[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Proposed Rules]
[Pages 74361-74379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26240]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2021-0791; FRL-8599-01-OW]
RIN 2040-AG17
Water Quality Standards Regulatory Revisions To Protect Tribal
Reserved Rights
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing
revisions to the Federal Clean Water Act (CWA) water quality standards
(WQS) regulation to clarify and prescribe how WQS must protect aquatic
and aquatic-dependent resources reserved to tribes through treaties,
statutes, executive orders, or other sources of Federal law, where
applicable.
DATES: Comments must be received on or before March 6, 2023. Comments
on the information collection provisions submitted to the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA) are
best assured of consideration by OMB if OMB receives a copy of your
comments on or before January 4, 2023. Public Hearing: EPA will hold
two online public hearings during the public comment period. Please
refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearings.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2021-0791, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday
through Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to http://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
EPA is offering two online public hearings on this proposed
rulemaking. Refer to the SUPPLEMENTARY INFORMATION section below for
additional information.
FOR FURTHER INFORMATION CONTACT: Jennifer Brundage, Office of Water,
Standards and Health Protection Division (4305T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 566-1265; email address:
[email protected]. Additional information is also available
online at https://www.epa.gov/wqs-tech/protecting-tribal-reserved-rights-in-WQS.
SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:
I. Public Participation
A. Written Comments
B. Public Hearings
II. General Information
A. Does this action apply to me?
III. Background
A. Clean Water Act Requirements
B. Tribal Reserved Rights
C. Tribal Reserved Rights and Water Quality Standards
IV. Proposed Revisions to the Federal WQS Regulation
A. Why is EPA proposing these revisions?
B. What is EPA proposing?
C. How would the proposed regulatory revisions be applied?
D. EPA's Role
E. How would the proposed regulatory revisions apply to States
in the Great Lakes system?
F. Role of Other WQS Provisions in Protecting Tribal Reserved
Rights
[[Page 74362]]
V. Economic Analysis
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563 Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-
0791, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA
public comment policy; information about CBI or multimedia submissions;
and general guidance on making effective comments.
B. Public Hearings
EPA is offering two online public hearings so that interested
parties may provide oral comments on this proposed rulemaking. For more
details on the online public hearings and to register to attend the
hearings, please visit https://www.epa.gov/wqs-tech/protecting-tribal-reserved-rights-in-WQS.
II. General Information
A. Does this action apply to me?
States \1\ responsible for administering or overseeing water
quality programs may be affected by this rulemaking, as states may need
to consider and implement new provisions, or revise existing
provisions, in their WQS. Federally recognized Indian tribes \2\ with
reserved rights \3\ to aquatic and/or aquatic-dependent resources may
also be affected by this rulemaking. Entities that are subject to CWA
regulatory programs, such as industries, stormwater management
districts, or publicly owned treatment works (POTWs) that discharge
pollutants to waters of the United States could be indirectly affected
by this rulemaking. Dischargers that could potentially be affected
include the following:
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\1\ Pursuant to 40 CFR 131.3(j), ``states'' include the 50
states, the District of Columbia, Guam, the Commonwealth of Puerto
Rico, Virgin Islands, American Samoa, the Commonwealth of the
Northern Mariana Islands, and Indian tribes that EPA determines to
be eligible for purposes of the WQS program.
\2\ See Federally Recognized Indian Tribe List Act of 1944, 25
U.S.C. 479a. The current list can be found at 87 FR 4636 through
4641 (January 28, 2022).
\3\ EPA proposes to define ``tribal reserved rights'' as ``any
rights to aquatic and/or aquatic-dependent resources reserved or
held by tribes, either expressly or implicitly, through treaties,
statutes, executive orders, or other sources of Federal law.''
Table 1--Dischargers Potentially Affected by This Rulemaking
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Examples of potentially affected
Category entities
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Industry.......................... Industries discharging pollutants to
waters of the United States.
Municipalities.................... POTWs or other facilities
discharging pollutants to waters of
the United States.
Stormwater Management Districts... Entities responsible for managing
stormwater runoff.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that could be indirectly affected
by this action. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.
III. Background
A. Clean Water Act Requirements
The CWA establishes the basic structure for regulating pollutant
discharges into waters of the United States. In the CWA, Congress
established the national objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters,''
and to achieve ``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'' (CWA
sections 101(a) and 101(a)(2)).
CWA section 303(c) directs states to adopt WQS for waters of the
United States. The core components of WQS are designated uses, water
quality criteria, and antidegradation requirements. Designated uses
establish the environmental objectives for a water body, such as public
drinking water supply, propagation of fish, shellfish and wildlife, and
recreation. Water quality criteria define the minimum conditions
necessary to achieve those environmental objectives. Antidegradation
requirements maintain and protect water quality.
WQS serve as the basis for several CWA programs, including:
Section 303(d) water body assessments and determinations
of total maximum daily loads (TMDLs);
Section 401 certifications of Federal licenses and
permits;
Water quality-based effluent limits in permits issued
through state or National Pollutant Discharge Elimination System
(NPDES) Programs under section 402; and
Section 404 permits for dredged or fill material.
Section 303(c)(2)(A) of the CWA provides that ``[water quality]
standards shall be such as to protect the public health or welfare,
enhance the quality of water and serve the purposes of this chapter.
Such standards shall be established taking into consideration
[[Page 74363]]
their 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.'' CWA section 303(c)(2)(A) and EPA's implementing
regulation at 40 CFR part 131 require, among other things, that a
state's WQS specify appropriate designated uses of the waters and water
quality criteria to protect those uses. Such criteria must be based on
sound scientific rationale, must contain sufficient parameters to
protect the designated use, must support the most sensitive use where
multiple use designations apply, and may be expressed in either
narrative or numeric form.\4\ See 40 CFR 131.11(a) and (b). In
addition, 40 CFR 131.10(b) provides that in designating uses of a water
body and establishing criteria to protect those uses, the state shall
``. . . ensure that its water quality standards provide for the
attainment and maintenance of the water quality standards of downstream
waters.''
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\4\ Special requirements apply to ``priority toxic pollutants.''
CWA Section 303(c)(2)(B) requires states to adopt numeric criteria,
where available, for all toxic pollutants listed pursuant to CWA
Section 307(a)(1) for which EPA has published 304(a) criteria, as
necessary to support the states' designated uses. ``Priority toxic
pollutants'' are identified in 40 CFR part 423, Appendix A--126
Priority Pollutants. Consistent with Sec. 131.11(a)(2), where a
state or authorized tribe adopts narrative criteria for priority
pollutants to protect designated uses, it must also provide
information identifying the method by which it intends to regulate
point source discharges of priority pollutants in water quality-
limited waters based on such narrative criteria.
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Antidegradation requirements provide a framework for maintaining
and protecting water quality that has already been achieved (40 CFR
131.12). States can also choose to include general policies in their
WQS that affect WQS implementation, such as WQS variance policies and
mixing zone policies (40 CFR 131.13).
States are required to review applicable WQS at least once every
three years (``triennial review'') and, if appropriate, to revise or
adopt new standards (CWA section 303(c)(1)). Any new or revised WQS
must be submitted to EPA for review. If EPA disapproves a state's new
or revised WQS, the CWA provides the state ninety days to adopt a
revised WQS that meets CWA requirements. If a state fails to meet that
deadline, EPA is required to promptly propose and promulgate a new
standard that meets CWA requirements.
CWA section 303(c)(4)(B) authorizes the Administrator to determine,
even in the absence of a state submission, that a new or revised
standard is necessary to meet CWA requirements. Once the Administrator
makes such a determination, the agency must ``promptly'' propose an
appropriate WQS and finalize it within 90 days unless the state adopts
an acceptable standard in the interim. CWA section 501(a) authorizes
the Administrator to ``prescribe such regulations as are necessary to
carry out his functions under this chapter.'' Finally, as further
discussed in section III.C. of this preamble, CWA section 511(a)(3)
provides that the Act ``shall not be construed as . . . affecting or
impairing the provisions of any treaty of the United States.''
B. Tribal Reserved Rights
For the purposes of this proposed rulemaking, ``tribal reserved
rights'' means any rights to aquatic and/or aquatic-dependent resources
reserved or held by tribes, either expressly or implicitly, through
treaties, statutes, executive orders, or other sources of Federal
law.\5\ Tribal reserved rights as defined in this proposed rulemaking
generally do not address the quantification of Winters rights.\6\ The
Court has described tribal reserved rights to fish and access fishing
locations as ``not much less necessary to the existence of the Indians
than the atmosphere they breathed[.]'' \7\ EPA recognizes that tribal
reserved rights to use and access natural and cultural resources are an
intrinsic part of tribal life and are of deep cultural, economic, and
subsistence importance to tribes.\8\
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\5\ Treaty rights are ``reserved'' by tribes, because, as the
U.S. Supreme Court has explained, treaties are ``not a grant of
rights to the Indians, but a grant of rights from them, a
reservation of those not granted.'' United States v. Winans, 198
U.S. 371, 381 (1905).
\6\ Under Winters v. United States and its progeny, the
establishment of a Federal reservation (Indian or otherwise)
implicitly reserves sufficient water to accomplish the purposes of
the reservation. 207 U.S. 564, 576 (1908); Cappaert v. United
States, 426 U.S. 128, 139 (1976); Arizona v. California, 373 U.S.
546, 597-602 (1963).
\7\ Winans, 198 U.S. at 381.
\8\ See 2021 Memorandum of Understanding Regarding Interagency
Coordination and Collaboration for the Protection of Tribal Treaty
Rights and Reserved Rights. Available online at https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf.
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The U.S. Constitution defines treaties as part of the supreme law
of the land, with the same legal force as Federal statutes.\9\ From
1778 to 1871, the U.S.' relations with tribes were defined and
conducted largely through treaty-making. In 1871, Congress stopped
making treaties with tribes,\10\ and subsequent agreements between
tribes and the Federal government were instead generally memorialized
through Executive orders, statutes, and other agreements, such as
congressionally enacted Indian land claim settlements. Instruments
other than treaties may also reserve tribal rights, with equally
binding effect.\11\ As one court explained, generally ``it makes no
difference whether . . . [tribal] rights derive from treaty, statute or
executive order, unless Congress has provided otherwise.'' \12\
Pursuant to the Constitution's Supremacy Clause, treaties and statutes
also bind states.\13\
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\9\ U.S. Constitution, Art. VI, cl. 2 (``This constitution, and
the laws of the United States which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound thereby, anything
in the constitution or laws of any State to the contrary
notwithstanding.'')
\10\ See Act of Mar. 3, 1871, Sec. 1, 16 Stat. 544 (codified as
carried forward at 25 U.S.C. 71).
\11\ See Cohen's Handbook of Federal Indian Law Sec. 18.02
(Nell Jessup Newton et al eds., 2005) (``Statutes and agreements
that are ratified by Congress become, like treaties, the supreme law
of the land'').
\12\ Parravano v. Masten, 70 F.3d 539, 545 (9th Cir. 1995),
cert. denied, Parravano v. Babbitt, 518 U.S. 1016 (1996); see also
United States v. Dion, 476 U.S. 734, 745, n.8 (``Indian reservations
created by statute, agreement, or executive order normally carry
with them the same implicit hunting rights as those created by
treaty.'').
\13\ Antoine v. Washington, 420 U.S. 194, 205 (1975) (like a
treaty, when Congress by statute ratifies an agreement that reserves
tribal rights, ``State qualification of the rights is precluded by
force of the Supremacy Clause, and neither an express provision
precluding state qualification nor the consent of the State [is]
required''); U.S. v. Washington, 853 F.3d 946, 966 (9th Cir. 2017)
(Holding that ``in building and maintaining barrier culverts within
the Case Area, Washington has violated, and is continuing to
violate, its obligation to the Tribes under the Treaties.'') aff'd,
138 S.Ct. 1832 (per curiam); Skokomish Indian Tribe v. United
States, 410 F.3d 506, 512 (9th Cir. 2005) (Treaties ``constitute the
`supreme law of the land''' and have ``been found to provide rights
of action for equitable relief against non-contracting parties,''
and such equitable relief ``ensures compliance with a treaty; that
is, it forces state governmental entities and their officers to
conform their conduct to federal law.''); see also Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999)
(noting that ``[a]lthough States have important interests in
regulating wildlife and natural resources within their borders, this
authority is shared with the Federal Government when the Federal
Government exercises one of its enumerated constitutional powers,
such as treaty making,'' and accordingly, the treaty in that case
gave the Chippewa Tribe ``the right to hunt, fish, and gather in the
ceded territory free of . . . state, regulation.'').
