Tribes Gain Clout in Setting Water Quality Standards

EPA is for the first time requiring states to consider Tribal treaty rights and other reserved rights when adopting or revising water quality standards (“WQS”) under the Clean Water Act ("CWA").[1] The new rule could impact WQS throughout the United States where a recognized Tribe asserts a treaty or other reserved right dependent upon a CWA protected aquatic resource. The regulation could well spark litigation for states and point source dischargers in areas where certain Tribes hold on- and off-reservation reserved rights. 

The rule applies to rights to use water-dependent resources reserved by a Tribe through any federal treaty, statute, or executive order.[2] This includes fishing, hunting, gathering, and ceremonial use rights reserved by Tribes, to the extent the exercise of such rights is dependent on water quality.[3] According to EPA, the rule is not intended to address water allocation issues (i.e., Winters[4] rights).[5] The rule could impact water rights allocation, as EPA notes the rule could mandate instream flow rates where necessary to protect a Tribal use.[6] Implementation across the country will be a daunting task for many state water quality agencies. 

I. Rulemaking

EPA originally published a draft rule in December 2022.[7] The agency received comments from 162 organizations and individuals and input from numerous Tribes during a 90-day public comment and a tribal consultation and coordination period. Several commenters questioned EPA’s authority for proposing the changes.[8] EPA estimated the total economic burden on all 50 states to range between only $5.4 and $10.8 million to comply with the rule.[9] But given the magnitude of potential reserved rights that may be asserted by recognized Tribes and the sheer number of WQS that may need to be revised in response to the new rule,[10] the actual cost is likely much, much higher.[11]

II. Clean Water Act Framework & Tribal Reserved Rights

Congress passed the CWA in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[12] The Act provides that “wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983.”[13] Section 303(c) gives states primary responsibility to adopt WQS for “waters of the United States” within their jurisdictions.[14] These standards include designated uses, water quality criteria, and antidegradation requirements. WQS serve as the basis for certain CWA programs, including development of total maximum daily loads (“TMDLs”) (sections 303(d) and 305(b); certification of federal licenses and permits (section 401); effluent limits in National Pollutant Discharge Elimination System (“NDPES”) permits (section 402); and dredge or fill permits (section 404). The Act includes a provision for states to hold hearings to review and, if appropriate, revise or adopt new WQS every three years.[15]

 Though the CWA discusses Tribes in other contexts,[16] nothing in the Act mentions Tribal reserved rights or developing or implementing any water quality program to satisfy such rights. In this sense, the new WQS rule breaks new ground.

Tribal “reserved” rights may be recognized in treaties, statutes, or executive orders, and may be explicit or implied. For example, the Stevens treaties in the Pacific Northwest expressly reserve to many Tribes the right to fish in their “usual and accustomed” fishing grounds and at stations both within and outside their reservation boundaries and to hunt and gather throughout traditional territories.[17] Multiple court cases have been filed and decided concerning treaty reserved rights, including an entire body of caselaw before the U.S. Supreme Court.[18] However, the Supreme Court has not decided whether the CWA must be implemented to protect Tribal reserved rights.[19] In the new rule, EPA asserts that its authority to require states to protect Tribal reserved rights by setting WQS that support the uses associated with those rights stems from the agency’s state oversight role set out by section 303(c) of the Act and the requirement that WQS “protect the public health or welfare.”[20] EPA’s new position is sure to be tested, particularly if it will change established WQS and disrupt established permits dependent upon previously known conditions.

III. How We Got Here 

Beginning in 2015 EPA has been requiring at least a few states to consider Tribal reserved rights in reviewing water quality submittals. For example, in promulgating human health criteria for the State of Washington, EPA found it was appropriate to interpret the state’s relevant designated use to “include or encompass a subsistence fishing component” since most waters covered by the state’s WQS were subject to federal treaties that reserved Tribal fishing rights.[21] EPA identified a similar position in its January 2017 letter to the State of Idaho regarding its human health criteria submittal.[22] EPA also rejected certain proposed WQS in Maine in 2015 based on a conclusion that “Maine’s human health criteria do not protect the designated uses and therefore must be disapproved.” In making that decision, EPA concluded it “must harmonize the CWA requirement that WQS must protect uses with the fundamental purpose for which land was set aside for the Tribes under the Indian settlement acts in Maine.”[23] But in 2019 the approach EPA used in rejecting the Maine and Washington WQS was disavowed, when EPA approved Idaho’s human health criteria.[24] In other words, the agency’s approach has been inconsistent as to how Tribal reserved treaty rights apply in the context of WQS and CWA programs.

In the rule just published, EPA is reverting to a position advanced under the Obama Administration.[25] The Biden Administration’s new rule includes specific criteria for the states to evaluate in adopting WQS. Whenever a federally recognized tribe asserts a “Tribal reserved right” in writing to the state and EPA for consideration in establishment of WQS, to the extent supported by available data and information, the state must: 

1) consider the use and value of their waters for protecting the reserved right in adopting or revising designated uses; 

2) consider anticipated future exercise of the right unsuppressed by water quality; and 

3) establish water quality criteria to protect the right where the state has adopted designated uses that expressly incorporate or encompass the right. 

