View Rule

Statement of Need:

The Federal government has recognized 574 tribes. More than 300 of these tribes have reservation lands and are eligible to apply for “treatment in a similar manner as a state” (TAS) to administer a WQS program. Only 84 tribes, out of over 300 tribes with reservations, currently have such TAS authorization to administer a WQS program. Of these 84 tribes, only 47 tribes to date have adopted WQS and submitted them to EPA for review and approval under the Clean Water Act (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. Addressing this lack of CWA-effective WQS for the waters of more than 250 Indian reservations is a priority for EPA, 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.” 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. Today’s action is the first step toward fulfilling that outstanding Determination.

Alternatives:

No other alternatives considered.

Anticipated Costs and Benefits:

Total cost estimates range from $15.51 million in annualized costs over 20 years at a 3 percent discount rate (with $6.1 million in one-time costs) to $30.54 in annualized costs over 20 years at a 3 percent discount rate (with $1.23 million in one-time costs). Using a discount rate of 7 percent over 20 years, total annualized costs range from $18.94 million (also with $6.1 million in one-time costs) to $36.45 million (also with $1.23 million in one-time costs). Total one-time costs are larger in the low estimate than in the high estimate because one-time WQS variance costs are often used in lieu of annualized effluent treatment costs for facility-specific low estimates for certain pollutants.

Promulgating baseline WQS for Indian reservation waters would promote the implementation of pollution control measures and best practices to help improve water quality and prevent future degradation of Indian reservation waters, as well as potentially providing positive water quality benefits to waters in adjacent jurisdictions. Improved water quality for Indian reservation waters will benefit Tribes as well as anyone who recreates on Indian reservation waters or values environmental quality regardless of their current or anticipated uses of Indian reservation waters.  Although implementation of baseline WQS is likely to yield significant benefits, estimating the dollar value of these improvements to Tribes may not be feasible. First, Tribes often express the difficulty of placing a monetary value on ecosystem services, given the belief that these resources are sacred and beyond any earthly value. Second, estimating the value of water quality improvements to visitors of Indian reservations is challenging due to the lack of data on site-specific visitation, use (e.g., recreational fishing) and valuation. Therefore, EPA provided a qualitative description of benefits categories that may stem from baseline WQS. These benefits include those related to human health, ceremonial and subsistence harvests of fish and shellfish, recreation, and other social welfare improvements. EPA anticipates, however, that the abovementioned benefits will ultimately outweigh the potential estimated incremental costs associated with promulgation of this rule and that this rule will help address the environmental challenges Tribes are currently facing. 

Risks:

EPA is continuing to evaluate potential risks.