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Courts generally adhere to several guiding principles in
interpreting treaties and other Federal legal instruments regarding
Indians tribes known as the ``Indian canons of construction.'' In
accordance with these canons, ``Indian treaties are to be interpreted
liberally in favor of the Indians, and any ambiguities are to be
[[Page 74364]]
resolved in their favor.'' \14\ Further, treaties ``are to be construed
as the Indians would have understood them'' at the time of signing.\15\
Although Congress may abrogate Indian treaty rights, those rights
remain absent clear evidence of congressional intent.\16\ While these
Indian canons of construction originated in the context of treaty
interpretation by Federal courts, courts have also applied the canons
in other contexts,\17\ including determining the scope of tribes'
rights under statutes or executive orders setting aside land for
tribes.\18\ Some tribes have treaty rights that are no longer
enforceable because they have been abrogated or otherwise superseded by
Congress in later Federal statutes.\19\ In addition, some tribes
negotiated treaties with the U.S. government that were not
ratified.\20\
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\14\ Mille Lacs, 526 U.S. at 200 (internal citations omitted);
see also County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247
(1985) (``it is well established that treaties should be construed
liberally in favor of the Indians with ambiguous provisions
interpreted for their benefit'').
\15\ Mille Lacs, 526 U.S. at 196 (``[W]e interpret Indian
treaties to give effect to the terms as the Indians themselves would
have understood them.''); Jones v. Meehan, 175 U.S. 1, 11 (1899) (A
``treaty must therefore be construed, not according to the technical
meaning of its words to learned lawyers, but in the sense in which
they would naturally be understood by the Indians.'').
\16\ Mille Lacs, 526 U.S. at 202 (``Congress may abrogate Indian
treaty rights, but it must clearly express its intent to do so.'');
United States v. Dion, 476 U.S. 734, 739-40 (1986) (noting that in
finding congressional intent to abrogate ``[w]hat is essential is
clear evidence that Congress actually considered the conflict
between its intended action on the one hand and the Indian treaty
rights on the other, and chose to resolve that conflict by
abrogating the treaty'').
\17\ See e.g., Hagen v. Utah, 510 U.S. 399, 423-24 (1994) (``For
more than 150 years, we have applied this canon in all areas of
Indian law to construe congressional ambiguity or silence, in
treaties, statutes, executive orders, and agreements, to the
Indians' benefit.''); County of Yakima v. Confederated Tribes, 502
U.S. 251, 268-69 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.
S. 759, 766 (1985)) (``statutes are to be construed liberally in
favor of the Indians, with ambiguous provisions interpreted to their
benefit''); Alaska Pacific Fisheries Co. v. U.S., 248 U.S. 78, 89
(1918) (``statutes passed for the benefit of dependent Indian tribes
or communities are to be liberally construed, doubtful expressions
being resolved in favor of the Indians''); but see Penobscot Nation
v. Frey, 3 F.4th 484, 502 (1st Cir. 2021) (holding that the Indian
canons of construction were inapplicable to statutes settling Indian
land claims in Maine).
\18\ See Winters, 207 U.S. at 576-77 (applying the canons and
holding that the Tribe was entitled to federally reserved rights to
the Milk River); Parravano, 70 F.3d at 544 (applying the canons to
determine the scope of tribes' reserved fishing rights under
executive orders and a statute).
\19\ U.S. Constitution, Art. II, Sec. 2, cl. 2; S. Dakota v.
Bourland, 508 U.S. 679, 690 (1993) (Statutory language providing
that ``the sum paid by the Government to the Tribe for former trust
lands taken for the Oahe Dam and Reservoir Project, `shall be in
final and complete settlement of all claims, rights, and demands' of
the Tribe or its allottees'' made clear that the Tribe no longer
retained its treaty right to regulate hunting and fishing); Dion,
476 U.S. at 739 (While Congress has the power to abrogate a treaty,
``the intention to abrogate or modify a treaty is not to be lightly
imputed . . . Indian treaty rights are too fundamental to be easily
cast aside.''); U.S. v. McAlester, 604 F.2d 42, 62-63 (10th Cir.
1979) (describing the history of the Choctaw Tribe's treaty-making
with the United States, including several treaties in the late 1700s
and early 1800s providing rights to lands that were later lost due
to the Indian Removal Act of 1830, which ``finally forced the
Choctaw Nation to agree . . . to relinquish all its lands east of
the Mississippi River and to settle on lands west of the Arkansas
Territory'').
\20\ Robinson v. Jewell, 790 F.3d 910, 918 (9th Cir. 2015)
(holding that an 1851 Treaty was never ratified by the Senate and
thus carries no legal effect.'').
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Tribal reserved rights may apply to waters in Indian country as
well as outside of Indian country \21\ and may be express or
implied.\22\ For example, in certain states in the Great Lakes region,
tribal reserved rights include hunting, fishing, and gathering rights
both within tribes' reservations, as well as rights retained outside
these reservations in specific areas that the tribes ceded to the
Federal government.\23\ In the Pacific Northwest, treaties explicitly
reserved to many tribes rights to fish in their ``usual and
accustomed'' fishing grounds and stations both within and outside their
reservation boundaries and to hunt and gather throughout their
traditional territories.\24\ In addition to tribes whose rights are
reserved through treaties, other tribes have statutorily-reserved
rights. For example, tribes in Maine have statutorily-reserved rights
to practice traditional sustenance lifeways such as fishing in certain
waters.\25\
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\21\ Indian country is defined at 18 U.S.C. 1151 as: (a) All
land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation; (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state; and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same.
\22\ See Menominee Tribe of Indians v. U.S., 391 U.S. 404, 406,
(1968) (Noting that ``nothing was said in the 1854 treaty about
hunting and fishing rights,'' but holding that such rights were
implied, as the treaty phrase ```to be held as Indian lands are
held' includes the right to fish and to hunt.''); Makah Indian Tribe
v. Quileute Indian Tribe, 873 F.3d 1157, 1160 (9th Cir. 2017), cert.
denied 139 S. Ct. 106 (2018) (Affirming district court finding that,
based on historical and linguistic evidence, that use of the term
``fish'' in the Treaty of Olympia encompassed whales and seals).
\23\ See e.g., Treaty with the Chippewas, 1837, art. 5, 7 Stat.
536 (tribes retained ``[t]he privilege of hunting, fishing, and
gathering the wild rice, upon the lands, the rivers and the lakes
included in the territory ceded''); Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172 (1999).
\24\ 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).
\25\ See Maine Implementing Act, 30 M.R.S 6207(4), (9).
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Courts also have held that tribal reserved rights encompass
subsidiary rights that are not explicitly addressed in treaty or
statutory language but are necessary to render those rights
meaningful.\26\ For example, in United States v. Winans, 198 U.S. 371,
381 (1905), the Supreme Court explained that the right of ``taking fish
at all usual and accustomed places,'' necessarily included the right to
cross private lands to reach those fishing areas, noting that ``[n]o
other conclusion would give effect to the treaty.'' \27\
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\26\ See, e.g., U.S. v. Washington, 853 F.3d 946, 966 (9th Cir.
2017) (Holding that tribes' treaty-reserved right to fish in their
usual and accustomed areas imposed a duty on the State of Washington
to replace or modify road culverts to allow the free passage of
salmon) aff'd, 138 S.Ct. 1832 (per curiam); Winans, 198 U.S. at 384
(Holding that a tribe's treaty fishing right also encompassed the
right to cross private property to access the tribe's traditional
fishing ground); Grand Traverse Band of Ottawa and Chippewa Indians
v. Director, Mich. Dept of Nat. Resources, 141 F.3d 635 (6th Cir.
1989) (Finding that the treaty right to fish commercially in the
Great Lakes included a right to temporary mooring of treaty fishing
vessels at municipal marinas because without such mooring the
Indians could not fish commercially).
\27\ See also Washington, 853 F.3d at 965 (Explaining that the
right of access to ``usual and accustomed fishing places would be
worthless without harvestable fish.'')
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C. Tribal Reserved Rights and Water Quality Standards
Tribal reserved rights to aquatic resources could be impaired by
water quality levels that limit right holders' ability to utilize their
rights. Indeed, as described in section III.B of this preamble, courts
have recognized that the right to a specific resource necessarily
includes attendant protections in order to be rendered meaningful.\28\
In exercising its CWA section 303(c) authority, EPA has an obligation
to ensure that its actions are consistent with treaties, statutes,
executive orders, and other sources of Federal law reflecting tribal
reserved rights. While there may be instances where a later-enacted
statutory provision intentionally limits reserved rights,\29\ that is
not the case with section 303(c) of the CWA. First, with respect to
[[Page 74365]]
treaty-reserved rights, the CWA explicitly provides in section
511(a)(3) that the Act ``shall not be construed as . . . affecting or
impairing the provisions of any treaty of the United States.'' Second,
more broadly, the statute's structure and objectives for the
establishment and oversight of WQS, including the discretion afforded
to EPA, provide ample room for the agency to consider and give effect
to all applicable reserved rights.
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\28\ Consistent with this precedent, the Department of the
Interior has affirmed the principle that ``to be rendered
meaningful, [tribal reserved] fishing rights by necessity include
some subsidiary rights to water quality.'' Letter from Hilary C.
Tompkins, Solicitor, DOI, to Avi Garbow, General Counsel, EPA,
regarding Maine's WQS and Tribal Fishing Rights of Maine Tribes
(January 30, 2015).
\29\ See Dion, 476 U.S. at 739 (Finding that ``Congressional
intent to abrogate Indian treaty rights to hunt bald and golden
eagles is certainly strongly suggested on the face of the Eagle
Protection Act.'').
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In CWA section 303(c), Congress established broad directives and
objectives governing the establishment of WQS. Specifically, the CWA
requires that WQS shall consist of designated uses and criteria to
protect those uses, and must protect the public health and welfare,
enhance the quality of water, and serve the purposes of the Act. See
CWA section 303(c)(2)(A). In implementing section 303(c), EPA's
longstanding position has been, consistent with the objectives of the
CWA, to ``use standards as a basis of restoring and maintaining the
integrity of the Nation's waters.'' \30\ Where tribes have reserved
rights to aquatic and/or aquatic-dependent resources, protection of
such rights falls within the ambit of these broad statutory directives
and objectives and is consistent with EPA's longstanding general
approach to implementing CWA section 303(c), including through adoption
and revision of its WQS regulation.
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\30\ Water Quality Standards Regulation, 48 FR 51400 (November
8, 1983).
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CWA section 501 authorizes the agency to prescribe regulations as
necessary to implement the Act.\31\ Pursuant to that authority, EPA has
issued a regulation that provides a framework for implementing CWA
section 303(c) and related sections, translating the broad statutory
provisions in section 303(c) into specific requirements consistent with
the statutory scheme. Accordingly, EPA's implementing regulation at 40
CFR part 131 specifies requirements for states and authorized tribes to
develop WQS for EPA review that are consistent with the Act. EPA's
existing WQS regulation does not, however, explicitly address how WQS
must protect tribal reserved rights.
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\31\ See also E. I. du Pont de Nemours & Co. v. Train, 430 U.S.
112, 132 (1977) (``501(a) . . . gives EPA the power to make `such
regulations as are necessary to carry out' its functions'').
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EPA established the core of the WQS regulation in a final rule
issued in 1983. Since that time, the agency has modified 40 CFR part
131 three times.\32\ The agency has explained that such updates have
been in response to new challenges that ``necessitate a more effective,
flexible and practicable approach for the implementation of WQS and
protecting water quality,'' and that such updates are informed by the
extensive experience with WQS implementation by states, authorized
tribes, and EPA.\33\ As described further below, EPA has previously
addressed tribal reserved rights in exercising its oversight authority
in reviewing state-adopted WQS. In this rulemaking, EPA is exercising
its discretion in implementing CWA section 303(c) to propose new
regulatory requirements to ensure that WQS give effect to rights to
aquatic and aquatic-dependent resources reserved in Federal laws. With
this update to 40 CFR part 131, the agency is proposing to establish a
transparent and consistent process by which states and EPA can set WQS
that protect applicable reserved rights.
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\32\ See Water Quality Standards Regulatory Revisions, 80 FR
51020, 51021 (August 21, 2015) (Describing the history of EPA's
regulation at 40 CFR part 131).
\33\ Id.
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EPA has previously addressed tribal reserved rights in state-
specific WQS actions. In 2015, EPA disapproved certain human health
criteria adopted by the State of Maine because they did not adequately
protect a sustenance fishing designated use. The sustenance fishing
designated use was based in part on tribal reserved rights.\34\ In
2016, in promulgating human health criteria for the State of
Washington, EPA noted that most waters covered by the State's WQS were
subject to Federal treaties that retained and reserved tribal fishing
rights. The agency concluded that these rights must be considered when
establishing criteria to protect the State's fish harvesting designated
use.\35\
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\34\ Letter from H. Curtis Spalding, Regional Administrator, EPA
Region 1, to Patricia W. Aho, Commissioner, Maine Department of
Environmental Protection, ``Re: Review and Decision on Water Quality
Standards Revisions'' (February 2, 2015). After subsequent
collaboration among the State, EPA, and the tribes, in 2019 the
State of Maine adopted a new sustenance fishing designated use
subcategory which addresses tribal sustenance fishing. In 2020,
after approving this new designated use subcategory, EPA withdrew
most aspects of its 2015 decisions. The expectations and steps EPA
proposes here reaffirm the general analytical framework the agency
applied in the 2015 decisions.
\35\ 81 FR 85417, 85422 through 85423 (November 28, 2016).