The state must further ensure the criteria protect Tribal right holders using at least the same risk level (e.g., cancer risk level, hazard quotient, or illness rate) as the state would otherwise use to develop criteria to protect the general population, paired with exposure inputs (e.g. fish consumption rate) representative of right holders exercising their reserved right.[26]

EPA envisions Tribes asserting their reserved rights within the context of the states’ triennial review of WQS.[27] Once requested, the burden appears to fall on the states to “seek further information . . . to determine the nature and geographic scope of the right, and whether and how state WQS may need to be revised,”[28] though the rule provides that states and Tribes may request EPA assistance in this “consultation process.”[29] Again, the regulatory and economic burden on states subject to such a request will be substantial.

IV. What Happens Now?

      The rule is scheduled to take effect on June 3, 2024. Because of the extent of Tribal reserved fishing rights in some states, the rule could affect WQS—and thus, pollutant discharge permits—throughout much of the country. The issue of where Tribal reserved rights apply is not simply a question of where reservation boundaries lie; for example, treaty rights to subsistence fishing may extend beyond the boundaries of particular Indian reservations to Tribes’ “usual and accustomed places” of fishing. Moreover, a waterbody arising upstream or flowing through a reservation’s boundary could implicate treaty reserved rights. Accordingly, the rule has major implications for WQS at off-reservation locations. The rule also has broad implications for WQS requirements in states located upstream from a protected Tribal reserved right that include transboundary or tributary waters (e.g., the Snake River in Idaho, Oregon, and Washington).

The rule does not set a formal dispute resolution process for when a state’s and a Tribe’s interpretations as to how and when a given reserved right must be protected. Instead, it anticipates that EPA will “work with states, right holders, and Federal partners” to interpret the right at issue.[30] Where a Tribal reserved right is asserted, the process to determine whether such a right is applicable to the WQS for a given waterbody, as well as the process to amend WQS to protect the right if it is applicable, will be complex. Whether a particular portion of a stream is subject to a reserved right will in many cases depend on specific factual findings, including the treaty language and historical evidence of traditional practices. Where the right is found to apply, the new rule may require different or stricter WQS, or require states to re-evaluate whether the designated uses will adequately protect the Tribe’s reserved rights. This is because the rule requires WQS to protect Tribal members to the same extent as members of the general population. For example, subsistence fishing implicates consumption of fish at a higher rate than other uses; thus, applicable WQS must use human health criteria that consider the higher potential for exposure to pollution.[31] It will be another fact-intensive process to determine, pursuant to the rule, what the “anticipated future exercise” of the reserved right would be, if unhindered by water quality concerns—uncertainties include to what degree the use is currently “suppressed” (e.g., how much less fish right holders are taking due to contamination concerns), as well as how much broader an unsuppressed use would be.[32]

The rule likely will face legal challenges from states and/or the regulated community. Notably, several states raised constitutional and statutory authority concerns with EPA’s proposed rule during the comment period. For example, Idaho’s attorney general argued the rule will improperly place states in a position as trustees of Tribal rights and commandeer state agencies to do so.[33] South Dakota has argued that the rule violates section 304(a)(1) of the CWA by assigning water quality criteria development to states.[34] How the rule will interface with ongoing or past general stream adjudications is another potentially contentious issue.  Although EPA states that “[n]othing in this rule affects a state’s or Tribe’s authority to allocate water quantities nor provides a basis to supersede or abrogate rights to quantities or water,” it later qualifies that position by asserting that “if a Tribe has a right to fish and provides data that a certain flow rate is necessary for fish survival, that would be potentially relevant under this rule.”[35] Accordingly, the full scope of how this rule could disrupt ongoing water right deliveries, administration, and adjudications or threaten past adjudications or settlements is going to evolve and likely result in years of litigation. Tribes asserting reserved rights could also sue states when disputes arise regarding the applicability of a reserved right to a WQS, or the adequacy of protection a revised WQS accommodating the reserved right offers. Pollutant discharge permittees may also find they need to challenge the rule and/or its implementation.

V. Conclusion  

Marten will continue to track developments related to this rule and other EPA actions on tribal rights and water quality. Please contact Travis Thompson, Steve Odell, James Tupper, Al Barker, Aidan Freeman, or any other member of Marten’s Water Quality Practice Group with any questions. 

[1] U.S. Env’t Prot. Agency, Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights [hereinafter “WQS Rule”], 89 Fed. Reg. 35717–48 (May 2, 2024) (codified at 40 C.F.R. part 131).

