Protecting Tribal Interests in Water: EPA Revisions to Clean Water Act Regulations

On May 2, 2024, the U.S. Environmental Protection Agency (EPA) published its final rule titled Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights. 89 Fed. Reg. 35,717 (May 2, 2024) (Final Rule). The Final Rule aims to provide a regulatory framework for states and tribes to use when establishing or revising water quality standards under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1389 (2024) (CWA), for waters where federally recognized tribes hold federally reserved rights that depend on those waters. Many federally recognized tribes hold rights to access and use lands for culturally significant purposes, including usual and customary rights to hunt, fish, and gather plants. Maintaining clean water in areas where tribes hold rights is crucial, as pollution can render these rights meaningless. For example, if waters become too contaminated for fish to survive or for tribal members to safely consume their catch, the rights lose their practical value.

Previously, the EPA handled issues regarding the protection of tribal rights on a case-by-case basis, relying on informal guidance to manage the process. In such actions, the EPA attempted to harmonize CWA requirements with the specific tribal reserved rights through an analysis of the relevant designated uses each state set for the applicable waters. The Final Rule codifies this approach establishing consistency with the CWA’s requirements and in the EPA’s process.

This article provides an overview of the procedural framework the Final Rule creates and discusses unresolved issues concerning the protection of tribal reserved rights under the CWA. It begins with a brief overview of the CWA, its regulatory structure, and how tribal rights intersect with that structure. It then describes the revisions made by the Final Rule to the EPA’s CWA water quality standards regulations. Finally, it analyzes gaps in the Final Rule and summarizes the ongoing litigation by nine states seeking to vacate the Final Rule.

Intersection of CWA and Tribal Reserved Rights

A brief overview of the CWA’s approach to water protection is essential to understand the issues and potential controversies arising when establishing or revising water quality standards that protect tribal reserved rights. The CWA aims to restore and maintain the “chemical, physical, and biological integrity of [the] Nation’s waters.” 33 U.S.C. § 1251(a). A key piece of how it does this is by requiring states and authorized tribes to establish “water quality standards” for the surface waters within their jurisdiction. At a minimum, water quality standards must provide for “the protection and propagation of fish, shellfish, and wildlife and . . . for recreation in and on the water.” Id. The CWA takes a use-centric approach to setting water quality standards. In other words, the CWA requires states and authorized tribes to first determine how they want each water (think lakes, rivers, and some wetlands) to be used and then they must determine the chemical and physical parameters needed for those uses to be safely performed in that water. These uses are called “designated uses” and the chemical and physical parameters used to protect those uses are called “water quality criteria.” Water quality criteria are used to create permit requirements for people that want to use or discharge effluent into a water.

To understand the reasons why tribal reserved rights are typically more sensitive to pollution than other uses, consider, for example, what is required to protect a tribe’s right to fish for subsistence within a specific water body. One of the ways people are exposed to pollutants is through the consumption of fish that bioaccumulate pollutants in their fats and other tissues from the waters in which the fish live. The more fish a person consumes, the more he or she will be exposed to pollutants accumulated in the fish and the greater risk that person will have of incurring adverse health effects from those pollutants. As a result, fish consumption rates are a pivotal factor that determines how stringent water quality criteria must be if a state wants fish consumption as a designated use for a water. Higher consumption rates require cleaner and, therefore, more stringent water quality criteria. Now consider that an individual relying on fish for subsistence typically consumes more fish than the average person. Thus, if a state intends to protect subsistence fishing as a designated use for a particular water body, even more stringent water quality criteria will be necessary.

As discussed above, implementing more stringent water quality criteria to protect a tribal reserved right like subsistence fishing can have significant economic impacts on other people, who may have to adopt additional measures to ensure their activities comply with the more stringent standards. This potential for conflicts arising in opposition to the consideration of tribal reserved rights in water quality standards underscores the need for a clear regulatory framework.

