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EPA is developing a proposed rule to establish tribal baseline water quality standards (WQS) for waters on Indian reservations that do not have WQS under the Clean Water Act (CWA). Less than 20 percent of reservations have EPA-approved tribal WQS. Promulgating baseline WQS would address this longstanding gap and provide more scientific rigor and regulatory certainty to National Pollutant Discharge Elimination System (NPDES) permits for discharges to these waters. Consistent with EPA regulations, the baseline WQS would include designated uses, water quality criteria to protect those uses, and antidegradation policies to protect high quality waters. EPA initiated tribal consultation on June 15th, 2021 and will be engaged in coordination and consultation with tribes throughout the consultation period, which ends September 13th, 2021. EPA welcomes consultation with tribes both during and after the consultation period. EPA plans to propose this rule by early 2022 and to finalize by early 2023.

Statement of Need:

The federal government has recognized 574 tribes. More than 300 of these tribes have reservation lands such as formal reservations, Pueblos, and informal reservations (i.e., lands held in trust by the United States for tribal governments that are not designated as formal reservations) and are eligible to apply to administer a WQS program. Only 75 tribes, out of over 300 tribes with reservations, currently have such TAS authorization to administer a WQS program. Of these 75 tribes, only 46 tribes to date have adopted WQS and submitted them to EPA for review and approval under the CWA. As a result, 50 years after enactment of the CWA, over 80% of Indian reservations do not have this foundational protection expected by Congress as laid out in the CWA for their waters. This lack of CWA-effective WQS for the waters of more than 250 Indian reservations is a longstanding gap in human health and environmental protections, given that WQS are central to implementing the water quality framework of the CWA. Although it is EPA’s preference for tribes to obtain TAS and develop WQS tailored to the tribes’ individual environmental goals and reservation waters, EPA’s promulgation of baseline WQS would serve to safeguard water quality until tribes obtain TAS and adopt and administer CWA WQS themselves.

Summary of the Legal Basis:

While CWA section 303 clearly contemplates WQS for all waters of the United States, it does not explicitly address WQS for Indian country waters where tribes lack CWA-effective WQS. Under CWA section 303(a) states were required to adopt WQS for all interstate and intrastate waters. Where a state does not establish such standards, Congress directed EPA to do so under the CWA section 303(b). These provisions are consistent with Congress’ design of the CWA as a general statute applying to all waters of the United States, including those within Indian country. Several provisions of the CWA provide EPA with the authority to propose this rule. Section 501(a) of the CWA provides that [t]he Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter. In Indian country waters where tribes are not yet authorized to establish WQS and where states lack jurisdiction to do the same, EPA is responsible for implementing section 303(c) of the CWA. Section 303(c)(4)(B) of the CWA provides that [t]he Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of [the Act]. In 2001 the EPA Administrator made an Administrator’s Determination that new or revised WQS are necessary for certain Indian country waters.

Alternatives:

To be determined.

Anticipated Costs and Benefits:

To be determined.

Risks:

To be determined.