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These actions followed a December 2014 Memorandum from EPA
Administrator Gina McCarthy which explicitly recognized EPA's
obligations with respect to tribal treaty rights.\36\ This Memorandum
was issued to commemorate the 30th anniversary of EPA's 1984 Indian
Policy, which addressed many issues related to EPA's relationship with
federally recognized tribes and implementation of EPA's statutes in
Indian country, but did not expressly address EPA's considerations of
tribal treaty and other reserved rights.\37\ In pertinent part, the
2014 Memorandum provides that ``EPA has an obligation to honor and
respect tribal rights and resources protected by treaties,'' and that
``EPA must ensure that its actions do not conflict with tribal treaty
rights.'' \38\ In 2016, as part of the agency's efforts to implement
the Memorandum, EPA issued an addendum to its tribal consultation
policy entitled ``Guidance for Discussing Tribal Treaty Rights'' with
the purpose of enhancing EPA consultations where EPA actions may affect
tribal treaty rights.\39\ The goal of this document was to help ensure
that EPA's actions do not conflict with treaty rights, and that EPA is
fully informed as it seeks to implement its programs to further protect
treaty rights and resources when it has discretion to do so.\40\ Even
before this Guidance was issued in 2016, EPA routinely undertook
extensive consultation with tribes. For example, in the agency's
actions in Maine and Washington with regard to WQS, EPA undertook
extensive consultation with the federally recognized tribes in Maine
and Washington which included, consistent with the objectives of that
guidance, gathering information regarding relevant reserved rights.\41\
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\36\ U.S. EPA, Memorandum, Commemorating the 30th Anniversary of
the EPA Indian Policy (December 1, 2014), available https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf.
\37\ Id. See also U.S. EPA, EPA Policy for the Administration of
Environmental Programs on Indian Reservations (November 8, 1984),
available https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf.
\38\ Id.
\39\ U.S. EPA, EPA Policy on Consultation and Coordination with
Indian Tribes: Guidance for Discussing Tribal Treaty Rights
(February 2016), available https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf
.
\40\ U.S. EPA, Overview: EPA Policy on Consultation and
Coordination with Indian Tribes: Guidance for Discussing Tribal
Treaty Rights (February 2016), available https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf
.
\41\ See U.S. EPA Region 1, Responses to Public Comments
Relating to Maine's January 14, 2013, Submission to EPA for Approval
of Certain of the State's New and Revised Water Quality Standards
(WQS) That Would Apply in Waters Throughout Maine, Including Within
Indian Territories or Lands (January 30, 2015), at 1540 (describing
tribal consultation); 81 FR 85417 at 85435 (November 28, 2016).
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[[Page 74366]]
Although the agency did not rescind the Memorandum and Guidance for
Discussing Tribal Treaty Rights, following EPA's 2015 and 2016 WQS
actions in Maine and Washington, the agency did make statements in
subsequent WQS actions disavowing the approach to protecting tribal
reserved rights in the Maine and Washington actions. In response to
comments on a 2020 decision reversing aspects of EPA's 2015 Maine WQS
disapproval, EPA asserted that it was ``unnecessary'' to ensure
protection of applicable statutorily reserved rights because the Indian
land claims settlement statutes at issue did not ``themselves . . .
address or reference designated uses, water quality criteria, or the
desired condition or use goal of the waters covered by the sustenance
fishing provisions.'' \42\ EPA has reconsidered this assertion. EPA
finds that implementing the CWA to give effect to applicable reserved
rights to aquatic and/or aquatic-dependent resources does not require
that the relevant treaty, statute, executive order, or legal instrument
explicitly reference water quality. The agency has similarly
reconsidered other statements the agency made indicating that states
and EPA can always protect tribal reserved rights by simply applying
EPA's existing regulations and guidance, with no additional
consideration of such rights.\43\ As explained further below, this
proposed rulemaking adds regulatory requirements to clarify how EPA and
states must ensure protection of reserved rights where they apply.
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\42\ U.S. EPA, Response to Comments on EPA's Proposal to Revise
EPA's 2015 Decisions on Sustenance Fishing Designated Use and Human
Health Criteria in Maine (May 27, 2020), p. 20. Attachment B of
letter from Dennis Deziel, Administrator, EPA Region 1, to Gerald
Reid, Commissioner, Maine Department of Environmental Protection, RE
Withdrawal of Certain of EPA's February 2, 2015 Decisions Concerning
Water Quality Standards for Waters in Indian Lands.
\43\ See U.S. EPA, Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10,
to Maia Bellon, Director, Department of Ecology, Re: EPA's Reversal
of the November 15, 2016 Clean Water Act Section 303(c) Partial
Disapproval of Washington's Human Health Water Quality Criteria and
Decision to Approve Washington's Criteria (May 10, 2019), p. 22-23
(``May 10, 2019 Decision Document'').
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IV. Proposed Revisions to the Federal WQS Regulation
A. Why is EPA proposing these revisions?
In this proposed rulemaking, the agency is proposing to establish
new requirements which build on existing regulations and applicable
guidance, to provide a nationally applicable regulatory framework to
ensure that WQS protect applicable reserved rights. These revisions to
EPA's existing WQS regulation are intended to provide clarity,
predictability, and transparency in EPA's review of state WQS and
promulgation of Federal WQS in waters where reserved rights to aquatic
and/or aquatic-dependent resources apply. Specifically, by amending
EPA's WQS regulation, rather than addressing these rights on a case-by-
case basis as state WQS are submitted for EPA review under CWA section
303(c), EPA is proposing a uniform approach for establishment of WQS
where tribal reserved rights apply and clearly laying out how EPA will
review such WQS. These proposed changes are informed by EPA's
experience working with states and right holders, and by input they
have provided. Because EPA is establishing these requirements in a
rulemaking rather than during review of an individual state action, the
agency's approach will be informed by public comment and input provided
through tribal consultation.
Notably, when EPA promulgated the WQS regulation at 40 CFR part 131
in 1983, the agency considered adding regulatory requirements to ensure
that state WQS complied with applicable international treaties.
Specifically, in the 1983 final rule establishing the WQS regulation,
the agency noted that it had received comments asserting that EPA
should ``require States to adopt standards that meet treaty
requirements.'' \44\ In response, the agency noted that such issues
``have been adequately resolved previously without the need for
regulatory language,'' and, accordingly, that ``EPA sees no need to
include such language in the Final Rule.'' \45\ The agency further
reasoned that ``[a]ny specific treaty requirements have the force of
law,'' and therefore, ``State water quality standards will have to meet
any treaty requirements.'' \46\ Here, based on its prior experience
evaluating individual state WQS in light of applicable reserved rights,
EPA is proposing to add specific requirements to its WQS regulation to
guide states establishing WQS in waters where tribes exercise reserved
rights. These proposed requirements reflect the agency's considered
judgment about how to ensure that WQS protect applicable reserved
rights, and will provide clarity, transparency, and predictability.
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\44\ 48 FR 51400, 51412 (November 8, 1983).
\45\ Id.
\46\ Id. at 51413.
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This proposal is particularly important now, as climate change is
exacerbating water quality issues across the United States. Tribes and
reserved rights are particularly vulnerable to these impacts due to the
integral nature of water resources in their traditional lifeways and
culture.\47\ Establishing WQS to protect tribal reserved rights is a
critical component of reducing the impact of climate change on tribes.
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\47\ See https://www.epa.gov/sites/default/files/2016-04/documents/ow-climate-change-adaptation-plan.pdf.
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B. What is EPA proposing?
In this rulemaking, EPA is proposing to (1) amend the Federal WQS
regulation at 40 CFR part 131 to require that WQS be established to
protect tribal reserved rights, and (2) establish attendant regulatory
requirements for setting WQS to provide such protection. This section
provides a description of these proposed revisions.
Central to these regulatory changes is the proposed addition of 40
CFR 131.9. First, this provision would specify that WQS ``must protect
tribal reserved rights applicable to waters subject to such
standards.'' For purposes of these regulatory revisions, EPA proposes
adding a new definition to 40 CFR 131.3, defining ``tribal reserved
rights'' as ``any rights to aquatic and/or aquatic-dependent resources
reserved or held by tribes, either expressly or implicitly, through
treaties, statutes, executive orders, or other sources of Federal
law.'' The proposed definition of ``tribal reserved rights'' in the
rule does not apply to unratified treaties or reserved rights that have
been abrogated or otherwise superseded. In addition, some tribes
entered into legal agreements or compacts with states, which are not
Federal law and are therefore similarly not within the scope of this
rulemaking.
Second, proposed 40 CFR 131.9(a) would require that, ``to the
extent supported by available data and information,'' to protect
applicable tribal reserved rights WQS must be established to protect:
1. ``The exercise of tribal reserved rights unsuppressed by water
quality or availability of the aquatic or aquatic-dependent resource;''
and
2. ``The health of the right holders to at least the same risk
level as provided to the general population of the State.''
For purposes of these regulatory revisions, EPA proposes adding a
new definition to 40 CFR 131.3, defining ``right holders'' as ``tribes
holding rights to aquatic and/or aquatic-dependent resources pursuant
to an applicable treaty, statute, executive order, or other source of
Federal law.''
EPA is not proposing to require WQS to be established for every
waterbody subject to a reserved right to protect the
[[Page 74367]]
waterbody condition that existed at the time a reserved right was
established. As described more fully below in section C.2.ii of this
preamble, the regulation is intended to result in WQS that protect
reasonably anticipated future uses, taking into account factors that
may have substantially altered a waterbody.
Proposed 40 CFR 131.9(b) specifies that EPA will initiate tribal
consultation with the right holders in determining whether State water
quality standards protect applicable reserved rights in accordance with
40 CFR 131.9(a)(1) and (2). Finally, proposed 40 CFR 131.9(c) describes
the three different ways that WQS can be used where tribal reserved
rights apply to ensure protection of those rights.
EPA is also proposing to revise 40 CFR 131.5 (``EPA Authority'').
40 CFR 131.5(a) lists the factors that EPA considers in determining
whether state-adopted WQS are consistent with CWA section 303(c). EPA
is proposing to add Sec. 131.5(a)(9) specifying that when reviewing
new or revised standards, EPA would evaluate whether water quality
standards sufficiently protect tribal reserved rights, where
applicable, consistent with Sec. 131.9. EPA is proposing conforming
revisions to 40 CFR 131.5(b) which would require that this new factor,
in addition to the other existing eight factors in 40 CFR 131.5(a), be
met for EPA to approve the WQS.
EPA is also proposing to add an element to the list of ``Minimum
Requirements for Water Quality Standards Submission'' set forth in 40
CFR 131.6. This proposed addition provides clarity on EPA's
expectations regarding how states must document their efforts to
ascertain information, in coordination with the right holders, about
applicable tribal reserved rights and the level of water quality that
fully supports those rights. Specifically, EPA is proposing that where
tribal reserved rights apply to WQS being submitted, those submissions
would need to include:
1. Information about the scope, nature, and current and past use of
the tribal reserved rights, as informed by the right holders; and
2. Data and methods used to develop the WQS.
Finally, EPA is proposing to modify the procedures for state review
and revision of WQS at 40 CFR 131.20 to require that the triennial
review process include an evaluation of whether there are tribal
reserved rights applicable to waters subject to the state's WQS and
whether WQS need to be revised to protect those rights.
Pursuant to 40 CFR 131.22(c), EPA would be subject to the same
requirements when promulgating Federal WQS. In accordance with CWA
section 303(c)(4), there are two scenarios in which EPA would
promulgate Federal WQS for the waters of a state. First, CWA section
303(c)(4)(A) establishes that if EPA determines that a state's new or
revised WQS is not consistent with the requirements of the Act and the
state fails to submit a modified standard within 90 days of that
decision, EPA must itself propose and promulgate a revised or new
standard for the waters involved (unless prior to promulgation the
state has adopted a WQS that EPA determines to be consistent with the
Act). Second, CWA section 303(c)(4)(B) grants the EPA Administrator
discretion to determine ``that a revised or new standard is necessary
to meet the requirements of [the Act].'' Following such a
determination, EPA is required to propose and promulgate a revised or
new standard except as noted above.
Examples of how these proposed regulatory revisions would be
applied and EPA's basis for them are explained in more detail in the
next section.
C. How would the proposed regulatory revisions be applied?
The effect of these proposed revisions on the establishment or
revision of a state's WQS will be case-specific. EPA anticipates that
these proposed revisions would be relevant in states where federally
recognized tribes hold reserved rights to aquatic or aquatic-dependent
resources in waters where the state, rather than the right holder,
establishes applicable WQS.
Whether reserved rights apply to waters subject to a state's new or
revised WQS would be informed by several factors, including input from
the right holders, other sources of information regarding relevant
tribal reserved rights (including information about the geographic
scope of those rights), and the available data to inform the level of
water quality needed to protect the reserved rights.
