# Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-09427 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 2, 2024 - **Citation:** 89 FR 35717 ## Text 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. SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing revisions to the Clean Water Act (CWA) water quality standards (WQS) regulation to add requirements for states establishing WQS in waters where Tribes hold and assert rights to CWA-protected aquatic and aquatic-dependent resources reserved through treaties, statutes, or Executive orders. DATES: This final rule is effective on June 3, 2024. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2021-0791. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Jennifer Brundage or Kelly Gravuer, Office of Water, Standards and Health Protection Division (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-1265 or (202) 566-2946; email address: brundage.jennifer@epa.gov or gravuer.kelly@epa.gov . 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. 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. 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. 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: 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 Category Examples of potentially affected entities Industry Industrial point sources that discharge pollutants. Municipalities, including those with stormwater or combined sewer system outfalls Publicly owned treatment works or similar facilities responsible for managing stormwater, separate sanitary, or combined sewer systems that discharge pollutants. 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. 4 See Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361 (December 5, 2022). One hundred sixty-two organizations and individuals submitted comments on a range of issues. Some comments addressed issues beyond the scope of the rulemaking, and thus the EPA did not consider them in finalizing this rule. In this preamble, the EPA explains how it responded to certain comments received on aspects of the proposal. For a complete summary of all comments received and the EPA's responses, see the EPA's Response to Comments document in the official public docket. For a summary of input received from Tribes during the Tribal consultation and coordination period, please see section VI.F of this preamble. III. Statutory and Regulatory Background A. Clean Water Act The CWA establishes the basic structure for regulating pollutant discharges into waters of the United States. In the CWA, Congress established the national objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and to achieve “wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water” (CWA sections 101(a) and 101(a)(2)). CWA section 303(c) directs states to adopt WQS for waters of the United States. The core components of WQS are designated uses, water quality criteria, and antidegradation requirements. Designated uses establish the environmental objectives for a water body, such as public drinking water supply, propagation of fish, shellfish and wildlife, or recreation. Water quality criteria define the minimum conditions necessary to achieve those environmental objectives. Antidegradation requirements maintain and protect water quality that has already been achieved. WQS serve as the basis for several CWA programs, including: • Water body assessments, identification of impaired waters, and development of total maximum daily loads (TMDLs) under CWA sections 305(b) and 303(d); • Certifications of Federal licenses and permits under CWA section 401; • Water quality-based effluent limits in National Pollutant Discharge Elimination System (NPDES) permits issued by approved state programs or by the EPA under CWA section 402; and • Permits for dredged or fill material under CWA section 404. Section 303(c)(2)(A) of the CWA provides that “[water quality] standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” CWA section 303(c)(2)(A) and the EPA's implementing regulation at 40 CFR part 131 require, among other things, that a state's WQS specify appropriate designated uses of the waters, and water quality criteria to protect those uses. 5 Such criteria must be based on sound scientific rationale, must contain sufficient parameters to protect the designated use, must support the most sensitive use where multiple use designations apply, and may be expressed in either narrative or numeric form. 6 In addition, 40 CFR 131.10(b) provides that “[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into 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.” 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. 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 7 See 40 CFR 131.12. 8 See 40 CFR 131.13. 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. 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). 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. 11 2021 Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights. Available online at https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf . 12 United States v. Winans, 198 U.S. at 381. 13 Id. 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 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.”). 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 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 19 Mille Lacs, 526 U.S. at 200 (internal citations omitted); see also County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (“it is well established that treaties should be construed liberally in favor of the Indians with ambiguous provisions interpreted for their benefit”). 20 Mille Lacs, 526 U.S. at 196 (“[W]e interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.”); Jones v. Meehan, 175 U.S. 1, 11 (1899) (A “treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”). 21 Mille Lacs, 526 U.S. at 202 (“Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so.”); United States v. Dion, 476 U.S. 734, 739-40 (1986) (noting that in finding congressional intent to abrogate “[w]hat is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and the Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty”). 22 See e.g., Hagen v. Utah, 510 U.S. 399, 423-24 (1994) (“For more than 150 years, we have applied this canon in all areas of Indian law to construe congressional ambiguity or silence, in treaties, statutes, Executive orders, and agreements, to the Indians' benefit.”); County of Yakima v. Confederated Tribes, 502 U.S. 251, 268-69 (1992) (quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 766 (1985)) (“statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit”); Alaska Pacific Fisheries Co. v. U.S., 248 U.S. 78, 89 (1918) (“statutes passed for the benefit of dependent Indian Tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians”); but see Penobscot Nation v. Frey, 3 F.4th 484, 502 (1st Cir. 2021) (holding that the Indian canons of construction were inapplicable to statutes settling Indian land claims in Maine). 23 See Winters v. United States, 207 U. S. 564, 576-577 (1908) (applying the canons and holding that the Tribe was entitled to federally reserved rights to the Milk River); Parravano, 70 F.3d at 544 (applying the canons to determine the scope of Tribes' reserved fishing rights under Executive orders and a statute). 