Key Takeaways

• What Happened? The U.S. Environmental Protection Agency (EPA) issued its final Water Quality Standards Revision Rule, which expressly mandated that states, Tribes, and EPA consider Tribal treaty rights to aquatic and aquatic-dependent resources when setting water quality standards nationwide and detailing the requirements and mechanisms for doing so. The Final Rule represents a continuation of EPA’s efforts to increase the protection of tribal treaty rights through water quality standards, and is scheduled to take effect June 3, 2024. Legal challenges to the Final Rule are already underway.
• Who Is Affected? Industries, municipalities, trade organizations, and Tribes throughout the country.
• Next Steps? Affected entities should consider intervening and/or providing amicus curiae briefs in support or opposition to the legal challenges unfolding. For more information on these processes, please contact the authors.

Summary

EPA issued final revisions to its Clean Water Act (CWA) water quality regulations, establishing a framework to ensure that states adequately consider Tribal reserved rights in aquatic and/or aquatic-dependent resources when establishing water quality standards (WQS). As B&D previously reported, EPA published its proposed 2023 Water Quality Standards Revision Rule in December 2022 for public comment and Tribal consultation. Based on the Tribal input and comments from 162 organizations and individuals, EPA then developed the Final Rule, which will take effect on June 3, 2024.

The Final Rule amends EPA’s CWA WQS regulations to require that, if a Tribe asserts a reserved water right in writing to a state and EPA, the state must consider, first, the use and value of their waters for protecting the reserved right, and second, the anticipated future exercise of the Tribal reserved right unsuppressed by water quality. Based on these considerations, the state must establish WQS to protect the Tribal reserved right if the state’s designated water uses expressly incorporate or encompass the right. In developing the WQS, states must use at least the same risk levels they would otherwise use in developing criteria to protect the state’s general population, and the risk levels must be paired with exposure inputs that are representative of Tribal members’ exposure through their exercise of the reserved right. In Washington, for example, Tribal reserved rights to fish at the Tribes’ usual and accustomed grounds and stations apply by treaty to use of waters throughout the state. Therefore, when establishing WQS, the state must consider the Tribes’ reserved rights and under the Final Rule, it must apply the same risk levels for exposure to contaminants that it uses for non-Tribal populations and compare those exposure levels with Tribal members’ projected exposure to the contaminants through fishing and fish consumption. The Final Rule also requires that, in the triennial process for review and revision of their WQS, states must include any new information about Tribal reserved rights that has become available since the WQS was established.

The Final Rule also clarifies EPA’s responsibilities and oversight role. It requires EPA to provide assistance to Tribes and to states on request in evaluating Tribal reserved rights. It also requires EPA to initiate the Tribal consultation process with any Tribes that have asserted reserved rights for a state’s consideration in establishing WQS. The Final Rule does not establish a formal process for reconciling states’ and Tribes’ interpretations as to when or how an asserted reserved right must be protected; rather, it anticipates that EPA will work “with states, right holders, and Federal partners” to interpret the right at issue. 89 Fed. Reg. at 35759.

An interesting aspect of the Final Rule is the extent to which Tribes or state water agencies might seek to use the Final Rule as leverage to enforce “Tribal reserved rights” to fishing by limiting or conditioning the exercise of upstream quantified water rights. It could be argued that this is necessary to ensure that instream flows in downstream water bodies are sufficient to support off-reservation reserved, aboriginal Tribal use rights, even if these are not created by treaty or statute. Such use rights are known as “Winans rights” after the 1905 Supreme Court decision in United States v. Winans, 198 U.S. 371. The Final Rule’s preamble makes vague reference to Winans rights alongside its discussion of other federal reserved water rights created by treaty, statute or Executive Order known as Winters rights, stating 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.” The Final Rule also attempts to downplay potential impacts on existing state-administered water rights, stating that such effects “would be incidental to water quality goals.” These may be empty assurances, however, as recognizing aboriginal fishing rights or other rights that require minimum stream flows for their exercise could effectively establish instream flow requirements not subject to senior priority existing state-administered rights; regardless of whether these requirements are stated as federal reserved rights or as WQS to support designated uses.

Legal Challenges

The Final Rule is certain to face a variety of legal challenges. A group of eight states has already challenged the Final Rule, alleging that it exceeds EPA’s Clean Water Act authority. Additionally, the Final Rule may potentially be challenged for effectively limiting existing water rights, despite the Final Rule’s assurances otherwise. Due to the extent of Tribal reserved water rights for fishing, the Rule may have significant effects on WQS and the granting or denial of pollutant discharge permits throughout the United States, particularly in states where multiple federally recognized Tribes hold reserved rights to aquatic or aquatic-dependent resources. Finally, the complexity of the factors states now must consider in setting WQS in waters in which a Tribe has asserted reserved rights – e.g., quantifying the Tribe’s anticipated future exercise of its reserved right and developing standards that are representative of the Tribe’s level of exposure through the exercise of the reserved rights – provide additional potential bases for challenge.

Interested parties may wish to move to intervene and/or provide amicus curiae briefs in the legal challenges unfolding.