1. Determining if Tribal Reserved Rights Apply
Examples of tribal reserved rights as defined in this proposed
rulemaking include but are not limited to the rights to fish; gather
aquatic plants; and to hunt for aquatic-dependent animals. EPA requests
comment on whether there are additional types of tribal reserved rights
that it should consider. EPA acknowledges that it may be a complex
inquiry to determine if tribal reserved rights apply in waters subject
to state WQS, and if so, the nature of those rights and where they
apply. For purposes of implementation of this proposed rulemaking, the
critical information needed to determine if a reserved right applies to
a state's waters includes, but may not be limited to: (1) the nature of
the right (i.e., a fishing right, a hunting right, a resource gathering
right); (2) where the right applies (i.e., to a specific set of
waterbodies or to waters generally within a broad geographic area); and
(3) how the right is exercised by the right holders (e.g., for
subsistence purposes).\48\
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\48\ EPA encourages, to the extent practicable, the
consideration and incorporation of any Indigenous Knowledge that is
freely provided by right holders. Given the sensitivity of some
information about tribal reserved rights, right holders, states and
EPA should discuss in advance how the information will be shared and
potentially used in the WQS context.
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A first step in obtaining this information should be engagement
with potential right holders. Accordingly, when WQS are being evaluated
or revised, early engagement with federally recognized tribes within
the relevant state as well as tribes outside the state that exercise
resource rights within that state, can help EPA and states determine if
there are reserved rights, the scope of those rights, and whether and
how they should be applied in the WQS context. In order to ensure that
tribes with reserved rights are engaged in the process of determining
whether reserved rights apply, proposed 40 CFR 131.6(g)(1) would
require that WQS submissions to EPA include information about tribal
reserved rights ``as informed by the right holders,'' where applicable.
In addition to any outreach to or engagement with tribes as part of
establishing new or revised WQS, proposed 40 CFR 131.20(a) provides a
mechanism for starting the process of such engagement. It would require
states to evaluate whether there are applicable tribal reserved rights
relevant to waters subject to the state's WQS during the public
triennial review process. To help satisfy this requirement, states
should explicitly request information regarding the nature and scope of
tribal reserved rights in each triennial review, thus providing an
opportunity for the right holders to engage and provide information the
state can use in its evaluation. Additionally, right holders are
encouraged to proactively share information with states and EPA about
any tribal reserved rights that may be relevant, including through the
triennial review process.
These proposed provisions would provide a role for the right
holders in
[[Page 74368]]
informing both the initial inquiry of whether tribal reserved rights
apply and, where reserved rights are applicable, how those reserved
rights could be protected through implementation of the requirements of
the proposed rulemaking. Specifically, determinations regarding
protection of tribal reserved rights should be made through a process
of mutual consideration and discussion between right holders, states,
and the Federal government.
In addition to seeking input from potential right holders, EPA will
also consider other sources of information regarding applicable tribal
reserved rights including the language of the treaties, statutes, or
Executive orders and relevant judicial precedent.\49\
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\49\ Although, as stated above, legal agreements tribes have
entered into solely with states and other non-Federal government
entities are not Federal law and therefore not within the scope of
this rulemaking, EPA recommends that states use a similar framework
to consider tribal rights reserved under state law when developing
and revising WQS.
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2. Protecting Applicable Reserved Rights
Proposed 40 CFR 131.9(a) would require states to derive WQS to
protect any tribal reserved rights that were determined to be
applicable. This would require determining the level of water quality
necessary to protect users of the resource and/or the aquatic or
aquatic-dependent resource itself, based on available data. This level
of water quality is to be determined by applying proposed 40 CFR
131.9(a)(1) and (2), described further below. Once applicable reserved
rights to aquatic and/or aquatic-dependent resources have been
identified, the proposed regulations provide a mechanism for
establishing WQS at a level of water quality that protects those
resources and users of those resources, consistent with the CWA.
i. Determining the Level of Water Quality Necessary To Protect the
Right
Determining the level of water quality necessary to protect any
aquatic or aquatic-dependent resource or users of that resource can be
a complex endeavor that involves weighing multiple lines of evidence.
However, this endeavor will largely mirror the process states already
follow in developing their WQS. Examples of such evidence include fish
consumption rate surveys, studies or accounts of heritage fish
consumption rates,\50\ peer-reviewed articles or reports on the types
and levels of pollutants that can adversely affect the resource in
question, and monitoring data reflecting historic and/or current water
quality. EPA requests comment on the types of historic information that
states and EPA should consider.
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\50\ A heritage rate 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. While it is often thought of as a historic rate, it can
also be reflective of a current unsuppressed rate. See: USEPA. 2016.
Guidance for Conducting Fish Consumption Surveys. EPA-823B16002.
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In some instances, readily available information would be
sufficient to identify specific numeric levels of water quality (e.g.,
numeric criteria) necessary to protect the right. In other instances,
such data and information may not be currently available. 40 CFR
131.9(a) acknowledges this by providing that WQS must be consistent
with 40 CFR 131.9(a)(1) and (2) ``to the extent supported by available
data and information.'' Where data and information are not currently
available to support establishing numeric levels of water quality, or
where data are inconclusive, states may adopt narrative WQS to protect
the right. EPA is available to assist states in gathering more
information, in coordination with the right holders, for future use.
In complying with the new regulation, EPA encourages ongoing
communication between states and right holders to help states ascertain
where reserved rights apply and what data are available to inform the
level of water quality necessary to protect those rights. EPA would be
available to facilitate dialogue and information-sharing as needed.
Proposed 40 CFR 131.6(g) would require states to submit ``data and
methods used'' to develop WQS that protect tribal reserved rights. As
with information regarding the tribal reserved rights themselves,
information regarding the types and levels of pollutants that may
impact those rights should also be informed by engagement with the
right holders. EPA recommends that states request information from the
right holders such as types of pollutants perceived to be impacting
their rights, key aquatic species, and/or consumption rates that would
be useful in developing protective WQS, pursuant to proposed 40 CFR
131.20(a). EPA recommends that right holders proactively share any such
information with states and EPA. Obtaining these data is another reason
that states should work closely with right holders and EPA early in the
process of evaluating and revising WQS. As with all WQS actions, states
must transparently share information with the public during their
process for reviewing and revising WQS (40 CFR 131.20(b)). The data and
information gathered and submitted pursuant to proposed 40 CFR 131.6(g)
will inform implementation of proposed 40 CFR 131.9.
ii. Accounting for Suppression Effects
Proposed 40 CFR 131.9(a)(1) would require that WQS, to the extent
supported by available data and information, be established to protect
``the exercise of the tribal reserved rights unsuppressed by water
quality or availability of the aquatic or aquatic-dependent resource.''
This proposed requirement is intended to address situations where
existing water quality is lower than necessary to allow for right
holders to fully exercise their tribal reserved rights. For example,
fish consumption by tribes exercising their treaty-protected right to
fish for subsistence may be suppressed due to availability of fish or
concerns about the safety of fish for human consumption.\51\ Treaty-
protected harvesting of wild rice on waterbodies where harvesting
historically occurred may likewise be suppressed due to diminished wild
rice populations.
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\51\ As noted by the National Environmental Justice Advisory
Council in the 2002 publication Fish Consumption and Environmental
Justice, ``a suppression effect may arise when fish upon which
humans rely are no longer available in historical quantities (and
kinds), such that humans are unable to catch and consume as much
fish as they had or would. Such depleted fisheries may result from a
variety of affronts, including an aquatic environment that is
contaminated, altered (due, among other things, to the presence of
dams), overdrawn, and/or overfished. Were the fish not depleted,
these people would consume fish at more robust baseline levels. . .
.In the Pacific Northwest, for example, compromised aquatic
ecosystems mean that fish are no longer available for tribal members
to take, as they are entitled to do in exercise of their treaty
rights.''). National Environmental Justice Advisory Council, Fish
Consumption and Environmental Justice, p.44, 46 (2002) (NEJAC Fish
Consumption Report) available at https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf.
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This rulemaking does not establish any nationally applicable
thresholds for unsuppressed levels or use of a resource. As described
in the National Environmental Justice Advisory Committee (NEJAC)'s 2002
report ``Fish Consumption and Environmental Justice,'' the unsuppressed
level of a resource for particular right holders will depend on the
factors affecting water quality and availability of the resources for
that group.\52\
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\52\ Id, p.49. Using the term ``baseline'' to refer to the
unsuppressed fish consumption rate, the report says the appropriate
baseline for determining an unsuppressed level of fish consumption
``will likely differ according to the circumstances surrounding and
the group affected by the observed suppression effect . . . . An
appropriate baseline [unsuppressed level] might mean examination
into what people had consumed as well as aspiration for what people
would consume were there `fair access for all to a full range of
resources,' or were the conditions fulfilled for full exercise of
treaty- and trust-protected rights and purposes.''
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[[Page 74369]]
The unsuppressed level should balance heritage use of a resource
with what is currently reasonably achievable for a particular
waterbody. For example, in determining the unsuppressed level of a
resource for the purpose of establishing WQS, it may be appropriate to
take into consideration both heritage rates of use of that resource and
factors that have substantially altered the pollutant burden,
hydrology, or availability of the resource, such that use of the
resource at heritage rates is not feasible. For example, EPA approved
the Spokane Tribe's human health criteria based on a fish consumption
rate of 865 g/day. This fish consumption rate maintains the caloric
intake characteristic of a traditional subsistence lifestyle while
accounting for the lesser quantity and diversity of fish currently
available to the Tribe as a result of the construction of the Grand
Coulee Dam.\53\
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\53\ U.S. EPA Region 10. Technical Support Document for Action
on the Revised Surface Water Quality Standards of the Spokane Tribe
of Indians Submitted April 2010. December 11, 2013.
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Another example is determining which waters to designate for wild
rice protection in the Great Lakes region. To determine the scope of
the corresponding designated use, it is appropriate to consider whether
waters that do not currently support wild rice uses may do so again in
the future. A state might consider historical growing patterns and
planned efforts to restore the hydrologic regime and reduce nonpoint
sources of pollution, while also accounting for hydrologic changes and
legacy contaminants that may not be feasible to remedy at this time.
For the purpose of establishing WQS to fulfill the requirements of
this rulemaking, the unsuppressed level or use of a resource should
account for situations where restoration efforts are planned or
underway (e.g., efforts to improve habitat or reduce contamination),
such that it would be reasonable to expect the opportunities for use of
the resource to increase in the future. In these situations, where
supported by available data and information, EPA is proposing to
require that WQS must be set at levels that reflect unsuppressed
exercise of the reserved right.
This emphasis on avoiding suppression effects builds on EPA's
approach, previously set forth in guidance including EPA's 2000
Methodology for Deriving Ambient Water Quality Criteria for the
Protection of Human Health \54\ (2000 Methodology), 2016 Guidance for
Conducting Fish Consumption Surveys,\55\ and 1985 Guidelines for
Deriving Numerical National Water Quality Criteria for the Protection
of Aquatic Organisms and Their Uses.\56\ Each of these documents
contains information and recommendations that should be considered when
synthesizing water quality-related data. However, these documents do
not all speak to setting WQS to protect tribal reserved rights for CWA
purposes. Accordingly, in its discretion in prescribing WQS regulations
that give effect to applicable reserved rights, EPA is proposing at 40
CFR 131.9(a)(1) to require that where tribal reserved rights apply, and
where supported by available data and information, WQS must be
established to protect ``the exercise of the tribal reserved rights
unsuppressed by water quality or availability of the aquatic or
aquatic-dependent resource.'' \57\
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\54\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004.
https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics.
\55\ USEPA. 2016. Guidance for Conducting Fish Consumption
Surveys. EPA-823B16002.
\56\ USEPA. 1985. Guidelines for Deriving Numerical National
Water Quality Criteria for the Protection of Aquatic Organisms and
Their Uses. U.S. Environmental Protection Agency, Office of Water,
Washington, DC PB85-227049.
\57\ In its 2019 approval of Idaho's water quality standards,
EPA noted that ``[n]othing in the CWA or the EPA's regulations and
guidance, including the 2000 Methodology, requires a state to set a
FCR based on an estimate of unsuppressed consumption'' and asserted
that the concept of requiring a state to use an unsuppressed fish
consumption rate should be presented for ``thorough public notice
and comment.'' EPA's Approval of Idaho's New and Revised Human
Health Water Quality Criteria for Toxics and Other [WQS] Provisions
(April 4, 2019), p. 12. In this proposed rule, for the reasons
explained herein, EPA is proposing to amend its WQS regulations to
require that states use an unsuppressed rate where tribal reserved
rights apply and where supported by available data and information.
Consistent with its 2019 letter, EPA is requesting public comment on
this proposed requirement.
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This proposed requirement is consistent with the CWA goal to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters'' (CWA section 101(a)). Indeed, this requirement
is necessary to ensure that WQS do not merely reinforce an existing
suppressed use that may already limit right holders' ability to
exercise their reserved rights, or worse, set in motion a ``downward
spiral'' \58\ of further reduction/suppression. Therefore, where
exercise of reserved rights is suppressed, states would need to seek
available information about past and present use of the resource, and
any information about reasonably anticipated future uses, to help
ascertain the level of water quality necessary to fully protect the
right.\59\ EPA strongly encourages states to coordinate with right
holders to gather information about unsuppressed uses and for right
holders to proactively share such information with states and EPA. EPA
is available to participate in discussions with right holders and
states on this issue.
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\58\ NEJAC Fish Consumption report, at p. 49.