The next section explains the regulatory changes the Final Rule makes to establish a framework for states and tribes to work through issues related to the consideration of tribal reserved rights in the context of water quality standards.

Overview of the Final Rule’s Revisions

The Final Rule revises parts of 40 C.F.R. § 131—the regulations governing the adoption or revision of water quality standards—by adding requirements for states establishing or revising water quality standards in waters where federally recognized tribes hold and assert federally reserved rights to aquatic and aquatic-dependent resources. A new section, 40 C.F.R. § 131.9, titled “Protection of Tribal Reserved Rights,” establishes procedures for asserting and considering these tribal reserved rights for federally recognized tribes. Under this new regulation, once a tribal treaty right is asserted, states are required to consider whether designated uses for the waters encompass the reserved right and, if so, establish water quality standards to protect the right.

One significant change from the proposed rule, which was published on December 5, 2022, is that the Final Rule’s requirements are not self-executing. A right holder must first assert a “Tribal reserved right” in writing to the state and EPA before a state is required to act. “Right holders,” defined under the Final Rule, include federally recognized tribes, regardless of whether the tribe exercises authority over a reservation. 40 C.F.R. § 131.3(s) (2024). This definition implies that, to receive the benefits of these provisions, tribes must assert the right through an individual or entity authorized to act on behalf of the tribe, not individual tribal members acting without such authority. See id.

The Final Rule only applies to “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.” Id. § 131.3(r). The phrase “aquatic and/or aquatic-dependent” means that the Final Rule applies to a wider spectrum of animals and plants than just fish and shellfish. However, the EPA provides little guidance as to the scope of resources that fit within this term’s meaning. The EPA’s commentary on the Final Rule explains that it intends for the phrase to capture the full spectrum of rights to aquatic and aquatic-dependent resources and that the “key inquiry” in determining what resources are covered under the Final Rule is “whether the right falls within the ambit of the resources protected under the CWA.” 89 Fed. Reg. at 35,726. Since the CWA uses broad language, i.e., “fish, shellfish, and wildlife,” when setting its goals, it is reasonable to infer that the Final Rule encompasses a wide spectrum of aquatic and semi-aquatic species including amphibians, reptiles, and water-dependent plants like wild rice.

Under the Final Rule, once a federally recognized tribe asserts a qualifying reserved right, a state has three obligations regarding the waters where the right is held. First, it must “take into consideration the use and value of [the] waters for protecting the Tribal reserved right. . . .” 40 C.F.R. § 131.9(a)(1). In the Final Rule, the EPA explains that this is consistent with the CWA’s requirement that states consider a water’s “use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” 89 Fed. Reg. at 35,730 (citing 33 U.S.C. § 1313(C)(2)(a)). According to the EPA, only when a state finds that the water has use and value for protecting a reserved right—based on information provided by the right holder—would the state then be required to further consider whether the designated use encompasses the right. Id.

Second, a state also must “take into consideration the anticipated future exercise of the Tribal reserved right unsuppressed by water quality in establishing relevant water quality standards.” 40 C.F.R. § 131.9(a)(2). This provision addresses situations where members of a tribe may not be able to exercise the full extent of their rights due to water quality concerns but wish to do so in the future. The EPA clarifies that the Final Rule does not require states to consider and account for all reasons why fish consumption rates of rights holders may have decreased, only those decreases in consumption caused by water quality. See 89 Fed. Reg. at 35,731–32. This requirement is intended to prevent a “downward spiral” where suppressed consumption rates are used as justification for less stringent water quality criteria that leads to worse water quality and less consumption. Id. at 35,731.