24 U.S. Constitution, Art. II, section 2, cl. 2; S. Dakota v. Bourland, 508 U.S. 679, 690 (1993) (Statutory language providing that “the sum paid by the Government to the Tribe for former trust lands taken for the Oahe Dam and Reservoir Project, `shall be in final and complete settlement of all claims, rights, and demands' of the Tribe or its allottees” made clear that the Tribe no longer retained its treaty right to regulate hunting and fishing); Dion, 476 U.S. at 739 (While Congress has the power to abrogate a treaty, “the intention to abrogate or modify a treaty is not to be lightly imputed . . . Indian treaty rights are too fundamental to be easily cast aside.”); U.S. v. McAlester, 604 F.2d 42, 62-63 (10th Cir. 1979) (describing the history of the Choctaw Tribe's treaty-making with the United States, including several treaties in the late 1700s and early 1800s providing rights to lands that were later lost due to the Indian Removal Act of 1830, which “finally forced the Choctaw Nation to agree . . . to relinquish all its lands east of the Mississippi River and to settle on lands west of the Arkansas Territory”). 25 Bureau of Indian Affairs, Frequently Asked Questions, available at https://www.bia.gov/frequently-asked-questions (noting that “[t]he treaties that were made often contain commitments that have either been fulfilled or subsequently superseded by Congressional legislation”); Robinson v. Jewell, 790 F.3d 910, 918 (9th Cir. 2015) (holding that an 1851 Treaty was never ratified by the Senate and thus carries “no legal effect.”). 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 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). 2. Tribal Reserved Rights and Water Quality Standards As explained in the proposed rulemaking, the EPA has previously addressed reserved rights held by Tribes in state-specific WQS actions. In this final rule, the agency is including additional information on its prior approaches to addressing how WQS should account for such rights, consistent with comments requesting that the agency provide a fuller description of how the requirements in this final rule differ from the agency's prior actions. From 2015 through 2017, the EPA took actions related to three state WQS submittals where affected Tribes had asserted that they held reserved fishing rights. In those actions, the EPA “harmoniz[ed] the requirements of the CWA with the terms of” applicable statutes (in Maine) and treaties (in Washington and Idaho) and found that, based on that harmonization, the WQS submitted by those states were not sufficiently protective of the applicable reserved rights. 31 First, in 2015, the EPA disapproved certain human health criteria adopted by the State of Maine because they did not adequately account for Tribal members' rights to fish for sustenance, reserved under applicable Federal statutes. The agency explained that the initial step in reaching that outcome was to “harmonize the CWA requirement that WQS must protect uses with the fundamental purpose for which land was set aside for the Tribes under the Indian settlement acts in Maine.” 32 The agency explained that, pursuant to that harmonization, the “EPA interprets the State's `fishing' designated use, as applied in Tribal waters, to mean `sustenance' fishing.” 33 31 See Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Department of Environmental Protection, “Re: Review and Decision on Water Quality Standards Revisions” (February 2, 2015); Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 FR 85417, 85424 (November 28, 2016); Letter from Dennis McLerran, Regional Administrator, EPA Region 10, to John Tippets, Director, Idaho Department of Environmental Quality, “The EPA's Preliminary Review of DEQ'S December 13, 2016 Submittal of New and Revised Human Health Criteria” at 10 (January 19, 2017). 32 Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Department of Environmental Protection, “Re: Review and Decision on Water Quality Standards Revisions” (February 2, 2015). 33 Id. Similarly in 2016, in promulgating human health criteria for the State of Washington, the EPA noted that most waters covered by the state's WQS were subject to Federal treaties that reserved Tribal fishing rights. The agency again harmonized the applicable treaties with the CWA and the EPA's WQS regulation and found that it was appropriate to interpret the state's relevant designated use to “include or encompass a subsistence fishing component.” 34 The EPA articulated a similar position in a January 2017 letter to Idaho regarding human health criteria submitted by Idaho in December 2016, reiterating the “need to consider treaty-reserved fishing rights and harmonize those rights with the [CWA] when deriving criteria necessary to protect Idaho's designated uses for fishing.” 35 34 81 FR 85417, 85424 (November 28, 2016). 35 Letter from Dennis McLerran, Regional Administrator, EPA Region 10, to John Tippets, Director, Idaho Department of Environmental Quality, “The EPA's Preliminary Review of DEQ'S December 13, 2016 Submittal of New and Revised Human Health Criteria” at 10 (January 19, 2017). In each of these three actions, the EPA harmonized the CWA with the specific treaties or statutes by interpreting the relevant state uses. Based on that interpretation of each state's respective use as protecting applicable reserved rights, the agency concluded that in order to protect those uses, each state's human health criteria needed to protect Tribal members exercising the right to the same level as each state's respective general population, and the fish consumption rates used to derive those criteria needed to reflect unsuppressed consumption by that state's Tribal fish consumers. 36 36 See Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Department of Environmental Protection, “Re: Review and Decision on Water Quality Standards Revisions” (February 2, 2015); Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 FR 85417, 85424 (November 28, 2016); Letter from Dennis McLerran, Regional Administrator, EPA Region 10, to John Tippets, Director, Idaho Department of Environmental Quality, “The EPA's Preliminary Review of DEQ'S December 13, 2016 Submittal of New and Revised Human Health Criteria” at 10 (January 19, 2017). These actions followed a December 2014 memorandum from the EPA Administrator Gina McCarthy that discussed the EPA's role with respect to Tribal treaty rights. 37 This memorandum was issued to commemorate the 30th anniversary of the EPA's 1984 Indian Policy, which addressed many issues related to the EPA's relationship with federally recognized Tribes and implementation of the EPA's statutes in Indian country, but did not expressly address the EPA's consideration of Tribal treaty and other reserved rights. 38 In pertinent part, the 2014 memorandum provides that the “EPA has an obligation to honor and respect Tribal rights and resources protected by treaties,” and that the “EPA must ensure its actions do not conflict with Tribal treaty rights.” 39 In 2016, as part of the agency's efforts to implement the memorandum, the EPA issued an addendum to its Tribal consultation policy entitled “Guidance for Discussing Tribal Treaty Rights” with the purpose of enhancing the EPA's consultations where agency actions may affect Tribal treaty rights. 