\59\ EPA provides guidance on determining unsuppressed fish
consumption rates. See USEPA. 2016. Guidance for Conducting Fish
Consumption Surveys. EPA-823B16002.
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EPA requests comment on whether additional language should be
included in the final rule specifying the considerations for
determining unsuppressed WQS.
iii. Protecting Right Holders to the Same Risk Level as the General
Population
Additionally, proposed 40 CFR 131.9(a)(2) would require that the
health of right holders be protected to at least the same risk level as
the general population of the state would have been protected, had the
general population been the ``target population'' for water quality
protections in the waters at issue. EPA anticipates the primary
application of this provision to be in using a cancer risk level
appropriate for a general population (i.e., at least 10-5
along with a fish consumption rate that reflects the reserved right, as
discussed above, for the purpose of calculating human health criteria.
EPA requests comment on whether there may be other situations where
this provision could apply.
Under EPA's 2000 Methodology, a key step in deriving human health
criteria is identifying the population subgroup that the criteria
should protect. The 2000 Methodology explains that states and
authorized tribes could set criteria to protect individuals with
``average'' or ``typical'' exposure, or to protect more highly exposed
individuals.\60\ EPA's 304(a) criteria use a combination of median
values, mean values, and percentile estimates targeted at the high end
of the general population (i.e., the target population or the criteria-
basis population).\61\ The 2000 Methodology also recommends use of
conservative exposure parameters to ensure that water quality criteria
are protective not
[[Page 74370]]
only of the general population, but also of subpopulations who, because
of high exposure, such as high fish intake rates, have an increased
risk of receiving a dose that would elicit adverse effects.\62\ With
respect to carcinogens, the 2000 Methodology states that
10-\5\ and 10-\6\ risk levels may be acceptable
for the general population and that highly exposed populations should
not exceed a 10-\4\ risk level.63 64
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\60\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004.
https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics. p. 2-1.
\61\ Id.
\62\ Id. p.1-11.
\63\ Id. p.2-6.
\64\ Future iterations of this methodology may make different
recommendations regarding cancer risk level; the requirement in this
proposed rulemaking is not tied to a specific cancer risk level
value, but rather requires that states establish WQS that provide
the same level of protection between their general populations and
right holders.
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EPA's national guidance has not previously addressed, however, how
tribal reserved rights to aquatic and/or aquatic dependent resources
should be considered in identifying the target population for deriving
water quality criteria. Nor has the agency addressed what constitutes
acceptable risk for tribal members whose exercise of reserved rights
may put them at greater risk than the general population (e.g., due to
higher rates of fish consumption). The agency considered whether it
should treat tribal members exercising reserved rights in the same
manner as other highly exposed individuals and subpopulations as
generally laid out in the 2000 Methodology but has decided protection
of tribal members exercising reserved rights warrants a distinct
approach. EPA recognizes that treaties, statutes, executive orders, or
other sources of law establishing reserved rights vary in many respects
and may or may not themselves speak to right holders' exercising their
rights relative to a state's general population. Nonetheless, unlike
other individuals and subpopulations, tribal members exercising
reserved rights are a distinct, identifiable class of individuals
holding legal rights to resources, whose reserved rights are unique to
them and have a defined geographic scope. In EPA's judgment, their
unique status as right holders warrants treating them as the target
population for purposes of deriving human health criteria.
The proposed rulemaking does not dictate what cancer risk level
must be used in deriving human health water quality criteria for
carcinogens where there are applicable reserved rights. Instead,
proposed 40 CFR 131.9(a)(2) requires that WQS protect the health of the
right holders ``to at least the same risk level as provided to the
general population of the state.'' EPA's 2000 Methodology recommends
that states and authorized tribes set human health criteria based on a
cancer risk level of 10-\5\ or 10-\6\ for the
target population which, under the proposed rulemaking, would be tribal
members exercising applicable reserved rights. This approach recognizes
the special nature of such reserved rights and status of right holders.
It also helps ensure protection of tribal members whose exposure (and
consequent risk of adverse effects) may vary. For example, if a state
or authorized tribe protects the general population at a risk level of
10-\5\, under the proposed rulemaking they would need to
adopt the same risk level for tribes exercising reserved rights. The
state or authorized tribe would also select an appropriate fish
consumption rate for deriving criteria pursuant to 40 CFR 131.9(a)(1),
as discussed above.
In its 2019 decision document reversing its prior disapproval of
Washington's human health criteria, EPA made the following assertion:
``[T]he EPA's longstanding view, consistent with the 2000 Methodology,
is that a state may consider tribes with reserved fishing rights to be
highly exposed populations, rather than the target general population,
in order to derive criteria, and that such consideration gives due
effect to reserved fishing rights.'' \65\ EPA has reconsidered this
assertion and is proposing to require that WQS protect the health of
right holders to at least the same risk level as a state's general
population, rather than treating right holders as a highly exposed
population. EPA has determined that it is appropriate, in exercising
its discretion in implementing CWA section 303(c), to give effect to
reserved rights within the WQS-setting paradigm by requiring that the
right holders receive protection to at least the same risk level as
recommended for a state's general population and is accordingly
proposing the requirement set forth in proposed 40 CFR 131.9(a)(2).
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\65\ May 10, 2019 Decision Document. p. 23.
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iv. Implementation of These Proposed Requirements
EPA anticipates that the circumstances where WQS may need to be
adjusted to protect tribal reserved rights would fall primarily into
two categories:
1. Human health criteria to protect fish consumers, where tribes
with reserved fishing rights consume more fish and are therefore
exposed to greater levels of contaminants in fish. This is because
there is a differential health risk between right holders and the
general population of the state because right holders are more highly
exposed to the resource.
2. Where a reserved right is not already accounted for as a
designated or presently attained use for a waterbody, but that
waterbody could be reasonably expected to support that right in the
future (e.g., if restoration efforts are underway). EPA anticipates
that this could arise with uses to protect aquatic life, aquatic-
dependent wildlife, and users of those resources, where those uses are
not already designated or presently attained.
For many aquatic and aquatic-dependent resources that tribes have
rights to fish, hunt or gather, the existing Federal WQS regulations
already require states to provide a level of protection consistent with
this proposed rulemaking. In accordance with the interim goal specified
by CWA section 101(a)(2) of ``water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water,'' the existing Federal WQS
regulation requires that state WQS protect fish, shellfish and
wildlife, and recreation in and on the water, wherever attainable.\66\
As a result, states typically designate most of their waters for those
uses. In addition, the existing WQS regulation at 40 CFR 131.11
requires that states adopt water quality criteria that protect their
designated uses. As a result, where a tribe has the right to hunt an
aquatic-dependent species, for example, the species may already be
protected in accordance with this proposed rulemaking by a state's
``wildlife'' designated use and associated criteria, such that this
rulemaking would not require any additional protection of that species
beyond what is already required under the CWA and EPA's existing WQS
regulation.
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\66\ See 40 CFR 131.6
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Additionally, if use of an aquatic or aquatic-dependent resource
pursuant to a tribal reserved right is a use that is presently being
attained, EPA's existing regulation at 40 CFR 131.10(i) requires states
to revise their WQS to reflect the presently attained use. For example,
if a tribe has a right to gather an aquatic plant in a state waterbody
and that use is presently attained, state WQS should already reflect
that as a designated use, per 40 CFR 131.10(i), and thus this resource
should be protected in accordance with proposed 40 CFR 131.9(a),
discussed further below.
With respect to aquatic life criteria, EPA provides guidance for
deriving criteria that generally protect aquatic
[[Page 74371]]
organisms,\67\ including commercially or recreationally important
species. EPA does not anticipate that more stringent criteria to
protect aquatic or aquatic-dependent resources themselves would be
necessary in most cases to comply with this proposed rulemaking than
already required by the existing Federal WQS regulations.
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\67\ USEPA. 1985. Guidelines for Deriving Numerical National
Water Quality Criteria for the Protection of Aquatic Organisms and
Their Uses. U.S. Environmental Protection Agency, Office of Water,
Washington, DC PB85-227049.
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This proposed rulemaking would complement the existing regulatory
requirements set forth in EPA's WQS regulation. In certain
circumstances, these existing requirements may already be operating to
ensure water quality levels are protective of particular tribal
reserved rights. By requiring states to seek information regarding
applicable reserved rights as they review and revise their WQS, the
proposed requirements would equip states with information to determine
whether current WQS adequately protect applicable reserved rights.
EPA's identification of two categories of circumstances where
compliance with the proposed rulemaking is most likely to necessitate
new or revised WQS is consistent with input from tribes during pre-
proposal consultation, which focused primarily on protection of fish
consumers and protection of wild rice.\68\ EPA requests comment on
whether there are other instances where WQS may need to be adjusted to
protect tribal reserved rights consistent with this proposed
rulemaking. This request for comment includes, but is not limited to,
whether there are tribal reserved rights to aquatic or aquatic-
dependent resources that may require more stringent criteria than
otherwise required to protect applicable designated uses in order to
comply with this proposed rulemaking and whether there are differential
health risks for right holders associated with activities other than
fish consumption such that new or revised criteria may be necessary to
comply with this proposed rulemaking.
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\68\ See USEPA 2021. Summary Report of Tribal Consultation for
the Proposed Rule: Water Quality Standards Regulatory Revisions to
Protect Tribal Reserved Rights, available in the docket for this
proposed rulemaking.
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Where information is conflicting, there are gaps in information,
and/or a difference of opinion exists between the state and one or more
tribes about the 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 WQS 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. EPA requests comment on whether there
are other factors it should consider when making decisions under these
circumstances.
3. Options for Establishing WQS To Protect Tribal Reserved Rights
After determining whether tribal reserved rights apply and the
level of water quality necessary to protect those rights, states would
be required to revise their WQS if needed to ensure protection of those
rights using designated uses, criteria, and/or antidegradation as
described at proposed 40 CFR 131.9(c).
The first option is to adopt designated uses that explicitly
recognize and identify tribal reserved rights to aquatic and/or
aquatic-dependent resources and water quality criteria to protect those
uses. For example, a state could adopt a separate designated use of
``customary and traditional fishing'' and apply it to waterbodies where
tribes hold reserved rights to fish for subsistence. A state would also
determine and adopt protective criteria set at the level of water
quality that was determined to protect the customary and traditional
fishing designated use. An advantage to establishing designated uses
that explicitly recognize specific tribal reserved rights is that it is
a transparent way to identify where those rights apply and how they are
protected. Designated uses express the desired condition of the water
and do not need to be currently attained to be designated.\69\
Therefore, it would be appropriate and reasonable to recognize and
identify tribal reserved rights as explicit designated uses to define
the desired condition for the waters where the rights apply and to then
determine and adopt protective criteria to define the minimum
conditions necessary to achieve those objectives. As noted above, if
use of an aquatic or aquatic-dependent resource pursuant to a tribal
reserved right is a use that is presently being attained, EPA's
existing regulation at 40 CFR 131.10(i) requires states to revise their
WQS to reflect the presently attained use.
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\69\ 40 CFR 131.3(f)
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As a second option, the state could adopt criteria protective of
tribal reserved rights and associate those criteria with a current
designated use that already encompasses the tribal reserved rights. For
example, a state may have a designated use of ``fishing'' that is
intended to capture a broad range of fishing activities. In this case,
it may be reasonable for a state to focus on identifying and
synthesizing data on fish consumption rates to determine criteria that
will protect the ``fishing'' use to an extent consistent with the
reserved right, including ensuring that tribes with reserved fishing
rights are protected to a level appropriate to protect to the general
population as outlined in EPA's 2000 Methodology or EPA's latest
guidance for establishing human health criteria.
As a third option, the state could use its antidegradation policy
to protect tribal reserved rights. EPA is seeking public comment on
whether the following two antidegradation policy options related to
Tier 2 and Tier 3 could be used to protect tribal reserved rights in
lieu of the options identified in proposed 40 CFR 131.9(c)(1) and (2)
and explained earlier in this section. An additional advantage of the
antidegradation policy options described in the following paragraph is
that in situations where a waterbody's existing water quality exceeds
the levels that protect tribal reserved rights, these options would
provide a mechanism to maintain high water quality and provide a margin
of safety that would afford the water body increased resilience to
potential future stressors, including climate change. Protecting such
high-quality waters would potentially be more cost-effective and
resource-efficient than investing in long-term restoration or remedial
actions in the future.
Option 1: States could assign a water body as an Outstanding
National Resource Water (ONRW) \70\ which would bring it under 40 CFR
131.12(a)(3), which requires the water quality of such ONRWs to be
maintained and protected.
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\70\ Waters provided the highest level of protection under a
state's antidegradation policy. EPA Water Quality Standards
Handbook, Chapter 4: Antidegradation. p.12. EPA-823-B-12-002.
https://www.epa.gov/sites/default/files/2014-10/documents/handbook-chapter4.pdf.
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Option 2: States could amend their antidegradation policy and/or
other legally binding procedures to include a provision that ensures
that any lowering of water quality in a high-quality water that is
authorized by the state, in accordance with 40 CFR 131.12(a)(2),
results in water quality that continues to protect applicable reserved
rights.
