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Many tribes hold reserved rights to resources on lands and waters where states establish water quality standards, through treaties, statutes, or other sources of federal law. The U.S. Constitution defines treaties as the supreme law of the land. On November 28, 2022, the EPA Administrator signed a proposed rule that would revise the federal water quality standards regulation to ensure that water quality standards do not impair tribal reserved rights by giving clear direction on how to develop water quality standards where tribes hold reserved rights. This proposed rule would help EPA ensure protection of resources reserved to tribes in treaties, statutes, or other sources of federal law when establishing, revising, and reviewing water quality standards. The development of this rule helps advance President Biden’s commitment to strengthening nation-to-nation relationships with tribes. EPA consulted with tribes in the summer of 2021 during the pre-proposal phase and in the winter of 2023, concurrent with the public comment period for the proposed rule. EPA is working to expeditiously finalize the proposed rule, taking into account public comments.

Statement of Need:

This 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 (WQS) 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 its past assertions 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:

In exercising its CWA section 303(c) authority, EPA has an obligation to ensure that its actions are consistent with treaties, statutes, executive orders, and other sources of Federal law reflecting tribal reserved rights. EPA’s implementing regulation at 40 CFR part 131 specifies requirements for states and authorized tribes to develop WQS for EPA review that are consistent with the Act. EPA is exercising its discretion in implementing CWA section 303(c) to establish new regulatory requirements to ensure that WQS give effect to rights to aquatic and aquatic-dependent resources reserved in Federal laws.

Alternatives:

No other options considered.

Anticipated Costs and Benefits:

EPA estimated the potential incremental administrative burdens and costs that may be associated with the proposed rule, beyond the burden and costs associated with implementation of the current WQS regulation. EPA estimated the total, one-time costs for the proposed rule to range from $989,112 to $4,945,562, with no recurring costs. This rule would not establish any requirements directly applicable to regulated entities, such as industrial dischargers or municipal wastewater treatment facilities, but could ultimately lead to additional compliance costs to meet permit limits put in place to comply with new WQS adopted by states. However, because of the uncertainty in the specific outcome of application of this rule, both in terms of location and pollutants involved, EPA is unable to provide estimates of costs to those regulated entities. EPA was likewise unable to quantify the estimated benefits of the proposed rule. EPA anticipates that the rule would enhance the ability of states and tribes to protect their water resources by clarifying and prescribing how to protect waters with applicable tribal reserved rights and improving coordination between Federal, state, and tribal governments.

Risks:

EPA is continuing to evaluate potential risks.