40 The goal of this document was to help ensure that the EPA's actions do not conflict with treaty rights, and that the EPA is fully informed as it seeks to implement its programs to further protect Tribal treaty rights and resources when it has discretion to do so. 41 Even before this guidance was issued in 2016, the EPA routinely discussed Tribal treaty rights during consultation with Tribes. For example, in the agency's actions in Maine, Washington, and Idaho with regard to WQS, the EPA undertook extensive consultation with the federally recognized Tribes in those states which included, consistent with the objectives of that guidance, gathering information regarding relevant reserved rights. 42 37 U.S. EPA, Memorandum, Commemorating the 30th Anniversary of the EPA's Indian Policy (December 1, 2014), available at https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf . 38 Id. See also U.S. EPA, EPA Policy for the Administration of Environmental Programs on Indian Reservations (November 8, 1984), available at https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf . 39 U.S. EPA, Memorandum, Commemorating the 30th Anniversary of the EPA's Indian Policy (December 1, 2014), available at https://www.epa.gov/sites/production/files/2015-05/documents/indianpolicytreatyrightsmemo2014.pdf . 40 U.S. EPA, EPA Policy on Consultation and Coordination with Indian Tribes: Guidance for Discussing Tribal Treaty Rights (February 2016), available at https://www.epa.gov/sites/default/files/2016-02/documents/tribal_treaty_rights_guidance_for_discussing_tribal_treaty_rights.pdf . 41 Id. 42 See U.S. EPA Region 1, Responses to Public Comments Relating to Maine's January 14, 2013, Submission to EPA for Approval of Certain of the State's New and Revised Water Quality Standards (WQS) That Would Apply in Waters Throughout Maine, Including Within Indian Territories or Lands (January 30, 2015), at 1540 (describing Tribal consultation); 81 FR 85417 at 85435 (November 28, 2016). Although the agency did not rescind the Memorandum and Guidance for Discussing Tribal Treaty Rights, in subsequent state-specific WQS actions taken in 2019 the agency disavowed the approach to protecting Tribal reserved rights that the EPA had set forth in the Maine (2015) and Washington (2016) actions, as well as in the EPA's 2017 letter to the State of Idaho regarding protection of applicable treaty rights in that state. 43 In 2019, the EPA approved Idaho's human health criteria, despite its prior expression of concern that the state's WQS did not sufficiently protect applicable Tribal reserved rights. 44 In its approval, the EPA acknowledged the approach the agency had applied in Maine and Washington in 2015 and 2016 but noted that that approach “had not been promulgated in any nationally applicable rule or articulated in any national recommended guidance,” and had not gone through public comment prior to the agency applying it in those states. 45 To the extent that assertion implied a procedural deficiency, that assertion is now moot because the agency is establishing, through this rule, regulatory requirements addressing how WQS are to reflect consideration and protection of applicable Tribal reserved rights, as defined by this rule. 43 See e.g., U.S. EPA, Letter and enclosed Technical Support Document from Chris Hladick, Regional Administrator, EPA Region 10, to John Tippets, Director, Department of Environmental Quality, Re: EPA's Approval of Idaho's New and Revised Human Health Water Quality Criteria for Toxics and Other Water Quality Standards Provisions (April 4, 2019) at 10; U.S. EPA, Letter and enclosed Technical Support Document from Chris Hladick, Regional Administrator, EPA Region 10, to Maia Bellon, Director, Department of Ecology, Re: EPA's Reversal of the November 15, 2016 Clean Water Act Section 303(c) Partial Disapproval of Washington's Human Health Water Quality Criteria and Decision to Approve Washington's Criteria (May 10, 2019), at 21. 44 U.S. EPA, Letter and enclosed Technical Support Document from Chris Hladick, Regional Administrator, EPA Region 10, to John Tippets, Director, Department of Environmental Quality, Re: EPA's Approval of Idaho's New and Revised Human Health Water Quality Criteria for Toxics and Other Water Quality Standards Provisions (April 4, 2019) at 10. 45 Id. at 10-11. The legal basis for the requirements in this final rule differs in an important respect from the legal underpinnings of the agency's WQS disapprovals in Maine and Washington in 2015 and 2016, respectively, and the EPA's 2017 letter to Idaho regarding its WQS. Namely, as explained above, the legal rationale for those actions was harmonizing the CWA and existing regulatory requirements with specific Federal treaties and statutes and concluding that, read together, the CWA and WQS regulatory requirements and the respective treaties and statutes justified interpreting existing state designated uses to encompass relevant Tribal fishing rights. 46 As explained in section III.C of this preamble, the EPA's authority to add the requirements set forth in this final rule does not derive from harmonizing a specific treaty, statute, or Executive order with the CWA. Rather, the regulatory requirements in this final rule are an exercise of the EPA's CWA oversight function provided by Congress in CWA section 303(c). 46 See Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Department of Environmental Protection, “Re: Review and Decision on Water Quality Standards Revisions” (February 2, 2015); Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 FR 85417, 85424 (November 28, 2016); Letter from Dennis McLerran, Regional Administrator, EPA Region 10, to John Tippets, Director, Idaho Department of Environmental Quality, “The EPA's Preliminary Review of DEQ'S December 13, 2016 Submittal of New and Revised Human Health Criteria” at 10 (January 19, 2017). While the legal basis for these requirements differs from that of the EPA's 2015-2017 actions in Maine, Washington, and Idaho, there are similarities between the substantive elements of this final rule and what the EPA found would protect applicable Tribal reserved rights in those actions. Namely, in those actions, the EPA found that the applicable human health criteria needed to protect Tribal members to the same risk level as the states' general populations at an unsuppressed fish consumption rate. In this rule, as described in section IV of this preamble, the EPA is explicitly adding similar, though not identical, carefully tailored requirements regarding uses, suppression, and risk level in its regulation governing the establishment of WQS that reflect extensive input from states, Tribes, and the regulated community and are grounded in the CWA and consistent with the EPA's longstanding approach to overseeing state WQS. C. EPA Authority 1. CWA Statutory Authority for This Final Rule The EPA's authority for this rule derives primarily from section 303(c) of the CWA. In CWA section 303(c), Congress set forth statutory requirements governing the establishment of WQS and tasked the EPA with overseeing state implementation of and compliance with those requirements. 47 Congress established a structure whereby states are responsible for establishing WQS applicable to their waters, obtaining the EPA's approval of those standards, and reviewing their standards at least once every three years. Congress also provided direction regarding the nature of such standards. As noted previously, CWA section 303(c) provides that WQS “shall be such as to protect the public health or welfare, enhance the quality of water, and serve the purposes of” the Act. 48 It further provides that WQS “shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” 49 State discretion to determine appropriate standards for their waters is not unfettered. 