[Federal Register Volume 89, Number 86 (Thursday, May 2, 2024)]
[Rules and Regulations]
[Pages 35717-35748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09427]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2021-0791; FRL-8599-02-OW]
RIN 2040-AG17


Water Quality Standards Regulatory Revisions To Protect Tribal 
Reserved Rights

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing 
revisions to the Clean Water Act (CWA) water quality standards (WQS) 
regulation to add requirements for states establishing WQS in waters 
where Tribes hold and assert rights to CWA-protected aquatic and 
aquatic-dependent resources reserved through treaties, statutes, or 
Executive orders.

DATES: This final rule is effective on June 3, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-2021-0791. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose

[[Page 35718]]

disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jennifer Brundage or Kelly Gravuer, 
Office of Water, Standards and Health Protection Division (4305T), 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number: (202) 566-1265 or (202) 566-
2946; email address: [email protected] or 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. Executive Summary
II. General Information
    A. Does this action apply to me?
    B. How did the EPA develop this final rule?
III. Statutory and Regulatory Background
    A. Clean Water Act
    B. Tribal Reserved Rights
    C. EPA Authority
IV. Overview of This Final Rule
    A. Definitions and Scope
    B. Protecting Applicable Tribal Reserved Rights
    C. Designated Use Revisions, WQS Variances, and Existing Uses
    D. General WQS Policies
    E. Roles, Responsibilities, and WQS Submission Requirements
    F. The EPA's Tribal Engagement and Consultation
    G. The EPA's Oversight Authority of New and Revised State WQS
    H. Triennial Reviews
V. Economic Analysis
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 14094: Modernizing 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 Risks 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 And Executive Order 14096: Revitalizing our Nation's 
Commitment to Environmental Justice for All
    K. Congressional Review Act (CRA)

I. Executive Summary

    Many Tribes hold rights to natural and cultural resources that are 
reserved, either expressly or implicitly, through treaties, statutes, 
or executive orders. Environmental regulatory schemes have often failed 
to recognize or protect such rights. This places Tribal members who 
rely on these vital resources for sustenance and to support 
longstanding cultural practices at disproportionate risk. This rule 
establishes a framework for how Tribal reserved rights, as defined in 
this final rule, must be considered in establishing WQS. In this final 
rule, the EPA is amending the Federal WQS regulation at 40 CFR part 131 
to: (1) define Tribal reserved rights for purposes of that regulation; 
(2) establish and clarify the responsibilities of states \1\ with 
regard to Tribal reserved rights in the WQS context; and (3) establish 
and clarify the EPA's related responsibilities and oversight role.
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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 the EPA determines 
to be eligible for purposes of the WQS program.
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    This rule defines Tribal reserved rights, for purposes of 40 CFR 
part 131, as ``any rights to CWA-protected aquatic and/or aquatic-
dependent resources reserved by right holders, either expressly or 
implicitly, through Federal treaties, statutes, or executive orders.'' 
Pursuant to its CWA authority, the EPA is defining ``Tribal reserved 
rights,'' for purposes of this regulation for use in WQS actions. In 
defining ``Tribal reserved rights'' for purposes of the EPA's WQS 
regulation, the EPA is not purporting to establish or interpret rights 
that may exist, or the scope of such rights, under a Federal treaty or 
other sources of Federal law. Rather, this definition provides that 
rights reserved by treaty, statute, or executive order to aquatic and/
or aquatic-dependent resources that also fall within the ambit of 
resources protected under the CWA are within the scope of potentially 
applicable rights for purposes of this rule. Whether a Tribal reserved 
right, as defined in this rule, will result in new or revised WQS is a 
case-by-case inquiry that will be undertaken in accordance with the 
provisions of this final rule.
    The EPA has previously addressed Tribal reserved rights in specific 
WQS actions. In this final rule, the agency is amending the existing 
WQS regulation to explicitly address how the EPA and states must 
consider applicable Tribal reserved rights in establishing WQS. By 
doing so, the agency is providing greater transparency and clarifying 
its expectations for WQS in waters where Tribal reserved rights apply.
    The rule requires that if a Tribe asserts a Tribal reserved right 
in writing to a state and the EPA for consideration in establishment of 
WQS, the state must, to the extent supported by available data and 
information: (1) take into consideration the use and value of its 
waters for protecting the Tribal reserved right in adopting or revising 
designated uses; (2) take into consideration the anticipated future 
exercise of the Tribal reserved right unsuppressed by water quality in 
establishing relevant WQS; and (3) establish water quality criteria to 
protect the Tribal reserved right where the state has adopted 
designated uses that either expressly incorporate protection of the 
Tribal reserved right or encompass the right. This latter requirement 
includes developing criteria to protect right holders using at least 
the same risk level (e.g., cancer risk level, hazard quotient, or 
illness rate) as the state would otherwise use to develop criteria to 
protect the state's general population (i.e., non-right holders), 
paired with exposure inputs (e.g., fish consumption rate) 
representative of right holders exercising their reserved right. The 
EPA will be subject to the same requirements when promulgating Federal 
WQS.
    The rule commits the EPA to: (1) providing assistance to both 
states and right holders in evaluating Tribal reserved rights, upon 
request, to the extent practicable; and (2) initiating the Tribal 
consultation process with any right holders that have asserted their 
rights for consideration in establishment of WQS.
    The rule amends the list of minimum requirements for state 
submissions of new or revised WQS to the EPA for review pursuant to CWA 
section 303(c) to include, where applicable, submission of information 
provided by right holders about relevant Tribal reserved rights and of 
documentation indicating how the state considered that information.
    The rule revises the list of factors that the EPA considers in 
determining whether state-adopted new or revised WQS are consistent 
with CWA section 303(c) and 40 CFR part 131 to include, where 
applicable, whether WQS are consistent with the requirements for states 
established by this rule.
    Finally, the rule modifies the procedures for state review and 
revision of WQS to require that the triennial review process include 
any new information available about Tribal reserved rights.

[[Page 35719]]

II. General Information

A. Does this action apply to me?

    States responsible for administering or overseeing water quality 
programs may be affected by this final rule, as they may need to 
consider and implement new provisions, or revise existing provisions, 
in their WQS. Federally recognized Indian Tribes \2\ with reserved 
rights \3\ may also be affected by this final rule. Entities that are 
subject to CWA regulatory programs, such as industrial facilities and 
municipalities that manage stormwater, separate sanitary, or combined 
sewer systems could be indirectly affected by this final rule. 
Categories and entities that could potentially be affected include the 
following:
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    \2\ See Federally Recognized Indian Tribe List Act of 1944, 25 
U.S.C. 479a. The current list can be found at 88 FR 2112-2116 
(January 12, 2023).
    \3\ The EPA is defining ``Tribal reserved rights'' for the 
purposes of 40 CFR part 131 as ``any rights to CWA-protected aquatic 
and/or aquatic-dependent resources reserved by right holders, either 
expressly or implicitly, through Federal treaties, statutes, or 
executive orders.''

      Table 1--Dischargers Potentially Affected by This Final Rule
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                                      Examples of potentially affected
             Category                             entities
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Industry..........................  Industrial point sources that
                                     discharge pollutants.
Municipalities, including those     Publicly owned treatment works or
 with stormwater or combined sewer   similar facilities responsible for
 system outfalls.                    managing stormwater, separate
                                     sanitary, or combined sewer systems
                                     that discharge pollutants.
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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.

B. How did the EPA develop this final rule?

    In developing this final rule, the EPA carefully considered the 
input from Tribes received during a 90-day Tribal consultation and 
coordination period following publication of the proposed rulemaking in 
the Federal Register on December 5, 2022, as well as public comments 
received from interested parties during a concurrent 90-day public 
comment period.\4\ In addition, the EPA held two online public hearings 
on January 24 and 31, 2023, to discuss the contents of the proposed 
rulemaking and accept verbal public comments.
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    \4\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361 (December 5, 
2022).
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    One hundred sixty-two organizations and individuals submitted 
comments on a range of issues. Some comments addressed issues beyond 
the scope of the rulemaking, and thus the EPA did not consider them in 
finalizing this rule. In this preamble, the EPA explains how it 
responded to certain comments received on aspects of the proposal. For 
a complete summary of all comments received and the EPA's responses, 
see the EPA's Response to Comments document in the official public 
docket. For a summary of input received from Tribes during the Tribal 
consultation and coordination period, please see section VI.F of this 
preamble.

III. Statutory and Regulatory Background

A. Clean Water Act

    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, or 
recreation. Water quality criteria define the minimum conditions 
necessary to achieve those environmental objectives. Antidegradation 
requirements maintain and protect water quality that has already been 
achieved.
    WQS serve as the basis for several CWA programs, including:
     Water body assessments, identification of impaired waters, 
and development of total maximum daily loads (TMDLs) under CWA sections 
305(b) and 303(d);
     Certifications of Federal licenses and permits under CWA 
section 401;
     Water quality-based effluent limits in National Pollutant 
Discharge Elimination System (NPDES) permits issued by approved state 
programs or by the EPA under CWA section 402; and
     Permits for dredged or fill material under CWA section 
404.
    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 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 the 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.\5\ 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.\6\ In addition, 40 CFR 131.10(b) provides 
that ``[i]n designating uses of a water body and the appropriate 
criteria for those uses, the state shall take into

[[Page 35720]]

consideration the water quality standards of downstream waters and 
ensure that its water quality standards provide for the attainment and 
maintenance of the water quality standards of downstream waters.''
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    \5\ See 40 CFR 131.10.
    \6\ See 40 CFR 131.11(a) and (b). 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 the 
EPA has published CWA section 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 40 CFR 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.\7\ States 
can also choose to include general policies in their WQS that affect 
WQS implementation, such as WQS variance policies and mixing zone 
policies.\8\
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    \7\ See 40 CFR 131.12.
    \8\ See 40 CFR 131.13.
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    States are required to hold a public hearing to review applicable 
WQS at least once every three years (``triennial review'') and, if 
appropriate, to revise standards or adopt new standards.\9\ Any new or 
revised WQS must be submitted to the EPA for review and approval or 
disapproval.\10\ CWA section 303(c)(4)(B) authorizes the Administrator 
to independently determine that a new or revised standard is necessary 
to meet CWA requirements, referred to as an Administrator's 
Determination.
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    \9\ See CWA section 303(c)(1); 40 CFR 131.20(a).
    \10\ See CWA section 303(c)(2)(A) and (c)(3); 40 CFR 131.21(a).
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    CWA section 501(a) authorizes the Administrator to ``prescribe such 
regulations as are necessary to carry out his functions under this 
chapter.'' 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

1. Overview of Tribal Reserved Rights in Federal Law
    The EPA recognizes that many federally recognized Tribes hold 
rights to use and access natural and cultural resources, and that 
exercise of these rights is an intrinsic part of Tribal life and is of 
deep cultural, economic, and subsistence importance to Tribes.\11\ The 
Supreme 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[.]'' \12\ Such 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.'' \13\ 
As described further below, these rights may be recognized in treaties, 
statutes, or Executive orders, and may be explicit or implied.
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    \11\ 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.
    \12\ United States v. Winans, 198 U.S. at 381.
    \13\ Id.
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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.\14\ From 
1778 to 1871, U.S. relations with Tribes were defined and conducted 
largely through treaty-making. In 1871, Congress stopped making 
treaties with Tribes,\15\ and subsequent agreements between Tribes and 
the Federal Government were instead generally memorialized through 
Executive orders or statutes, such as congressionally enacted Indian 
land claim settlements, with equally binding effect.\16\ As one court 
explained, generally ``it makes no difference whether . . . [Tribal] 
rights derive from treaty, statute or executive order, unless Congress 
has provided otherwise.'' \17\ Pursuant to the Constitution's Supremacy 
Clause, treaties and statutes also bind states.\18\
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    \14\ 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.'').
    \15\ See Act of March 3, 1871, section 1, 16 Stat. 544 (codified 
as carried forward at 25 U.S.C. 71).
    \16\ See Cohen's Handbook of Federal Indian Law section 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'').
    \17\ Parravano v. Babbitt, 70 F.3d 539, 545 (9th Cir. 1995), 
cert. denied, 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.'').
    \18\ 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, known as the 
``Indian canons of construction,'' in interpreting treaties and other 
Federal legal instruments regarding Indian Tribes. In accordance with 
these canons, ``Indian treaties are to be interpreted liberally in 
favor of the Indians, and any ambiguities are to be resolved in their 
favor.'' \19\ Further, treaties ``are to be construed as the Indians 
would have understood them'' at the time of signing.\20\ Although 
Congress may abrogate Indian treaty rights, those rights remain absent 
clear evidence of congressional intent.\21\ 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,\22\ including determining the scope of Tribes' rights under 
statutes or Executive orders setting aside land for Tribes.\23\ Some 
Tribes have treaty rights

[[Page 35721]]

that are no longer enforceable because they have been abrogated or 
otherwise superseded by Congress in later Federal statutes.\24\ In 
addition, some Tribes negotiated treaties with the U.S. government that 
were not ratified.\25\
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    \19\ 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'').
    \20\ 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.'').
    \21\ 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'').
    \22\ 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).
    \23\ See Winters v. United States, 207 U. S. 564, 576-577 (1908) 
(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).
    \24\ U.S. Constitution, Art. II, section 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'').
    \25\ Bureau of Indian Affairs, Frequently Asked Questions, 
available at https://www.bia.gov/frequently-asked-questions (noting 
that ``[t]he treaties that were made often contain commitments that 
have either been fulfilled or subsequently superseded by 
Congressional legislation''); 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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    Rights reserved to Tribes and reflected in treaties and other laws 
may apply in Indian country as well as outside of Indian country \26\ 
and may be express or implied.\27\ For example, in certain states in 
the Great Lakes region, Tribal reserved rights include hunting, 
fishing, and gathering rights both within Tribes' reservations and 
outside these reservations in specific areas that the Tribes ceded to 
the Federal Government.\28\ In the Pacific Northwest, treaties 
explicitly reserved to many Tribes rights to fish in their ``usual and 
accustomed'' fishing grounds and at stations both within and outside 
their reservation boundaries and to hunt and gather throughout their 
traditional territories.\29\ 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.\30\
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    \26\ 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.
    \27\ 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).
    \28\ 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).
    \29\ 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).
    \30\ See, e.g., Maine Implementing Act, 30 M.R.S 6207(4), (9).
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2. Tribal Reserved Rights and Water Quality Standards
    As explained in the proposed rulemaking, the EPA has previously 
addressed reserved rights held by Tribes in state-specific WQS actions. 
In this final rule, the agency is including additional information on 
its prior approaches to addressing how WQS should account for such 
rights, consistent with comments requesting that the agency provide a 
fuller description of how the requirements in this final rule differ 
from the agency's prior actions.
    From 2015 through 2017, the EPA took actions related to three state 
WQS submittals where affected Tribes had asserted that they held 
reserved fishing rights. In those actions, the EPA ``harmoniz[ed] the 
requirements of the CWA with the terms of'' applicable statutes (in 
Maine) and treaties (in Washington and Idaho) and found that, based on 
that harmonization, the WQS submitted by those states were not 
sufficiently protective of the applicable reserved rights.\31\ First, 
in 2015, the EPA disapproved certain human health criteria adopted by 
the State of Maine because they did not adequately account for Tribal 
members' rights to fish for sustenance, reserved under applicable 
Federal statutes. The agency explained that the initial step in 
reaching that outcome was to ``harmonize the CWA requirement that WQS 
must protect uses with the fundamental purpose for which land was set 
aside for the Tribes under the Indian settlement acts in Maine.'' \32\ 
The agency explained that, pursuant to that harmonization, the ``EPA 
interprets the State's `fishing' designated use, as applied in Tribal 
waters, to mean `sustenance' fishing.'' \33\
---------------------------------------------------------------------------

    \31\ See 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); Revision of Certain 
Federal Water Quality Criteria Applicable to Washington, 81 FR 
85417, 85424 (November 28, 2016); Letter from Dennis McLerran, 
Regional Administrator, EPA Region 10, to John Tippets, Director, 
Idaho Department of Environmental Quality, ``The EPA's Preliminary 
Review of DEQ'S December 13, 2016 Submittal of New and Revised Human 
Health Criteria'' at 10 (January 19, 2017).
    \32\ 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).
    \33\ Id.
---------------------------------------------------------------------------

    Similarly in 2016, in promulgating human health criteria for the 
State of Washington, the EPA noted that most waters covered by the 
state's WQS were subject to Federal treaties that reserved Tribal 
fishing rights. The agency again harmonized the applicable treaties 
with the CWA and the EPA's WQS regulation and found that it was 
appropriate to interpret the state's relevant designated use to 
``include or encompass a subsistence fishing component.'' \34\ The EPA 
articulated a similar position in a January 2017 letter to Idaho 
regarding human health criteria submitted by Idaho in December 2016, 
reiterating the ``need to consider treaty-reserved fishing rights and 
harmonize those rights with the [CWA] when deriving criteria necessary 
to protect Idaho's designated uses for fishing.'' \35\
---------------------------------------------------------------------------

    \34\ 81 FR 85417, 85424 (November 28, 2016).
    \35\ Letter from Dennis McLerran, Regional Administrator, EPA 
Region 10, to John Tippets, Director, Idaho Department of 
Environmental Quality, ``The EPA's Preliminary Review of DEQ'S 
December 13, 2016 Submittal of New and Revised Human Health 
Criteria'' at 10 (January 19, 2017).
---------------------------------------------------------------------------

    In each of these three actions, the EPA harmonized the CWA with the 
specific treaties or statutes by interpreting the relevant state uses. 
Based on that interpretation of each state's respective use as 
protecting applicable reserved rights, the agency concluded that in 
order to protect those uses, each state's human health criteria needed 
to protect Tribal members exercising the right to the same level as 
each state's respective general population, and the fish consumption 
rates used to derive those criteria needed to reflect unsuppressed 
consumption by that state's Tribal fish consumers.\36\
---------------------------------------------------------------------------

    \36\ See 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); Revision of Certain 
Federal Water Quality Criteria Applicable to Washington, 81 FR 
85417, 85424 (November 28, 2016); Letter from Dennis McLerran, 
Regional Administrator, EPA Region 10, to John Tippets, Director, 
Idaho Department of Environmental Quality, ``The EPA's Preliminary 
Review of DEQ'S December 13, 2016 Submittal of New and Revised Human 
Health Criteria'' at 10 (January 19, 2017).

---------------------------------------------------------------------------

[[Page 35722]]

    These actions followed a December 2014 memorandum from the EPA 
Administrator Gina McCarthy that discussed the EPA's role with respect 
to Tribal treaty rights.\37\ This memorandum was issued to commemorate 
the 30th anniversary of the EPA's 1984 Indian Policy, which addressed 
many issues related to the EPA's relationship with federally recognized 
Tribes and implementation of the EPA's statutes in Indian country, but 
did not expressly address the EPA's consideration of Tribal treaty and 
other reserved rights.\38\ In pertinent part, the 2014 memorandum 
provides that the ``EPA has an obligation to honor and respect Tribal 
rights and resources protected by treaties,'' and that the ``EPA must 
ensure its actions do not conflict with Tribal treaty rights.'' \39\ In 
2016, as part of the agency's efforts to implement the memorandum, the 
EPA issued an addendum to its Tribal consultation policy entitled 
``Guidance for Discussing Tribal Treaty Rights'' with the purpose of 
enhancing the EPA's consultations where agency actions may affect 
Tribal treaty rights.\40\ The goal of this document was to help ensure 
that the EPA's actions do not conflict with treaty rights, and that the 
EPA is fully informed as it seeks to implement its programs to further 
protect Tribal treaty rights and resources when it has discretion to do 
so.\41\ Even before this guidance was issued in 2016, the EPA routinely 
discussed Tribal treaty rights during consultation with Tribes. For 
example, in the agency's actions in Maine, Washington, and Idaho with 
regard to WQS, the EPA undertook extensive consultation with the 
federally recognized Tribes in those states which included, consistent 
with the objectives of that guidance, gathering information regarding 
relevant reserved rights.\42\
---------------------------------------------------------------------------

    \37\ U.S. EPA, Memorandum, Commemorating the 30th Anniversary of 
the EPA's Indian Policy (December 1, 2014), available at https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf.
    \38\ Id. See also U.S. EPA, EPA Policy for the Administration of 
Environmental Programs on Indian Reservations (November 8, 1984), 
available at https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf.
    \39\ U.S. EPA, Memorandum, Commemorating the 30th Anniversary of 
the EPA's Indian Policy (December 1, 2014), available at https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf.
    \40\ U.S. EPA, EPA Policy on Consultation and Coordination with 
Indian Tribes: Guidance for Discussing Tribal Treaty Rights 
(February 2016), available at https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf
.
    \41\ Id.
    \42\ 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).
---------------------------------------------------------------------------

    Although the agency did not rescind the Memorandum and Guidance for 
Discussing Tribal Treaty Rights, in subsequent state-specific WQS 
actions taken in 2019 the agency disavowed the approach to protecting 
Tribal reserved rights that the EPA had set forth in the Maine (2015) 
and Washington (2016) actions, as well as in the EPA's 2017 letter to 
the State of Idaho regarding protection of applicable treaty rights in 
that state.\43\ In 2019, the EPA approved Idaho's human health 
criteria, despite its prior expression of concern that the state's WQS 
did not sufficiently protect applicable Tribal reserved rights.\44\ In 
its approval, the EPA acknowledged the approach the agency had applied 
in Maine and Washington in 2015 and 2016 but noted that that approach 
``had not been promulgated in any nationally applicable rule or 
articulated in any national recommended guidance,'' and had not gone 
through public comment prior to the agency applying it in those 
states.\45\ To the extent that assertion implied a procedural 
deficiency, that assertion is now moot because the agency is 
establishing, through this rule, regulatory requirements addressing how 
WQS are to reflect consideration and protection of applicable Tribal 
reserved rights, as defined by this rule.
---------------------------------------------------------------------------

    \43\ See e.g., U.S. EPA, Letter and enclosed Technical Support 
Document from Chris Hladick, Regional Administrator, EPA Region 10, 
to John Tippets, Director, Department of Environmental Quality, Re: 
EPA's Approval of Idaho's New and Revised Human Health Water Quality 
Criteria for Toxics and Other Water Quality Standards Provisions 
(April 4, 2019) at 10; 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), at 21.
    \44\ U.S. EPA, Letter and enclosed Technical Support Document 
from Chris Hladick, Regional Administrator, EPA Region 10, to John 
Tippets, Director, Department of Environmental Quality, Re: EPA's 
Approval of Idaho's New and Revised Human Health Water Quality 
Criteria for Toxics and Other Water Quality Standards Provisions 
(April 4, 2019) at 10.
    \45\ Id. at 10-11.
---------------------------------------------------------------------------

    The legal basis for the requirements in this final rule differs in 
an important respect from the legal underpinnings of the agency's WQS 
disapprovals in Maine and Washington in 2015 and 2016, respectively, 
and the EPA's 2017 letter to Idaho regarding its WQS. Namely, as 
explained above, the legal rationale for those actions was harmonizing 
the CWA and existing regulatory requirements with specific Federal 
treaties and statutes and concluding that, read together, the CWA and 
WQS regulatory requirements and the respective treaties and statutes 
justified interpreting existing state designated uses to encompass 
relevant Tribal fishing rights.\46\ As explained in section III.C of 
this preamble, the EPA's authority to add the requirements set forth in 
this final rule does not derive from harmonizing a specific treaty, 
statute, or Executive order with the CWA. Rather, the regulatory 
requirements in this final rule are an exercise of the EPA's CWA 
oversight function provided by Congress in CWA section 303(c).
---------------------------------------------------------------------------

    \46\ See 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); Revision of Certain 
Federal Water Quality Criteria Applicable to Washington, 81 FR 
85417, 85424 (November 28, 2016); Letter from Dennis McLerran, 
Regional Administrator, EPA Region 10, to John Tippets, Director, 
Idaho Department of Environmental Quality, ``The EPA's Preliminary 
Review of DEQ'S December 13, 2016 Submittal of New and Revised Human 
Health Criteria'' at 10 (January 19, 2017).
---------------------------------------------------------------------------

    While the legal basis for these requirements differs from that of 
the EPA's 2015-2017 actions in Maine, Washington, and Idaho, there are 
similarities between the substantive elements of this final rule and 
what the EPA found would protect applicable Tribal reserved rights in 
those actions. Namely, in those actions, the EPA found that the 
applicable human health criteria needed to protect Tribal members to 
the same risk level as the states' general populations at an 
unsuppressed fish consumption rate. In this rule, as described in 
section IV of this preamble, the EPA is explicitly adding similar, 
though not identical, carefully tailored requirements regarding uses, 
suppression, and risk level in its regulation governing the 
establishment of WQS that reflect extensive input from states, Tribes, 
and the regulated community and are grounded in the CWA and consistent 
with the EPA's longstanding approach to overseeing state WQS.

