EHS Administration, Regulatory Developments

EPA Proposes First Tribal CWA Protections

The EPA announced proposed federal baseline water quality standards (WQSs) for water bodies on Indian reservations that don’t have Clean Water Act (CWA) standards, ensuring protections for over half a million people living on Indian reservations, as well as critical aquatic ecosystems.

Congress’s established goal in passing the CWA 50 years ago was that waters should support fishing and swimming wherever attainable. All states and 47 tribes have established standards consistent with that goal. However, most U.S. tribes with Indian reservations lack such WQSs. 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.  Today’s 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 in an Agency news release. “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.”

WQSs define the water quality goals for a water body and provide a regulatory basis for many actions under the CWA, including developing water quality-based effluent limits in National Pollutant Discharge Elimination System (NPDES) permits for point sources, performing CWA Section 401 certifications of federal licenses and permits, and reporting on water quality conditions and designated uses attainment.

If finalized, this proposal will safeguard water quality on Indian reservations until tribes are able to adopt their own CWA standards for their water bodies. The EPA estimates the proposed 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.

WQSs 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 the EPA to tailor the standards where needed to best protect local circumstances.

The proposal carries out the commitments to honor the federal trust responsibility and protect tribal water resources outlined in the EPA’s 2021 action plan, Strengthening the Nation-to-Nation Relationship with Tribes to Secure a Sustainable Water Future.

Comments will be accepted on the proposed regulation on the Federal eRulemaking Portal under Docket #EPA-HQ-OW-2016-0405 until August 3, 2023.

For more information on the proposed regulations and scheduled public hearings, see the EPA Promulgation of Tribal Baseline Water Quality Standards Under the CWA website.

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