Third, the Final Rule requires states to establish water quality criteria that protect the tribal reserved right only where “the state has adopted designated uses that either expressly incorporate protection of or encompass the right.” 40 C.F.R. § 131.9(a)(3). Under the Final Rule, states must develop criteria that are protective of tribal reserved rights where a state determines that the reserved rights are encompassed within an existing designated use, either explicitly or implicitly. Id. In the Final Rule, the EPA explains that this does not mandate states to adopt designated uses encompassing tribal reserved rights if such uses are not already in place. 89 Fed. Reg. at 35,731. Theoretically, therefore, under the Final Rule, if a state determines that its designated uses do not include tribal reserved rights, the state would not have to develop water quality criteria to protect the reserved rights. The EPA cautions, however, that although states’ designated uses may not explicitly include tribal reserved rights, these rights are likely encompassed within the fishable/swimmable baseline. See id. at 35,730 (stating, “[m]any state-designated uses already protect the CWA [fishable/swimmable] uses, which likely encompass protection of certain tribal reserved rights”).

If a state determines the designated use(s) encompasses a tribal reserved right, the Final Rule requires states to develop water quality criteria that protect the right holders to at least the same risk level as the state would use for the general population. 40 C.F.R. § 131.9(a)(3). This means that where a water includes tribal reserved rights as a designated use, then states must treat the right holders as the target population for setting the criteria for that water, i.e., they must set criteria based on the characteristics and behaviors of the people that hold the rights rather than the general population. Previously, the EPA did not require highly exposed populations, like people who fish for subsistence, to be the focus of water quality criteria protection. 89 Fed. Reg. at 35,734–35. The EPA justifies the change because tribal members exercising a reserved right are a distinct, identifiable class of individuals holding legal rights under federal law to resources with a defined geographic scope. Id. at 35,735. This status, according to the EPA, warrants treating tribal members as the target population for these standards. Id.

The Final Rule also introduces new obligations for the EPA. The Final Rule establishes a mechanism for states and tribes to seek EPA assistance. Specifically, Section 131.9(b) allows right holders and states to request EPA assistance with evaluating tribal reserved rights. It also mandates the EPA to initiate government-to-government consultation with tribal rights holders when reviewing state water quality standard submissions involving tribal reserved rights. 40 C.F.R. § 131.5(b), (c). During the consultation, EPA is directed to evaluate water quality standard submissions for consistency with Section 131.9, and either approve or disapprove the standards based on their consistency. Id.

In summary, the Final Rule creates a procedural framework under which tribes must first assert their federally reserved rights in writing when states are adopting or revising their water quality standards. States must then evaluate the use and value of the waters in question for protecting the asserted tribal right. In this evaluation, states must consider the right as the right holders would exercise it without the influence of impacted water quality. If states’ designated uses include the reserved rights, whether expressly or implicitly, then states must establish water quality criteria sufficient to protect that use based on the characteristics and behaviors of the rights holders rather than the general population. Additionally, the Final Rule allows states and tribes to request assistance from the EPA and it requires the EPA to consult with rights holders when it reviews state submissions under the rule.

Issues to Consider Under the Final Rule

While the Final Rule establishes a framework for states to consider tribal reserved rights when establishing or revising water quality standards, it does not resolve fundamental issues that are associated with tribal sovereignty, which include differences in cultural traditions regarding preserving and sharing knowledge and interpreting the scope of tribal rights established in treaties, federal statutes, and executive orders.

The legacy of the dark and often horrific ways in which states and the federal government mistreated and took advantage of tribes presents challenges in gathering the information required under the Final Rule. A key feature of the Final Rule is its requirement that tribes submit information to support their rights. State obligations under the Final Rule only apply “to the extent supported by available data and information,” and states are not required to produce new information if it does not already exist or has not been submitted by a tribe. Id. § 1319(a). Consequently, the onus is on tribes to gather and submit information to protect their rights. However, deep-rooted mistrust of the federal government and states may make tribes or tribal members unwilling to share culturally sensitive information. This may include details about ceremonial sites, locations and types of important medicinal plants, or even information such as fish consumption habits. Yet, this information may be useful or even necessary to develop defensible standards that protect the resources.