C. EPA Authority

1. CWA Statutory Authority for This Final Rule
    The EPA's authority for this rule derives primarily from section 
303(c) of the CWA. In CWA section 303(c),

[[Page 35723]]

Congress set forth statutory requirements governing the establishment 
of WQS and tasked the EPA with overseeing state implementation of and 
compliance with those requirements.\47\ Congress established a 
structure whereby states are responsible for establishing WQS 
applicable to their waters, obtaining the EPA's approval of those 
standards, and reviewing their standards at least once every three 
years. Congress also provided direction regarding the nature of such 
standards. As noted previously, CWA section 303(c) provides that WQS 
``shall be such as to protect the public health or welfare, enhance the 
quality of water, and serve the purposes of'' the Act.\48\ It further 
provides that WQS ``shall be established taking into consideration 
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.'' \49\ State discretion to determine appropriate 
standards for their waters is not unfettered.\50\ While CWA section 
303(c) directs states to establish WQS in the first instance, Congress 
expressly gave the EPA the responsibility to review state WQS, and to 
disapprove them and promulgate Federal standards if state standards do 
not meet the applicable requirements of the Act.\51\ The ``EPA is 
permitted--and in fact statutorily required--to scrutinize a state's 
water quality standards.'' Id. The Act ``requires EPA to determine 
whether the standard is `consistent with' the Act's requirements.'' 
\52\
---------------------------------------------------------------------------

    \47\ See CWA section 303(c)(2)(A), 303(c)(3) and (4).
    \48\ See CWA section 303(c)(2)(A).
    \49\ Id.
    \50\ See El Dorado Chem. Co. v. EPA, 763 F.3d 950, 956 (8th Cir. 
2014).
    \51\ See CWA section 303(c)(3) and 4.
    \52\ See Miss Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 
1275-76 (5th Cir. 1980).
---------------------------------------------------------------------------

    To inform the EPA's statutorily mandated review of state WQS, the 
EPA's implementing regulation at 40 CFR part 131 specifies requirements 
for state WQS submissions. This rule, like the existing requirements in 
40 CFR part 131, is issued in exercise of the EPA's oversight authority 
in CWA section 303(c) and is in accordance with the EPA's longstanding 
general approach to implementing CWA section 303(c), which is to ``use 
standards as a basis of restoring and maintaining the integrity of the 
Nation's waters.'' \53\ The operative requirements in this rule are set 
forth in 40 CFR 131.9 and explained in detail in section IV of this 
preamble. This explanation includes the EPA's authority to add the 
specific requirements in 40 CFR 131.9.
---------------------------------------------------------------------------

    \53\ Water Quality Standards Regulation, 48 FR 51400 (November 
8, 1983).
---------------------------------------------------------------------------

    While CWA section 303(c) is the substantive source of authority for 
this rule, CWA section 501 authorizes the agency to prescribe 
regulations as necessary to carry out the Administrator's functions 
under the Act,\54\ and the EPA has from time to time issued regulations 
necessary to carry out its functions under CWA section 303(c). Those 
regulations, codified at 40 CFR part 131, provide a framework for 
implementing CWA section 303(c) and related sections, translating the 
statutory provisions, processes, and directives in CWA section 303(c) 
into specific requirements consistent with the statutory scheme. This 
rule adds to that existing framework.
---------------------------------------------------------------------------

    \54\ 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'').
---------------------------------------------------------------------------

    The EPA received many comments asserting that the EPA lacks 
authority to promulgate the requirements in this rule. The EPA 
disagrees. The statutory bases for the EPA's action are outlined above 
and explained in detail in section IV of this preamble. Specific 
contentions that the EPA lacks authority for particular aspects of this 
rule are addressed in section IV of this preamble. As described further 
in section IV of this preamble, these regulatory changes are designed 
to ensure that WQS will in fact ``protect the public health and 
welfare,'' including the health and welfare of right holders, and 
otherwise serve the purposes of the Act, and that consideration of the 
waters' ``use and value'' does not overlook right holders' use pursuant 
to the identified reserved rights.\55\
---------------------------------------------------------------------------

    \55\ See CWA section 303(c)(2)(A).
---------------------------------------------------------------------------

    Some commenters asserted that the EPA improperly relied on CWA 
section 511 as a grant of regulatory authority. These commenters assert 
that CWA section 511 is a savings clause and an interpretative 
limitation on the CWA as a whole rather than a basis for these 
requirements. The EPA is clarifying that, contrary to the 
characterizations in these comments, the agency is not relying on CWA 
section 511(a)(3) as a source of rulemaking authority.
    In the proposed rulemaking, the agency acknowledged that there may 
be instances where a later-enacted statutory provision intentionally 
limits federally reserved rights, citing to United States v. Dion, 476 
U.S. 734, 739-40 (1986). In that case, the Supreme Court applied the 
principle that courts will not find that Congress intends to abrogate a 
treaty right absent an indication of clear Congressional intent to do 
so, holding 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,'' the statute at issue in that 
decision.\56\ The EPA's reference to CWA section 511(a)(3) in the 
proposed rulemaking was to illustrate that there is no such similar 
Congressional intent to abrogate treaty rights in the CWA, given that 
in section 511 Congress explicitly provided that the Act ``shall not be 
construed as . . . affecting or impairing the provision of any treaty 
of the United States.'' \57\ While it is not an affirmative grant of 
authority, CWA section 511(a)(3) nonetheless supports the agency's 
approach in adding these requirements, which, in practice, will aid in 
ensuring that WQS will not ``affect[ ] or impair[ ] the provisions'' of 
treaties reserving rights to aquatic or aquatic-dependent resources. 
Indeed, the requirements in this rule will help to ensure that future 
WQS reflect consideration of and provide protection for treaty rights, 
where applicable. As explained above, rather than relying on CWA 
section 511(a)(3) as an affirmative source of authority for this rule, 
the EPA's substantive authority to promulgate this rule derives from 
CWA section 303(c).
---------------------------------------------------------------------------

    \56\ Dion, 476 U.S. at 739-40.
    \57\ See CWA section 511(a)(3); Water Quality Standards 
Regulatory Revisions to Protect Tribal Reserved Rights Proposed 
Rule, 87 FR 74361, 74379 (December 5, 2022).
---------------------------------------------------------------------------

2. Legal Significance of Applicable Treaties, Statutes, or Executive 
Orders In Informing This Final Rule's Requirements
    In this final rule, the EPA is clarifying that these requirements 
are not based on any one treaty, statute, or Executive order, but 
rather reflect the EPA's judgment regarding the necessary 
considerations and level of protection appropriate under the CWA where 
such rights apply. In the proposed rulemaking, the EPA explained that, 
in exercising its CWA section 303(c) authority, the EPA is ensuring 
that its actions are consistent with treaties, statutes, Executive 
orders, and other sources of Federal law reflecting reserved rights of 
Tribes. The EPA received some public comments reflecting confusion 
regarding how the interpretation of a relevant treaty, statute, or 
Executive order relates to the

[[Page 35724]]

rule's requirements. Specifically, these commenters stated that the EPA 
was placing an undue reliance on judicial decisions in which courts 
have found that reserved rights to an aquatic resource also encompass 
subsidiary rights to support the resource.\58\ These commenters opined 
that those decisions do not stand for the proposition that a resource 
reserved pursuant to a treaty, statute, or Executive order demands a 
certain level of water quality. The EPA disagrees with these comments 
because they misconstrue the role of this framework rule and the 
relevant inquiry into Tribal reserved rights, as used in this rule.\59\
---------------------------------------------------------------------------

    \58\ One commenter also cited to case law in which a court held 
that a treaty right to fish did not equate to ``an absolute right to 
the preservation of the fish runs in their original 1855 [treaty] 
condition, free from all environmental damage caused by the 
migration of increasing numbers of settlers and the resulting 
development of land.'' Nez Perce v. Idaho Power, 847 F. Supp. 791, 
808 (D. Id. 1994).
    \59\ In response to comments on a 2020 decision reversing 
aspects of the EPA's 2015 Maine WQS disapproval, the EPA expressed a 
similar view to these commenters. There, the 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.'' As 
explained herein, the EPA has clarified that whether the relevant 
treaty, statute, or Executive order explicitly references water 
quality or has been interpreted to imply a right to a certain level 
of water quality is not relevant to applying this rule.
---------------------------------------------------------------------------

    Consideration of whether Tribal treaty, statutory or Executive 
order-based rights are applicable turns in part on whether they 
reserved a right to aquatic and/or aquatic-dependent resources that are 
protected under the CWA. If they do, and they are asserted by right 
holders, then the requirements in this rule would apply such that 
consideration of those rights would be part of the standard-setting 
process under CWA section 303(c). Their consideration in that process, 
however, does not hinge on whether the relevant treaty, statute, or 
Executive order, explicitly references water quality or has been 
interpreted to imply a right to a certain level of water quality. The 
requirements set forth in this final rule are not premised on any one 
treaty, statute, or Executive order, and, accordingly, the rule's 
substantive water quality requirements set forth in 40 CFR 131.9 do not 
stem from any potential water quality subsidiary rights in any one 
treaty, statute, or Executive order. Rather, the rule's requirements 
are premised on the EPA's recognition of the multitude of Federal 
treaties, statutes, and Executive orders that reflect various reserved 
rights to aquatic and aquatic-dependent resources held by Tribes. 
Whether, and how, a particular reserved right applies will be 
determined on a case-by-case basis given the facts and the relevant 
Federal treaties, statutes, and Executive orders.
    For purposes of this rule's application in a specific context, the 
relevant question is not whether a treaty, statute, or Executive order 
is properly interpreted to reserve a subsidiary right to a particular 
level of water quality, but rather, whether such an instrument is 
properly interpreted to reserve a right to an aquatic or aquatic-
dependent resource. For example, does a treaty reserve a right to fish? 
If so, this rule's requirements are aimed at ensuring that where Tribes 
wish to bring such rights to the state's attention, the state will 
consider the Tribe's assertion of the right in following the well-
established standard setting process pursuant to the EPA's CWA section 
303(c) implementing regulation at 40 CFR part 131. In that context, 
where supported by available data and information, the state will take 
into consideration whether water quality is sufficient to protect that 
aquatic resource and right holders exercising their right to that 
resource. In this final rule, the agency is revising its implementing 
regulation to set forth a transparent framework to ensure that such 
aquatic resource rights are protected under the CWA.
    Some commenters also asserted that the then-pending Supreme Court 
case, Arizona v. Navajo Nation, is relevant to this rule and/or that 
the United States' position in that case was inconsistent with the 
EPA's position in the proposed rulemaking. The issue in that case was 
whether the United States has an affirmative, judicially enforceable 
fiduciary duty to assess and address the Navajo Nation's need for water 
from particular sources. The Navajo Nation argued, in pertinent part, 
that implied rights to water quantity pursuant to Winters v. United 
States, 207 U.S. 564, 576-577 (1908), created such an affirmative 
fiduciary trust duty. The United States argued that prior Supreme Court 
decisions made clear that a Tribe cannot sue to enforce an asserted 
fiduciary trust obligation against the United States unless the Tribe 
can ``identify a specific, applicable, trust-creating statute or 
regulation that the Government violated.'' \60\ The Supreme Court 
issued its opinion on June 22, 2023, holding that, consistent with the 
United States' position, while pursuant to the Winters doctrine the 
Tribe held treaty-reserved water quantity rights, those rights ``did 
not require the United States to take affirmative steps to secure water 
for the Tribe.'' \61\
---------------------------------------------------------------------------

    \60\ Petition for Certiorari, United States v. Navajo Nation, 
Dkt. No. 22-51 at 14 (U.S. July 15, 2022) (citing United States v. 
Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)). The United 
States' petition was granted and consolidated with a petition filed 
by the State of Arizona. Dkt. No. 21-1484.
    \61\ Arizona v. Navajo Nation, 599 U.S. 555, 564 (2023).
---------------------------------------------------------------------------

    Nothing in this rule conflicts with or is contrary to that 
position. As explained above, the EPA's authority for this rule is the 
CWA. The EPA is not issuing this rule pursuant to any specific, trust-
creating language in any treaty, statute, or Executive order. Rather, 
it is issuing this rule to ensure that, in implementing the CWA's WQS 
requirements, the EPA and states are adequately considering rights 
reserved by treaty, statute or Executive order in establishing WQS for 
waters where Tribal reserved rights, as defined in this rule, apply. As 
further explained below, this rule also does not apply to rights to 
specific quantities of water nor address the quantification of Winters 
rights. Rather, this rule applies to rights to aquatic or aquatic-
dependent resources that are protected under the CWA. Accordingly, the 
EPA disagrees with comments asserting that the Navajo Nation case is 
relevant here.
3. Basis for Amending the Existing WQS Regulations
    The 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.\62\ The agency has explained that such updates have 
been in response to 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 the EPA.\63\
---------------------------------------------------------------------------

    \62\ See Water Quality Standards Regulatory Revisions, 80 FR 
51020, 51021 (August 21, 2015) (Describing the history of the EPA's 
regulation at 40 CFR part 131).
    \63\ Id.
---------------------------------------------------------------------------

    As described above in section III.B.2 of this preamble, in the 
absence of explicit regulatory requirements aimed at ensuring 
protection of Tribal reserved rights, the EPA has previously addressed 
Tribal reserved rights case-by-case in exercising its oversight 
authority in reviewing state-adopted WQS. Notably, when the 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

[[Page 35725]]

rule establishing the WQS regulation, the agency noted that it had 
received comments asserting that the EPA should ``require States to 
adopt standards that meet treaty requirements.'' \64\ In response, the 
agency explained that such issues ``have been adequately resolved 
previously without the need for regulatory language,'' and, 
accordingly, that the ``EPA sees no need to include such language in 
the Final Rule.'' \65\ 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.'' \66\
---------------------------------------------------------------------------

    \64\ Water Quality Standards Regulation. 48 FR 51400, 51412 
(November 8, 1983).
    \65\ Id.
    \66\ Id. at 51413.
---------------------------------------------------------------------------

    With respect to Tribal treaties, part of the rationale that the EPA 
articulated in the 1983 final rule applies equally here: like 
international treaties, Tribal treaty requirements have the force of 
law, and thus, in the context of the CWA where WQS must protect the 
public health or welfare and enhance the quality of water, state WQS 
must be consistent with any applicable treaty requirements. However, 
the other element of the agency's asserted reasoning for not adding 
explicit requirements regarding international treaties has less 
application here. Namely, while issues regarding WQS and international 
treaties had been ``resolved previously without the need for regulatory 
language,'' such resolution--while it has occurred--has been more 
challenging with respect to issues with WQS and Tribal treaties.\67\ As 
detailed above, in practice the application of specific Tribal reserved 
rights in the WQS context has lacked consistency and transparent 
national expectations. The agency's prior incorporation of rights 
reserved to Tribes by treaty or other sources of Federal law in the WQS 
context was premised on harmonizing the relevant treaties or statutes 
with existing CWA requirements, and included interpreting Maine, 
Washington, and Idaho's fishing designated uses, which those states 
opposed.\68\ That opposition was in part based on those states' views 
of their own uses, as well as what those states perceived as a new 
approach to WQS that was taken without notice and comment.\69\ The 
explicit regulatory requirements contained in this final rule, which 
the agency is promulgating after receiving input from states, Tribes, 
and other commenters, are thus necessary to establish a set of 
consistent procedures, expectations, and definitions.
---------------------------------------------------------------------------

    \67\ The EPA previously took the position that the best way to 
ensure that risk levels and criteria protect Tribal reserved rights 
is in reviewing WQS submissions. In response to comments on the 
EPA's 1998 draft Human Health Methodology revisions, the agency 
asserted: ``As stated in the 1998 draft Methodology revisions, `risk 
levels and criteria need to be protective of tribal rights under 
Federal law (e.g., fishing, hunting, or gathering rights) that are 
related to water quality.' We believe the best way to ensure that 
Tribal treaty and other rights under Federal law are met, consistent 
with the Federal trust responsibility, is to address these issues at 
the time EPA reviews water quality standards submissions.'' (See 65 
FR 66444, 66457 (November 3, 2000)). As explained herein, the EPA 
has revisited the latter position based on its subsequent 
application of these principles and is now finalizing these 
regulations to establish transparent national expectations with 
respect to WQS and Tribal rights.
    \68\ See Plaintiff's Motion for Judgment on the Administrative 
Record, Maine v. Pruitt, No. 1:14-cv-00264-JDL. Dkt. No. 119 at 19 
(D. Me. 2018) (Asserting that the EPA's interpretation of Maine's 
fishing use, with which the State disagreed, and related 
requirements to protect that use were ``never subjected to any 
public notice, comment or other process.''); Amicus Curiae the State 
of Idaho's Brief in Support of Plaintiffs, Maine v. Pruitt, No. 
1:14-cv-00264-JDL, Dkt. No. 126 at 9 (D. Me. 2018).
    \69\ See id.; see also Northwest Pulp & Paper Association, et 
al., Petition for Reconsideration of EPA's Partial Disapproval of 
Washington's Human Health Water Quality Criteria and Implementation 
Tools submitted by the State of Washington on August 1, 2016, and 
Repeal of the Final Rule Revision of Certain Federal Water Quality 
Standards Applicable to Washington (February 21, 2017).
---------------------------------------------------------------------------

IV. Overview of This Final Rule

A. Definitions and Scope

    This final rule provides new regulatory definitions of ``Tribal 
reserved rights'' and ``right holders'' at 40 CFR 131.3. This rule 
defines Tribal reserved rights, for purposes of 40 CFR part 131, as 
``any rights to CWA-protected aquatic and/or aquatic-dependent 
resources reserved by right holders, either expressly or implicitly, 
through Federal treaties, statutes, or executive orders.'' Similarly, 
for purposes of 40 CFR part 131, this final rule defines ``right 
holders'' as ``any Federally recognized Tribes holding Tribal reserved 
rights, regardless of whether the Tribe exercises authority over a 
Federal Indian reservation.'' The scope of resources covered by this 
final rule is reflected in the definition of ``Tribal reserved 
rights,'' which refers to ``rights to CWA-protected aquatic and/or 
aquatic-dependent resources.''
1. Changes to Proposed Definitions
    The final definitions differ from the proposed definitions in three 
ways, based on public input. First, the EPA added ``for purposes of 
this part,'' to both the definitions of ``Tribal reserved rights'' and 
``right holders,'' simplified the definition of ``right holders'' to 
reference the definition of ``Tribal reserved rights'' to reduce 
redundancy, and added ``CWA-protected'' to the definition of ``Tribal 
reserved rights.'' Second, the EPA revised both definitions to address 
comments about potential confusion with the definition of ``Indian 
Tribe or Tribe'' at 40 CFR 131.3(l). Third, in the definition of 
``Tribal reserved rights'' the EPA added ``Federal'' before ``treaties, 
statutes, or executive orders'' and deleted ``or other sources of 
Federal law.'' These changes from proposal are discussed, in turn, 
below.
    The first set of revisions the EPA made to the proposed definitions 
at 40 CFR 131.3 was to add ``for purposes of this part,'' to both the 
definitions of ``Tribal reserved rights'' and ``right holders'' to 
clarify that both new definitions are applicable only for purposes of 
the EPA's 40 CFR part 131 regulation. The EPA made this change in 
response to some commenters who requested that the EPA revise the 
definition of ``Tribal reserved rights'' to clarify that the way Tribal 
reserved rights are considered in the WQS context does not dictate or 
limit how those rights could be considered in other contexts. 
Similarly, the EPA's addition of the phrase ``CWA-protected'' in the 
definition of ``Tribal reserved rights'' clarifies that for purposes of 
this rule the EPA is establishing that definition pursuant to its CWA 
authority, for consideration in the WQS context. This also does not 
dictate or limit how treaty, statutory or Executive order-based 
reserved rights may be considered in other contexts. In response to 
comments noting that the proposed definition of ``right holders'' was 
redundant because it repeated the definition of ``Tribal reserved 
rights'' from 40 CFR 131.3(r), the EPA replaced ``holding rights to 
aquatic and/or aquatic dependent resources pursuant to . . .'' with 
``holding Tribal reserved rights.''
    The second change the EPA made to the proposed definitions at 40 
CFR 131.3 is intended to clarify that the definition of ``Indian Tribe 
or Tribe'' at 40 CFR 131.3(l) is not implicated in the definitions of 
either ``Tribal reserved rights'' or ``right holders.'' Some commenters 
noted that the definition of ``Indian Tribe or Tribe'' at 40 CFR 
131.3(l) is limited to federally recognized Tribes ``exercising 
governmental authority over a Federal Indian reservation.'' This 
definition mirrors the definition in CWA section 518(h), which defines 
``Indian Tribe or Tribe'' as ``any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal

[[Page 35726]]

