, are exposed to greater levels of contaminants in fish, such that there is a differential health risk between rights holders and the general population.

In addition, the proposal includes new documentation requirements applicable to state WQS submissions to EPA designed to aid EPA in evaluating whether the state WQS protects tribal reserved rights, including information about the scope, nature, and current and past use of the tribal reserved rights, as informed by the rights holders, and data and methods used to develop the WQS. Further, the proposal provides that EPA will initiate tribal consultation with rights holders in reviewing state WQS submissions to determine if they protect tribal reserved rights. States would also be required, during their regular WQS triennial reviews, to re-evaluate whether any WQS needs to be revised to protect any applicable tribal reserved rights.

EPA notes that the proposal does not establish any new requirements that apply directly to regulated point or nonpoint sources of pollution. Such sources, however, could potentially be impacted in the future as a result of changes to WQS implemented to comply with the rulemaking. Where applicable, WQS can serve as the basis for establishing water quality-based effluent limitations in discharge permits or total maximum daily loads under the CWA.  

EPA is inviting public and tribal comments on the proposed rulemaking. Written comments must be submitted to EPA on or before March 6, 2023. Two public hearings have also been scheduled (on January 24 and 31) to receive oral comments from interested parties. To attend the public hearing, you must register in advance on EPA’s website. EPA is likewise inviting continued consultation with tribes, with the tribal consultation period ending on February 28, 2023.

If you have questions concerning the proposal or the comment opportunity, please contact Brenda Gotanda at 484-430-2327 or Steve Daly at 484-430-2306.