EPA is requesting comment on these two options for implementing
antidegradation requirements to protect tribal reserved rights. EPA is
also
[[Page 74372]]
requesting comment on alternative ways that states could use their
antidegradation policies and implementation methods to protect tribal
reserved rights, as defined in proposed 40 CFR 131.9(a).
States could also choose to combine these methods, such as by
assigning ONRW status to a waterbody to prevent any additional lowering
of water quality, while also establishing a tribal resource designated
use goal and criteria that must be met to achieve that goal.
If use of an aquatic or aquatic-dependent resource pursuant to a
tribal reserved right is an existing use pursuant to 40 CFR
131.3(e),\71\ EPA's current WQS regulation at 40 CFR 131.12(a)(1)
requires that the use and the water quality necessary to protect that
use be maintained and protected. Thus, implementation of 40 CFR
131.12(a)(1) would protect this resource in accordance with proposed 40
CFR 131.9(a).
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\71\ 40 CFR 131.3(e) Existing uses are those uses actually
attained in the water body on or after November 28, 1975, whether or
not they are included in the water quality standards.
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EPA recognizes that there may be areas where multiple right holders
hold reserved rights to the same aquatic and/or aquatic-dependent
resources. In these cases, right holders may have different positions
on how to ensure the WQS protect the resources, consistent with
proposed 40 CFR 131.9. Additionally, tribal reserved rights to a
particular resource may span across multiple states. These situations
would likely require significant coordination among all parties to
develop WQS to protect all applicable rights. EPA is available to
facilitate dialogue between and among states and tribes, where
appropriate.
4. Use Attainability Analyses and Tribal Reserved Rights
EPA recognizes that there may be situations where a waterbody may
not be able to support a reserved right to an aquatic and/or aquatic-
dependent resource because attaining that use in that waterbody is not
currently feasible. The CWA and EPA's regulations provide that such
uses could be revised if shown to be unattainable based on one of six
reasons. However, there may also be situations where it may be critical
to maintain the designated uses and continue to strive for attainment
of such uses to protect a tribal reserved right consistent with the
obligations of treaties and other Federal laws. EPA requests comment on
whether and how states can revise designated uses, as provided for by
40 CFR 131.10, while also ensuring the protection of tribal reserved
rights per proposed 40 CFR 131.9. EPA is not considering modifying the
existing requirements in 40 CFR 131.10 or otherwise reopening those
requirements for comment but, rather, is requesting comment only on
whether any discrete additions to the current regulatory framework may
be necessary to protect tribal reserved rights. For example, should EPA
include in 40 CFR 131.9 specifics on whether or how a state can revise
designated uses and still protect tribal reserved rights?
D. EPA's Role
1. Engagement With States
EPA makes itself available to engage early and often to provide
support when states are adopting and revising WQS. EPA support includes
providing triennial review ``kick off'' letters that outline EPA's
recommendations for WQS revisions, participating in state public
processes, and providing comments to states on their proposed WQS. EPA
intends to support states by providing input and information on any
tribal reserved rights and the level of water quality to protect those
rights. As previously mentioned, EPA is also available to facilitate
dialogue between states and tribes.
2. Consultation With Tribes
As mentioned in section III.A. of this preamble, any new or revised
WQS must be submitted to EPA for review and approval or disapproval to
determine whether it meets CWA and corresponding EPA regulatory
requirements (CWA section 303(c)(2)(A) and (c)(3); 40 CFR 131.5;
131.21). EPA's policy \72\ is to consult on a government-to-government
basis with tribes when EPA actions and decisions such as WQS actions
may affect tribal interests. Accordingly, in addition to early
engagement with right holders in the development of new or revised WQS,
EPA will also consult with right holders as it reviews relevant state
WQS submissions. EPA intends to codify in proposed 40 CFR 131.9(b) that
EPA would initiate consultation with the right holders on state WQS
submissions in determining whether applicable reserved rights are
protected. This consultation will inform EPA's determination pursuant
to 40 CFR 131.5(a)(9) as to whether WQS protect tribal reserved rights,
where applicable.
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\72\ USEPA 2011. EPA Policy on Consultation and Coordination
with Indian Tribes. (see https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf)
USEPA 2016. EPA Policy on Consultation and Coordination with
Indian Tribes: Guidance for Discussing Tribal Treaty Rights. https://www.epa.gov/tribal/tribal-treaty-rights;
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments (see https://www.federalregister.gov/documents/2000/11/09/00-29003/consultation-and-coordination-with-indian-tribal-governments);
January 26, 2021 Presidential Memorandum on Tribal Consultation
and Strengthening Nation-to-Nation Relationships (see https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/).
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EPA defines consultation in its 2011 Policy on Consultation and
Coordination with Tribes \73\ as ``a process of meaningful
communication and coordination between EPA and tribal officials prior
to EPA taking actions or implementing decisions that may affect
tribes.'' As a process, consultation includes several methods of
interaction that may occur at different levels. The appropriate level
of interaction is determined by past and current practices, policy
adjustments, the continuing dialogue between EPA and tribal
governments, and program and regional office consultation procedures
and plans.
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\73\ USEPA 2011. EPA Policy on Consultation and Coordination
with Indian Tribes. (see https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf)
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Under proposed 40 CFR 131.9(b), EPA would seek information and
input regarding applicable tribal reserved rights in accordance with
the 2011 EPA Policy on Consultation and Coordination with Tribes, the
2016 EPA Policy on Consultation and Coordination with Indian Tribes:
Guidance for Discussing Tribal Treaty Rights,\74\ applicable EPA
regional consultation procedures,\75\ and any other applicable EPA
tribal consultation policies in effect when the proposed rulemaking
would be applied. Although proposed 40 CFR 131.9(b) would specifically
apply to EPA's review of state WQS submissions, EPA intends per its
2011 Policy on Consultation and Coordination with Tribes, the 2016 EPA
Policy on Consultation and Coordination with Indian Tribes: Guidance
for Discussing Tribal Treaty Rights,\76\ and applicable EPA regional
consultation procedures, to initiate consultation with tribes in the
geographic area where any WQS decision under EPA's consideration may
affect tribal interests, including reserved rights. EPA would consider
all relevant
[[Page 74373]]
information obtained through consultation to help ensure that the
agency is fully informed before taking a WQS action.
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\74\ Available online at https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes-guidance-discussing-
tribal-treaty.
\75\ Available online at https://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
\76\ Available online at https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes-guidance-discussing-
tribal-treaty.
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EPA would attempt to honor consultation requests from tribal
governments considering the nature of the activity, past consultation
efforts, available resources, timing considerations, and all other
relevant factors. EPA would generally agree to consult when such a
request for consultation is made by a tribal government, assuming the
proposed action may affect that tribe.
E. How would the proposed regulatory revisions apply to States in the
Great Lakes system?
During pre-proposal tribal consultation and coordination, some
tribes questioned whether 40 CFR part 132, Water Quality Guidance for
the Great Lakes System, which identifies minimum WQS for the Great
Lakes System to protect human health, aquatic life, and wildlife, may
limit the ability of states subject to this regulation, once finalized,
to revise their WQS to protect tribal reserved rights. 40 CFR part 132
allows for greater levels of protection than specified in the
regulation. For example, 40 CFR 132.4(i) provides that, ``[n]othing in
this part shall prohibit the Great Lakes States and Tribes from
adopting numeric water quality criteria, narrative criteria, or water
quality values that are more stringent than'' the criteria and values
derived using the methodologies specified in 40 CFR part 132.
Therefore, 40 CFR part 132 does not limit the ability of states subject
to its requirements to revise their WQS to be more stringent if
necessary to protect tribal reserved rights. In addition, for waters in
the Great Lakes basin, states must meet the requirements of both 40 CFR
parts 131 and 132. Where regulations in 40 CFR parts 131 and 132
overlap, the more stringent regulation applies.
For these reasons, revisions to 40 CFR part 132 are not necessary
to protect tribal reserved rights.
F. Role of Other WQS Provisions in Protecting Tribal Reserved Rights
EPA requests comment on whether EPA should specify in 40 CFR 131.9
how other WQS provisions, such as general policies under 40 CFR 131.13,
WQS variances under 40 CFR 131.14, and permit compliance schedules
under 40 CFR 131.15, should be used to ensure protection of tribal
reserved rights. EPA is not proposing to modify the existing language
in these sections and is not reopening them for comment. Rather, EPA is
considering whether potential discrete additions to the current
regulatory scheme set forth in this rule may be necessary. For example,
just as the agency has outlined options for designated use revisions,
criteria revisions and use of state antidegradation policies, should
EPA include in 40 CFR 131.9 specifics on whether or how a state can
adopt a WQS variance and still protect tribal reserved rights?
V. Economic Analysis
Pursuant to Executive Orders 12866 (Regulatory Planning and Review)
and 13563 (Improving Regulation and Regulatory Review), EPA has
prepared an economic analysis to inform the public of potential costs
and benefits of this proposed rulemaking. This analysis is not required
by the CWA. EPA's economic analysis is documented in Economic Analysis
for Water Quality Standards Regulatory Revisions to Protect Tribal
Reserved Rights (Proposed Rule) and can be found in the docket for this
proposal.
EPA evaluated the potential incremental administrative burdens and
costs that may be associated with this proposal, beyond the burden and
costs associated with implementation of the current WQS regulation.
This proposal would not establish any requirements directly applicable
to regulated entities, such as industrial dischargers or municipal
wastewater treatment facilities, but could ultimately lead to
additional compliance costs to meet permit limits put in place to
comply with new WQS adopted by states because of this proposed
rulemaking. In general, facilities meet water quality-based limits
through pollution prevention programs, product substitution, altered
engineering processes, or end-of-pipe treatment. Other aspects of WQS,
such as variances which facilitate feasible progress toward a less
stringent interim goal, may mitigate compliance costs. However, because
of the uncertainty of the specific outcome of application of this
proposed rulemaking, both in terms of location and pollutants involved,
EPA is unable to provide estimates of costs to those regulated
entities. Instead, the focus of EPA's economic analysis is to estimate
the potential administrative burden and costs to state governments. EPA
does not anticipate this rule would impose any compliance costs on
territorial governments because EPA is not aware of any federally
recognized tribes with reserved rights in or downstream of any U.S.
territory. EPA also does not anticipate costs to authorized tribes \77\
because:
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\77\ An ``authorized tribe'' for the purpose of this rulemaking
means a tribe authorized for treatment in a manner similar to a
state (TAS) under Clean Water Act (CWA) Section 518(e).
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EPA anticipates that few, if any tribes have reserved
rights to resources on another tribe's reservation or otherwise under
the jurisdiction of another tribe. EPA requests comment on whether any
such situations may exist.
EPA anticipates that if there are tribes with reserved
rights to resources under the jurisdiction of a different tribe that is
an authorized tribe, their interests may align such that any adopted
WQS would reflect protecting such rights in absence of this proposed
rulemaking. Should this not be the case, then authorized tribes could
be subject to similar administrative costs as presented below for
states.
EPA also does not anticipate that this proposed rulemaking would
directly impose costs to right holders because it does not impose any
requirements on right holders. EPA acknowledges that the proposed
requirement to evaluate whether WQS protect relevant tribal reserved
rights, as informed by the right holders, may lead to increased
information-sharing among states, right-holders, and EPA. However, the
proposed rulemaking would not require any additional coordination
beyond that which already occurs in connection with WQS public
participation processes and EPA's consultations with tribal
governments. EPA has, on occasion, provided funding to tribes to
develop tribal fish consumption rates that are used to inform the level
of water quality necessary to support tribal reserved rights. EPA could
support similar projects in the future, as appropriate and as funding
allows. While EPA anticipates that states and EPA would bear the
majority of the burden for determining the extent of reserved rights
and water quality necessary to protect those rights, EPA acknowledges
that some tribes may choose to incur costs, such as legal fees or
scientific studies to support their position on the scope and nature of
their rights and/or water quality necessary to protect them.
EPA assessed the potential incremental burden and costs associated
with these proposed regulatory revisions on states by first identifying
those elements of the proposed revisions that may impose incremental
burdens and costs. Then, EPA estimated the incremental number of labor
hours potentially required by states to comply with those elements of
the proposed
[[Page 74374]]
regulatory revisions, and then estimated the costs associated with
those additional labor hours.
EPA assumed for the purpose of this analysis that all 50 states
would each undertake three WQS rulemakings to protect tribal reserved
rights. The agency assumed one rulemaking for each of the following
purposes:
To evaluate or revise WQS for protection of human health;
To evaluate or revise WQS for protection of aquatic life;
and
To account for any other WQS changes needed to protect
tribal reserved rights, including addressing the emergence of any
information in the future that informs either the applicability of the
reserved rights or the necessary level of water quality.
