EPA proposes to establish first-time CWA protections for more than 250 tribes

The U.S. Environmental Protection Agency (EPA) recently announced proposed federal baseline water quality standards for waterbodies on Indian reservations that do not have Clean Water Act standards, ensuring protections for over half a million people living on Indian reservations as well as critical aquatic ecosystems.

Fifty years ago, Congress established a goal in the Clean Water Act (CWA) that waters should support fishing and swimming wherever attainable. All states and 47 Tribes have established standards consistent with that goal. However, the majority of U.S. Tribes with Indian reservations lack such water quality standards. This proposal would extend the same framework of water quality protection that currently exists for most other waters of the United States to waters of over 250 Tribes and is the result of decades of coordination and partnership with Tribes.

“President Biden has made it clear; all people deserve access to clean, safe water. [This] proposal is a monumental step forward in our work with Tribal governments to ensure precious water resources are protected,” said EPA Administrator Michael S. Regan. “Establishing federal baseline water quality standards, and implementing them in consultation with Tribal governments, will help support Tribes’ interests in protecting and improving waters that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth.”

If finalized, the proposal would safeguard water quality on Indian reservations until Tribes are able to adopt their own CWA standards for their water bodies. EPA estimates this proposed water quality standard will increase protections for 76,000 miles of rivers and streams and 1.9 million acres of lakes, reservoirs, and other open surface waters within Indian reservations, protecting aquatic life and the health of over half-a-million residents living within reservation boundaries.

Water quality standards define the goals for the condition of a water body by (1) designating its uses, such as fishing and swimming, (2) establishing maximum levels (or water quality “criteria”) for pollutants that protect those uses, and (3) outlining policies that protect water quality from degradation. The proposed baseline WQS would provide a common set of designated uses, criteria, and antidegradation policies for Tribal waters, with certain built-in flexibilities to enable EPA to tailor the standards where needed to best protect local circumstances.

This proposal carries out the commitments to honor the federal trust responsibility and protect Tribal water resources outlined in EPA’s 2021 action plan, Strengthening the Nation-to-Nation Relationship with Tribes to Secure a Sustainable Water Future. It also delivers on the Biden-Harris Administration’s commitment to uphold the United States’ treaty and trust responsibilities to the 574 federally recognized Tribes.

“The National Tribal Water Council fully supports federal baseline WQS for all of Indian country not already covered by tribal WQS (TWQS),” said Ken Norton, Chairman for the National Tribal Water Council. “While the Council advocates for tribal environmental self-determination through TWQS, we endorse EPA’s proposed rule that discharges the federal government’s trust responsibility to tribes by filling longstanding regulatory gaps in Indian country, using standards that support the unique traditional and cultural uses indigenous peoples make of aquatic ecosystems.”

“We, the tribal representatives of the National Tribal Caucus, are charged with identifying and addressing regional and national environmental issues that affect Tribal Nations and Alaskan Native Villages,” said Gerald Wagner, National Tribal Caucus Chairman. “As one of the four elements of life, it is critical that Tribes and Alaskan Native Villages are provided a reasonable means to protect their water resources and ensure the protection of tribal environmental health, aquatic ecosystems, and tribal beneficial use waters. We recognize that the national baseline water quality standards is one important step in ensuring the gap is closed for impaired waters to be protected, while providing the opportunity for Tribes to gain status toward establishing their own water quality standards. The National Tribal Caucus welcomes this unique start in recognizing the importance of water quality in the livelihood of tribal communities and we hope to see further meaningful advancements that integrate tribal identities.”

“The Navajo Nation has water quality standards that were approved under both the Navajo and federal Clean Water Acts and are supported by EPA,” said Yolanda Barney, Environmental Department Manager, Surface and Ground Water Protection Department, Navajo Nation Environmental Protection Agency. “It is imperative that EPA continue to support tribal efforts to protect tribal waters. Working with neighboring states Arizona, New Mexico and Utah as well as EPA, the Navajo Nation ensures that its waters are protected from pollution to the greatest extent possible.

“The promulgation of Tribal Baseline WQS is necessary to protect tribes without federal standards from transboundary pollution released from off-reservation polluters and addresses EPA’s duty to fill the regulatory water quality protection gaps in Indian country,” said Michael Bolt, Vice-Chair of the National Tribal Water Council and Water Quality Section Supervisor, Eastern Band of Cherokee Indians.

“The Poarch Band of Creek Indians, the only federally recognized Tribe in Alabama, has developed a robust surface water quality-monitoring program throughout the last decade,” said Stephanie A. Bryan, Tribal Chair and CEO, Poarch Band of Creek Indians. This program has helped our Tribe defend its lands and waters, but we also recognize not all Tribes have had this same opportunity. The Poarch Band of Creek Indians support any attempt to develop National Water Quality Standards to help Tribes safely preserve and protect their water rights now and into the future.”

“I appreciate that EPA recognizes that most tribes do not have WQS in place. This baseline will provide protection for fish, wildlife and tribal communities that depend on clean water,” said Russell N. Hepfer, Vice Chairman, Lower Elwha Tribal Community. “Each tribe is unique, most not having the programs or funding to ensure the baseline is met. Moving forward, EPA should consult with and support tribes with funding for implementation and enforcement.”

The Agency will accept comments on this proposal for 90 days. EPA will also hold two online public hearings on this proposal. Learn more about the proposed rule and public hearings.

Water Quality Standards (WQS) define the water quality goals for a waterbody and provide a regulatory basis for many actions under the CWA, including developing water quality-based effluent limits in National Pollution Discharge Elimination System (NPDES) permits for point-sources; performing Clean Water Act (CWA) section 401 certifications of federal licenses and permits; and reporting on water quality conditions and  designated uses attainment.

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