Indian reservation.'' This definition is expressly limited to CWA 
section 518, the provision of the statute in which Congress authorized 
the EPA to treat an Indian Tribe as a state for purposes of enumerated 
CWA programs for waters ``within the borders of an Indian 
reservation.''
    The EPA's authority for these new regulatory requirements is 
distinct from the treatment as a state authority granted in CWA section 
518. Accordingly, to avoid any confusion regarding the CWA section 518-
based definition of ``Indian Tribe or Tribe'' at 40 CFR 131.3(l), the 
EPA replaced the phrase ``reserved or held by Tribes'' in the 
definition of ``Tribal reserved rights'' with ``reserved by right 
holders.'' This change is intended to streamline the text and provide 
clarification and does not alter the scope of the rights covered.
    For the same reasons, the EPA also added language to the definition 
of ``right holders'' to clarify that the limitation included in the 
definition of ``Indian Tribe or Tribe'' at 40 CFR 131.3(l) to Tribes 
``exercising governmental authority over a Federal Indian reservation'' 
does not apply to this definition. Namely, ``right holders'' are 
defined to include ``any Federally recognized Tribes holding Tribal 
reserved rights, regardless of whether the Tribe exercises authority 
over a Federal Indian reservation.'' This additional language is 
intended to clarify that, for purposes of this rule, ``right holders'' 
can include federally recognized Tribes that are outside the scope of 
the definition at 40 CFR 131.3(l).
    Lastly, for both the definition of ``Tribal reserved rights'' and 
the definition of ``right holders,'' the EPA added the word ``Federal'' 
before ``treaties, statutes, or executive orders'' and deleted ``or 
other sources of Federal law.'' The EPA added the word ``Federal'' to 
clarify that, for purposes of this rule, the rights at issue are those 
reserved through Federal law. Some commenters requested that the EPA 
broaden the scope of legal instruments in the definition of ``Tribal 
reserved rights'' to encompass rights that are not reflected in Federal 
law, such as rights pursuant to state law and rights specified in 
treaties that were never ratified by the U.S. government. The EPA is 
maintaining the intent of the proposed rulemaking, which defined 
reserved rights as those reserved through Federal law. This is 
consistent with the agency's approach to ensure its actions--including 
its approval and disapproval actions under CWA section 303(c)(3) and 
its promulgation of final rules under CWA section 303(c)(4)--are 
consistent with Federal treaties, statutes, and Executive orders 
memorializing the rights of federally recognized Tribes.
    Regarding the deletion of ``or other sources of Federal law,'' some 
commenters noted that this term was vague. The EPA initially included 
this term to capture the full universe of Federal legal rights. 
However, after consideration of comments, the EPA concluded that the 
definition sufficiently captures all relevant rights without this 
additional language.
2. Scope of Resources Covered
    This final rule, consistent with the proposed rulemaking, provides 
at 40 CFR 131.3 that ``Tribal reserved rights'' for purposes of 40 CFR 
part 131 are ``any rights to CWA-protected aquatic and/or aquatic-
dependent resources . . .'' In the preamble to the proposed rulemaking, 
the EPA noted that examples of resources to which Tribes may have 
reserved rights ``include but are not limited to the rights to fish; 
gather aquatic plants; and to hunt for aquatic-dependent animals,'' and 
the agency requested comment on whether there are additional types of 
rights reserved to Tribes by treaty, statute, or Executive order that 
it should consider that were not included in the rule's proposed 
text.\70\ The EPA received many comments on this point.\71\ A few 
commenters supported the scope of resources covered under the 
definition in the proposed rulemaking, asserting that it is not 
necessary or appropriate to enumerate all the possible resources to 
which Tribes could hold reserved rights. Most commenters took the 
opposite view and requested that the EPA delineate the scope of 
resources or waters potentially covered by the rule. About half of 
these asserted that the definition of Tribal reserved rights is 
overbroad and should be narrowed, while the other half requested that 
the EPA explicitly expand the definition of Tribal reserved rights to 
ensure that the rule covers additional resources. After careful 
consideration, and for the reasons explained herein, the agency decided 
to maintain the regulatory language as proposed and not to enumerate 
potentially covered rights in the definition of ``Tribal reserved 
rights'' or otherwise expand or narrow the definition. The definition 
of ``Tribal reserved rights'' in this final rule is intended to capture 
the full spectrum of rights to aquatic and aquatic-dependent resources 
that are covered by the CWA and thus could be addressed by WQS. The key 
inquiry in determining whether a right is ``to [a] CWA-protected 
aquatic and/or aquatic-dependent resource[ ]'' for purposes of this 
rule is whether the right falls within the ambit of the resources 
protected under the CWA. CWA section 303(c)(2)(A) states that WQS 
``shall be such as to protect the public health or welfare, enhance the 
quality of water and serve the purposes of this Act.'' ``Serve the 
purposes of this Act,'' as defined in CWA sections 101(a)(2) and 
303(c), means that WQS should, wherever attainable, provide water 
quality ``for the protection and propagation of fish, shellfish and 
wildlife and for recreation in and on the water'' and take into 
consideration the use and value of public water supplies, propagation 
of fish, shellfish, and wildlife, recreation in and on the water, and 
agricultural, industrial, and other purposes including navigation. 
Consistent with CWA sections 101(a)(2) and 303(c)(2)(A), 40 CFR 131.2 
provides that ``states adopt water quality standards to protect public 
health or welfare, enhance the quality of water and serve the purposes 
of the Clean Water Act (the Act).'' Accordingly, any aquatic or 
aquatic-dependent resources or practices to which Tribes have reserved 
rights that fall within that ambit may be relevant Tribal reserved 
rights for purposes of this rule. The EPA is available upon request to 
assist right holders and states in assessing the relevance of rights to 
aquatic or aquatic-dependent resources for purposes of this rule.
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    \70\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74367 (December 
5, 2022).
    \71\ Commenters provided many examples of reserved resources and 
practices, including terrestrial species, medicinal plants, 
shellfish, hunting and trapping of waterfowl and mammals, commercial 
harvest and international trade of resources, as well as the right 
to pray and/or conduct traditional ceremonial practices such as 
weaving and sweat lodge ceremonies in which Tribal members utilize 
and come into direct contact with water.
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3. Scope Related to Allocation or Quantification of Water Rights
    Under the Supreme Court's longstanding reserved water rights 
doctrine, sometimes referred to as the Winters doctrine, the 
reservation of land for an Indian Tribe (or other Federal purposes) 
``also implicitly reserves the right to use needed water from various 
sources--such as groundwater, rivers, streams, lakes, and springs--that 
arise on, border, cross, underlie, or are encompassed within the 
reservation.'' \72\ In the proposed rulemaking, the EPA noted ``Tribal 
reserved rights as defined in this proposed rule generally do not

[[Page 35727]]

address the quantification of Winters rights.'' \73\ The EPA received 
some comments addressing that statement, as well as the perceived 
implications of the proposed rulemaking on Winters rights allocations 
and water quantity allocations generally. Almost all of these 
commenters requested that this rule explicitly include or exclude 
federally reserved water rights. Many of these commenters expressed 
concern that the proposed rulemaking had the potential to complicate or 
improperly interfere with the quantification of water rights.
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    \72\ Arizona v. Navajo Nation, 599 U.S. at 561.
    \73\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74363 (December 
5, 2022).
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    The EPA disagrees with commenters asserting that regulatory text is 
necessary to address Winters rights and other water rights and 
disagrees with comments asserting that this rule will complicate or 
interfere with new or existing water rights allocations or 
quantifications. Congress explicitly addressed the intersection between 
the CWA and water quantity allocations in CWA section 101(g), providing 
that ``the authority of each State to allocate quantities of water 
within its jurisdiction shall not be superseded, abrogated, or 
otherwise impaired'' by the Act, and that nothing in the CWA ``shall be 
construed to supersede or abrogate rights to quantities of water which 
have been established by any State.'' Relatedly, in CWA section 518(a) 
Congress clarified that ``Indian Tribes shall be treated as States for 
purposes of such section 101(g).'' Nothing in this rule conflicts with 
these statutory provisions, or the EPA's WQS regulations at 40 CFR 
131.4(a) (``[W]ater quality standards shall not be construed to 
supersede or abrogate rights to quantities of water.''). Nothing in 
this rule affects a state's or Tribe's authority to allocate water 
quantities nor provides a basis to supersede or abrogate rights to 
quantities of water.\74\ In accordance with these provisions of the CWA 
and the EPA's implementing regulations, whether a Tribe has right to a 
quantity of the water itself is not relevant to the application of this 
rule, which sets forth requirements for states in establishing WQS 
where Tribes assert rights to CWA-protected aquatic or aquatic-
dependent resources.
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    \74\ Winters rights arise by implication, vest no later than the 
establishment or creation date of the Indian or non-Indian Federal 
reservation and may be quantified through a Congressionally enacted 
settlement or through adjudication in Federal or state court 
consistent with the McCarran Amendment. See, e.g., Colorado River 
Water Conserv. Dist. v. United States, 424 U.S. 800, 808-09 (1976); 
Arizona v. California, 373 U.S. 546, 595-601 (1963); United States 
v. Adair, 723 F.2d 1394, 1413-14 (9th Cir. 1983), cert. denied, 467 
U.S. 1252 (1984).
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    The EPA is also clarifying its statement in the preamble of the 
proposed rulemaking that ``Tribal reserved rights generally do not 
address the quantification of Winters rights.'' \75\ The EPA's 
inclusion of the term ``generally'' in the proposed rulemaking 
preamble, which created confusion, was solely to recognize that, 
consistent with other WQS actions, water quantity would come into play 
only to the extent that a certain quantity or flow was under 
consideration in WQS development to protect an aquatic or aquatic-
dependent resource. For example, that a Tribe may have a right to a 
certain number of acre feet of water is itself not relevant in 
establishing WQS. In contrast, if a Tribe has a right to fish and 
provides data that a certain flow rate is necessary for fish survival, 
that would be potentially relevant under this rule. In that scenario, 
considerations regarding quantity or flow would not be based on Winters 
rights, but rather would be focused on protecting a relevant designated 
use. Accordingly, any effects of this rule on water rights, including 
Winters rights, would be incidental to water quality goals.\76\
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    \75\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74363 (December 
5, 2022).
    \76\ See Public Utility District No. 1 of Jefferson County et 
al. v. Washington Department of Ecology, 511 US 700, 720 (1994) 
(``Sections 101(g) and 510(2) preserve the authority of each State 
to allocate water quantity as between users; they do not limit the 
scope of water pollution controls that may be imposed on users who 
have obtained, pursuant to state law, a water allocation.''); citing 
to the Legislative History of the Clean Water Act of 1977 (``The 
requirements [of the Act] may incidentally affect individual water 
rights . . . . It is not the purpose of this amendment to prohibit 
those incidental effects. It is the purpose of this amendment to 
insure that State allocation systems are not subverted, and that 
effects on individual rights, if any, are prompted by legitimate and 
necessary water quality considerations.'').
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B. Protecting Applicable Tribal Reserved Rights

    Section 131.9(a) of this final rule adds several requirements to 
the EPA's existing WQS regulation that apply where a right holder 
asserts a Tribal reserved right in writing to a state and the EPA for 
consideration in establishment of WQS. In such circumstances, the state 
must, to the extent supported by available data and information: (1) 
take into consideration the use and value of its waters for protecting 
the Tribal reserved right in adopting or revising designated uses; (2) 
take into consideration the anticipated future exercise of the Tribal 
reserved right unsuppressed by water quality in establishing relevant 
WQS; and (3) establish water quality criteria to protect the Tribal 
reserved right where the state has adopted designated uses that either 
expressly incorporate protection of the Tribal reserved right or 
encompass the right. This latter requirement includes, for human health 
criteria, developing criteria to protect right holders using at least 
the same risk level (e.g., cancer risk level, hazard quotient, or 
illness rate) as the state would otherwise use to develop criteria to 
protect the state's general population (i.e., non-right holders), 
paired with exposure inputs (e.g., fish consumption rate) 
representative of right holders exercising their reserved right. Each 
of these requirements is discussed in turn in section IV.B.1 through 
IV.B.3 of this preamble, along with an explanation of the changes that 
the EPA made to the proposed requirements in response to public 
comments, to improve clarity and implementation of this final rule.
    Pursuant to the language in 40 CFR 131.9(a), this rule's 
requirements are triggered when right holders assert their reserved 
rights to CWA-protected aquatic and aquatic-dependent resources for 
consideration in the establishment of WQS. The EPA recognizes that 
treaties, statutes, and Executive orders constitute binding legal 
requirements regardless of whether a right holder chooses to assert 
rights reserved by such instruments in the context of the CWA WQS 
program. A right holder's decision to raise such reserved rights for 
consideration in establishing WQS is based on the specific nature of 
that right and the specific WQS in question. For example, a right 
holder may have a treaty-reserved right to fish but choose not to 
assert or raise that right in the context of a state's planned revision 
to its human health criteria. The right holders' calculus in whether to 
assert a right entails numerous considerations, such as whether the WQS 
revisions at issue are focused on pollutants that impact the right 
holders' ability to exercise their right. If not, and the right holder 
decides not to raise their right to the state and the EPA, that 
decision in no way alters the legal scope or meaning of that right. 
Accordingly, a decision not to raise a right in a specific WQS context 
does not amount to a general waiver or disclaimer of that right in the 
WQS context or in other contexts, including with respect to other state 
or Federal actions that may impact Tribal reserved rights. 
Additionally, a decision not to raise a right during a specific state 
WQS development process does not

[[Page 35728]]

preclude the right holder from raising that reserved right during 
another WQS development process.
    The rule's requirements are premised on a right holder asserting a 
right to a state and the EPA ``for consideration in establishment of 
[WQS],'' and accordingly, an assertion that occurs after the state has 
established its WQS would not trigger the rule's requirement that the 
state consider that right, at that time, but would be relevant for 
future WQS revisions. Assertions that occur as early as possible in a 
state's WQS development process will help to ensure adequate time for 
all parties to resolve any uncertainties and consider whether and how 
WQS may need to be revised in accordance with 40 CFR 131.9(a). 
Additionally, asserting the rights and providing associated details 
early in the WQS development process ensures that the state can 
consider that information before it has invested significant resources 
in drafting new or revised WQS, and before those new or revised WQS 
have been duly adopted.\77\ The CWA requires states to conduct a 
triennial review of their WQS and solicit public input on changes that 
may be needed to those WQS. In the absence of a separate state process 
for engaging potential right holders, the state's triennial review 
process is an ideal opportunity for Tribes to assert their rights for 
consideration.
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    \77\ Tribal assertions of reserved rights to the EPA and the 
relevant state(s) do not necessarily need to occur solely as part of 
the WQS development process but can be part of any other process 
addressing expressed Tribal interests, as long as the assertion 
relates specifically to WQS.
---------------------------------------------------------------------------

    The EPA does not intend for the requirement for right holders to 
assert their rights to a state and the EPA in writing for consideration 
in establishment of WQS to be onerous. For example, an email with 
information about the rights would suffice. When right holders choose 
to assert their rights in the WQS context, the EPA encourages right 
holders to provide as much detail and documentation as possible on the 
geographic scope and nature of the rights (e.g., the right to fish for 
subsistence in geographic area Y; the right to gather plants in 
waterbody A).
    If a right holder asserts a right in the WQS context, then the next 
step is for the state to seek further information from the right holder 
and other sources, if needed, to help the state determine the nature 
and geographic scope of the right, and whether and how state WQS may 
need to be revised in accordance with 40 CFR 131.9.\78\ Accordingly, 
the EPA also encourages right holders to provide data and information, 
where available, about desired revisions to relevant WQS. It may be 
useful for the state to initiate a collaborative process with the EPA 
and the right holder so all parties receive the same information and 
can jointly discuss any areas of uncertainty. In the proposed 
rulemaking, the EPA explained that ``a first step'' in determining the 
rule's applicability ``should be engagement with potential right 
holders.'' \79\ Accordingly, the EPA proposed adding Sec.  131.6(g)(1), 
which would have required that WQS submissions include ``[i]nformation 
about the scope, nature, and current and past use of the [T]ribal 
reserved rights, as informed by the right holders'' (emphasis 
added).\80\ The intent of this provision was to ensure that the 
identification and interpretation of any relevant Tribal reserved 
rights would be informed by input from the right holders.\81\ Some 
commenters expressed confusion regarding what the EPA meant by ``as 
informed by the right holders,'' and what the respective roles of 
states, the EPA, and right holders would be in initially determining 
whether there are relevant rights to consider. Accordingly, the EPA 
revised 40 CFR 131.9(a) to clarify that Sec. Sec.  131.9(a)(1) through 
(3) only apply where ``a right holder has asserted a Tribal reserved 
right in writing to the State and EPA for consideration in 
establishment of [WQS].'' The EPA also revised the proposed language at 
40 CFR 131.6, discussed further below.
---------------------------------------------------------------------------

    \78\ The EPA notes that a right holder asserting a right does 
not necessarily mean that application of 40 CFR 131.9 will lead to a 
WQS revision in that instance.
    \79\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74367 (December 
5, 2022).
    \80\ Id.
    \81\ In its slides for the public hearings on the proposed 
rulemaking, the EPA stated, ``Whether reserved rights apply to 
waters subject to a specific new/revised WQS is a complex inquiry 
that will be informed by several factors, including: input from the 
right holders; language of the treaties, statutes, or Executive 
orders and relevant judicial precedent.'' See https://www.epa.gov/system/files/documents/2023-02/01-24-23-Reserved-Rights-Public-Hearing-Slides-508.pdf.
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    This revision to 40 CFR 131.9(a) serves two important purposes. 
First, in response to concerns raised by some commenters regarding 
states or the EPA interpreting and applying rights reserved to Tribes 
pursuant to treaties, statutes or Executive orders in ways that are 
contrary to right holders' characterizations of their rights, it allows 
right holders to decide whether to raise their rights for consideration 
in the WQS context and provide relevant information about those rights. 
The EPA is available to assist right holders in understanding state WQS 
development processes to help them determine when they may wish to 
assert relevant rights in the WQS context. For example, the EPA can 
direct right holders to information on state WQS development processes 
so they can stay informed, such as through participation in workgroups 
and signing up for state email distribution lists on WQS topics.\82\
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    \82\ The EPA has included in the docket for this rule an example 
implementation scenario illustrating the types of information that 
could constitute an assertion of rights for consideration in 
establishment of WQS, as well as the process steps leading from an 
assertion of rights to state adoption of new or revised WQS and the 
EPA's approval or disapproval. The EPA expects to further work with 
Tribes and states in the implementation of this rule.
---------------------------------------------------------------------------

    Second, this revision provides states with requested clarity 
regarding the scope of rights that they need to consider in the WQS 
context, i.e., those rights asserted by right holders. The EPA received 
some comments expressing concerns regarding implementation of the rule 
and the potential burden placed on states if they had to independently 
identify all applicable Tribal reserved rights in their waters before 
proceeding with WQS revisions. This change clarifies that such an 
identification is not required to comply with this rule. However, the 
EPA recommends that states engage with Tribes at the earliest stages of 
their WQS development processes to gain additional knowledge regarding 
any potentially applicable reserved rights and related WQS concerns 
before right holders assert those rights. The EPA understands from 
public comments that some states are already aware of potentially 
applicable reserved rights and routinely engage with right holders on 
WQS and other actions that may impact those rights; the EPA encourages 
that practice. By proactively providing opportunities for Tribes to 
engage in the WQS development process (for example, by notifying all 
federally recognized Tribes in the early stages of a triennial review 
that the Tribes may be affected by amendments to a state's WQS), states 
can best position right holders to make informed decisions about 
whether to assert their reserved rights at a stage when the state has 
the most flexibility to consider new information and use that 
information to develop revised WQS, as appropriate. The EPA is also 
available to assist states in identifying potential right holders.
    Some commenters requested that the EPA and states keep confidential 
certain information about Tribal reserved rights, such as culturally 
sensitive information on water uses. Where a Tribe has concerns about 
sensitivity of

[[Page 35729]]

information, in advance of sharing that information, the EPA and the 
Tribe should discuss the extent to which the information would likely 
influence the WQS revision process and steps that could be taken to 
protect confidentiality. The EPA and states are unlikely to be able to 
keep most information provided by Tribes confidential, for two reasons. 
First, to have any bearing on a WQS action, a right holder's assertion 
of a right would need to be part of the public record for any related 
WQS action. CWA section 101(e) provides that ``public participation in 
the development, revision, and enforcement of any regulations, 
standard, effluent limitation, plan, or program established . . . under 
this Act shall be provided for, encouraged, and assisted . . .'' In 
addition, the EPA's regulation related to public participation in the 
development of WQS, 40 CFR 131.20(b), references 40 CFR part 25, which 
requires states to provide ``[r]eports, documents and data'' relevant 
to discussion of proposed WQS revisions in advance of public hearings 
on such revisions. Information relevant to the proposed WQS and their 
relationship to Tribal reserved rights would therefore be subject to 
public review and comment. Second, the EPA is subject to the Freedom of 
Information Act (FOIA), and, accordingly, FOIA disclosure requirements 
would apply to information provided to the EPA by right holders.\83\ 
The EPA is only able to maintain confidentiality of information 
protected by one of the nine exemptions in the FOIA. FOIA disclosure 
requirements would likely apply to most information provided to the EPA 
by right holders in the context of this rule.
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    \83\ See https://www.epa.gov/foia/learn-about-foia.
---------------------------------------------------------------------------