EPA assumed incremental burden and costs for all 50 states,
although it is likely that tribal reserved rights to aquatic and/or
aquatic-dependent resources do not exist in all 50 states. EPA
considered the costs associated with labor from economists, engineers,
scientists, and lawyers for development of state regulations. EPA did
not include any labor or other costs associated with potential
litigation of state regulations as this would not be a direct
consequence of this proposed rulemaking and would be highly
speculative. Estimates of the incremental administrative burden and
costs to state governments associated with this proposal are summarized
in the following Table 2:
Table 2--Summary of Potential Administrative Burdens and Costs to States Associated With the Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Burden per Cost per State (2020$) potentially Total burden (hours) Total cost (2020$; one-
Rulemaking effort \1\ State (hours) \2\ affected \4\ time) \5\
States \3\
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Rulemaking #1................................ 100-500 $7,465-$37,325 50 5,000-25,000 $373,250-$1,866,250
Rulemaking #2................................ 90-450 6,718-33,592 50 4,500-22,500 335,925-1,679,625
Rulemaking #3................................ 75-375 5,599-27,994 50 3,750-18,750 279,938-1,399,688
Total \7\.................................... 265-1,325 19,782-98,911 50 13,250-66,250 989,112-4,945,562
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Reflects potential new or increased rulemaking activities to adopt provisions consistent with the proposed rulemaking into WQS.
\2\ Hours per state multiplied by average hourly labor rate of $74.65 and rounded to the nearest dollar.
\3\ Includes 50 states, but no territories or tribes.
\4\ Burden per state multiplied by total number of potentially affected states.
\5\ Total burden for all potentially affected states multiplied by average hourly labor rate of $74.65 and rounded to the nearest dollar.
Total one-time costs for this proposal are estimated to range from
$989,112 to $4,945,562. EPA chose not to annualize these costs given
uncertainty about the period over which that annualization would occur.
In addition to estimating potential burden and costs, EPA also
evaluated the potential benefits associated with this proposal. While
this rulemaking would not directly lead to improvements in water
quality, if finalized, this rulemaking would establish a framework that
would encourage future improvements in water quality in geographic
areas where tribes hold reserved rights. EPA anticipates that the
proposed rulemaking will enhance the ability of states and tribes to
protect their water resources by clarifying and prescribing how to
protect waters with applicable tribal reserved rights and improving
coordination between Federal, state, and tribal governments. Tribal
members and the general public may indirectly benefit from this
rulemaking through targeted improvements to water quality that are
implemented to meet more stringent state WQS adopted in accordance with
this rulemaking.
EPA acknowledges that achievement of any benefits associated with
cleaner water would involve additional control measures, and thus costs
to regulated entities and nonpoint sources, that have not been included
in the economic analysis for this proposed rulemaking. EPA has not
attempted to quantify either the costs of control measures that might
ultimately be required as a result of this rulemaking, or the benefits
they would provide. However, better protection of tribal reserved
rights has the potential to provide a variety of economic benefits
associated with cleaner water.
The primary benefits of the proposed rulemaking for reserved right
holders would likely be improved 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 allows for
unsuppressed levels of tribal subsistence consumption of these
resources, which in turn contributes to restoring and maintaining
traditional lifeways, preserving indigenous knowledge, and cultural
self-determination. The recognition of tribal reserved rights can also
lead to direct economic benefits to tribal members. For example, a 1974
court decision allocating 50% of the Columbia River salmon and
steelhead catch to the tribes with reserved rights to this resource
resulted in a near doubling of revenue for these tribes.\78\ This
rulemaking seeks to ensure that water quality does not limit right
holders' ability to utilize their rights, and therefore achieve the
corresponding economic and social benefits.
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\78\ Parker, D.P., Rucker, R.R., & Nickerson, P.H. (2016). The
Legacy of United States v. Washington: Economic Effects of the Boldt
and Rafeedie Decisions. In Unlocking the Wealth of Indian Nations,
ed. T.L. Anderson, Rowman and Littlefield Press.
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Other potential benefits include the availability of clean, safe,
and affordable drinking water, greater recreational opportunities,
water of adequate quality for agricultural and industrial use, and
water quality that supports the commercial fishing industry and higher
property values. These benefits could accrue to both tribal and
nontribal populations.
As mentioned above, this proposal does not establish any
requirements directly applicable to regulated point sources or nonpoint
sources of pollution, although EPA recognizes that these sources could
potentially incur future costs as a result of changes to WQS adopted by
states as a result of this rulemaking (states could also adopt new or
revised WQS independent of this proposed rulemaking). However, this
proposal does not lend itself to identification of readily predictable
outcomes regarding changes to state WQS that might result. Likewise,
EPA could not predict requirements that could ultimately be imposed on
NPDES permittees and nonpoint sources. Thus, EPA has not analyzed
potential costs or
[[Page 74375]]
cost savings associated with any consequences of potential revised
state WQS.
EPA seeks comment on all aspects of the accompanying economic
analysis.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
EPA prepared an analysis of the potential costs and benefits
associated with this action. This analysis is summarized in section V
of the preamble and is available in the docket.
B. Paperwork Reduction Act (PRA)
The information collection requirements in this proposed rule have
been submitted for approval to the OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR)
document prepared by EPA has been assigned EPA ICR number 2700.01. You
can find a copy of the ICR in the docket for this rule, and it is
briefly summarized here. The information collection requirements in
this proposed rule will be in addition to requirements described in the
existing ICR for the Water Quality Standards Regulation and approved by
OMB through February 2025.\79\ At this time EPA is not proposing to
revise the existing ICR to consolidate the requirements of this
proposed rule. EPA intends to do so when it requests renewal of the
existing ICR in 2025.
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\79\ ``Information Collection Request for Water Quality
Standards Regulation,'' OMB Control Number 2040-0049, EPA ICR Number
0988.15, expiration date February 28, 2025.
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EPA would use the information required by this proposed rule to
carry out its responsibilities under the CWA to review and approve or
disapprove new and revised WQS submitted by states. In reviewing state
WQS submissions, EPA considers whether those submissions are consistent
with the WQS regulation at 40 CFR part 131. The current regulation
requires states to include supporting information to accompany WQS
submissions to help EPA determine whether the submitted new and revised
WQS are consistent with 40 CFR part 131. This proposed rule would add a
new requirement to 40 CFR part 131 to require, where applicable, that
state WQS submissions provide additional supporting information about
whether the submitted WQS protect tribal reserved rights, including
information about the scope, nature, and current and past use of the
tribal reserved rights, and data and methods used to develop the WQS.
This mandatory information collection would provide EPA with
information necessary to review and approve or disapprove standards in
accordance with the CWA, 40 CFR part 131, and other Federal laws.
If the information collection activities in this proposed
rulemaking are not carried out, states and EPA may not be able to
ensure that WQS comply with treaties and other Federal laws. In some
cases, this could result in implementation and control steps such as
TMDLs and NPDES permits that also do not comply with treaties and other
Federal laws.
Respondents/affected entities: states, territories, and tribes
authorized for treatment in a manner similar to a state for purposes of
establishing WQS under the CWA. While tribal right holders would not be
direct respondents, EPA acknowledges that the proposed regulation would
require that state submissions be informed by the right holders. EPA
believes this would not lead to increased burden on right holders
because the proposed rule would not require additional coordination
beyond that which already occurs during WQS public participation
processes and EPA's consultations with tribal governments. EPA requests
comment on this conclusion.
Respondent's obligation to respond: mandatory.
Estimated number of respondents: 50.
Frequency of response: on occasion/as necessary.
Total estimated burden: 13,250-66,250 hours. Burden is defined at 5
CFR 1320.3(b).
Total estimated labor cost: $989,112-$4,945,562 one-time costs (not
annualized).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review-- Open for
Public Comments'' or by using the search function. OMB must receive
comments no later than February 3, 2023. EPA will respond to any ICR-
related comments in the final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act. This action will not impose any requirements on small
entities. Small entities are not directly regulated by this rule and
this action will not impose any requirements on small entities; rather,
this action will impose requirements only on states to take into
consideration how their WQS must protect aquatic and aquatic-dependent
resources reserved to tribes through treaties, statutes, Executive
orders, or other sources of Federal law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
EPA has concluded that this action does not have federalism
implications. 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 levels of government. This rule would clarify and prescribe how
WQS for a state's waters must protect aquatic and aquatic-dependent
resources reserved to tribes through treaties, statutes, Executive
orders, or other sources of Federal law. States continue to have
considerable discretion in adopting and implementing WQS. Thus,
Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132 and consistent with EPA's
policy to promote communications between EPA and state and local
governments, EPA provided a conceptual overview of the draft rule for
the Association of Clean Water Agencies (ACWA)'s Monitoring, Standards
and Assessment
[[Page 74376]]
Subcommittee, and during three additional one-on-one meetings with
individual states held upon request.\80\ In these discussions states
requested additional clarification about EPA's expectations for how
they should determine where tribal reserved rights apply, what
resources and tools will be available, e.g., geospatial data, and how
to handle situations where data are not available, the state and tribe
disagree, or multiple tribes have overlapping rights and do not agree
on the level of protection. EPA took these discussions into account
during the drafting of this rule. EPA specifically solicits comments on
this proposed action from state and local officials.
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\80\ The slides EPA presented at its meeting with ACWA are
included in the docket for this rulemaking. These are representative
of the slides EPA presented at its one-on-one meetings with states.
---------------------------------------------------------------------------
After publishing this proposed rulemaking, EPA will conduct
additional outreach and engagement with state and local government
officials, or their representative national organizations, prior to
finalizing a rule. All comment letters and recommendations received by
EPA during the comment period from state and local governments will be
included in the proposed rulemaking docket (Docket ID No. EPA-HQ-OW-
2021-0791).
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications, however it will neither impose
substantial direct compliance costs on federally recognized tribal
governments, nor preempt tribal law. This rulemaking may affect tribes
with reserved rights to aquatic and/or aquatic-dependent resources in
waters subject to state WQS, and it may also affect tribes
administering a CWA 303 WQS program. As of November 15, 2022, 80 Indian
tribes have been approved for treatment in a manner similar to a state
(TAS) for CWA sections 303 and 401.\81\ All or some of these authorized
tribes could be subject to this proposed rule, depending on the
location and nature of any other tribes' downstream rights.
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\81\ For the most current information please refer to https://www.epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts.
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EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. EPA held a 90-day tribal consultation and
coordination period from June 15 through September 13, 2021 with
federally recognized tribes to inform development of the proposed rule.
EPA conducted the consultation and coordination process in accordance
with the EPA Policy on Consultation and Coordination with Indian Tribes
(https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes). In addition to two national tribal listening sessions
held in July and August 2021, EPA presented at 20 meetings of tribal
staff and leadership, as well as held seven staff-level coordination/
engagement meetings and held seven leader-to-leader meetings at the
request of tribes. EPA continued outreach and engagement with tribes at
national and regional tribal meetings after the end of the consultation
period. Nearly all commenters were supportive of the potential rule in
concept. EPA considered all pre-proposal tribal input received as it
developed the proposed rule.
A summary of that consultation (``Summary of EPA's Pre-Proposal
Consultation, Coordination, and Outreach with Federally Recognized
Tribes on Potential Revisions to the Federal Water Quality Standards
Regulation to Protect Tribal Reserved Rights'') is available in the
docket for this proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in E.O. 12866, and because it
does not concern an environmental health risk or safety risk that may
disproportionately affect children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. This action impacts state and tribal
water quality standards, which do not regulate the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act of 1995
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
For the reasons explained below, EPA concludes that this action
does not have disproportionately high and adverse human health or
environmental effects on minority populations, low-income populations
and/or indigenous peoples, as specified in Executive Order 12898 (59 FR
7629, February 16, 1994). Instead, EPA believes that this rule will
address some of the many disproportionate impacts to tribal
communities.
EPA defines Environmental Justice (EJ) as the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation and enforcement of environmental laws, regulations and
policies.\82\ Three Executive Orders (E.O. 12898 \83\, 13985 \84\ and
14008 \85\) advance EJ by calling on Federal agencies to identify and
address disproportionate impacts on historically underserved,
marginalized, and economically disadvantaged people. Additionally, EPA
has expressed a commitment to conducting EJ analyses for rulemakings as
described in the April 30, 2021, revisions to the Cross-State Air
Pollution Rule (CSAPR).\86\ This rule is
[[Page 74377]]
consistent with EPA's strategic goal of advancing EJ.\87\
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\82\ Fair treatment means that ``no group of people should bear
a disproportionate burden of environmental harms and risks,
including those resulting from the negative environmental
consequences of industrial, governmental and commercial operations
or programs and policies.'' Meaningful involvement occurs when ``(1)
potentially affected populations have an appropriate opportunity to
participate in decisions about a proposed activity [e.g.,
rulemaking] that will affect their environment and/or health; (2)
the public's contribution can influence [the EPA's rulemaking]
decision; (3) the concerns of all participants involved will be
considered in the decision-making process; and (4) [the EPA will]
seek out and facilitate the involvement of those potentially
affected.'' A potential EJ concern is defined as ``the actual or
potential lack of fair treatment or meaningful involvement of
minority populations, low-income populations, tribes, and tribal
peoples in the development, implementation and enforcement of
environmental laws, regulations and policies.'' See ``Guidance on
Considering Environmental Justice During the Development of an
Action.'' Environmental Protection Agency, www.epa.gov/environmentaljustice/guidanceconsidering-environmental-justice-duringdevelopment-action. See also https://www.epa.gov/environmentaljustice.
\83\ Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations. Available at
https://www.epa.gov/environmentaljustice/federal-actions-address-environmental-justice-minority-populations-and-low.