50 While CWA section 303(c) directs states to establish WQS in the first instance, Congress expressly gave the EPA the responsibility to review state WQS, and to disapprove them and promulgate Federal standards if state standards do not meet the applicable requirements of the Act. 51 The “EPA is permitted—and in fact statutorily required—to scrutinize a state's water quality standards.” Id. The Act “requires EPA to determine whether the standard is `consistent with' the Act's requirements.” 52 47 See CWA section 303(c)(2)(A), 303(c)(3) and (4). 48 See CWA section 303(c)(2)(A). 49 Id. 50 See El Dorado Chem. Co. v. EPA, 763 F.3d 950, 956 (8th Cir. 2014). 51 See CWA section 303(c)(3) and 4. 52 See Miss Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 1275-76 (5th Cir. 1980). To inform the EPA's statutorily mandated review of state WQS, the EPA's implementing regulation at 40 CFR part 131 specifies requirements for state WQS submissions. This rule, like the existing requirements in 40 CFR part 131, is issued in exercise of the EPA's oversight authority in CWA section 303(c) and is in accordance with the EPA's longstanding general approach to implementing CWA section 303(c), which is to “use standards as a basis of restoring and maintaining the integrity of the Nation's waters.” 53 The operative requirements in this rule are set forth in 40 CFR 131.9 and explained in detail in section IV of this preamble. This explanation includes the EPA's authority to add the specific requirements in 40 CFR 131.9. 53 Water Quality Standards Regulation, 48 FR 51400 (November 8, 1983). While CWA section 303(c) is the substantive source of authority for this rule, CWA section 501 authorizes the agency to prescribe regulations as necessary to carry out the Administrator's functions under the Act, 54 and the EPA has from time to time issued regulations necessary to carry out its functions under CWA section 303(c). Those regulations, codified at 40 CFR part 131, provide a framework for implementing CWA section 303(c) and related sections, translating the statutory provisions, processes, and directives in CWA section 303(c) into specific requirements consistent with the statutory scheme. This rule adds to that existing framework. 54 See also E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 132 (1977) (“501(a) . . . gives EPA the power to make `such regulations as are necessary to carry out' its functions”). The EPA received many comments asserting that the EPA lacks authority to promulgate the requirements in this rule. The EPA disagrees. The statutory bases for the EPA's action are outlined above and explained in detail in section IV of this preamble. Specific contentions that the EPA lacks authority for particular aspects of this rule are addressed in section IV of this preamble. As described further in section IV of this preamble, these regulatory changes are designed to ensure that WQS will in fact “protect the public health and welfare,” including the health and welfare of right holders, and otherwise serve the purposes of the Act, and that consideration of the waters' “use and value” does not overlook right holders' use pursuant to the identified reserved rights. 55 55 See CWA section 303(c)(2)(A). Some commenters asserted that the EPA improperly relied on CWA section 511 as a grant of regulatory authority. These commenters assert that CWA section 511 is a savings clause and an interpretative limitation on the CWA as a whole rather than a basis for these requirements. The EPA is clarifying that, contrary to the characterizations in these comments, the agency is not relying on CWA section 511(a)(3) as a source of rulemaking authority. In the proposed rulemaking, the agency acknowledged that there may be instances where a later-enacted statutory provision intentionally limits federally reserved rights, citing to United States v. Dion, 476 U.S. 734, 739-40 (1986). In that case, the Supreme Court applied the principle that courts will not find that Congress intends to abrogate a treaty right absent an indication of clear Congressional intent to do so, holding that “Congressional intent to abrogate Indian treaty rights to hunt bald and golden eagles is certainly strongly suggested on the face of the Eagle Protection Act,” the statute at issue in that decision. 56 The EPA's reference to CWA section 511(a)(3) in the proposed rulemaking was to illustrate that there is no such similar Congressional intent to abrogate treaty rights in the CWA, given that in section 511 Congress explicitly provided that the Act “shall not be construed as . . . affecting or impairing the provision of any treaty of the United States.” 57 While it is not an affirmative grant of authority, CWA section 511(a)(3) nonetheless supports the agency's approach in adding these requirements, which, in practice, will aid in ensuring that WQS will not “affect[ ] or impair[ ] the provisions” of treaties reserving rights to aquatic or aquatic-dependent resources. Indeed, the requirements in this rule will help to ensure that future WQS reflect consideration of and provide protection for treaty rights, where applicable. As explained above, rather than relying on CWA section 511(a)(3) as an affirmative source of authority for this rule, the EPA's substantive authority to promulgate this rule derives from CWA section 303(c). 56 Dion, 476 U.S. at 739-40. 57 See CWA section 511(a)(3); Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74379 (December 5, 2022). 2. Legal Significance of Applicable Treaties, Statutes, or Executive Orders In Informing This Final Rule's Requirements In this final rule, the EPA is clarifying that these requirements are not based on any one treaty, statute, or Executive order, but rather reflect the EPA's judgment regarding the necessary considerations and level of protection appropriate under the CWA where such rights apply. In the proposed rulemaking, the EPA explained that, in exercising its CWA section 303(c) authority, the EPA is ensuring that its actions are consistent with treaties, statutes, Executive orders, and other sources of Federal law reflecting reserved rights of Tribes. The EPA received some public comments reflecting confusion regarding how the interpretation of a relevant treaty, statute, or Executive order relates to the rule's requirements. Specifically, these commenters stated that the EPA was placing an undue reliance on judicial decisions in which courts have found that reserved rights to an aquatic resource also encompass subsidiary rights to support the resource. 58 These commenters opined that those decisions do not stand for the proposition that a resource reserved pursuant to a treaty, statute, or Executive order demands a certain level of water quality. The EPA disagrees with these comments because they misconstrue the role of this framework rule and the relevant inquiry into Tribal reserved rights, as used in this rule. 59 58 One commenter also cited to case law in which a court held that a treaty right to fish did not equate to “an absolute right to the preservation of the fish runs in their original 1855 [treaty] condition, free from all environmental damage caused by the migration of increasing numbers of settlers and the resulting development of land.” Nez Perce v. Idaho Power, 847 F. Supp. 791, 808 (D. Id. 1994). 