[2] Under the rule, EPA defines “Tribal reserved rights” as “any rights to CWA-protected aquatic and/or aquatic-dependent resources reserved by right holders, either expressly or implicitly, through Federal treaties, statutes, or executive orders.” 40 C.F.R. § 131.3. The rule defines “right holders” as “any Federally recognized Tribes holding Tribal reserved rights, regardless of whether the Tribe exercises authority over a Federal Indian reservation.” Id.

[3] See WQS Rule, 89 Fed. Reg. at 35721 (discussing hunting, fishing, and gathering rights); id. at 35726 (discussing ceremonial uses and noting that EPA decided “not to enumerate potentially covered rights in the definition of ‘Tribal reserved rights’”).

[4] Winters v. United States, 207 U. S. 564, 576–77 (1908) (finding Tribe entitled to federally reserved rights to water from Milk River).

[5] WQS Rule, 89 Fed. Reg. at 35726–27. 

[6] Id. EPA notes this analysis would not be done under Winters.

[7] 87 Fed. Reg. 74361–79 (Dec. 5, 2022).

[8] U.S. Env’t Prot. Agency, Response to Comments for Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (May 1, 2024), https://www.regulations.gov/document/EPA-HQ-OW-2021-0791-0359 (last visited May 5, 2024). 

[9] WQS Rule, 89 Fed. Reg. at 35743.

[10] A current list of federally recognized Indian Tribes is found at 88 Fed. Reg. 2112–16 (Jan. 12, 2023). The U.S. Bureau of Indian Affairs recognizes 347 Indian Tribal entities within the contiguous 48 states. 

[11] See, e.g., Comment of The Petroleum Alliance of Oklahoma, EPA-HW-OW-2021-079, at 7 (Mar. 3, 2023) (arguing the rule would likely cost more than $5 million for Oklahoma alone to implement).

[12] 33 U.S.C. § 1251(a). 

[13] Id. § 1251(a)(2). 

[14] Id. § 1313(c); 40 C.F.R. § 131.4; Federal Baseline Water Quality Standards for Indian Reservations, WQS Rule, 89 Fed. Reg. at 29497 (“CWA section 303(c) gives states the primary responsibility to establish, review, and revise WQS applicable to their waters”).

[15] 33 U.S.C. § 1313(c)(1).

[16] See id. § 1377(a) (recognizing Tribes’ authority over water allocation in their jurisdictions).

[17] See, e.g., Treaty with the Nez Perces, 1855, art. 3, 12 Stat. 957; Treaty with the Nisquallys, etc. 1854, art. 3, 10 Stat. 1132 (Treaty of Medicine Creek).

[18] See generally WQS Rule, 89 Fed. Reg. at 35720–21, ns.14–28.

[19] To that end, EPA’s rule contains new interpretation and legal argument to justify its position. See WQS Rule, 89 Fed. Reg. at 35722–24.

[20] Id. at 35723.

[21] U.S. Env’t Prot. Agency, Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 Fed. Reg. 85417, 85424 (Nov. 28, 2016).

[22] Letter from Dennis McLerran, Regional Administrator, EPA Region 10, to John Tippets, Director, Idaho Department of Environmental Quality, “The EPA’s Preliminary Review of DEQ’s December 13, 2016 Submittal of New and Revised Human Health Criteria” at 10 (January 19, 2017).

[23] Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Dept. of Env’t Prot., “Re: Review and Decision on Water Quality Standards Revisions”, Attachment A at 1 (Feb. 2, 2015). 

[24] U.S. EPA, Letter and enclosed Technical Support Document from Chris Hladick, Regional Administrator, EPA Region 10, to John Tippets, Director, Dept. of Env’t Quality, Re: EPA’s Approval of Idaho’s New and Revised Human Health Water Quality Criteria for Toxics and Other Water Quality Standards Provisions at 10–11 (Apr. 4, 2019).

[25] WQS Rule, 89 Fed. Reg. at 35747–48 (amending and adding to 41 C.F.R. part 131).

[26] WQS Rule, 89 Fed. Reg. at 35748.

[27] Id. at 35728. The rule does not require a state to consider an asserted right “at the time” the right is asserted; rather, the requirement is that the state consider the right at the next WQS revision. Id.

[28] Id.

[29] Id. at 35748.

[30] WQS Rule, 89 Fed. Reg. at 35759.

[31] See WQS Rule, 89 Fed. Reg. at 35721 (discussing EPA’s prior actions in Idaho, Maine, and Washington related to tribal reserved rights and WQS); 35735–36 (“water quality criteria to protect human health for fish/shellfish and water consumption uses that were written with a state's general population in mind may not protect Tribal consumers of those resources who have higher consumption rates and therefore are exposed to greater risk”).

[32] See id. at 35733.

[33] See State of Idaho, Comment on EPA-HQ-OW-2021-0791 (Mar. 6, 2023).

[34] See State of South Dakota, Comment on EPA-HQ-OW-2023-0791 (Mar. 3, 2023).

[35] WQS Rule, 89 Fed. Reg. at 35727.