\84\ Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government. Available at https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government.
\85\ Tackling the Climate Crisis at Home and Abroad. Available
at https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.
\86\ 86 FR 23054, 23162 (April 30, 2021) (``Going forward, EPA
is committed to conducting environmental justice analysis for
rulemakings based on a framework similar to what is outlined here,
in addition to investigating ways to further weave environmental
justice into the fabric of the rulemaking process including through
enhanced meaningful engagement with environmental justice
communities.'').
\87\ FY2022-2026 EPA Strategic Plan. Available online at https://www.epa.gov/planandbudget/strategicplan.
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Environmental impacts to tribes may be considered under the
category of EJ in recognition that tribes may at times be more
susceptible to impacts from environmental degradation. In addition,
E.O. 12898 directs Federal agencies, as appropriate and practical, to
evaluate and communicate the risks associated with consumption patterns
for populations that rely on fish and/or wildlife for subsistence.
There is a unique set of EJ considerations for tribes, particularly
where tribes are exercising their cultural practices, both on and off
their reservations. For EPA, the government-to-government relationship
and trust responsibility that the Federal government has with federally
recognized tribal governments further sets EJ issues for tribes apart
from those in other communities.\88\
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\88\ EPA recognizes our responsibility to work with both
federally recognized tribes and all other indigenous peoples, per
the EPA Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples (2014) (available online at
https://www.epa.gov/environmentaljustice/epa-policy-environmental-justice-working-federally-recognized-tribes-and) to address their EJ
concerns. As defined in the policy, Indigenous Peoples ``includes
state-recognized tribes; indigenous and tribal community-based
organizations; individual members of federally recognized tribes,
including those living on a different reservation or living outside
Indian country; individual members of state-recognized tribes;
Native Hawaiians; Native Pacific Islanders; and individual Native
Americans.''
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EPA and other Federal agencies focus on resolving EJ issues
affecting tribes through (1) supporting the tribes' sovereignty and
exercise of their own environmental authorities and (2) taking direct
action on behalf of the tribes as part of the Federal government's
tribal trust responsibility. This proposed rulemaking is relying on a
combination of both approaches, as discussed below.
Many tribes rely on aquatic and aquatic-dependent resources for
their lifeways. Attaining and sustaining clean water to protect human
health is essential to ensuring tribes can continue to practice these
traditional lifeways. However, due to water quality issues, many tribes
are unable to do so. The contamination of aquatic food resources above
levels safe to consume in desired quantities results in what is often
described as a suppression effect. An illustration of a suppression
effect is when the fish consumption rate for a given tribe reflects a
current level of consumption that is artificially diminished relative
to the tribe's heritage fish consumption rate.89 90 91
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\89\ National Environmental Justice Advisory Council (NEJAC).
2002. Fish Consumption and Environmental Justice. https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf. p. vii.
\90\ EPA. 2016. Idaho Tribal Fish Consumption Survey. https://www.epa.gov/columbiariver/idaho-tribal-fish-consumption-survey.
\91\ Northwest Indian Fisheries Commission, 2019. Opposition to
EPA's 2019 Actions to Roll Back Washington's Human Health Water
Quality Criteria, Docket No. EPA-HQ-OW-2015-0174. Available online
at https://www.regulations.gov/comment/EPA-HQ-OW-2015-0174-0970.
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The negative impacts of suppression extend well beyond tribal
health, leading to consequences for tribal economies and cultures as
well. Given that aquatic resources often support a tribe's cultural
self-determination and can be pivotal to the economic well-being of the
community, impacts to these resources can affect the very foundation of
tribal social and political organization,\92\ as well as impact a
tribe's ability to provide for present and future generations and the
maintenance of their lifeways.
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\92\ Ranco, D.J., O'Neill, C.A., Donatuto, J., & Harper, B.L.
2011. Environmental Justice, American Indians and the Cultural
Dilemma: Developing Environmental Management for Tribal Health and
Well-being. Environmental Justice 4;4, DOI: 10.1089/env.2010.0036.
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Tribes have a unique legal and political status, and environmental
issues affecting tribes must be viewed in the context of tribal
sovereignty. In giving reserved rights an explicit role in CWA
regulations, EPA's goal is to support tribal sovereignty. The proposed
rulemaking recognizes how critical reserved rights are for many tribes'
cultural and economic survival by providing a platform for states and
EPA to consider the nature and scope of the very rights that tribes
have reserved to themselves and have been enshrined in legal
instruments.
Tribes, unlike other communities with EJ concerns, cannot be viewed
as subpopulations, differentiated only by exposures and other
vulnerabilities. Tribal communities' relationship with their resources
is unique and should be understood in terms of both the past and
present relationship the particular tribal communities have with these
resources and their dependence on those resources. Impacts to tribal
communities may be disproportionate by definition because of their
unique relationship to the environment.\93\ It is often the resource
base that provides for their cultural self-determination and can be
pivotal to the economic well-being of the community. Indeed, many of
the reserved rights expressly include subsistence and economic
components.\94\ Impacts to their resource base could affect the very
foundation of their tribal social and political organization,\95\ as
well as impact their ability to provide for present and future
generations and the maintenance of their lifeways.
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\93\ Suagee, D.B. (2003). Environmental Justice and Indian
Country. Human Rights, Vol. 30, No. 4, p.16-17.
\94\ Lac Courte Oreilles Band of Lake Superior Chippewa Indians
v. Wisconsin, 758 F. Supp. 1262 (W.D. Wisc. 1991).
\95\ Ranco, D.J., O'Neill, C.A., Donatuto, J., & Harper, B.L.
(2011). Environmental Justice, American Indians and the Cultural
Dilemma: Developing Environmental Management for Tribal Health and
Well-being. Environmental Justice 4;4, DOI: 10.1089/env.2010.0036.
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This proposed rulemaking's emphasis on treating the applicable
tribe or tribes as the target population speaks to this unique status.
And the goal of protecting treaty resources that may not be otherwise
fully protected under the CWA may indeed have a subsistence and an
economic component. Further, the concept of addressing suppression, as
described in section IV.C.2.ii. of this preamble, takes on a unique
approach where tribal members are concerned by examining not only the
current context but may also look at historical and cultural practices
to establish the appropriate baseline. Many tribes have continued their
traditional practices and/or seek to return to those practices, yet
they may have also developed new approaches and relationships to their
resource base. Both contexts should be considered in furthering the
goal of protecting resources for which tribes have reserved rights.
The role these resources play in tribal communities can be complex.
Understanding which resources, how they may be used, and in what
quantities, is essential in protecting tribal sovereignty and the
cultural and economic survival of tribal communities. And each tribe
will likely have a very different set of values and relationships with
the resources, which may be different world views from those of the
surrounding community, and from state and local governments.\96\
Successful implementation of this proposed rulemaking therefore
necessitates close coordination with tribes and a greater understanding
of the unique approaches that tribes may have toward managing their
resources. The foundation of this coordination in this
[[Page 74378]]
WQS context necessarily includes the state, with CWA authority to set
standards in the reserved rights areas in question, local governments,
who often have even more direct contact with tribal members and their
governments, tribes holding those rights, and the Federal government.
This proposed rulemaking recognizes the importance of coordination with
tribes by establishing an express mechanism for tribal input in the
state WQS setting process.
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\96\ Ranco, D.J., O'Neill, C.A., Donatuto, J., & Harper, B.L.
(2011). Environmental Justice, American Indians and the Cultural
Dilemma: Developing Environmental Management for Tribal Health and
Well-being. Environmental Justice 4;4, DOI: 10.1089/env.2010.0036
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Reaching consensus can pose challenges, particularly given the
deep-seated sense of stewardship and responsibility tribes often feel
toward these resources even when under the jurisdiction of the state.
But it is often when tribal resources are not under the jurisdiction of
the tribes themselves that tribes see the biggest environmental justice
impacts.\97\ It is EPA's goal that the sovereignty and management role
of both state and tribal governments will be better understood and
aligned through implementation of this rulemaking.
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\97\ Id
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EPA recognizes that tribes without federally reserved rights to
aquatic or aquatic-dependent resources will not be directly impacted by
this rulemaking. The agency also acknowledges that since this
rulemaking only covers locations with reserved rights, other aquatic
resources upon which tribes depend may not be covered. It is EPA's
expectation that many of the coordination and collaboration processes
that will be developed to implement this rule will also lead to better
protection of aquatic and aquatic-dependent resources not referenced in
treaties and similar instruments because this rulemaking aims to
facilitate greater coordination between state and tribal governments.
EPA will continue to work with states and tribes to help reach this
goal. While this rulemaking does not address all obstacles to the full
exercise of these rights, EPA believes it takes a positive step in that
direction.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 131 as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart A--General Provisions
0
2. Amend Sec. 131.3 by adding paragraphs (r) and (s) to read as
follows:
Sec. 131.3 Definitions.
* * * * *
(r) Tribal reserved rights are any rights to aquatic and/or
aquatic-dependent resources reserved or held by tribes, either
expressly or implicitly, through treaties, statutes, executive orders,
or other sources of Federal law.
(s) Right holders are tribes holding rights to aquatic and/or
aquatic-dependent resources pursuant to an applicable treaty, statute,
executive order, or other source of Federal law.
0
3. Amend Sec. 131.5 by adding paragraph (a)(9) and revising paragraph
(b) to read as follows:
Sec. 131.5 EPA authority.
(a) * * *
(9) Whether any State adopted water quality standards protect
tribal reserved rights, where applicable, consistent with Sec. 131.9.
(b) If EPA determines that the State's or Tribe's water quality
standards are consistent with the factors listed in paragraphs (a)(1)
through (9) of this section, EPA approves the standards. EPA must
disapprove the State's or Tribe's water quality standards and
promulgate Federal standards under section 303(c)(4), and for Great
Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the
Act, if State or Tribal adopted standards are not consistent with the
factors listed in paragraphs (a)(1) through (9) of this section. EPA
may also promulgate a new or revised standard when necessary to meet
the requirements of the Act.
* * * * *
0
4. Amend Sec. 131.6 by adding paragraph (g) to read as follows:
Sec. 131.6 Minimum requirements for water quality standards
submission.
* * * * *
(g) Where applicable, information which will aid the agency in
evaluating whether the submission protects tribal reserved rights
consistent with Sec. 131.9, including:
(1) Information about the scope, nature, and current and past use
of the tribal reserved rights, as informed by the right holders; and
(2) Data and methods used to develop the water quality standards.
Subpart B--Establishment of Water Quality Standards
0
5. Add Sec. 131.9 to subpart B to read as follows:
Sec. 131.9 Protection of tribal reserved rights.
(a) Water quality standards must protect tribal reserved rights
applicable to waters subject to such standards. To protect tribal
reserved rights, water quality standards must, to the extent supported
by available data and information, be established to protect:
(1) The exercise of tribal reserved rights unsuppressed by water
quality or availability of the aquatic or aquatic-dependent resource;
and
(2) The health of the right holders to at least the same risk level
as provided to the general population of the State.
(b) In reviewing State water quality standards submissions under
this section, EPA will initiate tribal consultation with the right
holders, consistent with applicable EPA tribal consultation policies,
in determining whether State water quality standards protect applicable
tribal reserved rights in accordance with paragraph (a) of this
section.
(c) In order to meet the requirements in paragraph (a) of this
section, States must:
(1) Designate uses consistent with Sec. 131.10 that either
expressly incorporate protection of the tribal reserved rights or
encompass such rights; and
(2) Establish water quality criteria consistent with Sec. 131.11
to protect tribal reserved rights; and/or
(3) Use applicable antidegradation requirements consistent with
Sec. 131.12 to maintain and protect water quality that protects tribal
reserved rights.
Subpart C--Procedures for Review and Revision of Water Quality
Standards
0
6.Amend Sec. 131.20 by revising paragraph (a) to read as follows:
Sec. 131.20 State review and revision of water quality standards.
(a) State review. The State shall from time to time, but at least
once every 3 years, hold public hearings for the purpose of reviewing
applicable water quality standards adopted pursuant to Sec. Sec.
131.10 through 131.15 and Federally promulgated water quality standards
and, as appropriate, modifying and adopting standards. This review
shall include evaluating whether there are tribal reserved rights
applicable to State waters and whether water quality standards need to
be revised to protect those rights pursuant to Sec. 131.9. The State
shall also re-examine any
[[Page 74379]]
waterbody segment with water quality standards that do not include the
uses specified in section 101(a)(2) of the Act every 3 years to
determine if any new information has become available. If such new
information indicates that the uses specified in section 101(a)(2) of
the Act are attainable, the State shall revise its standards
accordingly. Procedures States establish for identifying and reviewing
water bodies for review should be incorporated into their Continuing
Planning Process. In addition, if a State does not adopt new or revised
criteria for parameters for which EPA has published new or updated CWA
section 304(a) criteria recommendations, then the State shall provide
an explanation when it submits the results of its triennial review to
the Regional Administrator consistent with CWA section 303(c)(1) and
the requirements of paragraph (c) of this section.
* * * * *
[FR Doc. 2022-26240 Filed 12-2-22; 8:45 am]
BILLING CODE 6560-50-P