59 In response to comments on a 2020 decision reversing aspects of the EPA's 2015 Maine WQS disapproval, the EPA expressed a similar view to these commenters. There, the EPA asserted that it was “unnecessary” to ensure protection of applicable statutorily reserved rights because the Indian land claims settlement statutes at issue did not “themselves . . . address or reference designated uses, water quality criteria, or the desired condition or use goal of the waters covered by the sustenance fishing provisions.” As explained herein, the EPA has clarified that whether the relevant treaty, statute, or Executive order explicitly references water quality or has been interpreted to imply a right to a certain level of water quality is not relevant to applying this rule. Consideration of whether Tribal treaty, statutory or Executive order-based rights are applicable turns in part on whether they reserved a right to aquatic and/or aquatic-dependent resources that are protected under the CWA. If they do, and they are asserted by right holders, then the requirements in this rule would apply such that consideration of those rights would be part of the standard-setting process under CWA section 303(c). Their consideration in that process, however, does not hinge on whether the relevant treaty, statute, or Executive order, explicitly references water quality or has been interpreted to imply a right to a certain level of water quality. The requirements set forth in this final rule are not premised on any one treaty, statute, or Executive order, and, accordingly, the rule's substantive water quality requirements set forth in 40 CFR 131.9 do not stem from any potential water quality subsidiary rights in any one treaty, statute, or Executive order. Rather, the rule's requirements are premised on the EPA's recognition of the multitude of Federal treaties, statutes, and Executive orders that reflect various reserved rights to aquatic and aquatic-dependent resources held by Tribes. Whether, and how, a particular reserved right applies will be determined on a case-by-case basis given the facts and the relevant Federal treaties, statutes, and Executive orders. For purposes of this rule's application in a specific context, the relevant question is not whether a treaty, statute, or Executive order is properly interpreted to reserve a subsidiary right to a particular level of water quality, but rather, whether such an instrument is properly interpreted to reserve a right to an aquatic or aquatic-dependent resource. For example, does a treaty reserve a right to fish? If so, this rule's requirements are aimed at ensuring that where Tribes wish to bring such rights to the state's attention, the state will consider the Tribe's assertion of the right in following the well-established standard setting process pursuant to the EPA's CWA section 303(c) implementing regulation at 40 CFR part 131. In that context, where supported by available data and information, the state will take into consideration whether water quality is sufficient to protect that aquatic resource and right holders exercising their right to that resource. In this final rule, the agency is revising its implementing regulation to set forth a transparent framework to ensure that such aquatic resource rights are protected under the CWA. Some commenters also asserted that the then-pending Supreme Court case, Arizona v. Navajo Nation, is relevant to this rule and/or that the United States' position in that case was inconsistent with the EPA's position in the proposed rulemaking. The issue in that case was whether the United States has an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation's need for water from particular sources. The Navajo Nation argued, in pertinent part, that implied rights to water quantity pursuant to Winters v. United States, 207 U.S. 564, 576-577 (1908), created such an affirmative fiduciary trust duty. The United States argued that prior Supreme Court decisions made clear that a Tribe cannot sue to enforce an asserted fiduciary trust obligation against the United States unless the Tribe can “identify a specific, applicable, trust-creating statute or regulation that the Government violated.” 60 The Supreme Court issued its opinion on June 22, 2023, holding that, consistent with the United States' position, while pursuant to the Winters doctrine the Tribe held treaty-reserved water quantity rights, those rights “did not require the United States to take affirmative steps to secure water for the Tribe.” 61 60 Petition for Certiorari, United States v. Navajo Nation, Dkt. No. 22-51 at 14 (U.S. July 15, 2022) (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011)). The United States' petition was granted and consolidated with a petition filed by the State of Arizona. Dkt. No. 21-1484. 61 Arizona v. Navajo Nation, 599 U.S. 555, 564 (2023). Nothing in this rule conflicts with or is contrary to that position. As explained above, the EPA's authority for this rule is the CWA. The EPA is not issuing this rule pursuant to any specific, trust-creating language in any treaty, statute, or Executive order. Rather, it is issuing this rule to ensure that, in implementing the CWA's WQS requirements, the EPA and states are adequately considering rights reserved by treaty, statute or Executive order in establishing WQS for waters where Tribal reserved rights, as defined in this rule, apply. As further explained below, this rule also does not apply to rights to specific quantities of water nor address the quantification of Winters rights. Rather, this rule applies to rights to aquatic or aquatic-dependent resources that are protected under the CWA. Accordingly, the EPA disagrees with comments asserting that the Navajo Nation case is relevant here. 3. Basis for Amending the Existing WQS Regulations The EPA established the core of the WQS regulation in a final rule issued in 1983. Since that time, the agency has modified 40 CFR part 131 three times. 62 The agency has explained that such updates have been in response to challenges that “necessitate a more effective, flexible and practicable approach for the implementation of WQS and protecting water quality,” and that such updates are informed by the extensive experience with WQS implementation by states, authorized Tribes, and the EPA. 63 62 See Water Quality Standards Regulatory Revisions, 80 FR 51020, 51021 (August 21, 2015) (Describing the history of the EPA's regulation at 40 CFR part 131). 63 Id. As described above in section III.B.2 of this preamble, in the absence of explicit regulatory requirements aimed at ensuring protection of Tribal reserved rights, the EPA has previously addressed Tribal reserved rights case-by-case in exercising its oversight authority in reviewing state-adopted WQS. Notably, when the EPA promulgated the WQS regulation at 40 CFR part 131 in 1983, the agency considered adding regulatory requirements to ensure that state WQS complied with applicable international treaties. Specifically, in the 1983 final rule establishing the WQS regulation, the agency noted that it had received comments asserting that the EPA should “require States to adopt standards that meet treaty requirements.” 64 In response, the agency explained that such issues “have been adequately resolved previously without the need for regulatory language,” and, accordingly, that the “EPA sees no need to include such language in the Final Rule.” 65 The agency further reasoned that “[a]ny specific treaty requirements have the force of law,” and therefore, “State water quality standards will have to meet any treaty requirements.” 