    The requirements in 40 CFR 131.9(a) are premised on states having 
``available data and information'' supporting the application of those 
requirements. As explained above in this section of this preamble, once 
a right holder asserts a right, the state would seek available data and 
information, with assistance from the EPA if requested, and then 
evaluate the data and information to determine whether and how WQS may 
need to be revised to comply with 40 CFR 131.9(a). The EPA and the 
state will need to make their decisions based on the information 
available at the time of the WQS revision. Where a right holder asserts 
a right but only limited data and information about the nature and 
scope of the right, or the level of protection required to protect the 
relevant resource, can be found at the appropriate stage in the state's 
WQS development process (for example, before a state has duly adopted 
its WQS and/or the WQS are before the EPA for review under CWA section 
303(c)), it could be reasonable to conclude that the information was 
not ``available'' per Sec.  131.9(a) when the WQS were being developed. 
The triennial review process exists to ensure that any new information 
that was not previously addressed is considered and incorporated in a 
future WQS revision, as appropriate. In such cases, the state, the 
right holder, and the EPA should discuss next steps for a future WQS 
revision to address the new information, as needed, as well as how the 
right could be protected until that future WQS revision occurs (e.g., 
through implementation of a narrative criterion).
    A few commenters raised concerns about the complexity for right 
holders with rights that span multiple states of needing to engage with 
different states on different WQS revision timelines and with different 
strategies for protecting Tribal reserved rights. In such situations, 
if requested by one or more states or Tribes, the EPA is available to 
engage with multiple states and right holders to negotiate regional 
solutions.
    Some commenters stated that the phrase ``to the extent supported by 
available data and information'' needed additional clarification on the 
appropriate data that would satisfy this requirement. The quality and 
soundness of available data and information will need to be evaluated 
case-by-case during the WQS development process. As is currently the 
case in development of WQS under the EPA's existing regulation at 40 
CFR part 131, different parties sometimes have different opinions on 
the types of data to consider, and the quality and soundness of those 
data. The EPA received some comments expressing concern that there 
would be disputes between states and Tribes on appropriate 
methodologies and/or scientific data and information, and that there is 
the potential for additional workload burden to resolve these disputes 
or produce data and information. As stated in 40 CFR 131.9(b), ``States 
and right holders may request EPA assistance with evaluating Tribal 
reserved rights''--which could include gathering or producing data and 
information--and ``EPA will provide such assistance to the extent 
practicable.'' As for any WQS decision, states must evaluate all the 
available information and make their decisions based on that 
information. As explained below in section IV.E, the EPA will review 
all of the available information and the state's documentation of how 
that information was considered per 40 CFR 131.6(g) and decide whether 
to approve or disapprove a state WQS submission in the same way the EPA 
currently makes decisions when there are disagreements between 
different parties, including different states, on WQS protections.
    The EPA requested comment on whether there are other factors it 
should consider when making WQS decisions where 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. A few commenters asserted that relevant 
Traditional Ecological Knowledge, also referred to as Indigenous 
Knowledge, should be considered along with other types of data and 
information; the EPA agrees.
    Some commenters noted that right holders may need resources and 
support from the EPA to collect data and information. The EPA intends 
to provide support to right holders, as well as states, during the WQS 
development process to help gather available data and evaluate 
differing scientific views to meet the requirements in this final rule. 
The EPA has, on occasion, provided funding to collect data and 
information to inform the level of water quality necessary to support 
Tribal reserved rights. The EPA could support similar projects in the 
future, as appropriate and as funding allows.
    In the proposed rulemaking, 40 CFR 131.9(a) provided that ``[w]ater 
quality standards must protect [T]ribal reserved rights applicable to 
waters subject to such standards.'' \84\ In response to comments 
expressing confusion about the meaning and application of this 
language, in this final rule, the EPA removed the initial overarching 
statement of principle proposed at 40 CFR 131.9(a), which the agency 
did not intend as a stand-alone requirement.
---------------------------------------------------------------------------

    \84\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 
5, 2022).
---------------------------------------------------------------------------

    Finally, some commenters requested that the EPA amend proposed 40 
CFR 131.9(a) to specify that upstream WQS must protect downstream 
Tribal reserved rights. The EPA made no changes to the final rule in 
response to these comments because, pursuant to the existing WQS 
regulation at 40 CFR 131.10(b), upstream states are already obligated 
to ensure that their WQS provide for the attainment and maintenance of 
downstream state WQS, including WQS that protect Tribal

[[Page 35730]]

reserved rights.\85\ Many state WQS already include a broad narrative 
criterion to protect downstream WQS, for example, or a tailored 
downstream protection narrative focused on specific waters or 
pollutants. In practice, where a downstream state's WQS are not yet 
protective of applicable reserved rights, the EPA would prioritize 
working with that state and the right holder(s) to gather available 
data and information and adopt appropriate WQS to protect the rights.
---------------------------------------------------------------------------

    \85\ USEPA. 2014. Protection of Downstream Waters in Water 
Quality Standards: Frequently Asked Questions. EPA-820-F-14-001. See 
https://www.epa.gov/sites/default/files/2018-10/documents/protection-downstream-wqs-faqs.pdf.
---------------------------------------------------------------------------

1. Considering Tribal Reserved Rights in Designating Uses
    The final rule at 40 CFR 131.9(a)(1) requires states to consider 
the use and value of their waters for protecting applicable Tribal 
reserved rights in adopting or revising designated uses pursuant to 40 
CFR 131.10. Specifically, it requires that states must ``[t]ake into 
consideration . . . Tribal reserved rights in adopting or revising 
designated uses[.]'' (Emphasis added). This requirement is consistent 
with CWA section 303(c)(2)(A), which provides that WQS ``shall be 
established taking into consideration 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.'' 
(Emphasis added).
    The EPA's existing regulation at 40 CFR 131.6(a) requires that each 
state's WQS submitted to the EPA for review must include ``[u]se 
designations consistent with the provisions of [S]ections 101(a)(2) and 
303(c)(2) of the Act.'' \86\ Some of the uses specified in CWA section 
303(c)(2)(A) are also specified in CWA section 101(a)(2), which sets a 
national 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,'' wherever attainable. The EPA refers 
to the uses listed in section 303(c)(2)(A) but not listed in section 
101(a)(2) as ``non-101(a)(2) uses.'' \87\
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    \86\ The existing WQS regulation at 40 CFR part 131 interprets 
and implements CWA section 101(a)(2) and 303(c)(2)(A) through 
requirements that WQS protect the uses specified in section 
101(a)(2) of the Act unless those uses are shown to be unattainable, 
effectively creating a rebuttable presumption of attainability. This 
final rule does not alter the existing requirements at Sec.  131.10 
that the uses specified in CWA section 101(a)(2) are presumed 
attainable unless a state affirmatively demonstrates through a Use 
Attainability Analysis (UAA) that 101(a)(2) uses are not attainable 
as provided by one of six regulatory factors at 40 CFR 131.10(g). A 
UAA is defined at 40 CFR 131.3(g) as ``a structured scientific 
assessment of the factors affecting the attainment of the use which 
may include physical, chemical, biological, and economic factors as 
described in Sec.  131.10(g).''
    \87\ See 40 CFR 131.3(q) defining ``non-101(a)(2) uses'' as 
``any use unrelated to the protection and propagation of fish, 
shellfish, wildlife or recreation in or on the water.''
---------------------------------------------------------------------------

    The EPA is not delineating in this final rule a list of uses that 
states must take into consideration, but notes that the full scope of 
uses that states are required to consider under the CWA includes those 
that are explicitly listed in sections 303(c)(2)(A) and 101(a)(2) of 
the CWA, and those that are not, as evidenced by Congress' inclusion of 
the phrase ``and other purposes . . .'' in CWA section 303(c)(2)(A). As 
described in section IV.A.2 of this preamble, commenters provided 
examples of reserved resources and practices that are captured 
explicitly in CWA sections 101(a)(2) and 303(c)(2)(A) such as 
propagation of fish and wildlife, as well as examples that are not 
captured explicitly in either provision but could fall under section 
303(c)(2)(A)'s ``other purposes,'' such as ceremonial practices. As 
noted above in section III.B.1 of this preamble, rights reserved to 
Tribes pursuant to treaties, statutes and Executive orders are binding 
Federal law, and thus, for any such rights that do not already fall 
within the explicit list of uses set forth in CWA section 101(a)(2) or 
section 303(c)(2)(A), consideration of waters' use and value for 
protecting Tribal rights reserved by such legal instruments is 
encompassed within the ``other purposes'' clause of CWA section 
303(c)(2)(A).\88\
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    \88\ Grand Portage Band et al. v. EPA, Civil No. 22-1783 (D. 
Minn. March 29, 2024) at 30 (``States and EPA must consider Tribal 
treaty rights to aquatic and aquatic-dependent resources to comply 
with the Clean Water Act and implementing regulations. See 33 U.S.C. 
1313(c)(2)-(3), 1371(a); 40 CFR 131.5, 131.6, 131.10(b).'').
---------------------------------------------------------------------------

    In this final rule, where a state finds that certain waters have 
use and value for protecting a Tribal reserved right based on 
information provided by right holders that have asserted a relevant 
right, the state would then consider whether those rights are already 
encompassed by a state's designated uses, or whether a new or revised 
use may be needed to protect the Tribal reserved right. 40 CFR 131.10 
remains the regulatory framework for guiding this consideration. Many 
state-designated uses already protect the CWA section 101(a)(2) uses, 
which likely encompass protection of certain Tribal reserved rights. 
For example, a state with a ``fishing'' designated use applicable to 
waters where there is a subsistence fishing reserved right could 
conclude that its ``fishing'' use encompasses that right such that a 
new use would not be needed, although the state may still choose to 
adopt a separate subsistence fishing use for transparency and clarity.
    For non-101(a)(2) uses, in the preamble to the EPA's final 2015 
revisions to the Federal WQS regulation, the EPA provided several 
recommendations on the types of information that a state might consider 
when determining the use and value of its waters for various 
purposes.\89\ In addition to the requirements in 40 CFR 131.10 to 
provide for the attainment and maintenance of downstream WQS and 
protect existing uses, the EPA recommended that states consider 
information such as: (1) the quality and physical characteristics of 
the water(s) being evaluated, (2) public comments, (3) attainability 
considerations, and (4) the value and/or benefits (including 
environmental, social, cultural, and/or economic value/benefits) 
associated with the use. The EPA also recommended that states work 
closely with the EPA when developing such ``use and value 
demonstrations'' for non-101(a)(2) uses in their waters.
---------------------------------------------------------------------------

    \89\ See Water Quality Standards Regulatory Revisions, 80 FR 
51027 (August 21, 2015).
---------------------------------------------------------------------------

    In the EPA's view, many waters where Tribal reserved rights apply 
will have significant environmental, social, cultural and/or economic 
use and value for protecting those rights in accordance with 40 CFR 
131.9. In such cases, the EPA expects that a state would either 
explicitly adopt a use to protect the Tribal reserved rights or 
conclude that its current uses encompass the rights. This is because, 
as emphasized in comments from Tribes, the exercise of rights reserved 
by Tribes is an intrinsic part of Tribal life and of deep cultural, 
economic, and subsistence importance to Tribes. For example, where a 
right holder has a reserved subsistence fishing right on a river, that 
river would have use and value for protecting subsistence fishing. As 
such, the state would either explicitly adopt a use to protect 
subsistence fishing or determine that its current use designation 
already encompasses subsistence fishing. There may be situations, 
however, where the use and value of certain waters suggests that 
designating uses for those waters to protect the reserved right is a 
higher priority than for other waters where the right applies. For 
example, natural physical characteristics in one waterbody may inhibit 
growth or survival of a resource covered by a Tribal reserved right, 
such that there is little value in designating uses for that

[[Page 35731]]

waterbody to specifically protect the reserved right. As with any 
evaluation of waters' use and value for various purposes, compliance 
with the requirement at 40 CFR 131.9(a)(1) will require a case-specific 
evaluation of the waters and circumstances in question. The EPA 
recommends that states work closely with right holders and with the EPA 
when undertaking such an analysis.
    The final rule reflects two key modifications from the use 
requirement in the proposed rulemaking, which at 40 CFR 131.9(c)(1) 
proposed to require states to ``[d]esignate uses . . . that either 
expressly incorporate protection of the [T]ribal reserved rights or 
encompass such rights[.]'' \90\ First, the EPA aligned the rule's 
requirement regarding designation of uses with the language of section 
303(c)(2)(A) of the CWA by requiring that states must ``[t]ake into 
consideration . . . Tribal reserved rights in adopting or revising 
designated uses[.]'' Some commenters viewed the proposed requirement in 
40 CFR 131.9(c)(1) that states must ``[d]esignate uses . . .'' as a 
broad mandate requiring states to adopt designated uses and asserted 
this was inconsistent with the CWA's framework set forth in section 
303(c) and improperly usurped states' roles. The EPA's intent in 
proposing 40 CFR 131.9(c)(1) was not to impose a new use designation 
requirement, but rather to make explicit that designating a use to 
protect rights to aquatic and/or aquatic-dependent resources reserved 
to Tribes by treaty, statute, or Executive order was one option 
available to states. It was not intended as a mandate. Given the 
confusion expressed in comments, the EPA is revising the proposed 
rulemaking language on designated uses to align with the CWA language.
---------------------------------------------------------------------------

    \90\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 
5, 2022).
---------------------------------------------------------------------------

    The second key change the EPA made between proposed 40 CFR 131.9(c) 
and final 40 CFR 131.9(a)(1) was to remove proposed 40 CFR 131.9(c)(1) 
through (3), which provided that, in order to meet the requirements of 
proposed 40 CFR 131.9(a), ``states must'' either: (1) designate uses 
and (2) establish criteria to protect Tribal reserved rights, ``and/
or'' (3) use applicable antidegradation requirements to maintain water 
quality that protects Tribal reserved rights.\91\ As explained 
immediately above, the final rule includes a revised requirement with 
respect to designated uses, set forth at 40 CFR 131.9(a)(1). The final 
rule also includes a revised requirement regarding criteria, related to 
proposed 40 CFR 131.9(c)(2), that is described below in section IV.B.3 
of this preamble. For the reasons explained immediately below, the EPA 
is not finalizing a requirement related to antidegradation, as set 
forth at proposed 40 CFR 131.9(c)(3).
---------------------------------------------------------------------------

    \91\ Id.
---------------------------------------------------------------------------

    The EPA requested comments on whether two proposed antidegradation 
policy options related to Tier 2 and Tier 3 could be used to protect 
Tribal reserved rights in lieu of the proposed requirements for 
designated uses and criteria at 40 CFR 131.9(c)(1) and (2), 
respectively. Some commenters expressed concerns that, as drafted, the 
proposed rulemaking implied that applying antidegradation requirements 
alone could satisfy the statement set forth at proposed 40 CFR 131.9(a) 
that WQS must protect Tribal reserved rights and expressed confusion 
about whether the proposed requirement at 40 CFR 131.9(c)(3) differed 
from the requirements already encompassed in the existing WQS 
regulation at 40 CFR 131.12. The EPA has determined not to include the 
proposed provision related to antidegradation because the existing 
antidegradation requirements can be used to protect reserved rights. 
Among other requirements, 40 CFR 131.12 specifies that states must 
develop and adopt a statewide antidegradation policy. As specified in 
40 CFR 131.12(a)(2), that policy must require that water quality be 
maintained and protected for high quality waters unless the state finds 
that allowing lower water quality is necessary to accommodate important 
economic or social development in the area in which the waters are 
located. This requirement applies to all high quality waters, including 
those where reserved rights apply. In addition, the existing regulation 
at 40 CFR 131.12(a)(3) specifies that an antidegradation policy must 
also provide for the maintenance and protection of water quality where 
states have determined that such waters constitute an Outstanding 
National Resource Water (ONRW). Again, this requirement applies to 
ONRWs where reserved rights apply. In the final rule, the EPA 
streamlined and clarified the operative requirements set forth in 40 
CFR 131.9 by removing the language related to antidegradation. The EPA 
concluded that existing antidegradation tools specified at 40 CFR 
131.12 can be used to protect Tribal reserved rights, therefore the EPA 
determined it was not necessary to include an additional provision 
related to antidegradation in 40 CFR 131.9.
    The final rule does not change or affect the antidegradation 
requirements in the EPA's existing WQS regulation at 40 CFR 131.12 or 
add any new antidegradation regulatory requirements regarding 
protection of Tribal reserved rights. However, the EPA recommends that 
states consider applying ONRW protections to maintain and protect 
waters where Tribal reserved rights apply. The EPA also recommends that 
states amend their antidegradation implementation methods to explicitly 
account for Tribal reserved rights when evaluating whether to authorize 
a lowering of water quality in Tier 2 waters.
2. Accounting for Suppression Effects
    In the final rule, 40 CFR 131.9(a)(2) requires that, where a right 
holder has asserted a Tribal reserved right and where supported by 
available data and information, the state must ``[t]ake into 
consideration the anticipated future exercise of the Tribal reserved 
right unsuppressed by water quality[.]'' This requirement is intended 
to address situations where existing water quality does not allow for 
right holders to fully exercise their reserved rights. For example, a 
Tribe's exercise of its right to fish for subsistence is suppressed if 
the Tribe consumes fish below subsistence levels due to concerns about 
contamination. Consideration of suppression effects is important to 
minimize the potential that WQS merely reinforce an existing suppressed 
use or allow further contamination and/or depletion of the aquatic 
resources such that it leads to a ``downward spiral'' of further 
reduction/suppression.\92\
---------------------------------------------------------------------------

    \92\ National Environmental Justice Advisory Council, Fish 
Consumption and Environmental Justice, pp. 44-49 (2002) (NEJAC Fish 
Consumption Report) available at https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf.
---------------------------------------------------------------------------

    The EPA proposed to require, at 40 CFR 131.9(a)(1), states to 
establish WQS to ``protect'' the exercise of Tribal reserved rights 
``unsuppressed by water quality or availability of the aquatic or 
aquatic-dependent resource.'' \93\ The requirement related to 
suppression in the final rule reflects several key modifications to the 
proposed requirement: first, the EPA made it less prescriptive, while 
maintaining a requirement that states consider the effect suppression 
is having on the exercise of Tribal reserved rights; second, the EPA 
clarified the need to evaluate the ``anticipated future'' exercise of 
Tribal reserved rights

[[Page 35732]]

unsuppressed by water quality; and third, the EPA removed the reference 
to availability of the resource.
---------------------------------------------------------------------------

    \93\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 
5, 2022).
---------------------------------------------------------------------------

    Requiring consideration of the anticipated future exercise of 
Tribal reserved rights unsuppressed by water quality is consistent with 
the objectives of CWA section 303(c)(2)(A), the oversight authority 
that Congress granted the EPA in CWA section 303(c), and the EPA's 
existing WQS regulation, and builds on the EPA's longstanding 
recommendations on derivation of human health criteria. Specifically, 
requiring states to consider suppression effects in establishing WQS is 
consistent with the CWA goal in section 101(a) to ``restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters,'' section 303(c)(2)(A)'s requirement that WQS ``shall 
be such as to protect the public health or welfare'' and ``enhance the 
quality of the water,'' and the EPA's longstanding position that WQS 
are water quality goals that are not intended to merely reflect 
currently attained or existing conditions.\94\ As the ``Purpose'' 
section in the existing WQS regulation at 40 CFR 131.2 explains, WQS 
``serve the dual purposes of establishing the water quality goals for a 
specific water body and serve as the regulatory basis for the 
establishment of water-quality-based treatment controls and 
strategies[.]'' Relatedly, the EPA's longstanding regulation at 40 CFR 
131.3 defines designated uses as ``those uses specified in water 
quality standards for each water body or segment whether or not they 
are being attained'' (emphasis added). This definitional language 
illustrates the principle that WQS may be set based on goals for future 
water quality, even if such goals are not presently attained.
---------------------------------------------------------------------------

    \94\ See Water Quality Standards Regulatory Revisions, 80 FR 
51020, 51025 (August 21, 2015) (``When conducting a UAA and 
soliciting input from the public, states and authorized Tribes need 
to consider not only what is currently attained, but also what is 
attainable in the future after achievable gains in water quality are 
realized.'').
---------------------------------------------------------------------------

    The requirement at 40 CFR 131.9(a)(2) also builds on the EPA's 
longstanding guidance addressing derivation of water quality criteria 
to protect designated uses. For example, in the EPA's Methodology for 
Deriving Ambient Water Quality Criteria for the Protection of Human 
Health (2000 Methodology), the agency refers to human health criteria 
as ``health goals'' (emphasis added).\95\ The EPA's 2016 Guidance for 
Conducting Fish Consumption Surveys recommends avoiding establishing 
standards based on suppressed conditions and recommends gathering 
information about anticipated future conditions.\96\ In 2013, in a 
guidance document addressing human health criteria and fish consumption 
rates, the agency noted the importance of avoiding ``suppression 
effects'' that may occur when a fish consumption rate ``reflects an 
artificially diminished level of consumption from an appropriate 
baseline level of consumption . . . because of a perception that fish 
are contaminated with pollutants.'' \97\
---------------------------------------------------------------------------

    \95\ 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 
at 1-5, https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics.
    \96\ See USEPA. 2016. Guidance for Conducting Fish Consumption 
Surveys. EPA-823B16002 at 18, https://www.epa.gov/sites/default/files/2016-12/documents/guidance-fish-consumption-surveys.pdf 
(``Environmental standards utilizing suppressed rates may contribute 
to a scenario in which future aquatic environments will support no 
better than suppressed rates'' and p. 84: ``. . . by asking people 
to predict their level of future use under the change of a single 
condition (e.g., alleviation of their concerns about contamination), 
a survey can provide useful information on the qualitative scale of 
change that usage rates are likely to undergo as remediation and/or 
risk communication progresses.'').
    \97\ Human Health Ambient Water Quality Criteria and Fish 
Consumption Rates: Frequently Asked Questions. https://www.epa.gov/sites/default/files/2015-12/documents/hh-fish-consumption-faqs.pdf 
(``It is also important to avoid any suppression effect that may 
occur when a fish consumption rate for a given subpopulation 
reflects an artificially diminished level of consumption from an 
appropriate baseline level of consumption for that subpopulation 
because of a perception that fish are contaminated with 
pollutants.'').
---------------------------------------------------------------------------

    The requirement in this final rule builds both on the agency's 
prior guidance on avoiding establishing WQS based on suppressed fish 
consumption rates, which was not specific to consideration of Tribal 
reserved rights, as well as on the case-specific actions the agency 
took in Maine, Washington, and Idaho, discussed previously in section 
III.B.2 of this preamble, where Tribal reserved rights were a factor in 
determining the appropriate fish consumption rate. In 2015 and 2016, in 
disapproving human health criteria for Maine and Washington, 
respectively, the EPA stated that, where Tribal rights applied, human 
health criteria must be based on fish consumption data ``that 
reasonably represent Tribal consumers taking fish from Tribal waters 
and fishing practices unsuppressed by concerns about the safety of the 
fish available to them to consume.'' \98\ In 2019, the agency revisited 
the position taken in the Maine and Washington actions, acknowledging 
the EPA's prior consideration of suppression in evaluating fish 
consumption rates, but indicating that the concept of requiring a state 
to use an unsuppressed fish consumption rate based on heritage or 
historic data was ``new and novel[.]'' \99\ The EPA noted that its 
applicable guidance did not explain how ``historic fish consumption 
rates are to be used in deriving'' criteria, and indicated that 
requirements to use heritage or historic data ``should have been 
presented for thorough public notice and comment prior to being 
incorporated into the EPA's human health criteria recommendations.'' 
\100\ This final rule is informed by the general principles reflected 
in the EPA's pre-2019 guidance. In addition, while this final rule does 
not mandate use of historic or heritage data, in this rule, the EPA 
expressly addressed any implied procedural deficiency based on the 
agency's 2019 assertion by requesting public comment on the concepts of 
requiring protection of unsuppressed exercise of Tribal reserved rights 
and of using heritage or historic data to evaluate suppression 
(discussed further in subsequent paragraphs).
---------------------------------------------------------------------------

    \98\ 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'', Attachment A at 3 (February 2, 2015); see 
also Revision of Certain Federal Water Quality Criteria Applicable 
to Washington, 81 FR 85417, 85424 (November 28, 2016) (``It is also 
important, where sufficient data are available, to select a FCR that 
reflects consumption that is not suppressed by concerns about the 
safety of available fish.'').
    \99\ See Water Quality Standards Regulatory Revisions to Protect 
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74369 (December 
5, 2022), citing to the 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.
    \100\ The 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.
---------------------------------------------------------------------------

