Modifications to Federal Water Quality Standards (WQS) to Protect Tribal Reserved Rights

The EPA is currently seeking comments for a proposed revision to the Clean Water Act (CWA) Water Quality Standards (WQS) regulation to make clear how state and federal water quality standards must safeguard resources reserved for tribes through treaties, statutes, executive orders, and other federal laws. This revision would establish a regulatory framework to guarantee the protection of resources reserved for tribes, including fish and wild rice. In general, water quality standards aim to protect the health of humans and the environment and ensure that bodies of water do not exceed certain pollution levels. In this case, the proposed revisions are specific to protecting tribal reserved rights and the rights of indigenous communities.

Westward tapped their experts in regulatory compliance to discuss the implications of water quality standards (WQS) regulation at 40 CFR part 131.

How is this proposed legislation expected to impact operators across the country?

The implementation of these regulations will be facilitated at the state level, as each state will be required to specify tribal reserved rights in their Water Quality Standard (WQS) regulations.  The new legislation proposals will impact companies’ daily operations.  In some cases, the changes may determine where a business can operate or whether it can continue to operate.  As a result, our professionals will work with clients to ensure that applicable standards are considered in the early stages of project planning.

"Why is EPA proposing this amendment?" 

There is a long history of treaties, contracts, statutes, and executive orders over the past 150-200 years between federal and tribal governments.  While tribal reserved rights have been implicitly understood as "not a grant of rights TO the Indians, but a grant of rights FROM them," historical court case decisions did not necessarily reflect that principle.  

In a 1985 case between a county government and Indian community, the court ruled in favor of the tribe, stating "Indian treaties are to be interpreted liberally in favor of the Indians, and any ambiguities are to be resolved in their favor." 

In 1983, EPA established the WQS regulation 40 CFR part 131; since then, it has been modified three times, most recently in 2015.  Historically, the EPA has addressed tribal reserved rights in site-specific WQS court decisions, yet the agency’s position remained relatively neutral and vague when it came to making sure their actions did not conflict with treaty rights. 

Enter Environmental Justice (EJ), the fair treatment and equal participation of all people in environmental decision-making, regardless of race, income, or background. EJ seeks to address disparities in the distribution of environmental hazards and ensure equal access to information and resources for protection of health and the environment.  Regarding tribal communities, EJ acknowledges that cultural practices, both on and off reservations, make tribes more susceptible to impacts from environmental degradation.    

EPA proposes to amend the current WQS to establish a uniform standard that will protect the reserved rights to aquatic and aquatic-dependent resources.  The revisions are intended to provide clarity, predictability, and transparency throughout the review process. 

EPA seeks the primary benefit of this rulemaking to be the "…improved tribal ability to maintain traditions and cultural landscapes and reduced risk to human health.  Reducing pollutant levels so that traditional foods such as fish and wild rice are abundant and safe to eat in subsistence quantities ... contributes to restoring and maintaining traditional lifeways preserving indigenous knowledge, and cultural self-determination."    

"How does EPA plan to do this?" 

First, EPA will add language to the regulation that specifies WQS "must protect tribal reserved rights applicable to water subject to such standards."  Prior to this, the Clean Water Act and WQS regulations have implied, but never stated, this language.

Second, EPA will assist with communication between governments to ensure that state, federal, and tribal needs, actions, and decisions are discussed.  EPA acknowledges that Indian communities differ drastically throughout the country and will provide limited guidance on how each state implements their revised WQS.  EPA will have final approval on each state’s revised WQS.

"What are the States required to do?"

Each state's WQS regulation will need to be revised to include tribal reserved rights.  To begin, each state will assess information about the scope, nature, and current and past use of tribal reserved rights.  This will also include a review of the data and methods used to develop the existing WQS.  Background information will be used when meeting with right holders to determine whether tribal reserved rights apply, identify deficiencies in the standard, and develop a new water quality regulation. If tribal reserved rights apply, the state will then revise their WQS, accordingly.  EPA outlined several options to assist states in establishing new reserved rights; to that extent, EPA also recognized that some waterbodies will not currently qualify for reserved rights due to existing pollutant levels.          

"How will this potentially affect our industry?"

The most likely outcome of the proposed water quality standards is that allowable discharges will become stricter. This could result in lower parameter limits for industrial discharges and potentially even prohibit discharges into some bodies of water. To comply with the new restrictions, additional, even costly, structural controls may be required. Water permit applications may be amended because of the proposed water quality standards. Increased involvement from rights holders and the public may lead to a longer application process. If enough negative feedback is received, it could prevent a company from obtaining a permit.  

The Clean Water Act has a history of evolving and adapting to changing issues and trends. This recent proposal represents a significant advancement in CWA law and raises important discussions for stakeholders as we monitor the legislation moving forward.