66 64 Water Quality Standards Regulation. 48 FR 51400, 51412 (November 8, 1983). 65 Id. 66 Id. at 51413. With respect to Tribal treaties, part of the rationale that the EPA articulated in the 1983 final rule applies equally here: like international treaties, Tribal treaty requirements have the force of law, and thus, in the context of the CWA where WQS must protect the public health or welfare and enhance the quality of water, state WQS must be consistent with any applicable treaty requirements. However, the other element of the agency's asserted reasoning for not adding explicit requirements regarding international treaties has less application here. Namely, while issues regarding WQS and international treaties had been “resolved previously without the need for regulatory language,” such resolution—while it has occurred—has been more challenging with respect to issues with WQS and Tribal treaties. 67 As detailed above, in practice the application of specific Tribal reserved rights in the WQS context has lacked consistency and transparent national expectations. The agency's prior incorporation of rights reserved to Tribes by treaty or other sources of Federal law in the WQS context was premised on harmonizing the relevant treaties or statutes with existing CWA requirements, and included interpreting Maine, Washington, and Idaho's fishing designated uses, which those states opposed. 68 That opposition was in part based on those states' views of their own uses, as well as what those states perceived as a new approach to WQS that was taken without notice and comment. 69 The explicit regulatory requirements contained in this final rule, which the agency is promulgating after receiving input from states, Tribes, and other commenters, are thus necessary to establish a set of consistent procedures, expectations, and definitions. 67 The EPA previously took the position that the best way to ensure that risk levels and criteria protect Tribal reserved rights is in reviewing WQS submissions. In response to comments on the EPA's 1998 draft Human Health Methodology revisions, the agency asserted: “As stated in the 1998 draft Methodology revisions, `risk levels and criteria need to be protective of tribal rights under Federal law ( e.g., fishing, hunting, or gathering rights) that are related to water quality.' We believe the best way to ensure that Tribal treaty and other rights under Federal law are met, consistent with the Federal trust responsibility, is to address these issues at the time EPA reviews water quality standards submissions.” ( See 65 FR 66444, 66457 (November 3, 2000)). As explained herein, the EPA has revisited the latter position based on its subsequent application of these principles and is now finalizing these regulations to establish transparent national expectations with respect to WQS and Tribal rights. 68 See Plaintiff's Motion for Judgment on the Administrative Record, Maine v. Pruitt, No. 1:14-cv-00264-JDL. Dkt. No. 119 at 19 (D. Me. 2018) (Asserting that the EPA's interpretation of Maine's fishing use, with which the State disagreed, and related requirements to protect that use were “never subjected to any public notice, comment or other process.”); Amicus Curiae the State of Idaho's Brief in Support of Plaintiffs, Maine v. Pruitt, No. 1:14-cv-00264-JDL, Dkt. No. 126 at 9 (D. Me. 2018). 69 See id.; see also Northwest Pulp & Paper Association, et al., Petition for Reconsideration of EPA's Partial Disapproval of Washington's Human Health Water Quality Criteria and Implementation Tools submitted by the State of Washington on August 1, 2016, and Repeal of the Final Rule Revision of Certain Federal Water Quality Standards Applicable to Washington (February 21, 2017). IV. Overview of This Final Rule A. Definitions and Scope This final rule provides new regulatory definitions of “Tribal reserved rights” and “right holders” at 40 CFR 131.3. This rule defines Tribal reserved rights, for purposes of 40 CFR part 131, as “any rights to CWA-protected aquatic and/or aquatic-dependent resources reserved by right holders, either expressly or implicitly, through Federal treaties, statutes, or executive orders.” Similarly, for purposes of 40 CFR part 131, this final rule defines “right holders” as “any Federally recognized Tribes holding Tribal reserved rights, regardless of whether the Tribe exercises authority over a Federal Indian reservation.” The scope of resources covered by this final rule is reflected in the definition of “Tribal reserved rights,” which refers to “rights to CWA-protected aquatic and/or aquatic-dependent resources.” 1. Changes to Proposed Definitions The final definitions differ from the proposed definitions in three ways, based on public input. First, the EPA added “for purposes of this part,” to both the definitions of “Tribal reserved rights” and “right holders,” simplified the definition of “right holders” to reference the definition of “Tribal reserved rights” to reduce redundancy, and added “CWA-protected” to the definition of “Tribal reserved rights.” Second, the EPA revised both definitions to address comments about potential confusion with the definition of “Indian Tribe or Tribe” at 40 CFR 131.3(l). Third, in the definition of “Tribal reserved rights” the EPA added “Federal” before “treaties, statutes, or executive orders” and deleted “or other sources of Federal law.” These changes from proposal are discussed, in turn, below. The first set of revisions the EPA made to the proposed definitions at 40 CFR 131.3 was to add “for purposes of this part,” to both the definitions of “Tribal reserved rights” and “right holders” to clarify that both new definitions are applicable only for purposes of the EPA's 40 CFR part 131 regulation. The EPA made this change in response to some commenters who requested that the EPA revise the definition of “Tribal reserved rights” to clarify that the way Tribal reserved rights are considered in the WQS context does not dictate or limit how those rights could be considered in other contexts. Similarly, the EPA's addition of the phrase “CWA-protected” in the definition of “Tribal reserved rights” clarifies that for purposes of this rule the EPA is establishing that definition pursuant to its CWA authority, for consideration in the WQS context. This also does not dictate or limit how treaty, statutory or Executive order-based reserved rights may be considered in other contexts. In response to comments noting that the proposed definition of “right holders” was redundant because it repeated the definition of “Tribal reserved rights” from 40 CFR 131.3(r), the EPA replaced “holding rights to aquatic and/or aquatic dependent resources pursuant to . . .” with “holding Tribal reserved rights.” The second change the EPA made to the proposed definitions at 40 CFR 131.3 is intended to clarify that the definition of “Indian Tribe or Tribe” at 40 CFR 131.3(l) is not implicated in the definitions of either “Tribal reserved rights” or “right holders.” Some commenters noted that the definition of “Indian Tribe or Tribe” at 40 CFR 131.3(l) is limited to federally recognized Tribes “exercising governmental authority over a Federal Indian reservation.” This definition mirrors the definition in CWA section 518(h), which defines “Indian Tribe or Tribe” as “any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal 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. 