    Many commenters expressed concerns that a mandate that WQS must 
protect unsuppressed exercise of a right would be challenging to 
implement, as determining what constitutes unsuppressed exercise of a 
Tribal reserved right could be subjective. Many other commenters 
supported such a mandate to prevent WQS from being established based on 
suppressed use of a resource. The EPA agrees, as explained above, that 
it is important to avoid establishing WQS that lock in current levels 
of contamination. However, based on public input, the EPA is finalizing 
a requirement that is less prescriptive than proposed and more flexible 
than the approach the agency took in its Maine and Washington actions. 
The final requirement does not mandate that states in establishing WQS 
in waters with applicable Tribal reserved rights,

[[Page 35733]]

``must protect'' the unsuppressed exercise of those rights, nor does it 
mandate that, with respect to human health criteria, states must 
categorically use an unsuppressed fish consumption rate in each 
instance where Tribal reserved fishing rights apply. The final rule 
instead requires that states must ``take into consideration'' the 
anticipated future exercise of Tribal reserved rights unsuppressed by 
water quality. The EPA's existing WQS regulation at 40 CFR 131.11 
already requires that WQS protect applicable designated uses and be 
based on sound science. Protection of applicable designated uses 
includes analysis of relevant data. Thus, states should already be 
considering data regarding suppression effects pursuant to the existing 
WQS regulation and guidance. This final rule underlines the importance 
of such consideration in the context of protecting Tribal reserved 
rights.
    Consideration of suppression effects pursuant to this final rule 
will inform states' development of criteria that protect applicable 
designated uses and are based on sound scientific rationale. In 
complying with this requirement, states must consider right holders' 
anticipated future exercise of relevant rights in light of available 
data and information regarding suppression effects. Consistent with the 
final rule's requirements at 40 CFR 131.6, states must include in their 
WQS submittal their analysis of such information and explain how they 
considered it in revising their WQS. The additional changes that the 
agency made to this requirement, described below, are aimed at further 
clarifying what it means to consider suppression effects in 
establishing WQS.
    The next substantive change in the final rule clarifies that states 
must take into consideration the ``anticipated future exercise of the 
Tribal reserved right unsuppressed by water quality'' (emphasis added). 
In the proposed rulemaking preamble, the EPA explained that the 
proposed requirement at 40 CFR 131.9(a)(1) requiring protection of the 
``exercise of Tribal reserved rights unsuppressed by water quality'' 
was ``intended to result in WQS that protect reasonably anticipated 
future uses.'' \101\ Some commenters expressed confusion regarding the 
meaning of unsuppressed exercise of Tribal reserved rights in the 
proposed regulatory text and on the distinction between that text and 
the preamble phrase ``protect reasonably anticipated future uses.'' In 
response to these commenters' concerns, the EPA added the words 
``anticipated future'' to the final regulatory text, to ensure that the 
regulatory text clearly matches the agency's intent in adding this 
requirement.
---------------------------------------------------------------------------

    \101\ See Water Quality Standards Regulatory Revisions to 
Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74367 
(December 5, 2022).
---------------------------------------------------------------------------

    Consideration of the anticipated future exercise of a Tribal 
reserved right is consistent with the longstanding principle that WQS 
establish goals for future water quality, regardless of present 
conditions, as discussed above. This consideration may include learning 
about the cultural and/or nutritional importance of the resource to the 
right holders, determining modern-day availability of the resource as 
well as alternatives to that resource, considering whether any 
restoration efforts that are planned or underway could impact 
availability of the resource, and understanding right holders' current 
lifestyles and practices. Determining the anticipated future exercise 
of a reserved right will require a case-specific evaluation to the 
extent supported by available data and information per 40 CFR 131.9(a). 
Where available data and information indicate that the existing 
exercise of the right is suppressed and support a quantitative 
determination of the anticipated future exercise of the right, the EPA 
expects that consideration of such data and information will lead 
states to revise applicable criteria, as needed, to protect the 
anticipated future exercise of the right. Conversely, if the state does 
not have sufficient available data and information to determine the 
anticipated future exercise of the right, after considering any 
information provided by right holders, it would explain that conclusion 
in its WQS submission, per 40 CFR 131.6(g)(1), as discussed below in 
section IV.E of this preamble.
    One commenter requested that the EPA promulgate a minimum fish 
consumption rate that states must use where Tribal reserved rights to 
fish for subsistence apply. The EPA can provide guidance on default 
rates to assist states in developing criteria that take into account 
suppression effects but disagrees that it is appropriate to promulgate 
a specific rate across-the-board in this nationally applicable rule. 
Quantifying the anticipated future use unsuppressed by water quality is 
an evolving area, often requiring a complex and case-specific analysis 
reconciling multiple lines of evidence, in some cases including 
differing temporal estimates. However, the EPA agrees with commenters 
that the absence of data regarding an exact unsuppressed rate need not 
prevent a state from protecting subsistence consumption where Tribes 
have a right to such consumption. The EPA notes that in the absence of 
case-specific data and information, where a Tribal reserved right 
relates to subsistence fishing, the default fish consumption rate of 
142 grams per day (g/day) in the EPA's 2000 methodology \102\ can 
represent a reasonable fish consumption subsistence rate floor.
---------------------------------------------------------------------------

    \102\ 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.
---------------------------------------------------------------------------

    With respect to fish consumption, some commenters noted that there 
are other factors, beyond contamination or availability, that may 
affect right holders' consumption level over time, such as changes in 
social customs, social makeup, and dietary preferences. Additionally, 
some commenters noted that there are a variety of ecological and non-
ecological factors other than contamination that could affect the 
availability of fish, including regulations that protect fish 
populations from overfishing. The EPA agrees that there are factors 
beyond contamination that could change how a reserved right is 
exercised, and, as explained above, the EPA intends for these other 
factors to be considered and discussed with right holders when 
determining the anticipated future exercise of the right.
    Consideration of the anticipated future exercise of a Tribal 
reserved right unsuppressed by water quality could also include 
consideration of historical use of that resource. Some commenters 
opposing proposed 40 CFR 131.9(a)(1) conflated the proposed requirement 
to protect the unsuppressed use of a resource with a requirement to 
protect the ``heritage'' use of that resource, i.e., the amount of the 
resource used prior to non-indigenous or modern sources of 
contamination and interference with natural processes. Specifically, 
commenters expressed concern about the use of heritage or historic 
rates, asserting that those are too speculative, hypothetical, and 
unreliable to be used in setting WQS. These commenters stated that only 
contemporary or current fish consumption rates should be used when 
establishing human health criteria, consistent with longstanding state 
practices. The EPA disagrees that studies of heritage rates are, as a 
rule, inherently speculative or unreliable such that only studies of 
current practices can be used in establishing WQS. Historical data are 
often used in

[[Page 35734]]

the WQS program, such as to establish reference conditions to target as 
a future goal in impacted waters. However, the EPA agrees that heritage 
data are not determinative but should be considered in the context of 
other available information estimating future anticipated practices and 
goals.
    The final substantive change the EPA made between the proposed and 
final requirements related to suppression was to delete ``or 
availability of the aquatic or aquatic-dependent resource'' from the 
phrase ``unsuppressed by water quality or availability of the aquatic 
or aquatic-dependent resource.'' Some commenters addressed the 
inclusion of the term ``availability,'' including comments expressing 
concern that the proposed regulation would have required states to 
increase the availability of fish, and/or protect pre-contact, pristine 
conditions. This was not the agency's intent, and in this final rule, 
the EPA is removing the explicit reference to ``availability'' to avoid 
the implication that this rule would require states to set WQS that 
ignore practical realities regarding availability of resources. 
However, the EPA notes that consideration of ``the anticipated future 
exercise'' of a Tribal reserved right would include consideration of 
the availability of the aquatic or aquatic-dependent resource, since 
anticipated future exercise of the right depends in part on anticipated 
future availability of the resource. While this rule does not require 
states to increase the availability of resources, states would take 
into consideration under 40 CFR 131.9(a)(2) planned actions or 
anticipated changes that may impact resource availability and therefore 
the anticipated future exercise of Tribal reserved rights, such as 
restoration efforts that are planned or underway. This is consistent 
with the EPA's expectations for how states should establish other 
WQS.\103\
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    \103\ See Water Quality Standards Regulatory Revisions, 80 FR 
51020, 51025 (August 21, 2015) (``When conducting a UAA and 
soliciting input from the public, states and authorized Tribes need 
to consider not only what is currently attained, but also what is 
attainable in the future after achievable gains in water quality are 
realized. EPA recommends that such a prospective analysis involve 
the following: Identifying the current and expected condition for a 
water body; evaluating the effectiveness of best management 
practices (BMPs) and associated water quality improvements; 
examining the efficacy of treatment technology from engineering 
studies; and using water quality models, loading calculations, and 
other predictive tools.'').
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3. Criteria To Protect Tribal Reserved Rights
    The final rule at 40 CFR 131.9(a)(3) establishes two new 
requirements related to water quality criteria. This provision 
requires, first, that where a state has adopted designated uses that 
either expressly incorporate protection of Tribal reserved rights or 
encompass the right, it must establish criteria to protect the right 
consistent with 40 CFR 131.11. In contrast to the proposal, the final 
requirement ties the establishment of criteria to protection of an 
adopted use rather than calling for establishment of criteria as a 
freestanding requirement. This requirement in the final rule combines 
parts of the requirements of proposed 40 CFR 131.9(c)(1) and proposed 
40 CFR 131.9(c)(2).
    As explained above in section IV.B.1 of this preamble, in this 
final rule the EPA has removed the proposed requirement that states 
must ``[d]esignate uses . . . that either expressly incorporate 
protection of the [T]ribal reserved rights or encompass such rights.'' 
Instead, the final regulatory language on designated uses in this rule 
specifies that states must take into consideration the use and value of 
their waters for protecting Tribal reserved rights in adopting or 
revising designated uses pursuant to 40 CFR 131.10. Accordingly, the 
final criteria requirement, which now appears at 40 CFR 131.9(a)(3) 
rather than 40 CFR 131.9(c)(2), provides that states must establish 
criteria to protect Tribal reserved rights ``where the State has 
adopted designated uses that either expressly incorporate protection of 
or encompass the right.'' This final criteria requirement aligns with 
the longstanding principle, as memorialized in 40 CFR 131.11, that 
states must adopt criteria that protect the designated use.
    Second, the final rule clarifies that the requirements at 40 CFR 
131.9(a)(3) include ``developing criteria to protect right holders 
using at least the same risk level (e.g., cancer risk level, hazard 
quotient, or illness rate) as the State would otherwise use to develop 
criteria to protect the State's general population, paired with 
exposure inputs (e.g., fish consumption rate) representative of right 
holders exercising their reserved right.'' This final provision merges 
the proposed requirement at 40 CFR 131.9(a)(2) that WQS must protect 
``[t]he health of the right holders to at least the same risk level as 
provided to the general population of the State[,]'' into the provision 
setting forth the general requirement related to adoption of criteria 
discussed above. The EPA expects that this clause will apply to human 
health criteria, which are scientifically derived values intended to 
protect human health from the adverse effects of pollutants in ambient 
water, and will most often apply to cancer risk levels, which are a 
critical input in deriving protective human health criteria. The EPA's 
longstanding agency-wide practice has been to assume, in the absence of 
data to indicate otherwise, that carcinogens exhibit linear ``non-
threshold'' dose-responses which means that there are no ``safe'' or no 
``no-effect'' levels.\104\ Therefore, the EPA recommends calculating 
human health criteria for carcinogens as pollutant concentrations 
corresponding to lifetime increases in the risk of developing cancer.
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    \104\ 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.
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    Under the EPA's 2000 Methodology, a key step in deriving human 
health criteria is identifying the population that the criteria should 
protect, sometimes referred to as the ``target'' population.\105\ The 
2000 Methodology explains that states could set criteria to target 
protection of individuals with ``average'' or ``typical'' exposure 
(i.e., the general population), or to protect more highly exposed 
individuals. The 2000 Methodology goes on to recommend, with respect to 
carcinogens, 10-\5\ (1 in 100,000) and 10-\6\ (1 
in 1 million) risk levels for the general population and further says 
that ``highly exposed'' subpopulations should not exceed a 
10-\4\ (1 in 10,000) risk level.\106\ The EPA also 
recommends ``that priority be given to identifying and adequately 
protecting the most highly exposed population.'' \107\ If a state 
determines that a highly exposed population is not adequately protected 
by criteria that target protection of the general population, the EPA's 
2000 Methodology recommends the adoption of more stringent criteria 
using alternative exposure assumptions.\108\
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    \105\ Id. at 2-1.
    \106\ Id. at 2-6.
    \107\ Id. at 2-2.
    \108\ Id.
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    Prior to this rulemaking, in its 2019 decision document reversing 
its prior disapproval of Washington's human health criteria, the EPA 
took the position that it was appropriate to protect Tribal members 
exercising their subsistence fishing rights to a lesser degree than the 
state's general population. In that document, the EPA made the 
following assertion: ``[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

[[Page 35735]]

rights.'' \109\ As explained in the proposed rulemaking, the EPA has 
reconsidered this assertion and it no longer represents the agency's 
view.\110\ For designated uses that either expressly incorporate 
protection of Tribal reserved rights or encompass such rights, a Tribal 
member utilizing such rights is more appropriately viewed as an 
individual with ``average'' or ``typical'' exposure because, as noted 
in the proposed rulemaking, Tribal members exercising reserved rights 
are a distinct, identifiable class of individuals holding legal rights 
under Federal law to resources with a defined geographic scope. In the 
EPA's judgment, their unique status as right holders warrants treating 
them as a target population for purposes of deriving human health 
criteria. The statements in the 2000 Methodology allowing a less 
stringent risk level for ``highly exposed subpopulations'' or 
``subgroups''--as a subset of the general population--did not take into 
account the unique circumstances addressed here--i.e., the unique 
attributes of Tribes with reserved rights as described above--in its 
general statements that such ``highly exposed subpopulations'' may 
receive less protection than chosen by states as the target population 
for derivation of criteria for carcinogens.
---------------------------------------------------------------------------

    \109\ 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. 23.
    \110\ See Water Quality Standards Regulatory Revisions to 
Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74370 
(December 5, 2022).
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    The final language in 40 CFR 131.9(a)(3) regarding risk level 
reflects a clarification to proposed 40 CFR 131.9(a)(2). Specifically, 
the EPA: (1) edited wording and sentence structure to clarify the 
intended meaning, (2) added examples of types of risk level inputs, and 
(3) explicitly stated that--when developing criteria to protect right 
holders--these risk level inputs are required to be paired with 
exposure inputs (e.g., fish consumption rate) representative of right 
holders exercising their reserved right. These edits are intended to 
clarify that, where the designated use either expressly incorporates 
protection of Tribal reserved rights or encompasses such rights, Tribal 
members are the population, or one of the populations, that the 
designated use is designed to protect, and their health should be 
protected to at least the same risk level as the state would have 
provided to the general, non-right holder population if there were no 
applicable Tribal reserved rights in that location. These changes are 
explained further below in the context of responses to comments 
received on this point.
    A few commenters expressed concerns that, under the proposed 
rulemaking, states would be required to revise all of their applicable 
criteria including criteria for the protection of aquatic life and 
aquatic-dependent wildlife. That was neither the EPA's intent with the 
proposal, nor is it the anticipated effect of the final rule. The 
agency anticipates that the new requirements in 40 CFR 131.9(a) will 
not generally necessitate more stringent criteria to protect aquatic 
life, wildlife, or primary contact recreation than already required by 
40 CFR 131.11.
    This final rule builds on requirements in the existing Federal WQS 
regulation at 40 CFR part 131 regarding adoption of designated uses and 
criteria. 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 provide for protection and propagation of fish, 
shellfish and wildlife, and recreation in and on the water, wherever 
attainable.\111\ With respect to aquatic life and wildlife criteria, 
the EPA anticipates that for many aquatic and aquatic-dependent 
resources to which Tribes have reserved rights, the level of protection 
for the species resulting from application of the EPA's existing 
Federal WQS regulation, without specific consideration of reserved 
rights, is already consistent with protection of those resources. For 
example, where a Tribe has the right to fish for subsistence, the 
existing WQS regulation already requires the state to protect fish and 
other aquatic species with aquatic life criteria.\112\ Protection of 
human health from fish consumption is discussed separately below.
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    \111\ 40 CFR 131.10 requires that, where waters are designated 
for less than the full CWA section 101(a)(2) use, that designation 
be supported by a use attainability analysis (UAA) demonstrating 
that attaining the use is not feasible. These waters must be 
designated for the highest attainable use. 40 CFR 131.20 requires 
these use designations to be reviewed at every triennial review and 
revised when new information indicates that the uses specified in 
section 101(a)(2) of the CWA are attainable.
    \112\ In some cases, 40 CFR 131.9(a)(3) may prompt a state to 
consider adjusting aquatic life criteria in a certain area to 
protect a culturally important species, consistent with the EPA's 
recommended definition of ``protection of aquatic organisms and 
their uses'' as, in part, prevention of unacceptable effects on 
``commercially, recreationally, and other important species.'' 
(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). Additionally, it may encourage efforts 
to advance the scientific understanding of pollutant impacts to 
wildlife and plants that have not been the historic focus of 
criteria development.
---------------------------------------------------------------------------

    For Tribal ceremonial practices involving activities where the 
principal risk is from immersion in and potential ingestion of water, 
the EPA anticipates that pollutant exposure would be indistinguishable 
from exposure through primary contact recreation (e.g., swimming), and 
state criteria to protect primary contact recreation would therefore be 
protective of such Tribal practices.
    Conversely, water quality criteria to protect human health for 
fish/shellfish and water consumption uses that were written with a 
state's general population in mind may not protect Tribal consumers of 
those resources who have higher consumption rates and therefore are 
exposed to greater risk. In states where right holders assert reserved 
fishing rights and the states' human health criteria are currently 
based on protection of the states' general population, the requirement 
the EPA is finalizing at 40 CFR 131.9(a)(3) may result in more 
stringent criteria than had been explicitly required by the existing 
Federal WQS regulation, to ensure that the right holders are protected 
by criteria developed using at least the same risk level (e.g., cancer 
risk level, hazard quotient, or illness rate) as the state would 
otherwise use to develop criteria to protect the state's general 
population, paired with exposure inputs (e.g., fish consumption rate) 
representative of right holders exercising their reserved right. For 
example, a state with a fishing designated use may have established its 
human health criteria for carcinogens using a 1 in 1 million 
(10-\6\) cancer risk level and exposure inputs (including a 
fish consumption rate) representative of its general population, which 
consumes one fish meal per week. In that scenario, a member of a Tribe 
in that state exercising the Tribe's reserved right to fish for 
subsistence who consumes ten fish meals per week would be protected at 
a 1 in 100,000 (10-\5\) cancer risk level, an order of 
magnitude less than the cancer risk level the state had determined was 
appropriate for its general population. In revising those criteria upon 
an assertion of that right by the right holders and supported by 
available data and information, the state

[[Page 35736]]

would revise its criteria to afford the right holders a 1 in 1,000,000 
(10-\6\) cancer risk level, which is the level of protection 
the state had determined was appropriate for its general population. 
This revision would have the effect of protecting the state's general 
population at a 1 in 10,000,000 (10-\7\) cancer risk level 
given their lower fish consumption level.
    Some commenters opposed the proposed requirement to protect right 
holders to at least the same risk level as used to calculate criteria 
to protect the state's general population, asserting that the CWA does 
not prescribe precisely how a state must establish its WQS so long as 
WQS are protective. The EPA does not intend for this rule to dictate 
specific outcomes to states. Under this rule, states maintain their 
statutory role set forth in CWA section 303(c) in establishing WQS. The 
EPA maintains its CWA section 303(c) statutory oversight role in 
ensuring that WQS are meeting the requirements of the Act, including 
that WQS are such as to protect public health and enhance the quality 
of water. In exercising its oversight function, the EPA also brings 
substantial technical expertise to the topic of criteria development. 
In section 304(a) of the CWA, Congress explicitly charged the EPA with 
developing recommended water quality criteria based on the latest 
scientific knowledge related to health and welfare.\113\ As the EPA 
explained in its 2015 update to its recommended ambient water quality 
criteria for the protection of human health, ``[w]ater quality criteria 
developed under Section 304(a) are based solely on data and scientific 
judgments on the relationship between pollutant concentrations and 
environmental and human health effects.'' \114\ These recommended 
criteria are not legally binding, and states have discretion to modify 
the criteria, where appropriate, to reflect site-specific conditions or 
criteria based on other scientifically defensible methods.
---------------------------------------------------------------------------

    \113\ See CWA section 304(a).
    \114\ USEPA, Notice of Availability: Final Updated Ambient Water 
Quality Criteria for the Protection of Human Health, 80 FR 36986 
(June 29, 2015).
---------------------------------------------------------------------------

    Contrary to the characterization of the proposed requirements in 
some of the comments, the EPA did not intend to suggest that the 
requirement to develop criteria to protect right holders using at least 
the same risk level as the state would otherwise use to develop 
criteria to protect the state's general population would result in 
criteria that protect right holders and the general population equally. 
The EPA recognizes that risk increases with exposure and based on 
susceptibility factors such as age or lifestage, pre-existing disease, 
genetic variation, or co-exposures. As the EPA explained in its 2000 
Methodology,\115\ ``. . . the incremental cancer risk levels are 
relative, meaning that any given criterion associated with a particular 
cancer risk level is also associated with specific exposure parameter 
assumptions (e.g., intake rates, body weights). When these exposure 
parameter values change, so does the relative risk.'' (Emphasis in 
original). This concept is illustrated in the example above. The EPA 
added clarifying text to 40 CFR 131.9(a)(3) providing examples of types 
of risk level inputs (``e.g., cancer risk level, hazard quotient, or 
illness rate'') to highlight that it is the risk level input itself 
that must be equal in the criteria calculations, not that the state is 
required to establish criteria that protect right holders and the 
general population equally (i.e., if the state uses a 10-\6\ 
cancer risk level to calculate criteria to protect the general 
population, the state must also use a 10-\6\ cancer risk 
level to establish water quality criteria to protect the Tribal 
reserved right, where the state has adopted designated uses that either 
expressly incorporate protection of or encompass the right). To further 
address the confusion expressed by some commenters, the EPA also added 
clarifying text to 40 CFR 131.9(a)(3) noting that appropriate exposure 
inputs must be used in each of these calculations: when calculating 
criteria to protect the general population, the state's chosen risk 
level (e.g., 10-\6\ cancer risk level) would be paired with 
exposure inputs (e.g., fish consumption rate) representative of the 
general population, whereas when establishing water quality criteria to 
protect a Tribal reserved right, that same chosen risk level must be 
``paired with exposure inputs (e.g., fish consumption rate) 
representative of right holders exercising their reserved right.'' In 
other words, the EPA is simply requiring that right holders, in areas 
where they have reserved rights, be protected using the same (or a more 
stringent) risk level input (e.g. cancer risk level) to calculate 
criteria as is used to calculate criteria to protect the general 
population in areas where there are no Tribal reserved rights reserved 
to Tribes by treaty, Federal statute, or Executive order. As explained 
above, the practical effect is that in some situations in a waterbody 
with Tribal reserved rights, the general population will be even more 
protected (that is, receive protection to a more stringent risk level) 
than if there were no Tribal reserved rights in that waterbody. This 
approach does not prescribe the state's overall approach to risk 
management policy, but rather ensures that right holders receive the 
level of protection (that is, they are exposed to the same risk level) 
consistent with the state's risk management decision for the general 
population in the absence of reserved rights.
---------------------------------------------------------------------------

