EPA has proposed to establish “baseline” water quality standards that would apply to all Indian reservation waters where the tribe has not received “treatment as a state” (TAS) authority, the state does not have authority, and the federal government has not already promulgated water quality standards. Under the proposal, tribes will have a limited opportunity to request that certain waters be excluded from the federal baseline standards, but that decision will ultimately be made by the EPA regional administrator. If a tribe receives TAS, promulgates its own water quality standards, and obtains EPA approval of those standards, the federal baseline standards would no longer apply.
This is EPA’s second recent proposed rule aimed at tribal interests and water quality. The first proposal would require states to protect tribal reserved rights in establishing state water quality standards. EPA’s baseline proposal explains that there are 574 federally recognized tribes, but only 84 have received TAS for the water quality standards program, and only 47 of those have submitted Clean Water Act (CWA)-compliant water quality standards for EPA approval.
As a refresher, the CWA directs states to establish water quality standards. Federally recognized tribes are also authorized to pursue TAS authority to administer CWA programs, including establishing water quality standards, issuing Section 401 certifications, and issuing and enforcing Section 402 NPDES permits. For this reason, many CWA regulations direct “states and authorized tribes” to take certain actions — authorized tribes are those with TAS.
Water quality standards are made up of three components: designated uses, criteria, and antidegradation provisions. Designated uses identify what the water feature is used for; examples include a cold water fishery, agricultural use, primary and secondary recreation, or as a drinking water source. The criteria are the standards that the water feature must achieve in order to protect the designated use; criteria can be numeric (maximum numeric limits) or narrative (description of acceptable conditions). Antidegradation requirements are used to prevent high-quality waters from becoming degraded through new uses or new discharges. When states and authorized tribes set water quality standards, it is typically a lengthy process that includes significant public engagement, legislation, rulemaking, and implementation plans to ensure activities authorized in the jurisdiction do not impair water quality standards. States and authorized tribes are also responsible for evaluating the quality of their waters on a regular basis, determining if waters are “impaired” and if they require the development of a total maximum daily load (TMDL) to restore the water quality to meet applicable standards.
It is within this otherwise relatively local, resource-intensive process that EPA has proposed to establish uniform water quality standards that would be applicable to most Indian reservation waters across the nation. Importantly, these would be federal water quality standards that are administered by EPA, not tribal water quality standards. This means that EPA will evaluate water quality on tribal lands, identify impairments, develop implementation plans and TMDLs for impaired waters, and presumably implement those plans and TMDLs on tribal land. At a minimum, this proposal is likely to raise questions about EPA’s authority to establish and administer uniform national water quality standards, not to mention the wisdom of the federal government doing so on sovereign tribal land.
Setting aside those big picture questions, the proposal raises a host of other, more nuanced questions for practitioners in the water quality and CWA world, questions that are unlikely to be answered until well after the rule is finalized, and more likely months, if not years, into implementation.
EPA proposes to establish three designated uses that would “apply to all Indian reservation waters,” except as otherwise specified: aquatic life, primary contact recreation, and cultural and traditional uses. The proposal also includes nationally applicable narrative water quality criteria intended to protect those uniform designated uses.
For implementation of the narrative criteria, the proposal includes four options for “binding numeric translations.” In and of themselves, the four options are curious and do not seem to be translations in the traditional sense. For example, one translation option would allow EPA to replace its national narrative criteria with any applicable EPA CWA Section 304(a) recommended criteria. This translation option seems like a streamlined way for EPA to implement and enforce (as law) its 304(a) recommendations on reservations and in upstream state and tribal waters. Another translation option would allow EPA’s national narrative criteria to be swapped out for a water quality standard developed by a tribe that does not have TAS and for which no CWA procedures were followed. This particular option seems less like a translation and more like a workaround to avoid the burden of obtaining TAS and establishing CWA-compliant water quality standards. If no other binding translation option is available, EPA proposes to “rely on existing CWA implementation provisions.” This begs (at least) two important questions, including (1) why are existing CWA implementation provisions the option of last resort; and (2) are existing CWA implementation provisions no longer appropriate or sufficient for translating narrative standards?
The proposal also includes new regulations on mixing zones; new federal administrative procedures for an EPA regional administrator to modify a designated use or establish a variance, and for a tribe to request changes in designated uses and variances; implementation procedures, including an explanation of EPA’s oversight authorities if an upstream state issues a NPDES permit that does not protect downstream federal baseline standards; and an explanation of how the baseline standards must be considered in the CWA Section 404 permit process and the CWA Section 401 certification process.
EPA proposes to conclude that the establishment of federal baseline water quality standards on Indian reservation waters would have no direct economic impacts and would have no federalism implications.
The public comment period on the proposal closes on August 3, 2023.