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. 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 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. 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). 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. 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). 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 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.”). 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 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. 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 § 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 §§ 131.9(a)(1) through (3) only apply where “a right holder has asserted a Tribal reserved right in writing to the State and EPA for consideration in establishment of [WQS].” The EPA also revised the proposed language at 40 CFR 131.6, discussed further below. 78 The EPA notes that a right holder asserting a right does not necessarily mean that application of 40 CFR 131.9 will lead to a WQS revision in that instance. 79 See Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74367 (December 5, 2022). 80 Id. 81 In its slides for the public hearings on the proposed rulemaking, the EPA stated, “Whether reserved rights apply to waters subject to a specific new/revised WQS is a complex inquiry that will be informed by several factors, including: input from the right holders; language of the treaties, statutes, or Executive orders and relevant judicial precedent.” See https://www.epa.gov/system/files/documents/2023-02/01-24-23-Reserved-Rights-Public-Hearing-Slides-508.pdf . 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 82 The EPA has included in the docket for this rule an example implementation scenario illustrating the types of information that could constitute an assertion of rights for consideration in establishment of WQS, as well as the process steps leading from an assertion of rights to state adoption of new or revised WQS and the EPA's approval or disapproval. The EPA expects to further work with Tribes and states in the implementation of this rule. Second, this revision provides states with requested clarity regarding the scope of rights that they need to consider in the WQS context, i.e., those rights asserted by right holders. The EPA received some comments expressing concerns regarding implementation of the rule and the potential burden placed on states if they had to independently identify all applicable Tribal reserved rights in their waters before proceeding with WQS revisions. This change clarifies that such an identification is not required to comply with this rule. However, the EPA recommends that states engage with Tribes at the earliest stages of their WQS development processes to gain additional knowledge regarding any potentially applicable reserved rights and related WQS concerns before right holders assert those rights. The EPA understands from public comments that some states are already aware of potentially applicable reserved rights and routinely engage with right holders on WQS and other actions that may impact those rights; the EPA encourages that practice. By proactively providing opportunities for Tribes to engage in the WQS development process (for example, by notifying all federally recognized Tribes in the early stages of a triennial review that the Tribes may be affected by amendments to a state's WQS), states can best position right holders to make informed decisions about whether to assert their reserved rights at a stage when the state has the most flexibility to consider new information and use that information to develop revised WQS, as appropriate. The EPA is also available to assist states in identifying potential right holders. Some commenters requested that the EPA and states keep confidential certain information about Tribal reserved rights, such as culturally sensitive information on water uses. Where a Tribe has concerns about sensitivity of 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. 83 See https://www.epa.gov/foia/learn-about-foia. The requirements in 40 CFR 131.9(a) are premised on states having “available data and information” supporting the application of those requirements. As explained above in this section of this preamble, once a right holder asserts a right, the state would seek available data and information, with assistance from the EPA if requested, and then evaluate the data and information to determine whether and how WQS may need to be revised to comply with 40 CFR 131.9(a). The EPA and the state will need to make their decisions based on the information available at the time of the WQS revision. Where a right holder asserts a right but only limited data and information about the nature and scope of the right, or the level of protection required to protect the relevant resource, can be found at the appropriate stage in the state's WQS development process (for example, before a state has duly adopted its WQS and/or the WQS are before the EPA for review under CWA section 303(c)), it could be reasonable to conclude that the information was not “available” per § 131.9(a) when the WQS were being developed. The triennial review process exists to ensure that any new information that was not previously addressed is considered and incorporated in a future WQS revision, as appropriate. In such cases, the state, the right holder, and the EPA should discuss next steps for a future WQS revision to address the new information, as needed, as well as how the right could be protected until that future WQS revision occurs ( e.g., through implementation of a narrative criterion). A few commenters raised concerns about the complexity for right holders with rights that span multiple states of needing to engage with different states on different WQS revision timelines and with different strategies for protecting Tribal reserved rights. In such situations, if requested by one or more states or Tribes, the EPA is available to engage with multiple states and right holders to negotiate regional solutions. Some commenters stated that the phrase “to the extent supported by available data and information” needed additional clarification on the appropriate data that would satisfy this requirement. The quality and soundness of available data and information will need to be evaluated case-by-case during the WQS development process. As is currently the case in development of WQS under the EPA's existing regulation at 40 CFR part 131, different parties sometimes have different opinions on the types of data to consider, and the quality and soundness of those data. The EPA received some comments expressing concern that there would be disputes between states and Tribes on appropriate methodologies and/or scientific data and information, and that there is the potential for additional workload burden to resolve these disputes or produce data and information. As stated in 40 CFR 131.9(b), “States and right holders may request EPA assistance with evaluating Tribal reserved rights”—which could include gathering or producing data and information—and “EPA will provide such assistance to the extent practicable.” As for any WQS decision, states must evaluate all the available information and make their decisions based on that information. As explained below in section IV.E, the EPA will review all of the available information and the state's documentation of