    \115\ 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. 2-7.
---------------------------------------------------------------------------

    In the proposed rulemaking, the EPA explained that it anticipated 
the primary application of the requirement to protect the health of the 
right holders with criteria developed using at least the same risk 
level as the state would otherwise use to develop criteria to protect 
its general population would be in establishing human health criteria 
for toxic pollutants to protect Tribal reserved rights to fish for 
subsistence. The EPA requested comment on whether there may be other 
situations where this provision could apply. While the EPA received 
general support for this requirement, commenters did not raise, and the 
EPA is not currently aware of, situations other than human health 
criteria for toxic pollutants where the level of risk may be different 
for right holders versus the general population.
    The EPA is not mandating any specific risk level in this rule. As 
explained in the EPA's 2000 Methodology,\116\ with respect to 
carcinogens, 10-\5\ (1 in 100,000) and 10-\6\ (1 
in 1 million) risk levels may be reasonable for the general 
population.\117\ Some commenters stated that the final rule should 
require Tribal fishing right holders to be protected to a 
10-\6\ cancer risk level to provide a baseline level of 
protection for subsistence fishing rights, consistent with the EPA's 
recommendation for the general population and with environmental 
justice principles. The EPA disagrees that an across-the-board 
requirement of 10-\6\ is appropriate. In this final rule, 
states maintain the discretion to utilize a cancer risk level that is 
within a reasonable risk management range. Per the 2000 Methodology, 
the EPA recommends protecting the general population using a cancer 
risk level of

[[Page 35737]]

10-\5\ or 10-\6\ to derive criteria, recognizing 
the need to protect highly exposed or sensitive populations, as 
appropriate. Therefore, consistent with the EPA's longstanding 
recommendation for states' general populations in the 2000 Methodology, 
the EPA also considers 10-\5\ acceptable to protect right 
holders in areas where they are exercising reserved rights relevant to 
the activities that human health criteria for toxic pollutants are 
designed to protect. This approach does not prescribe a risk management 
decision to the state but rather ensures that right holders benefit 
from the same level of protection that the state has chosen to protect 
the general population for a given designated use.
---------------------------------------------------------------------------

    \116\ 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.
    \117\ Id. at 2-6.
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    One commenter requested that the EPA establish a minimum fish 
consumption rate for protecting rights to subsistence fishing. While 
the EPA is declining to establish a required minimum level of 
protection, as noted in section IV.B.2 of this preamble, the EPA's 
national recommended default fish consumption rate of 142 g/day for 
subsistence fishers can represent a reasonable fish consumption 
subsistence rate floor.\118\
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    \118\ The EPA evaluated whether 142 g/day is still 
representative of current consumption rates for highly exposed 
groups, as noted in the 2000 Methodology. Post-2000 consumption 
surveys of high fish consuming populations (e.g., Tribes and Asian 
Pacific Islanders) resulted in mean fish consumption rates ranging 
from 18.6 g/day to 233 g/day and 90th percentile fish consumption 
rates ranging from 48.9 g/day to 528 g/day. 142 g/day falls within 
these ranges and therefore, 142 g/day appears to still be 
representative of current consumption rates for certain highly 
exposed groups, albeit possibly on the low end. See: Polissar, N.L., 
Salisbury, A., Ridolfi, C., Callahan, K., Neradilek, M., Hippe, 
D.S., and Beckley, W.H. (2016). A Fish Consumption Survey of the Nez 
Perce Tribe. The Mountain-Whisper-Light Statistics, Pacific Market 
Research, Ridolfi, Inc. https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-nez-perce-dec2016.pdf; 
Polissar, N.L., Salisbury, A., Ridolfi, C., Callahan, K., Neradilek, 
M., Hippe, D.S., and W.H. Beckley. (2016). A Fish Consumption Survey 
of the Shoshone-Bannock Tribes. The Mountain-Whisper-Light 
Statistics, Pacific Market Research, Ridolfi, Inc. https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-shoshone-bannock-dec2016.pdf; Seldovia Village 
Tribe. (2013). Assessment of Cook Inlet Tribes Subsistence 
Consumption. Seldovia Village Tribe Environmental Department; 
Suquamish Tribe. (2000). Fish Consumption Survey of The Suquamish 
Indian Tribe of The Port Madison Indian Reservation, Puget Sound 
Region. Suquamish, W.A.; Sechena, R., Liao, S., Lorenzana, R., 
Nakano, C., Polissar, N., Fenske., R. (2003). Asian American and 
Pacific Islander seafood consumption--a community-based study in 
King County, Washington. J of Exposure Analysis and Environ 
Epidemiology. (13): 256-266; Lance, T.A., Brown, K., Drabek, K., 
Krueger, K., and S. Hales. (2019). Kodiak Tribes Seafood Consumption 
Assessment: Draft Final Report, Sun'aq Tribe of Kodiak, Kodiak, AK. 
http://sunaq.org/wp-content/uploads/2016/09/Kodiak-Tribes-Seafood-Consumption-Assessment-DRAFT-Final-Report-26Feb19-FINAL.pdf.
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C. Designated Use Revisions, WQS Variances, and Existing Uses

    As discussed above in section IV.B.1 of this preamble, in this 
final rule at 40 CFR 131.9(a)(1), the EPA is requiring that states 
consider the use and value of their waters for protecting Tribal 
reserved rights in adopting or revising designated uses, including use 
revisions that are required to be supported by a use attainability 
analysis, per 40 CFR 131.10(g) and (j). The EPA is not adding language 
in this final rule addressing WQS variances or existing uses and is not 
making changes to those sections of the existing 40 CFR part 131 
regulation (i.e., Sec. Sec.  131.14 and 131.10, respectively).
    The proposed rulemaking did not include any provisions related 
specifically to designated use revisions (such as provisions related to 
use attainability analyses), WQS variances, or existing uses. Instead, 
the EPA requested comment on whether and how states can revise 
designated uses in accordance with 40 CFR 131.10, while also ensuring 
the protection of Tribal reserved rights. Additionally, the EPA 
requested comment on whether it should specify in 40 CFR 131.9 how 
other WQS provisions, such as WQS variances under 40 CFR 131.14, should 
be used to ensure protection of Tribal reserved rights. The EPA noted 
that it was ``not proposing to modify the existing language in [the 
existing 40 CFR part 131] sections'' and was ``not reopening them for 
comment.'' \119\ Rather, the agency was considering whether ``potential 
discrete additions'' to the proposed regulatory framework may be 
necessary.
---------------------------------------------------------------------------

    \119\ See Water Quality Standards Regulatory Revisions to 
Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74373 
(December 5, 2022).
---------------------------------------------------------------------------

    Some commenters recommended that the final rule prohibit states 
from revising designated uses or adopting WQS variances in waters where 
Tribes hold reserved rights, especially based on factors related to 
economic feasibility. Some commenters recommended that a WQS variance 
or designated use removal should only be allowed in extremely limited 
circumstances, with express written consent of right holders, and/or 
that right holders should be able to impose conditions on designated 
use revisions. Conversely, some commenters stated that designated use 
revisions and WQS variances must be allowed in waters with applicable 
Tribal reserved rights, consistent with the framework in the EPA's 
existing WQS regulation, and that any restriction of these approaches 
would be inconsistent with the CWA.
    Nothing in this final rule alters the existing regulatory 
requirements at 40 CFR 131.10 related to use attainability analyses. 
With respect to designated use revisions and use attainability 
analyses, CWA section 101(a)(2) contains the phrase ``wherever 
attainable,'' which the EPA has implemented in 40 CFR 131.10(g) and (j) 
as allowing a state to designate uses that do not include the uses 
specified in section 101(a)(2) of the Act, to remove a 101(a)(2) use 
that is not an existing use, or to designate a subcategory of such a 
use if the state conducts a use attainability analysis demonstrating 
that attaining the use is not feasible because of one or more factors 
at 40 CFR 131.10(g). After a state demonstrates that a use is not 
attainable for a certain water, 40 CFR 131.10(g) also requires the 
state to adopt ``the highest attainable use'' of that water, which is 
the aquatic life, wildlife, or recreation use that is both closest to 
the CWA 101(a)(2) use and attainable, as defined at 40 CFR 131.3(m). 
The final rule at 40 CFR 131.9(a)(1) requires states to consider the 
use and value of their waters for protecting Tribal reserved rights in 
revising designated uses, including use revisions that are required to 
be supported by a use attainability analysis, per 40 CFR 131.10(g) and 
(j). The EPA recognizes that some of the factors at 40 CFR 131.10(g) 
may be amenable to greater consideration than others. The EPA is 
available to help work with any states that are contemplating revising 
designated uses that expressly incorporate protection of Tribal 
reserved rights or encompass such rights.
    Regarding WQS variances, the EPA has concluded there is no 
compelling reason to make additions to the Federal regulation related 
to WQS variances to address Tribal reserved rights, at this time. 
Therefore, this final rule does not explicitly address WQS variances, 
nor does it add to the existing WQS regulation at 40 CFR 131.14 
governing WQS variances. While the EPA acknowledges the concerns raised 
by commenters regarding the potential impacts of WQS variances on 
reserved rights, it disagrees with comments asserting that the current 
regulatory provisions at 40 CFR 131.14 are insufficient to protect 
water quality necessary to support reserved rights. The existing WQS 
regulation at 40 CFR 131.14(b)(1)(ii) requires that WQS variances 
``shall not result in any lowering of the currently attained ambient 
water quality, unless a WQS variance is necessary for restoration 
activities.'' Therefore, allowing WQS variances in waters where Tribal

[[Page 35738]]

reserved rights apply does not result in degraded water quality; 
rather, WQS variances are a time-limited tool that states may use to 
improve water quality over time. WQS variances provide states with time 
and flexibility to make incremental water quality improvements where 
the water body is not currently attaining WQS, with accountability 
measures to ensure that such improvements will occur. At the end of the 
specified variance term, the underlying designated use and criterion 
apply and, thus, WQS variances do not permanently revise the 
protections for a water body. Nothing in this final rule alters the 
existing regulatory requirements related to WQS variances.
    Finally, some commenters requested clarification about how this 
rule relates to the existing WQS regulation governing protection of 
existing uses. The existing WQS regulation defines existing uses at 40 
CFR 131.3(e) as ``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.'' The EPA did not propose to modify the definition 
of existing uses in the proposed rulemaking and is not altering that 
definition in this final rule. If use of an aquatic or aquatic-
dependent resource pursuant to a Tribal reserved right is presently 
being attained, the 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 must 
reflect that as a designated use, per 40 CFR 131.10(i), and thus this 
resource should be protected in accordance with 40 CFR 131.9(a).

D. General WQS Policies

    This final rule does not change the existing WQS regulation at 40 
CFR 131.13 and 131.15 governing establishment of general WQS policies 
and permit compliance schedule authorizing provisions. The proposed 
rulemaking requested comment on whether the EPA should specify how 
general WQS policies, such as mixing zone policies, or permit 
compliance schedule authorizing provisions, should be used to ensure 
protection of Tribal reserved rights. The agency decided in this final 
rule not to revise the existing Federal regulation or add new 
regulatory requirements for general WQS policies adopted by states, 
such as mixing zone policies, or for permit compliance schedule 
authorizing provisions. Decisions about specific mixing zones or the 
use of compliance schedules in areas where Tribal reserved rights apply 
would be made case-by-case by the applicable NPDES permitting 
authority.
    Some commenters recommended that the final rule require a state 
proposing to include a schedule of compliance in an NPDES permit 
discharging to a water with Tribal reserved rights demonstrate that it 
has conducted timely outreach to Tribe(s) whose rights are impacted, 
obtained written consent from the Tribe(s), and implemented reasonable 
conditions as requested by the Tribe(s). Compliance schedules in NPDES 
permits serve as a tool for dischargers to obtain additional time to 
implement actions that will lead to compliance with water quality-based 
effluent limits based on the applicable WQS. While the EPA's existing 
regulation at 40 CFR 131.15 requires states to include provisions in 
their WQS that authorize the use of compliance schedules if they intend 
to include compliance schedules in NPDES permits, the eventual 
compliance schedules that may be issued in specific NPDES permits 
discharging in areas where Tribal reserved rights apply are governed by 
the NPDES regulation at 40 CFR 122.47. The NPDES regulation, which is 
not affected by this final rule, requires compliance with water 
quality-based effluent limits ``as soon as possible'' and if an 
individual compliance schedule exceeds one year, the permitting 
authority must include interim requirements and the dates for their 
achievement. Additionally, interested persons such as right holders 
would have an opportunity to comment on any draft NPDES permits that 
are discharging in areas where Tribal reserved rights apply, subject to 
the NPDES regulation public participation requirements.\120\
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    \120\ See, e.g., 40 CFR 124.10.
---------------------------------------------------------------------------

E. Roles, Responsibilities, and WQS Submission Requirements

    An important objective of the changes set forth in this final rule 
is to ensure that, in implementing CWA section 303(c), the states' and 
EPA's roles with respect to Tribal reserved rights in the WQS context 
are clearly delineated and explained. This section clarifies respective 
roles and responsibilities and describes the relevant regulatory 
language at 40 CFR 131.6(g), 131.9(b) and (c) of the final rule.
    The EPA received many comments related to the roles of the EPA and/
or other parts of the Federal Government, states, and right holders in 
implementing this rule, particularly with respect to identifying and 
interpreting Tribal reserved rights. Some commenters asserted that the 
rule should provide a clear and specific role for right holders in 
identifying and interpreting their rights. Many commenters expressed 
concerns regarding states' ability, both as a legal and practical 
matter, to identify and interpret rights, and many commenters stated 
that the Federal Government, and not States, should be interpreting and 
applying relevant treaties and other legal instruments reserving Tribal 
rights. The EPA disagrees it is the Federal Government's sole 
responsibility to interpret relevant treaties, statutes, and Executive 
orders, and provide those interpretations to states. While the EPA 
intends to work closely with states and right holders, where requested, 
in identifying and interpreting relevant rights, states are already 
bound to comply with Tribal reserved rights codified in Federal law 
even absent a Federal position on such rights.
    As explained above in section III of this preamble, this final rule 
is premised on right holders asserting rights that they have identified 
as relevant in the WQS context, thus providing a specific role for 
right holders in identifying and interpreting their rights in the first 
instance. Accordingly, the EPA disagrees that this rule would place a 
burden on states to interpret and analyze all potentially relevant 
treaties, statutes, or Executive orders that reserve rights within 
their respective state. The operative inquiry for this rule is whether 
a treaty, statute, or Executive order reserves a right to a CWA-
protected aquatic or aquatic-dependent resource, and as such, a full 
analysis of every legal instrument would not be necessary. As a 
practical matter, where a state chooses to undertake an analysis of 
asserted rights, there are interpretive resources available. Many 
Tribal reserved rights reflected in treaties, statutes, or Executive 
orders have been interpreted by courts and/or applied by the Federal 
Government, States, and Tribes for many years. This information 
regarding interpretation and application of the rights is available to 
right holders for purposes of asserting relevant rights in the WQS 
context and to the EPA and states when engaging with right holders. 
Additionally, the U.S. Department of Agriculture and the U.S. 
Department of Interior, working with Oklahoma State University, have 
developed a publicly available, searchable database of Tribal treaties 
that can provide a starting point

[[Page 35739]]

for research on potentially applicable Tribal reserved rights.\121\
---------------------------------------------------------------------------

    \121\ Oklahoma State University Libraries. 2003. Tribal Treaties 
Database (public beta). https://treaties.okstate.edu/.
---------------------------------------------------------------------------

    In relation to identifying or interpreting Tribal reserved rights, 
final 40 CFR 131.9(b) provides that at any time in the WQS development 
process, a state or right holder may request EPA assistance with 
evaluating Tribal reserved rights. The EPA added this provision to the 
final rule in response to comments and in anticipation that, even with 
the clarifications provided in this final rule with respect to roles 
and expectations, states and right holders may still have questions 
regarding the applicability and implementation of the rule's 
requirements in light of particular asserted rights. The EPA will work 
collaboratively with states and right holders, engaging other Federal 
agencies as appropriate, to evaluate the available information and help 
states to develop WQS to protect applicable rights. In addition, the 
EPA periodically offers opportunities for Tribes to learn more about 
the WQS process and regulations, should they not yet have experience in 
this field.
    Some commenters requested clarification about how disputes or 
disagreements between states and Tribes, or different Tribes holding 
the same rights, would be resolved. For example, some commenters noted 
that there may be instances when a right holder does not agree with the 
EPA or a state's conclusions about protecting their rights, and 
requested clarity on how the EPA will evaluate the right holder's 
position if it asserts during consultation that state WQS do not 
consider or protect applicable Tribal reserved rights. In some cases, 
the nature and precise location of some rights might not be certain, or 
new information may come to light that challenges prior assumptions. 
Much of the existing WQS development process depends on navigating 
situations in which consensus or clarity is lacking or where new 
information emerges, such as the appropriate use of a waterbody or what 
constitutes sound science. Where there is a lack of clarity or 
disagreement regarding relevant reserved rights, the EPA can work with 
states, right holders, and Federal partners to interpret the right, as 
appropriate. The CWA requirement to review WQS every three years also 
provides an opportunity to revisit WQS issues characterized by limited 
data or disputes.
    The EPA did not propose a formal dispute resolution process for 
addressing and resolving such disputes and is not including one in this 
final rule.\122\ In considering these comments, the EPA concluded that 
a formal dispute resolution mechanism would not be an efficient or 
practically implementable means to handle such disagreements. Rather, 
the agency is adding additional regulatory language at 40 CFR 131.9(b) 
to clarify its commitment to engaging early and partnering with states 
and right holders in implementing the rule's requirements. The agency 
intends to engage early in states' WQS processes where Tribes assert 
potential reserved rights to prevent or resolve disputes to the extent 
practicable.
---------------------------------------------------------------------------

    \122\ Several commenters cited the existing WQS dispute 
resolution provision at 40 CFR 131.7. See 40 CFR 131.7(a) (``Where 
disputes between States and Indian Tribes arise as a result of 
differing water quality standards on common bodies of water, the EPA 
Regional Administrator . . . will be responsible for acting in 
accordance with the provisions of this section.''). One commenter 
pointed to that provision as a potential model for addressing 
disputes between states and Tribes, or Tribes and Tribes, regarding 
reserved rights; one commenter pointed to that provision, which was 
added pursuant to CWA section 518(e), as evidence that where 
Congress intended for the EPA to be the arbiter of disputes between 
states and Tribes, it said so explicitly; and one commenter 
questioned whether that provision would apply here. The EPA notes 
that 40 CFR 131.7 was added pursuant to direction from Congress set 
forth in CWA section 518(e), and the agency is not purporting to 
rely on that regulation in implementing this rule. 40 CFR 131.7 is 
narrowly focused on disputes between states and Tribes authorized to 
administer a WQS program arising as a result of differing, existing 
WQS on common bodies of water. Accordingly, this dispute resolution 
mechanism would not apply here, where disputes between a state and 
Tribe(s) would relate to the state's WQS, as opposed to differing 
state and Tribal WQS. As explained above, the EPA is not codifying a 
new dispute resolution provision addressing disputes relating to 
Tribal reserved rights. Rather, the EPA is expressing its commitment 
to engage on a more informal basis to prevent or resolve disputes 
where needed.
---------------------------------------------------------------------------

    The EPA recognizes that there may be situations where disputes 
about the relevance of the rights and/or WQS needed to protect the 
rights may prove intractable, and in some cases states may need to move 
forward with the development of their WQS in the absence of consensus. 
In such cases, where the state submits new or revised WQS to the EPA, 
the state should explain in its submission why it believes it lacks 
``available data and information'' to resolve the dispute and the EPA 
will review all of the available information submitted pursuant to 40 
CFR 131.6(g) and decide whether to approve or disapprove the submission 
in the same way the EPA currently makes decisions when there are 
disagreements between different parties on WQS protections.
    Where a right holder has asserted a relevant right and 40 CFR 131.9 
applies, 40 CFR 131.6(g) addresses states' obligations to provide 
information regarding that right and how the state considered it in 
establishing new or revised WQS. In the proposed rulemaking at 40 CFR 
131.6(g), the EPA proposed requiring states to submit, where 
applicable, ``[i]nformation about the scope, nature, and current and 
past use of the [T]ribal reserved rights, as informed by the right 
holders[.]'' Many commenters disagreed with the wording of proposed 40 
CFR 131.6(g), asserting that the phrase ``as informed by the right 
holders'' was ambiguous and that it was not clear whether or how this 
required states to solicit input from right holders, or what it 
required states to do with that input. Commenters also expressed 
questions and concerns with the EPA's expectations from states as far 
as gathering and submitting information about reserved rights, echoing 
the comments described above raising the appropriate role for both 
states and right holders in that process.
    In response to these comments, the EPA revised the wording of 40 
CFR 131.6(g) in the final rule to require that, where 40 CFR 131.9 
applies, i.e., where Tribal reserved rights apply and right holders 
have asserted their rights for consideration in establishment of WQS, 
the supporting information that the state must provide to the EPA 
includes ``[a]ny information provided by right holders about relevant 
Tribal reserved rights and documentation of how that information was 
considered,'' (emphasis added) along with data and methods used to 
develop the WQS. As explained in section IV.G. of this preamble below, 
for example, Tribal reserved rights related to human health, such as 
fish consumption, would be relevant to WQS related to protection of 
human health; rights related to human health would not be relevant to 
WQS targeted at protection of aquatic life or industrial uses.
    To further ensure that right holders can meaningfully engage in 
states' WQS processes and in response to comments on this point, the 
EPA added the requirement for states to include in their CWA section 
303(c) submission to the EPA documentation of how the information 
provided by right holders was considered in establishment of WQS. The 
EPA recommends that such documentation include how any information 
provided by right holders was integrated into the state's WQS; any 
substantive suggestions the right holders made that the state did not 
adopt; and the state's justification for not adopting those 
suggestions. The EPA also acknowledges that states can only provide 
information to fulfill 40 CFR 131.6(g)(1) that they have received. The

[[Page 35740]]

EPA recommends that where right holders did not respond or declined to 
engage, the state's record should document the opportunities afforded 
to right holders to engage in the WQS process and should memorialize 
where Tribal engagement efforts did not identify any Tribal assertions 
of relevant rights.