Additionally, tribes may have difficulty providing information in forms commonly accepted in order to trigger states’ obligations under the Final Rule. The CWA is notably vague regarding the types of information that must underpin water quality standards. See Nat. Res. Def. Council, Inc. v. U.S. E.P.A., 16 F.3d 1395, 1401 (4th Cir. 1993) (noting the CWA is “less than crystal clear” as to its requirements for states’ water quality standards submissions and the EPA’s role in reviewing those standards). EPA regulations require water quality criteria to be “scientifically defensible” and protective of designated uses. See 40 C.F.R. § 131.11(a), (b). This preference toward information that is “scientifically defensible” (as defined by institutions that are steeped in European traditions regarding information and knowledge) may cause issues for tribes, which will need to provide data and information in formats that state and the EPA accept as scientifically defensible. For example, tribes that pass their knowledge and history through an oral tradition may not have written accounts or peer-reviewed studies that provide empirical metrics that neatly translate to data typically used in developing water quality standards and criteria. See, e.g., U.S. EPA, EPA-822-B00-004, Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health 2-13 (2000) (requiring states to “assemble appropriate survey data to arrive at a defensible site-specific fish consumption rate” when a state wishes to deviate from the EPA’s recommended default numbers when establishing or revising water quality criteria).

Moreover, the Final Rule gives states discretion in determining the quantity and quality of information that is sufficient to support tribal reserved rights claims. In the Final Rule, the EPA acknowledges that when a state determines data supporting a reserved right is limited or of poor quality, it may be reasonable for the state to conclude that sufficient information is not available to warrant action under 40 C.F.R. § 131.9. Since states’ obligations under the Final Rule apply only “to the extent supported by available data and information,” the Final Rule grants substantial discretion to the states in evaluating tribal reserved rights claims. Consequently, the data and information supporting these rights are likely to face rigorous scrutiny when tribes assert their rights under the Final Rule.

Differences in cultural norms regarding the preservation and sharing of knowledge also may present issues for defining the scope of tribal reserved rights in the CWA context. Human health–based water quality criteria are set based on consumption of fish or other organisms that are exposed to water and bioaccumulate pollutants from the water, which can then impact people that eat them. See, e.g., EPA-822-B00-004, supra. Safeguarding tribal reserved rights necessitates a thorough assessment of the quantity of fish and aquatic resources these rights are intended to protect for consumption. However, the language used to establish tribal reserved rights is often phrased in general terms such as “usual and customary” or “subsistence,” rather than terms that identify specific quantities of resources. Translating these rights into metrics useful for setting water quality criteria requires estimating historical consumption patterns. This can be an imprecise venture, especially if the tribes do not have written records or accounts from the relevant time periods.

Additional conflicts may arise when modern consumption patterns differ from historical practices, such as when tribal members no longer hunt or fish as frequently as they did when the rights were reserved. The causes of these changes are diverse and interconnected and include the loss of traditional lands, concerns over water quality, and shifts in cultural norms caused by advances in technology or outside cultural influences. Disputes may then occur regarding whether water quality criteria should be based on historical, unsuppressed consumption rates (often referred to as “heritage rates”) or current rates. Such disagreements may center on whether such shifts can be attributed to factors related to the CWA’s purpose, i.e., water quality and availability, or to other factors that are unrelated to issues the CWA is intended to address, like the proliferation of cheap and convenient alternative food sources. The Final Rule only requires states to consider the “anticipated future exercise of the tribal reserved right unsuppressed by water quality.” 40 C.F.R. § 131.9(a)(2).

Despite the EPA’s attempt to provide a clear framework for assertion and consideration of tribal reserved rights under the CWA, the Final Rule unfortunately does not resolve many of the issues that tribes face when asserting their rights in this context.

