EPA Announces Proposal to Protect Tribal Reserved Rights in Water Quality Standards and Best Practices for Tribal Treaty and Reserved Rights
Proposed regulatory revisions to recognize Tribal rights reflects Biden-Harris Administration’s commitment to deliver clean, safe water for all
WASHINGTON – Today, during the 2022 White House Tribal Nations Summit, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan announced a proposal to revise the federal water quality standards regulations to better protect Tribal rights under the Clean Water Act (CWA). With this action, EPA is working to ensure that state and federal water quality standards will protect tribal rights such as the right to fish or gather aquatic plants—that are reserved through treaties, statutes, executive orders, or other sources of federal law.
“We know that our shared goal of protecting water resources for Tribes is strongest – and most effective – when it’s informed by the lived experiences of those impacted by pollution,” said EPA Administrator Michael S. Regan. “By explicitly recognizing Tribal reserved rights in water quality standards, this proposal will help EPA ensure Tribal aquatic resources are abundant and safe to consume and reaffirms the Biden-Harris Administration’s commitment to our Nation-to-Nation partnership.”
This proposal, once final, would create a regulatory framework that would be applied on a case-specific basis to help ensure that water quality standards protect resources reserved to tribes, such as fish and wild rice. Additionally, the proposed regulatory framework would provide transparency and predictability for tribes, states, regulated parties, and the public.
The proposal also carries out the commitments to honor the federal trust responsibility and protect tribal reserved rights related to 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 strongly supports EPA’s proposal to revise federal water quality standards regulations to protect tribal reserved rights in areas on and off reservations,” said National Tribal Water Council Chairman Ken Norton. “In this way, water quality standards will fulfill federal obligations by requiring a level of water quality that supports tribally significant waters and water-dependent resources consistent with tribal treaties and the federal trust responsibility. Allowing for increased tribal participation in water quality management will better protect precious tribal waters and bolster the resilience of indigenous communities and families.”
“As the first medicine, GLIFWC's member tribes understand that clean water is fundamental to life. In fact, the health of nibi (water) is directly tied to the quality of life. Because of the deep importance of nibi and its vital role in supporting resources located within our member tribes’ treaty ceded territories, GLIFWC supports this draft rule,” said Executive Administrator of the Great Lakes Indian Fish and Wildlife Commission Michael J. Isham, Jr. “It appropriately recognizes the unique status of treaty-reserved resources and the special consideration they deserve.”
“The Columbia River Inter-Tribal Fish Commission supports EPA’s framework to incorporate the protection of treaty-reserved fishing rights into its implementation of the Clean Water Act, said Columbia River Inter-Tribal Fish Commission (CRITFC) Executive Director Aja DeCoteau. “The health of all people, as well as the overall ecosystem, is directly related to the health of our nation’s waters. This is especially true for Pacific Northwest tribes whose cultures are centered on salmon and other First Foods, where we depend on clean water for our physical health, the exercise of our treaty-reserved rights to fish, and our overall cultural well-being. The EPA rule revisions will not only honor the United States obligation to protect tribal rights and resources, but it will also improve the quality of our nation’s water and the health of all Americans.”
“EPA’s proposal is a positive step towards protecting treaty rights because it expressly recognizes that state water quality standards are subject to the reserved rights of tribal nations. The proposal is also consistent with EPA’s fiduciary trust obligation to tribes: where a tribe has reserved rights, the federal government has a duty to protect those rights,” said Northwest Indian Fisheries Commission (NWIFC) Executive Director Justin Parker. “In this case, EPA is recognizing that water quality standards must be stringent enough to protect treaty-reserved resources and treaty rights. This action would have meaningful benefits to NWIFC’s member tribes and their treaty resources and rights.”
“In Washington state, we strive to protect water quality and uphold the Tribal reserved rights of the 29 federally recognized local Tribes and nearby tribes with reserved rights,” said Laura Watson, director of the Washington State Department of Ecology. “I am encouraged to see EPA develop a national framework to recognize tribal reserved rights under the Clean Water Act. This will help all of us in our work to protect water quality.”
The agency will accept comment 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.
Additionally, today, at the 2022 White House Tribal Nations Summit, Administrator Regan together with 16 other federal agencies, announced new best practices for Tribal Treaty and Reserved Rights. This set of documents will further the Biden-Harris Administration’s commitment to engage in regular, meaningful, and robust consultation with Tribal governments and strengthen the protection of Tribal treaty rights
The best practices include three documents: (1) Best Practices for Identifying and Protecting Tribal Treaty Rights, Reserved Rights, and other Similar Rights in Federal Regulatory Actions and Federal Decision-Making; (2) a shorter Best Practices Field Guide; and (3) a Decision Flow Chart. These best practices were developed in consultation with Tribal Nations and implements the agencies’ Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights.
For more information about the best practices documents visit the EPA’s Clean and Safe Water in Indian Country website.