F. The EPA's Tribal Engagement and Consultation

    This final rule at 40 CFR 131.9(c) requires the EPA to initiate the 
Tribal consultation process with right holders that have asserted their 
rights for consideration in establishment of WQS, as discussed in 
section IV.B. of this preamble above. That is, the relevant EPA 
regional office will notify the right holders of the opportunity for 
government-to-government consultation when taking actions under this 
rule. Government-to-government consultation between the EPA and right 
holders will aid the EPA in evaluating whether WQS submissions protect 
applicable Tribal reserved rights. The EPA updated the wording of the 
proposed consultation provision (previously at proposed 40 CFR 
131.9(b)) for consistency with the changes to 40 CFR 131.9(a) and moved 
this provision to 40 CFR 131.9(c) in the final rule given the other 
changes that the EPA made to 40 CFR 131.9 from the proposed rulemaking. 
This final provision largely tracks proposed 40 CFR 131.9(b), with 
three clarifying edits.
    First, the final rule clarifies that the EPA ``will initiate the 
Tribal consultation process.'' In the proposed rulemaking, the EPA 
proposed to ``initiate [T]ribal consultation'' with right holders when 
the EPA is reviewing a relevant WQS submission. This edit is being made 
to clarify that the EPA will notify right holders that have asserted 
their rights that they have the opportunity to consult with the EPA on 
the EPA action to approve or disapprove submitted WQS. It will then be 
the right holder's decision whether or not to proceed with Tribal 
consultation. If a right holder does not respond affirmatively to a 
Tribal consultation notification from the EPA, consultation would not 
advance beyond this notification step.\123\
---------------------------------------------------------------------------

    \123\ Where a right holder does not respond or declines Tribal 
consultation, the EPA will proceed with reviewing a state WQS 
submittal in accordance with 40 CFR 131.5, including ``[w]here 
applicable, whether State adopted water quality standards are 
consistent with Sec.  131.9,'' consistent with final Sec.  
131.5(b)(9).
---------------------------------------------------------------------------

    The second clarifying edit the EPA made to 40 CFR 131.9(c) was to 
specify that the EPA will initiate the Tribal consultation process with 
right holders ``that have asserted their rights,'' to conform with the 
changes the EPA made to 40 CFR 131.9(a). In addition to initiating the 
Tribal consultation process with right holders that have asserted their 
rights for consideration in establishment of WQS per final 40 CFR 
131.9(c), the EPA intends to initiate the Tribal consultation process 
with all federally recognized Tribes potentially affected by an EPA 
action per the EPA's consultation policy,\124\ including any 
potentially affected right holders that have not asserted those rights 
for consideration in establishment of WQS.
---------------------------------------------------------------------------

    \124\ USEPA 2023. EPA Policy on Consultation with Indian Tribes. 
https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf.
---------------------------------------------------------------------------

    Finally, 40 CFR 131.9(c) also notes that the EPA will initiate the 
Tribal consultation process in determining whether state WQS ``are 
consistent with'' final 40 CFR 131.9(a), as opposed to ``protect 
applicable Tribal reserved rights in accordance with'' proposed 40 CFR 
131.9(a). The EPA made this change to streamline 40 CFR 131.9 and keep 
the operative requirements in the same regulatory section.
    Some commenters stated that to ensure consultation is meaningful 
and the state has adequate time to fully consider critical information 
provided by right holders, the EPA should consult with Tribes earlier 
in the WQS development process. The EPA added 40 CFR 131.9(b) in 
response to these comments to clarify that the EPA is available to 
assist both states and right holders in evaluating Tribal reserved 
rights at any time, upon request, and will engage potential right 
holders whenever it provides assistance to the state with evaluating 
Tribal reserved rights. It is the EPA's policy to consult on a 
government-to-government basis with federally recognized Tribal 
governments when EPA actions or decisions may affect Tribal 
interests.\125\
---------------------------------------------------------------------------

    \125\ Id.
---------------------------------------------------------------------------

    Some commenters expressed the view that to ensure the EPA's 
consultation is meaningful, the final rule should specify consultation 
procedures, specify minimum thresholds of engagement, or specifically 
invite right holders to contribute to or collaborate on WQS to protect 
their rights. In light of different Tribes' varying preferences for 
consultation procedures, the EPA was not able to identify any 
universally applicable procedures or thresholds of engagement that 
would be appropriate to include in regulatory text. The EPA intends to 
implement consultation consistent with its existing consultation 
policies and procedures.
    Some commenters stated that states or other stakeholders should be 
engaged in the EPA's consultation with right holders. Consultation with 
federally recognized Tribes, consistent with the EPA's consultation 
policy,\126\ is government-to-government consultation between the Tribe 
and the EPA. It would therefore not be appropriate to add other parties 
to those consultations. However, in the WQS context, the EPA generally 
recommends close coordination between the state, the EPA, and right 
holders to maximize transparency, collaboration, and mutual 
understanding between all parties.
---------------------------------------------------------------------------

    \126\ Id.
---------------------------------------------------------------------------

    Finally, some commenters requested that the EPA provide a mechanism 
to maintain confidentiality of information Tribes provide during 
consultation upon request. As explained in section IV.B of this 
preamble, the EPA is subject to the FOIA, and accordingly, FOIA 
disclosure requirements would apply to information provided to the EPA 
by Tribes.

G. The EPA's Oversight Authority of New and Revised State WQS

    40 CFR 131.5(a) sets forth the requirements that the EPA looks for 
in reviewing and approving or disapproving state WQS. The final rule 
amends the list of requirements at 40 CFR 131.5(a) to include, 
``[w]here applicable, whether State adopted [WQS] are consistent with 
Sec.  131.9.''
    In the proposed rulemaking, the EPA proposed adding 40 CFR 
131.5(a)(9), which provided that, as part of its review, the EPA would 
determine ``[w]hether any State adopted water quality standards protect 
[T]ribal reserved rights, where applicable, consistent with Sec.  
131.9.'' The EPA received several comments on the language of 40 CFR 
131.5(a)(9), including comments requesting clarification on how the EPA 
would apply that provision. In the final rule, the EPA made two sets of 
changes to proposed 40 CFR 131.5(a)(9) to add greater clarity and for 
consistency with revisions made to 40 CFR 131.9.
    First, the EPA revised the clause ``protect [T]ribal reserved 
rights . . . consistent with Sec.  131.9,'' to instead provide in final 
40 CFR 131.5(a)(9) that the EPA will determine whether WQS ``are 
consistent with Sec.  131.9.'' Because 40 CFR 131.9 lays out the 
operative requirements for states to apply where Tribal reserved rights 
have been asserted and are applicable to the establishment of WQS, the 
clause ``protect [T]ribal reserved rights'' was

[[Page 35741]]

unnecessary and the EPA is removing it for clarity and simplicity.
    Second, the EPA made two changes to clarify when the agency would 
evaluate compliance with 40 CFR 131.5(a)(9). The proposed rulemaking 
provided that the EPA would evaluate whether ``any'' state-adopted WQS 
protected reserved rights, ``where applicable,'' consistent with 40 CFR 
131.9. The EPA deleted ``any'' and moved ``where applicable'' to the 
beginning of the clause. The EPA made these changes to clarify that WQS 
must only be consistent with 40 CFR 131.9 where those WQS are 
applicable to the exercise of the Tribal reserved right in question. If 
a state has a designated use that encompasses a Tribal reserved right, 
then the criteria applicable to that use must protect that right. For 
example, a Tribal reserved right to gather aquatic resources may be 
encompassed by a state's broadly defined aquatic life use. If so, then 
the aquatic life criteria must protect those aquatic resources and/or 
right holders that are consuming those resources, as appropriate. This 
revision is intended to address concerns that the provision as proposed 
could be read to require consideration and protection of Tribal 
reserved rights in every WQS revision in the future. The EPA does not 
intend for this rule to blur the lines between the different WQS that 
states establish to protect different uses of their waters. For 
example, this rule would not require WQS intended to protect human 
health uses such as fish consumption to also protect aquatic life uses 
such as survival, growth, and reproduction of fish or shellfish.

H. Triennial Reviews

    This final rule modifies the existing regulation governing state 
review and revision of WQS at 40 CFR 131.20(a) to require that the 
triennial review process include an evaluation of whether there is any 
new information that needs to be considered about Tribal reserved 
rights applicable to waters subject to the state's WQS and whether WQS 
need to be revised to be consistent with 40 CFR 131.9.
    In the proposed rulemaking, the EPA proposed modifying 40 CFR 
131.20(a) to require that state triennial reviews include ``evaluating 
whether there are [T]ribal reserved rights applicable to State waters 
and whether water quality standards need to be revised to protect those 
rights pursuant to Sec.  131.9.'' Some commenters indicated that it is 
overly burdensome to require states to re-evaluate Tribal reserved 
rights at every triennial review. In response to these comments, the 
EPA added the clause ``new information available . . . that needs to be 
considered'' to clarify that states are not expected to independently 
evaluate whether there are applicable Tribal reserved rights to 
consider at every triennial review. Rather, in conjunction with the 
revisions to 40 CFR 131.9(a), states are expected to evaluate whether a 
right has been newly asserted since the state's last triennial review 
or there is new information relevant to the protection of a previously 
asserted Tribal reserved right.
    This regular review of WQS and evaluation of new information to 
determine whether WQS need to be modified is consistent with the 
triennial review requirement in CWA section 303(c)(1). In order for 
these new requirements and the existing requirements at 40 CFR 
131.20(a) to be meaningful, states must conduct regular triennial 
reviews and must provide opportunities for interested and affected 
parties to bring forward new information for the state's consideration. 
The CWA makes clear that each state's fulfillment of their triennial 
review responsibilities is an integral part of the WQS paradigm.\127\ 
The EPA strongly urges states to fulfill their triennial review 
requirements.
---------------------------------------------------------------------------

    \127\ See CWA section 303(c)(1).
---------------------------------------------------------------------------

    Many commenters stated that it should be the Federal Government's 
rather than states' responsibility to periodically re-evaluate Tribal 
reserved rights, and that the EPA should inform states of any new 
information relevant for WQS. As discussed above, final Sec. Sec.  
131.20(a) and 131.9, are intended to clarify the expectation that at 
each triennial review states consider and evaluate new assertions of 
Tribal reserved rights and any new data and information relevant to 
protection of asserted rights. If the EPA becomes aware of any new 
information relevant to the protection of applicable Tribal reserved 
rights, it will endeavor to inform states of that information as 
expeditiously as possible.
    One commenter asserted that proposed 40 CFR 131.20(a) was redundant 
with their state's existing process for engaging Tribes. Some 
commenters recommended that the EPA specify a process to ensure that 
states work directly with right holders early in the triennial review 
process, separate from and well before engagement with the general 
public. As explained in section IV.E of this preamble, the EPA revised 
40 CFR 131.6(g) in the final rule to require that, where 40 CFR 131.9 
applies, state WQS submissions to the EPA include information provided 
by right holders. The EPA recommends that states provide opportunities 
for known and potential right holders to engage as early as possible in 
the WQS development process to ensure adequate time for consideration 
of any information they provide. The EPA is not establishing a specific 
process but rather is deferring to existing state processes in place 
that could serve this purpose, including state public engagement 
processes that are required for all WQS revisions.

V. Economic Analysis

    Pursuant to Executive Orders 12866 (Regulatory Planning and Review) 
and 13563 (Improving Regulation and Regulatory Review), the EPA has 
prepared an economic analysis to inform the public of potential 
benefits and costs of this final rule. The EPA's economic analysis is 
documented in Economic Analysis for Water Quality Standards Regulatory 
Revisions to Protect Tribal Reserved Rights (Final Rule) and can be 
found in the docket for this final rule.
    This final rule does 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 final rule. Some 
commenters on the economic analysis that accompanied the EPA's proposed 
rulemaking asserted that the EPA must estimate costs to regulated 
entities before finalizing the rule and that many NPDES permits would 
need to be modified or reissued with more stringent water quality-based 
effluent limits as a result of this rule. While the EPA has included a 
qualitative assessment of indirect costs and benefits in the economic 
analysis that accompanies this final rule, the EPA is unable to 
quantify indirect costs and benefits since it cannot anticipate 
precisely how states will implement the rule and because of a lack of 
data.
    While this rule would not directly lead to improvements in water 
quality, it establishes a framework that, where applicable, is expected 
to result in future improvements in water quality in geographic areas 
where Tribes hold reserved rights. Better protection of Tribal reserved 
rights has the potential to provide a variety of economic benefits 
associated with cleaner water. The EPA also anticipates that the rule 
will result in improved coordination between Federal, State, and Tribal 
governments regarding the protection of water resources that support 
the exercise of Tribal reserved rights. Tribal

[[Page 35742]]

members and the general public may indirectly benefit from this rule 
through targeted improvements to water quality that are implemented to 
meet more stringent WQS adopted in accordance with this rule.
    The primary benefits of the rule for reserved right holders will 
likely be improved ability to maintain traditions and cultural 
landscapes and reduced risk to human health while exercising their 
reserved rights. Reducing pollutant levels so that traditional foods 
such as fish and wild rice are abundant and safe to eat in subsistence 
quantities would allow for unsuppressed levels of Tribal consumption of 
these resources, which in turn contributes to restoring and maintaining 
traditional lifeways, preserving Indigenous Knowledge, and cultural 
self-determination. This rule seeks to ensure that water quality does 
not limit right holders' ability to exercise their rights, and 
therefore achieve any corresponding economic, cultural, and social 
benefits.
    Other potential benefits as a result of state actions taken 
pursuant to this rule 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 non-Tribal 
populations.
    The 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, for the reasons 
explained above, have not been included in the economic analysis for 
this rule. The EPA has not attempted to quantify either the costs of 
control measures that might ultimately be required as a result of state 
actions taken pursuant to this rule, or the benefits they would 
provide.
    Instead, the focus of the EPA's quantitative analysis of costs is 
to estimate the potential administrative burden and costs to state and 
Tribal governments. The EPA does not anticipate this rule would impose 
any compliance costs on territorial governments because the EPA is not 
aware of any federally recognized Tribes with reserved rights in any 
U.S. territory.
    The EPA assessed the potential incremental burden and cost of this 
final rule using the same basic methodology used to assess the 
potential incremental burden and cost of the EPA's proposed rulemaking. 
First, the EPA identified the elements of the regulatory revisions that 
may impose incremental burdens and costs. Then, the EPA estimated the 
incremental number of labor hours potentially required to comply with 
those elements of the regulatory revisions, and then estimated the 
costs associated with those additional labor hours.
    The EPA's cost estimate for the final rule is higher than the 
estimate for the proposed rulemaking for the following reasons:
    1. The EPA added estimated costs for all federally recognized 
Tribes to determine whether they wish to assert their rights for 
consideration in the WQS context.
    2. The EPA increased the estimated labor hours for states in 
response to comments that the proposed rulemaking underestimated these 
costs. The EPA made several changes between the proposed and final rule 
as detailed in this preamble above that the agency anticipates will 
mitigate the burdens that commenters perceived this rule would impose 
on states. However, in light of comments received on the additional 
resources that may be required for activities such as coordinating with 
right holders to understand the scope and nature of the rights or 
developing criteria to protect resources that have not been the 
historic focus of criteria development, the EPA increased its low-end 
burden estimate five-fold and doubled its high-end burden estimate 
based on the best professional judgment of EPA staff experienced in the 
WQS program.
    3. The EPA added estimated costs for authorized Tribes to comply 
with the final rule. The economic analysis for the proposed rulemaking 
assumed that no authorized Tribes would incur costs as a result of the 
rule. This was based on the assumption that few, if any Tribes have 
reserved rights to resources on another Tribe's reservation or 
otherwise under the jurisdiction of another Tribe, and 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 consideration and 
protection of such rights in absence of this rule. In response to 
comments that these assumptions were not valid, the EPA added estimated 
costs to account for authorized Tribes who may set WQS for waters where 
other Tribes hold reserved rights.
    4. The EPA updated the labor rates and cost of benefits used in its 
cost estimates from 2020 to 2022 to reflect the latest available data 
from the United States Bureau of Labor Statistics (USBLS).
    The EPA assumed for the purpose of this analysis that all 574 
currently federally recognized Tribes would incur a burden of 10 hours, 
on average, to evaluate whether they wish to assert their reserved 
rights in the context of WQS development and, if so, to do so. The EPA 
also assumed that all 50 states would each undertake three WQS 
rulemakings to consider and protect Tribal reserved rights. The agency 
assumed one rulemaking for each of the following purposes:
     To revise WQS for protection of human health;
     To 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.
    Finally, the EPA assumed that all 84 Tribes currently authorized 
for treatment in a manner similar to a state for the purpose of 
establishing WQS (i.e., authorized Tribes) would each undertake two 
rulemakings to comply with this final rule, one with equivalent burden 
to the first state rulemaking, and a second rulemaking with 50% less 
burden than the first.
    The EPA has likely over-estimated the incremental burden and costs 
of this rule. The EPA has included burden and costs for all 574 
federally recognized Tribes, all 50 states, and all 84 authorized 
Tribes, although it is not likely that Tribal reserved rights to 
aquatic and/or aquatic-dependent resources exist in all 50 states and 
84 reservations, nor is it likely that all 574 federally recognized 
Tribes have relevant reserved rights and will need time to evaluate 
whether to assert them for consideration in establishment of WQS. Since 
attributing costs to all currently federally recognized Tribes is 
likely an overestimate, the EPA anticipates that this estimated burden 
accounts for any additional Tribes that gain Federal recognition in the 
foreseeable future, as well as for the fact that some Tribes may incur 
a higher burden while others incur less or none. For example, some 
Tribes may elect to incur a higher burden to coordinate with states and 
authorized Tribes to facilitate a better understanding of the scope and 
nature of the rights. As a result, the assertion burden estimate should 
be considered an average value for all federally recognized Tribes.
    Further, the EPA also included burden and cost estimates for states 
and authorized Tribes to consider and revise WQS for protection of 
aquatic life as a

[[Page 35743]]

result of this rule, even though, as explained above in section IV.B.3. 
of this preamble, this rule is not expected to result in widespread 
changes to aquatic life criteria. As noted above, in some cases, 40 CFR 
131.9(a)(3) may prompt a state to consider adjusting aquatic life 
criteria in a certain area to protect a culturally important species or 
to advance the scientific understanding of pollutant impacts to 
wildlife and plants that have not been the historic focus of criteria 
development. In addition, states and authorized Tribes may choose to 
revise designated uses to explicitly denote protection of particular 
aquatic species to which Tribal reserved rights (as defined in this 
rule) apply, even if they conclude that existing aquatic life criteria 
for the relevant water bodies are protective of those species. The EPA 
included burden and cost related to aquatic life rulemakings to ensure 
that these burdens, if they occur, would be covered, but including this 
burden for all 50 states and all 84 authorized Tribes is likely a 
significant overestimate.
    The EPA considered the costs associated with labor from economists, 
engineers, scientists, and lawyers for development of state and 
authorized Tribal WQS regulations. The EPA did not include any labor or 
other costs associated with potential litigation, as this would not be 
a direct consequence of this rule and would be highly speculative. 
However, the EPA included costs associated with lawyers in the labor 
mix in anticipation that legal advice could be needed in evaluating 
reserved rights.
    The EPA anticipates that once a state or authorized Tribe takes 
into consideration and, where it determines is necessary, adopts new or 
revised WQS to protect Tribal reserved rights, it will not have any 
recurring costs (i.e., ongoing annual burden and costs) that would be 
specifically attributable to the rule revisions to 40 CFR 131.20, 
because periodic evaluation of and revision to WQS is already a 
requirement of the CWA and WQS regulation. The EPA also determined that 
a federally recognized Tribe's evaluation of whether they wish to 
assert their reserved rights in the context of WQS development was best 
modeled as a one-time cost, although the right may be asserted in 
stages.
    Estimates of the incremental administrative burden and costs to 
state and Tribal governments associated with this final rule are 
summarized in table 2.

