The Environmental Protection Agency (EPA) has initiated two rulemaking actions, both expected to be proposed in early 2022, that could change the way the Clean Water Act (CWA) is administered across the country. Together, these actions would elevate tribal rights in water quality regulatory decision-making and could provide EPA with significantly greater authority to regulate discharges on and upstream of tribal lands.
The CWA establishes a robust cooperative federalism framework that balances resource management decision-making at the local level with federal regulatory oversight. Under that framework, states are required to establish water quality standards for waters within their borders. Tribes that apply to EPA and receive “Treatment as a State” (TAS) status are also able to establish water quality standards for CWA purposes. EPA must approve state and tribal water quality standards before those standards can be used to implement the core regulatory programs under the CWA. EPA-approved water quality standards for example are used to conduct watershed planning, evaluate water quality impairments, and establish total maximum daily loads (TMDLs) for impaired waters. Water quality standards can also be used to establish effluent limits for permits issued pursuant to the CWA’s National Pollutant Elimination Discharge System (NPDES) program.
The first EPA action under consideration would require states to ensure that tribal reserved rights are protected when establishing water quality standards. The second action would establish “baseline” water quality standards for waters and wetlands on tribal lands without TAS status. EPA has worked on these efforts intermittently for the better part of 20 years, but now appears committed to moving these rulemakings forward in the coming months.
Tribal Reserved Rights. EPA’s first significant public effort to incorporate tribal reserved rights into the water quality standards program came in 2015-16 when the agency disapproved standards developed by Maine and Washington because, EPA asserted, the states failed to adequately consider tribal reserved rights. In these two cases, the states had each spent several years developing and promulgating human health criteria (HHC) water quality standards. HHC standards are set to protect against human exposure to pollutants in water, including through drinking water intake and the consumption of fish from local waters. In 2015, EPA issued water quality criteria recommendations for establishing HHC, including default inputs for drinking water and fish consumption, but states are not required to adopt EPA’s recommendations and may use site-specific inputs based on local data or other information. Both states’ HHC standards incorporated state-specific fish consumption rates that were greater than the EPA default inputs, but EPA nonetheless disapproved these HHC because the agency concluded that tribal rights, including tribal fish consumption, were not adequately considered in the state-specific HHC.
In its initial presentations on this potential rulemaking, EPA says it is considering two revisions to 40 CFR Part 131, which sets out requirements for state-promulgated water quality standards. The first revision would establish that “States and EPA must not impair tribal reserved rights when establishing, revising, and approving water quality standards.” This generic prohibition would memorialize in federal regulation the agency’s intended outcome from its 2015-16 state-specific disapprovals. The second revision would provide a more specific test:
As informed through consultation with applicable tribes, if tribal reserved rights exist in waters where the water quality standards will apply, and the level of water quality necessary to protect those rights is known, then upholding those rights requires protecting that water quality.
Although this language is only a preliminary proposal that EPA used during tribal consultation, it raises a number of questions about how such a provision would be interpreted and implemented. For example, does the provision require states to consult with applicable tribes, or would EPA consult with tribes during its review of the state standard? What is the process or timeline for that consultation? Given that not all tribal rights are on the same legal footing under state and federal law, is there a particular type of “tribal reserved rights” that would trigger the test? What and how much must be known about how to protect those rights before the requirement to protect is triggered? The answers to these and many other questions will no doubt inform the amount of discretion and deference EPA will afford states in their consideration of how and to what degree tribal rights are accounted for in a state water quality standards. Unless this rule is drafted with great precision and clarity, it is likely that this new rule will generate significant litigation at both the state standard-setting level and in individual permitting decisions, testing the boundaries of the cooperative federalism framework envisioned by Congress in the CWA.
Baseline Water Quality Standards. EPA first began developing a rulemaking to establish baseline water quality standards in 1999 and returned to the effort in 2016 with its publication of an Advance Notice of Proposed Rulemaking. Like all water quality standards, EPA expects the baseline standards would consist of three components: (1) designated uses, such as for the protection of fish propagation and consumption, cultural and traditional uses, and drinking water supply; (2) numeric or narrative criteria to protect waters, wetlands, and downstream waters; and (3) antidegradation provisions to protect existing uses. EPA anticipates these baseline water quality standards would apply to Indian reservation waters where EPA has not already approved state or tribal standards and where there are no promulgated federal standards. EPA anticipates the baseline standards would not apply to off-reservation allotments or on lands where a tribe has “opted out” of the baseline program.
EPA’s presentation on the baseline water quality standards makes clear that EPA, not the tribal governments, would implement the baseline standards on tribal lands. This means that EPA would presumably conduct watershed planning, evaluate whether waters on tribal lands are impaired, and develop TMDLs for those impaired waters on tribal lands. EPA would also be responsible for issuing NPDES permits with effluent limitations potentially derived from the baseline water quality standards. EPA’s implementation of baseline water quality standards will create an opportunity for new federal regulation on and upstream of tribal lands. From a practical perspective, EPA’s implementation of these baseline standards will create significant new workload for the agency that is already stretched thin by congressional budgets, expanding regulatory and financial portfolio, and a retirement-eligible workforce. This raises a concern that EPA, though well intentioned, could let implementation lapse and be subject to ongoing litigation. From a policy perspective, it raises questions about tribal self-determination and whether TAS will be considered a valuable tool going forward or an unnecessary or budget-constrained burden that EPA instead will bear by managing all waters on tribal lands.
EPA initiated tribal consultation for both actions in July 2021, held tribal-only listening sessions in July and August, and completed consultation on September 13. EPA anticipates proposing both rules in Spring 2022. States, local communities, and members of the regulated public may want to consider engaging with EPA and the tribal governments as these new developments have the potential to modify CWA implementation in the coming years.