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Statement of Need:

This proposed rule would establish a durable and transparent national framework outlining how tribal reserved rights to aquatic-dependent resources must be protected in water quality standards for waters in which such rights apply. In 2016 EPA took actions in Maine and Washington to protect tribal reserved rights, requiring that human health criteria for waters in those states where tribes reserved the rights to fish for subsistence be set at more stringent levels to protect tribal fish consumers. In 2019 EPA disavowed the approach it took to protecting tribal reserved rights in the 2016 Maine and Washington actions and concluded that states and EPA can always protect tribal reserved rights by simply applying EPA’s existing regulations and guidance, with no additional consideration of such rights. EPA has now reconsidered the assertions it made under the previous Administration that tribal reserved rights do not impose any additional requirements in the WQS context. The changes in EPA’s position regarding consideration of reserved rights in the water quality standards context over the years have resulted in confusion for tribes, states, stakeholders and the public about how tribal reserved rights must be considered in establishment of WQS. In addition, states and industry groups criticized EPA for taking its actions in 2016 without first going through a national notice and comment rulemaking on its approach.

Summary of the Legal Basis:

To be determined. 

Alternatives:

To be determined. 

Anticipated Costs and Benefits:

To be determined. 

Risks:

To be determined.