              Table 2--Summary of Potential Administrative Burdens and Costs to State and Tribal Governments Associated With the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Number of
                                                              Burden per      Cost per entity   potentially     Total burden     Total cost (2022$; one-
                     Government entity                      entity (hours)        (2022$)         affected         (hours)                time)
                                                                                                  entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federally Recognized Tribes...............................              10             $897.40          574                5740                 $515,100
States....................................................     1,325-2,650     108,020-216,055           50      66,250-132,500     5,401,000-10,802,000
Authorized Tribes.........................................       750-1,500   61,147.50-122,295           84      63,000-126,000     5,136,000-10,272,000
                                                           ---------------------------------------------------------------------------------------------
    Total.................................................  ..............  ..................  ...........     134,990-264,240    11,052,000-21,589,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Total one-time costs for this final rule are estimated to range 
from $11,052,000 to $21,589,000. The EPA chose not to annualize these 
costs given uncertainty about the period over which that annualization 
would occur.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, the EPA submitted this action to the Office of Management 
and Budget (OMB) for Executive Order 12866 review. Documentation of any 
changes made in response to the Executive Order 12866 review is 
available in the docket. The EPA prepared an economic analysis of the 
potential impacts associated with this action. The economic analysis is 
available in the docket for this action and is summarized in section V 
of this preamble.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2700.02; OMB assigned 
control number 2040-0309 when approving the ICR for the proposed rule. 
A copy of the ICR can be found in the docket for this rule, and it is 
briefly summarized here. The information collection requirements are 
not enforceable until OMB approves them.
    The information collection requirements in this rule will be in 
addition to the requirements described in the existing ICR for the 
Water Quality Standards Regulation and approved by OMB through February 
2025.\128\ At this time, the EPA is not revising the existing ICR to 
consolidate the requirements of this rule. The EPA will use the 
information required by this 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, the EPA 
considers whether those submissions are consistent with the WQS 
regulation at 40 CFR part 131. The existing regulation requires states 
to include supporting information to accompany WQS submissions to help 
the EPA determine whether the submitted new and revised WQS are 
consistent with 40 CFR part 131. This rule adds new requirements to 40 
CFR part 131 that holders of Tribal reserved rights must assert their 
rights in writing to the state and the EPA to receive the benefits of 
this rule, and that, where applicable, state WQS submissions must 
include any information provided by right holders about relevant Tribal 
reserved rights and documentation of how that information was 
considered. This information collection will provide the EPA with 
information necessary to review and approve or disapprove WQS in 
accordance with the CWA and 40 CFR part 131.
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    \128\ ``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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[[Page 35744]]

    If the information collection activities in this rule are not 
carried out, states and the EPA may not be able to ensure that WQS are 
consistent with treaties and other Federal laws. In some cases, this 
could result in implementation steps such as TMDLs and NPDES permits 
that also are not consistent with treaties and other Federal laws.
    Respondents/affected entities: states, federally recognized Tribes, 
and Tribes authorized for treatment in a manner similar to a state for 
purposes of establishing WQS under the CWA.
    Respondent's obligation to respond: mandatory under 40 CFR part 131 
for states and authorized Tribes in their capacity of establishing WQS; 
for all federally recognized Tribes, required to obtain the benefit of 
having their rights considered under 40 CFR part 131.
    Estimated number of respondents: 624 (84 of which are both 
federally recognized Tribes and Tribes authorized for treatment in a 
manner similar to a state for purposes of establishing WQS under the 
CWA).
    Frequency of response: on occasion/as necessary.
    Total estimated burden: 20,000 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $1.63 million (per year), includes $0 
annualized capital or operation and maintenance costs.
    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 the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this 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. In making this determination, the EPA concludes that 
the impact of concern is any significant adverse economic impact on 
small entities and that the agency is certifying that this rule will 
not have a significant economic impact on a substantial number of small 
entities because 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 whether and how WQS may need to be revised in 
accordance with 40 CFR 131.9(a).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    The EPA has concluded that this action does not have federalism 
implications as defined by the EPA's policy for implementing E.O. 13132 
\129\ on federalism. This rule does not impose substantial compliance 
costs on state and local governments or on small governments or preempt 
state or local laws. As explained above, this rule establishes the 
EPA's expectations for states in setting WQS where Tribal reserved 
rights apply. This rule adds new requirements that are applicable in 
certain instances, i.e., where right holders assert relevant Tribal 
reserved rights consistent with 40 CFR 131.9, and which build on and 
are consistent with the EPA's existing WQS paradigm at 40 CFR part 131. 
The requirement to have criteria that protect the designated use is an 
existing requirement, and the states maintain their role in designating 
uses. States continue to have considerable discretion in adopting and 
implementing WQS. This rule will not have substantial direct effects 
\130\ on the states, on the relationship between the Federal Government 
and the states, or on the distribution of power and responsibilities 
among the various levels of government. Thus, E.O. 13132 does not apply 
to this action.
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    \129\ E.O. 13132 requires meaningful and timely consultation 
with elected state and local officials or their representative 
national organizations early in the process of developing the 
proposed regulation. Under the technical requirements of E.O. 13132, 
agencies must conduct a federalism consultation as outlined in the 
Executive order for regulations that (1) have federalism 
implications, that impose substantial direct compliance costs on 
state and local governments, and that are not required by statute; 
or (2) that have federalism implications and that preempt state law. 
Where actions are determined to have federalism implications as 
defined by agency policy for implementing E.O. 13132, a federalism 
summary impact statement is published in the preamble to the 
regulation, and the agencies must provide OMB copies of all written 
communications submitted by state and local officials.
    \130\ i.e., imposed intergovernmental costs or preemption of 
state/local law.
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    In the spirit of E.O. 13132 and consistent with the EPA's policy to 
promote communications between the EPA and state and local governments, 
in January 2023, the EPA presented an overview of the proposed 
rulemaking to the Association of Clean Water Administrators (ACWA)'s 
Monitoring, Standards and Assessment Subcommittee. The EPA provided 
additional engagement during three additional meetings with ACWA 
representatives in 2023 at their request to hear their views on 
implementation of this rule in addition to accepting written comments 
on the proposal.
    Written comments on the proposed rulemaking were submitted by 13 
state governments, including state environmental agencies, water 
boards, governors' offices, and attorneys general. Comments were also 
submitted by national and regional state associations. The EPA 
summarized and responded in detail to public comment letters from state 
governments and associations in a Response to Comments document that 
can be found in the docket for this rule.
    Participants reiterated concerns raised in their comment letters, 
including that the EPA did not provide sufficient engagement with 
states in shaping the proposed rulemaking. The EPA provided states with 
the same opportunities for engagement provided to the general public 
plus additional dedicated meetings. In addition, the EPA has carefully 
considered the states' comments and in some instances has made changes 
to the proposed rulemaking language in this final rule that may 
mitigate the states' concerns. These changes are detailed in relevant 
sections of this preamble.

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 rule 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 
section 303(c) WQS program. To date, 84 Indian Tribes have been 
approved for treatment in a manner similar to a state (TAS) for CWA 
sections 303(c) and 401.\131\ Some of these authorized Tribes could be 
subject to this final rule, depending on the location and nature of any 
other Tribes' rights.
---------------------------------------------------------------------------

    \131\ To date, one Tribe with TAS for CWA section 303(c) 
(Havasupai Tribe in Arizona) has declined TAS for CWA section 401. 
For the most current information please refer to https://www.epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts.
---------------------------------------------------------------------------

    The EPA consulted with Tribal officials early in the process of 
developing this regulation to permit

[[Page 35745]]

them to have meaningful and timely input into its development. The EPA 
held a 90-day pre-proposal Tribal consultation and coordination period 
from June 15 through September 13, 2021, to inform development of the 
proposed rulemaking. The EPA conducted the consultation and 
coordination process in accordance with the EPA Policy on Consultation 
and Coordination with Indian Tribes in effect at the time.\132\ In 
addition to two national Tribal listening sessions held in July and 
August 2021, the EPA presented at 20 meetings of Tribal staff and 
leadership, as well as held seven staff-level coordination meetings and 
seven leader-to-leader meetings at the request of Tribes. The EPA 
continued outreach and engagement with Tribes at national and regional 
Tribal meetings after the end of the consultation period before 
publishing the proposed rulemaking. Twenty-one Tribes and Tribal 
organizations submitted written pre-proposal comments to the EPA. These 
are included in the docket for the rule.
---------------------------------------------------------------------------

    \132\ USEPA, 2011. EPA Policy on Consultation and Coordination 
with Indian Tribes.
---------------------------------------------------------------------------

    The EPA held a second 90-day Tribal consultation and coordination 
period after the Administrator signed the proposed rulemaking from 
November 30, 2022, to February 28, 2023. During the second Tribal 
consultation and coordination period and throughout the public comment 
period, the EPA held two additional national listening sessions for 
Tribal representatives, in January 2023, as well as seven leader-to-
leader meetings and twelve staff-level coordination meetings with 
representatives of individual Tribes upon request. A summary of the 
EPA's Tribal consultation titled Summary Report of Tribal Consultation 
on Revisions to the Federal Water Quality Standards Regulation to 
Protect Tribal Reserved Rights is available in the docket for this 
rule.
    The EPA encouraged Tribal representatives to submit written 
comments through the docket on the proposed rulemaking. The EPA 
received written comments representing 47 Tribes and Tribal 
organizations raising a wide variety of complex questions and concerns, 
which largely captured the questions and concerns Tribes raised during 
consultation and engagement meetings. Key themes included how Tribal 
interests and sensitive information will be protected, how disputes 
will be resolved, and numerous specific recommendations for expanding 
the inclusiveness and protectiveness of the rule. The EPA carefully 
considered all Tribal comments in development of the final rule and 
made several clarifications in the preamble to this final rule and 
changes in response to comments on the proposed regulation to address 
Tribal concerns. The EPA has responded in detail to Tribal comments 
along with other public comments received in the Response to Comment 
document available in the docket for this rule. In addition, the EPA 
has continued to engage with Tribes to discuss their water quality 
concerns, including concerns centered on reserved rights and protection 
of subsistence fishing, in a variety of forums, including regular 
meetings and discussions with the National Tribal Water Council.\133\
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    \133\ The National Tribal Water Council (NTWC) is a technical 
and scientific body created to assist the EPA; federally recognized 
Indian Tribes, including Alaska Native Tribes; and their associated 
Tribal communities and Tribal organizations with research and 
information for decision-making regarding water issues and water-
related concerns that affect Indian and Alaska Native Tribal 
members, as well as other residents of Alaska Native Villages and 
Indian country in the United States.
---------------------------------------------------------------------------

    As required by section 7(a), the EPA's Designated Consultation 
Official has certified that the requirements of the Executive order 
have been met in a meaningful and timely manner. A copy of the 
certification is included in the docket for this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 directs Federal agencies to include an 
evaluation of the health and safety effects of the planned regulation 
on children in Federal health and safety standards and explain why the 
regulation is preferable to potentially effective and reasonably 
feasible alternatives. This action is not subject to Executive Order 
13045 because it is not a significant regulatory action under section 
3(f)(1) of Executive Order 12866, and because the EPA does not believe 
the environmental health or safety risks addressed by this action 
present a disproportionate risk to children. 40 CFR 131.9(a) will be 
relevant to protection of human health in situations where it is 
applied to establishing WQS to protect human health. It is not possible 
to evaluate whether this provision would result in disproportionate 
risks on children in any given case since the EPA lacks information 
about every instance where the rule will be applied. However, in 
general, the EPA recommends that human health criteria be designed to 
reduce the risk of adverse cancer and non-cancer effects occurring from 
a lifetime of exposure to pollutants through the ingestion of drinking 
water and consumption of fish/shellfish obtained from inland and 
nearshore waters. Any human health criteria established pursuant to 
this regulation would similarly be based on reducing the chronic health 
effects occurring from lifetime exposure and therefore are expected to 
be protective of a person's exposure during both childhood and adult 
years.

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 rule does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that the human health or environmental conditions 
that exist prior to this action result in or have the potential to 
result in disproportionate and adverse human health or environmental 
effects on communities with environmental justice concerns. The failure 
to consider and protect Tribal reserved rights in WQS may contribute to 
suppression effects that can negatively impact the health, culture, and 
economy of Indigenous peoples. These impacts may be further exacerbated 
by climate change, resulting in cumulative disproportionate and adverse 
effects on the health and environment of Indigenous peoples. As 
mentioned in section V of this preamble above and more fully explained 
in the economic analysis for the final rule, which is available in the 
docket for this rule, the EPA was unable to quantify disproportionate 
and adverse impacts of the existing condition prior to this rule 
because the EPA does not have complete data about where Tribal reserved 
rights exist and where existing WQS do and do not protect those rights. 
Instead, below the EPA has qualitatively assessed the disproportionate 
and adverse impacts of the existing condition prior to this rule. This 
assessment was conducted to inform the

[[Page 35746]]

EPA's understanding of the benefits of the rule.
    Many Tribes in the U.S. rely on subsistence fishing or otherwise 
have reserved rights to use aquatic and aquatic-dependent resources in 
ways that differ from how the U.S. general population uses these 
resources, and/or have rights to harvest such resources at relatively 
higher rates than the general population. As a result, in some parts of 
the country, WQS that may sufficiently protect the general population 
may not be sufficiently stringent and/or comprehensive to protect 
Tribes exercising their reserved rights. These rights often reflect 
traditional practices that support a Tribe's cultural self-
determination and can be pivotal to the economic well-being of the 
community. Impacts to these rights can affect the very foundation of 
Tribal social and political organization \134\ as well as a Tribe's 
ability to provide for present and future generations and the 
maintenance of their lifeways.
---------------------------------------------------------------------------

    \134\ 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.
---------------------------------------------------------------------------

    For example, some Tribes have rights to fish for subsistence, which 
typically implies a higher rate of fish consumption than that at which 
the general population consumes fish from U.S. waters. The fish 
consumption rate is a key input to the equation used to calculate water 
quality criteria to protect human health; \135\ such criteria represent 
the maximum levels of contaminants that can be present in waters for 
the fish caught in those waters to be safe to eat at the given rate. If 
all other inputs to the human health criteria equation remain the same, 
increasing the fish consumption rate results in more stringent 
criteria. For subsistence fishers, the EPA recommends a default fish 
consumption rate of 142 g/day in the absence of local data.\136\ This 
rate is the estimated 99th percentile fish consumption rate from the 
1994-96 Continuing Survey of Food Intake by Individuals (CSFII) 
conducted by the U.S. Department of Agriculture.\137\ The EPA's 2000 
Methodology noted that at the time 142 g/day was ``representative of 
average rates for highly exposed groups such as subsistence fishermen, 
specific ethnic groups, or other highly exposed people.'' \138\ Post-
2000 consumption surveys of high fish consuming populations (e.g., 
Tribes and Asian Pacific Islanders) resulted in mean fish consumption 
rates ranging from 18.6 g/day to 233 g/day and 90th percentile fish 
consumption rates ranging from 48.9 g/day to 528 g/day.\139\
---------------------------------------------------------------------------

    \135\ USEPA. (2000). Methodology for Deriving Ambient Water 
Quality Criteria for the Protection of Human Health. EPA-822-B-00-
004. https://www.epa.gov/sites/default/files/2018-10/documents/methodology-wqc-protection-hh-2000.pdf.
    \136\ Id. at 1-13.
    \137\ Jacobs, H.L., Kahn, H.D., Stralka, K.A., and Phan, D.B. 
(1998). Estimates of per capita fish consumption in the U.S. based 
on the continuing survey of food intake by individuals (CSFII). Risk 
Analysis: An International Journal 18(3).
    \138\ USEPA. (2000). Methodology for Deriving Ambient Water 
Quality Criteria for the Protection of Human Health. EPA-822-B-00-
004. https://www.epa.gov/sites/default/files/2018-10/documents/methodology-wqc-protection-hh-2000.pdf at 4-27.
    \139\ Polissar, N.L., Salisbury, A., Ridolfi, C., Callahan, K., 
Neradilek, M., Hippe, D.S., and Beckley, W.H. (2016). A Fish 
Consumption Survey of the Nez Perce Tribe. The Mountain-Whisper-
Light Statistics, Pacific Market Research, Ridolfi, Inc. https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-nez-perce-dec2016.pdf; Polissar, N.L., Salisbury, 
A., Ridolfi, C., Callahan, K., Neradilek, M., Hippe, D.S., and W.H. 
Beckley. (2016). A Fish Consumption Survey of the Shoshone-Bannock 
Tribes. The Mountain-Whisper-Light Statistics, Pacific Market 
Research, Ridolfi, Inc. https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-shoshone-bannock-dec2016.pdf; Seldovia Village Tribe. (2013). Assessment of Cook 
Inlet Tribes Subsistence Consumption. Seldovia Village Tribe 
Environmental Department; Suquamish Tribe. (2000). Fish Consumption 
Survey of The Suquamish Indian Tribe of The Port Madison Indian 
Reservation, Puget Sound Region. Suquamish, W.A.; Sechena, R., Liao, 
S., Lorenzana, R., Nakano, C., Polissar, N., Fenske., R. (2003). 
Asian American and Pacific Islander seafood consumption--a 
community-based study in King County, Washington. J of Exposure 
Analysis and Environ Epidemiology. (13): 256-266; Lance, T.A., 
Brown, K., Drabek, K., Krueger, K., and S. Hales. (2019). Kodiak 
Tribes Seafood Consumption Assessment: Draft Final Report, Sun'aq 
Tribe of Kodiak, Kodiak, AK. http://sunaq.org/wp-content/uploads/2016/09/Kodiak-Tribes-Seafood-Consumption-Assessment-DRAFT-Final-Report-26Feb19-FINAL.pdf.
---------------------------------------------------------------------------

    In contrast, states generally rely on the EPA's nationally 
recommended default fish consumption rate for the general population to 
calculate their human health criteria. The EPA's current nationally 
recommended default fish consumption rate is 22 g/day, which represents 
the 90th percentile consumption rate of fish and shellfish from inland 
and nearshore waters for the U.S. adult population 21 years of age and 
older, based on National Health and Nutrient Examination Survey 
(NHANES) data from 2003 to 2010.\140\ Some states rely on this current 
national default fish consumption rate to calculate their statewide 
human health criteria, and many others have not updated their human 
health criteria since 2015 and rely on the EPA's prior, outdated 
default general population fish consumption rates (17.5 g/day or 6.5 g/
day), which results in less stringent human health criteria. In states 
that rely on current or outdated national default general population 
fish consumption rates, for waters in which Tribes have rights to fish 
for subsistence, the existing human health criteria may expose Tribal 
members exercising their legal rights to consume higher amounts of fish 
to greater risk from toxic pollutants. The rule will have the benefit 
of ensuring that criteria are set at appropriate levels to protect the 
exercise of Tribal reserved rights.
---------------------------------------------------------------------------

    \140\ USEPA. (2014). Estimated Fish Consumption Rates for the 
U.S. Population and Selected Subpopulations (NHANES 2003-2010). EPA 
820-R-14-002. https://www.epa.gov/sites/default/files/2015-01/documents/fish-consumption-rates-2014.pdf.
---------------------------------------------------------------------------

    Additionally, the EPA's current guidance for developing human 
health criteria \141\ does not address how Tribal populations with 
reserved rights should be treated in developing human health criteria. 
Some states have treated Tribal populations as high consuming 
subpopulations. Since the 2000 Methodology is not specific about how to 
treat Tribal populations with reserved rights, it could be read as 
implying those Tribal populations could be protected at a less 
stringent cancer risk level of 10-4 as compared to the 
general population, for which the EPA recommends 10-5 or 
10-6. This regulation clarifies this important point on 
which the EPA's current guidance is silent.
---------------------------------------------------------------------------

    \141\ 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.
---------------------------------------------------------------------------

    The EPA believes that this action is likely to reduce existing 
disproportionate and adverse effects on communities with environmental 
justice concerns. Specifically, one benefit of this action is to 
directly address existing disproportionate and adverse effects of state 
WQS that fail to protect Tribal reserved rights by requiring states to 
consider Tribal reserved rights in establishing their WQS and requiring 
states to protect Tribal populations to the same risk level to which 
the general population of the state would otherwise be protected. This 
action makes the EPA's regulation explicit about how states are to 
consider Tribal reserved rights in adopting and revising WQS.
    Finally, as discussed in section IV.F of this preamble, this rule 
establishes explicit regulatory requirements to provide right holders 
with meaningful opportunities to engage during the WQS development 
process. Specifically, the final rule requires state WQS submissions to 
include as supporting information any information provided by the right 
holders. This will encourage

[[Page 35747]]

states to meaningfully engage Tribes in WQS development, although 
states retain discretion on how and when to engage. Consistent with 
applicable EPA Tribal consultation policies, the final rule also 
requires the EPA to offer consultation to Tribes when the EPA is 
evaluating state WQS submissions that impact Tribal reserved rights 
that the right holder has asserted for consideration in the WQS 
context. These new regulatory requirements recognize the importance of 
State and Federal coordination with Tribes by establishing mechanisms 
for Tribal input in the WQS setting process.
    A few comments the EPA received on the proposed rulemaking also 
asserted that a legacy of and ongoing environmental injustices imposes 
disproportionate health risks on Tribal communities throughout the 
U.S., and that this rule is important for advancing environmental 
justice and protecting vulnerable communities from climate change.
    For the reasons explained in section V of this preamble above and 
as more fully explained in the economic analysis for this final rule, 
which is available in the docket for this rule, the EPA is unable to 
quantify the anticipated reduction in disproportionate and adverse 
effects to Tribal populations that will result from this final rule. 
This revision to the Federal WQS regulation is not self-implementing. 
It establishes rules for states and will be implemented by states 
revising their WQS. While the EPA is aware of particular situations in 
certain parts of the country in which Tribal reserved rights have 
previously been identified in relation to water quality issues, the EPA 
cannot estimate with certainty the geographic distribution of Tribal 
reserved rights across the country and how those rights apply to 
various CWA-protected aquatic and/or aquatic-dependent resources, which 
of those rights Tribes would choose to assert for consideration in 
establishment of WQS, whether and how states may revise various WQS 
components to protect the asserted rights, or how the scope or 
stringency of any state WQS will change as a result.
    The EPA additionally identified and addressed environmental justice 
concerns by maximizing opportunities for meaningful involvement of 
Tribal governments in providing input on the rulemaking through both 
pre- and post-proposal Tribal consultation, as explained in section 
VI.F. of this preamble above.
    The information supporting this Executive order review is contained 
in the above preamble, the document titled Summary Report of Tribal 
Consultation on Revisions to the Federal Water Quality Standards 
Regulation to Protect Tribal Reserved Rights and the Economic Analysis 
for this final rule. The latter two documents can be found in the 
docket for this rule.
    The EPA recognizes that Tribes without federally reserved rights to 
aquatic or aquatic-dependent resources will not be directly impacted by 
this rule. The agency also acknowledges that since this rule only 
covers locations with reserved rights, other aquatic resources upon 
which Tribes depend may not be covered. It is the 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 the EPA, states, and Tribal governments. The EPA 
will continue to work with states and Tribes to help reach this goal. 
While this rule does not address all obstacles to the full exercise of 
Tribal reserved rights, the EPA believes it takes a positive step in 
that direction.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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, the EPA amends 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, for purposes of this part, are any 
rights to CWA-protected aquatic and/or aquatic-dependent resources 
reserved by right holders, either expressly or implicitly, through 
Federal treaties, statutes, or Executive orders.
    (s) Right holders, for purposes of this part, are any Federally 
recognized Tribes holding Tribal reserved rights, regardless of whether 
the Tribe exercises authority over a Federal Indian reservation.

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) Where applicable, whether State adopted water quality standards 
are 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 that will aid the Agency in 
evaluating whether the submission is consistent with Sec.  131.9, 
including:
    (1) Any information provided by right holders about relevant Tribal 
reserved rights and documentation of how that information was 
considered; 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) Where a right holder has asserted a Tribal reserved right in 
writing to the State and EPA for consideration in establishment of 
water quality standards, to the extent supported by available data and 
information, the State must:
    (1) Take into consideration the use and value of their waters for 
protecting

[[Page 35748]]

the Tribal reserved right in adopting or revising designated uses 
pursuant to Sec.  131.10;
    (2) Take into consideration the anticipated future exercise of the 
Tribal reserved right unsuppressed by water quality in establishing 
relevant water quality standards; and
    (3) Establish water quality criteria, consistent with Sec.  131.11, 
to protect the Tribal reserved right where the State has adopted 
designated uses that either expressly incorporate protection of or 
encompass the right. This requirement includes developing criteria to 
protect right holders using at least the same risk level (e.g., cancer 
risk level, hazard quotient, or illness rate) as the State would 
otherwise use to develop criteria to protect the State's general 
population, paired with exposure inputs (e.g., fish consumption rate) 
representative of right holders exercising their reserved right.
    (b) States and right holders may request EPA assistance with 
evaluating Tribal reserved rights. EPA will provide such assistance to 
the extent practicable. In providing assistance to States as they adopt 
and revise water quality standards consistent with paragraph (a) of 
this section, EPA will engage with right holders.
    (c) In reviewing State water quality standards submissions under 
this section, EPA will initiate the Tribal consultation process with 
the right holders that have asserted their rights for consideration in 
establishment of water quality standards, consistent with applicable 
EPA Tribal consultation policies, in determining whether State water 
quality standards are consistent with paragraph (a) of this section.

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.  131.9 
through 131.15 and Federally promulgated water quality standards and, 
as appropriate, modifying and adopting standards. This review shall 
include evaluating whether there is any new information available about 
Tribal reserved rights applicable to State waters that needs to be 
considered to establish water quality standards consistent with Sec.  
131.9. The State shall also re-examine any 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. 2024-09427 Filed 5-1-24; 8:45 am]
BILLING CODE 6560-50-P