Legal Challenge to Final Rule

Shortly after the Final Rule was published, Idaho, North Dakota, Alaska, Iowa, Nebraska, South Carolina, South Dakota, Wyoming, Montana, Louisiana, Utah, and Texas (State Plaintiffs) filed a lawsuit against the EPA in the U.S. District Court for the District of North Dakota asking the court to stay and vacate the Final Rule. Complaint at 46, Idaho et al. v. U.S. EPA, No. 1:24-cv-00100 (D.N.D. June 14, 2024). Twelve tribes have since intervened in defense of the Final Rule, including the Nez Perce Tribe, the Quinault Indian Nation, the Bay Mills Indian Community, the Puyallup Tribe of Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Sokaogon Chippewa Community, the Confederated Salish & Kootenai Tribes of the Flathead Reservation, the Red Lake Band of Chippewa Indians, the Fond du Lac Band of Lake Superior Chippewa, the Grand Traverse Band of Ottawa and Chippewa Indians, the White Earth Band of the Minnesota Chippewa Tribe, and the Port Gamble S’Klallam Tribe (Intervenor Tribes). See Idaho et al. v. U.S. EPA, No. 1:24-cv-00100 (D.N.D. filed June 14, 2024).

In their Complaint, the State Plaintiffs allege that the Final Rule should be vacated for three reasons. First, they argue that Congress did not delegate rulemaking authority to the EPA regarding tribal reserved rights. Amended Complaint at 46, Idaho et al. v. U.S. EPA, No. 1:24-cv-00100 (D.N.D. June 14, 2024).

Second, they argue that the Final Rule should be vacated on constitutional grounds for a variety of reasons. They allege that the Final Rule violates the Due Process Clause of the Fifth Amendment because it “fails to give fair notice of what conduct is forbidden under the CWA and grants impermissible . . . discretion to [the] EPA.” Id. at 36. The State Plaintiffs also allege that the Final Rule violates the “anti-commandeering doctrine” of the Tenth Amendment, which prevents the federal government from issuing direct commands to states. Id. at 33. Next, they further argue that the Final Rule violates the Equal Protection Clause of the Fourteenth Amendment and the Spending Clause and is unconstitutional because it creates “an actionable trust obligation” for states to “protect tribal treaty rights involving water resources” without congressional authorization. Id. at 33–37.

The State Plaintiffs’ final count alleges that the Final Rule is arbitrary and capricious on multiple grounds. First, they argue that it considers factors beyond those Congress intended states to use when setting water quality standards. Id. at 38. Second, they contend that it improperly regulates tribal and treaty rights. Id at 38–39. Third, the State Plaintiffs claim that the Final Rule fails to account for potential impacts on states, regulated entities, and state water management programs. Id. at 39–40. Lastly, they argue that the EPA failed to fulfill is consultation obligations under the Endangered Species Act with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Id. at 38–44.

The Intervenor Tribes and the EPA filed answers generally denying State Plaintiffs’ allegations. Motions to stay implementation of the Final Rule were fully briefed in August 2024. Summary judgment briefing is currently scheduled to be complete in April 2025.

Looking Forward

The Final Rule represents a small, but admirable step by the EPA to improve the ability of tribes to assert and protect their rights under the CWA. It provides a clear procedural framework for tribes to assert their rights when states adopt or revise their water quality standards, identifies states’ obligations once those rights have been asserted, and provides avenues for states and tribes to receive assistance from the EPA throughout the process. However, the Final Rule does not solve (and, quite possibly, it cannot solve) fundamental issues that place tribes at a disadvantage when trying to assert and quantify their rights in a regulatory system administered by entities that tribes often mistrust. The Final Rule requires tribes to submit information to define and quantify their rights, but it gives significant discretion to states to determine whether the information submitted is sufficient, in quantity and quality, to warrant consideration for protection in the states’ water quality standards. This places a significant burden on tribes to gather and submit information in quantities and formats that do not necessarily align with a tribe’s own traditions and culture. Moreover, in situations where preservation of tribal reserved rights would mean imposition of much more stringent water quality standards, the information submitted by tribes will likely face rigorous scrutiny. Looking forward, consideration of tribal reserved rights under the CWA will likely remain a contentious subject, even if the current legal challenge fails to vacate the Final Rule.