Rule2024-09427
Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 2, 2024
Effective
June 3, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 86 (Thursday, May 2, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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: <a href="/cdn-cgi/l/email-protection#127060677c767375773c78777c7c7b747760527762733c757d64"><span class="__cf_email__" data-cfemail="b3d1c1c6ddd7d2d4d69dd9d6dddddad5d6c1f3d6c3d29dd4dcc5">[email protected]</span></a> or
<a href="/cdn-cgi/l/email-protection#385f4a594e4d5d4a16535d545441785d4859165f574e"><span class="__cf_email__" data-cfemail="583f2a392e2d3d2a76333d343421183d2839763f372e">[email protected]</span></a>.
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.
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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:
<bullet> Water body assessments, identification of impaired waters,
and development of total maximum daily loads (TMDLs) under CWA sections
305(b) and 303(d);
<bullet> Certifications of Federal licenses and permits under CWA
section 401;
<bullet> 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
<bullet> 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 <a href="https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf">https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf</a>.
\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 <a href="https://www.bia.gov/frequently-asked-questions">https://www.bia.gov/frequently-asked-questions</a> (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.
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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).
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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\
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\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).
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[[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\
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\37\ U.S. EPA, Memorandum, Commemorating the 30th Anniversary of
the EPA's Indian Policy (December 1, 2014), available at <a href="https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf">https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf</a>.
\38\ Id. See also U.S. EPA, EPA Policy for the Administration of
Environmental Programs on Indian Reservations (November 8, 1984),
available at <a href="https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf">https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf</a>.
\39\ U.S. EPA, Memorandum, Commemorating the 30th Anniversary of
the EPA's Indian Policy (December 1, 2014), available at <a href="https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf">https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf</a>.
\40\ U.S. EPA, EPA Policy on Consultation and Coordination with
Indian Tribes: Guidance for Discussing Tribal Treaty Rights
(February 2016), available at <a href="https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf">https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf</a>
.
\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.
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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\
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\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.
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\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\
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\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\
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\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.
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\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).
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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.
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\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 <a href="https://www.epa.gov/system/files/documents/2023-02/01-24-23-Reserved-Rights-Public-Hearing-Slides-508.pdf">https://www.epa.gov/system/files/documents/2023-02/01-24-23-Reserved-Rights-Public-Hearing-Slides-508.pdf</a>.
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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.
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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 <a href="https://www.epa.gov/foia/learn-about-foia">https://www.epa.gov/foia/learn-about-foia</a>.
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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.
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\84\ See Water Quality Standards Regulatory Revisions to Protect
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December
5, 2022).
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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.
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\85\ USEPA. 2014. Protection of Downstream Waters in Water
Quality Standards: Frequently Asked Questions. EPA-820-F-14-001. See
<a href="https://www.epa.gov/sites/default/files/2018-10/documents/protection-downstream-wqs-faqs.pdf">https://www.epa.gov/sites/default/files/2018-10/documents/protection-downstream-wqs-faqs.pdf</a>.
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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.''
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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).'').
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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.
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\89\ See Water Quality Standards Regulatory Revisions, 80 FR
51027 (August 21, 2015).
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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.
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\90\ See Water Quality Standards Regulatory Revisions to Protect
Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December
5, 2022).
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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).
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\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\
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\92\ National Environmental Justice Advisory Council, Fish
Consumption and Environmental Justice, pp. 44-49 (2002) (NEJAC Fish
Consumption Report) available at <a href="https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf">https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf</a>.
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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.
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\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.'').
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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\
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\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, <a href="https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics">https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics</a>.
\96\ See USEPA. 2016. Guidance for Conducting Fish Consumption
Surveys. EPA-823B16002 at 18, <a href="https://www.epa.gov/sites/default/files/2016-12/documents/guidance-fish-consumption-surveys.pdf">https://www.epa.gov/sites/default/files/2016-12/documents/guidance-fish-consumption-surveys.pdf</a>
(``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. <a href="https://www.epa.gov/sites/default/files/2015-12/documents/hh-fish-consumption-faqs.pdf">https://www.epa.gov/sites/default/files/2015-12/documents/hh-fish-consumption-faqs.pdf</a>
(``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.'').
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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).
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\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.
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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.
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\101\ See Water Quality Standards Regulatory Revisions to
Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74367
(December 5, 2022).
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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.
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\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. <a href="https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics">https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics</a>.
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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. <a href="https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics">https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics</a>.
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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<SUP>-</SUP>\5\ (1 in 100,000) and 10<SUP>-</SUP>\6\ (1
in 1 million) risk levels for the general population and further says
that ``highly exposed'' subpopulations should not exceed a
10<SUP>-</SUP>\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.
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\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.
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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<SUP>-</SUP>\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<SUP>-</SUP>\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<SUP>-</SUP>\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<SUP>-</SUP>\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.
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\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).
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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<SUP>-</SUP>\6\
cancer risk level to calculate criteria to protect the general
population, the state must also use a 10<SUP>-</SUP>\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<SUP>-</SUP>\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.
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\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. <a href="https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics">https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics</a>. p. 2-7.
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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<SUP>-</SUP>\5\ (1 in 100,000) and 10<SUP>-</SUP>\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<SUP>-</SUP>\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<SUP>-</SUP>\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<SUP>-</SUP>\5\ or 10<SUP>-</SUP>\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<SUP>-</SUP>\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.
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\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. <a href="https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics">https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics</a>.
\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. <a href="https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-nez-perce-dec2016.pdf">https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-nez-perce-dec2016.pdf</a>;
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. <a href="https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-shoshone-bannock-dec2016.pdf">https://www.epa.gov/sites/production/files/2017-01/documents/fish-consumption-survey-shoshone-bannock-dec2016.pdf</a>; 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.
<a href="http://sunaq.org/wp-content/uploads/2016/09/Kodiak-Tribes-Seafood-Consumption-Assessment-DRAFT-Final-Report-26Feb19-FINAL.pdf">http://sunaq.org/wp-content/uploads/2016/09/Kodiak-Tribes-Seafood-Consumption-Assessment-DRAFT-Final-Report-26Feb19-FINAL.pdf</a>.
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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.
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\119\ See Water Quality Standards Regulatory Revisions to
Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74373
(December 5, 2022).
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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.
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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\
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\121\ Oklahoma State University Libraries. 2003. Tribal Treaties
Database (public beta). <a href="https://treaties.okstate.edu/">https://treaties.okstate.edu/</a>.
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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.
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\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.
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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\
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\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).
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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.
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\124\ USEPA 2023. EPA Policy on Consultation with Indian Tribes.
<a href="https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf">https://www.epa.gov/sites/default/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf</a>.
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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\
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\125\ Id.
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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
[…truncated; see source link]Indexed from Federal Register on May 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.