Yesterday, EPA announced a proposed rule that would revise the agency’s regulations to include a requirement that water quality standards protect reserved tribal reserved rights. This proposal is a major milestone for the agency that has tried to incorporate reserved tribal reserved rights into its water quality standards program since at least 2015.

According to the proposal, states and authorized tribes would be required to (1) designate uses of waterbodies that expressly incorporate protection of tribal reserved rights, and (2) establish water quality criteria to protect those rights, and/or (3) use antidegradation requirements to protect water quality to the level deemed necessary to protect tribal reserved rights.

The proposal would specifically require water quality standards promulgated by states, tribes, or EPA “to protect the exercise of the tribal reserved rights unsuppressed by water quality or availability of the aquatic or aquatic-dependent resource” to the extent supported by available information. In other words, if water quality or other circumstances have resulted in fewer fish being available in modern times, and therefore less consumption of those fish by comparison to what may have been consumed decades or generations ago (suppressed consumption), the water quality standards must be set to protect that historic unsuppressed fish consumption rate. According to the proposal, the “heritage rate” of fish consumption, which is “the amount of fish consumed prior to non-indigenous or modern sources of contamination and interference with the natural lifecycle of fish, in addition to changes in human society” can be reflective of a current unsuppressed consumption rate. Previous EPA guidance cited in the proposal explains that the heritage rate of consumption “is generally extrapolated or reconstructed from information available in anthropological or historical literature” and that “[i]n many cases, heritage rates may be the only practical way to estimate unsuppressed rates… .” The proposal does explain that the unsuppressed analysis “should balance heritage use of a resource with what is currently reasonably achievable for a particular waterbody,” but also states that it should consider plans for future restoration activities that could improve current conditions. If past is prologue, there will certainly be disagreements among states and stakeholders about what may be reasonable and achievable currently and in the future.

The proposal identifies some challenges that may arise in implementing the proposed rule, including that some areas may have multiple right holders that require different standards of water quality protection, that some tribal reserved rights for a particular water resource “may span across multiple states,” and that there may be missing or conflicting information or “a difference of opinion” between a state and one or more tribes about the level of water quality necessary to protect a reserved right. The proposal indicates that strong coordination across jurisdictions and agencies may help mitigate some challenges. The proposal also explains that, in the case of a difference of opinion about the required level of water quality necessary to protect a reserved right, “EPA will take action based on the best available information in the same way that EPA currently makes [water quality standards] decisions in these circumstances in other contexts, e.g., determining whether criteria are scientifically defensible in situations where there is conflicting science, there are gaps in the science, and/or there are different conclusions among stakeholders.” There is likely to be much interest in — and potential litigation over — the dynamic between existing requirements for scientific rigor in the water quality standards program, the potential for standards to be developed under this proposal based on reconstructed or extrapolated historical information, and EPA’s role in mediating disputes between states and tribes.

Notably, in its proposal, EPA acknowledges that its existing regulations do not explicitly require consideration of tribal rights in setting water quality standards. The proposal also acknowledges that the agency previously attempted to require such consideration for individual state water quality standards packages (i.e., Maine, Idaho, Washington), effectively attempting to broaden the agency’s regulatory authority through individual decisions and guidance. For example, EPA recently finalized a federal regulation that displaces Washington state’s human health criteria water quality standards, which EPA originally disapproved in part because in EPA’s view, those standards did not adequately consider tribal reserved rights. It is interesting that EPA would move forward with a federal standards regulation in Washington, which relies on tribal considerations prior to promulgating regulations that specifically require consideration of tribal reserved rights. The legal defensibility of the Washington decision would presumably be enhanced following a formal notice and comment rulemaking expressly codifying tribal reserved rights as a consideration in developing state water quality standards.

It is also interesting that EPA has concluded that under Executive Order 13132, the proposal “does not have federalism implications” and that it will “not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various level of government.” EPA’s ability to override state standards based on tribal reserved rights raises what seem like quintessential federalism issues, and EPA’s proposed conclusion under the executive order is likely to be challenged by states in the forthcoming public comment period.

History has shown that implementation of the Clean Water Act is highly dynamic, and its regulatory programs adapt to modern issues and trends. EPA’s proposal yesterday is a major development in Clean Water Act law and policy and raises an interesting set of issues that a broad range of stakeholders will want to closely follow.

The proposal will be open for public comment for 90 days once it is published in the Federal Register.