how that information was considered per 40 CFR 131.6(g) and decide whether to approve or disapprove a state WQS submission in the same way the EPA currently makes decisions when there are disagreements between different parties, including different states, on WQS protections. The EPA requested comment on whether there are other factors it should consider when making WQS decisions where there are gaps in information, and/or a difference of opinion exists between the state and one or more Tribes about the level of water quality necessary to protect a reserved right. A few commenters asserted that relevant Traditional Ecological Knowledge, also referred to as Indigenous Knowledge, should be considered along with other types of data and information; the EPA agrees. Some commenters noted that right holders may need resources and support from the EPA to collect data and information. The EPA intends to provide support to right holders, as well as states, during the WQS development process to help gather available data and evaluate differing scientific views to meet the requirements in this final rule. The EPA has, on occasion, provided funding to collect data and information to inform the level of water quality necessary to support Tribal reserved rights. The EPA could support similar projects in the future, as appropriate and as funding allows. In the proposed rulemaking, 40 CFR 131.9(a) provided that “[w]ater quality standards must protect [T]ribal reserved rights applicable to waters subject to such standards.” 84 In response to comments expressing confusion about the meaning and application of this language, in this final rule, the EPA removed the initial overarching statement of principle proposed at 40 CFR 131.9(a), which the agency did not intend as a stand-alone requirement. 84 See Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 5, 2022). Finally, some commenters requested that the EPA amend proposed 40 CFR 131.9(a) to specify that upstream WQS must protect downstream Tribal reserved rights. The EPA made no changes to the final rule in response to these comments because, pursuant to the existing WQS regulation at 40 CFR 131.10(b), upstream states are already obligated to ensure that their WQS provide for the attainment and maintenance of downstream state WQS, including WQS that protect Tribal reserved rights. 85 Many state WQS already include a broad narrative criterion to protect downstream WQS, for example, or a tailored downstream protection narrative focused on specific waters or pollutants. In practice, where a downstream state's WQS are not yet protective of applicable reserved rights, the EPA would prioritize working with that state and the right holder(s) to gather available data and information and adopt appropriate WQS to protect the rights. 85 USEPA. 2014. Protection of Downstream Waters in Water Quality Standards: Frequently Asked Questions. EPA-820-F-14-001. See https://www.epa.gov/sites/default/files/2018-10/documents/protection-downstream-wqs-faqs.pdf. 1. Considering Tribal Reserved Rights in Designating Uses The final rule at 40 CFR 131.9(a)(1) requires states to consider the use and value of their waters for protecting applicable Tribal reserved rights in adopting or revising designated uses pursuant to 40 CFR 131.10. Specifically, it requires that states must “ [t]ake into consideration . . . Tribal reserved rights in adopting or revising designated uses[.]” (Emphasis added). This requirement is consistent with CWA section 303(c)(2)(A), which provides that WQS “shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” (Emphasis added). The EPA's existing regulation at 40 CFR 131.6(a) requires that each state's WQS submitted to the EPA for review must include “[u]se designations consistent with the provisions of [S]ections 101(a)(2) and 303(c)(2) of the Act.” 86 Some of the uses specified in CWA section 303(c)(2)(A) are also specified in CWA section 101(a)(2), which sets a national goal of “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water,” wherever attainable. The EPA refers to the uses listed in section 303(c)(2)(A) but not listed in section 101(a)(2) as “non-101(a)(2) uses.” 87 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 § 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 § 131.10(g).” 87 See 40 CFR 131.3(q) defining “non-101(a)(2) uses” as “any use unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water.” The EPA is not delineating in this final rule a list of uses that states must take into consideration, but notes that the full scope of uses that states are required to consider under the CWA includes those that are explicitly listed in sections 303(c)(2)(A) and 101(a)(2) of the CWA, and those that are not, as evidenced by Congress' inclusion of the phrase “and other purposes . . .” in CWA section 303(c)(2)(A). As described in section IV.A.2 of this preamble, commenters provided examples of reserved resources and practices that are captured explicitly in CWA sections 101(a)(2) and 303(c)(2)(A) such as propagation of fish and wildlife, as well as examples that are not captured explicitly in either provision but could fall under section 303(c)(2)(A)'s “other purposes,” such as ceremonial practices. As noted above in section III.B.1 of this preamble, rights reserved to Tribes pursuant to treaties, statutes and Executive orders are binding Federal law, and thus, for any such rights that do not already fall within the explicit list of uses set forth in CWA section 101(a)(2) or section 303(c)(2)(A), consideration of waters' use and value for protecting Tribal rights reserved by such legal instruments is encompassed within the “other purposes” clause of CWA section 303(c)(2)(A). 88 88 Grand Portage Band et al. v. EPA, Civil No. 22-1783 (D. Minn. March 29, 2024) at 30 (“States and EPA must consider Tribal treaty rights to aquatic and aquatic-dependent resources to comply with the Clean Water Act and implementing regulations. See 33 U.S.C. 1313(c)(2)-(3), 1371(a); 40 CFR 131.5, 131.6, 131.10(b).”). In this final rule, where a state finds that certain waters have use and value for protecting a Tribal reserved right based on information provided by right holders that have asserted a relevant right, the state would then consider whether those rights are already encompassed by a state's designated uses, or whether a new or revised use may be needed to protect the Tribal reserved right. 40 CFR 131.10 remains the regulatory framework for guiding this consideration. Many state-designated uses already protect the CWA section 101(a)(2) uses, which likely encompass protection of certain Tribal reserved rights. For example, a state with a “fishing” designated use applicable to waters where there is a subsistence fishing reserved right could conclude that its “fishing” use encompasses that right such that a new use would not be needed, although the state may still choose to adopt a separate subsistence fishing use for transparency and clarity. For non-101(a)(2) uses, in the preamble to the EPA's final 2015 revisions to the Federal WQS regulation, the EPA provided several recommendations on the types of information that a state might consider when determining the use and value of its waters for various purposes. 89 In addition to the requirements in 40 CFR 131.10 to provide for the attainment and maintenance of downstream WQS and protect existing uses, the EPA recommended that states consider information such as: (1) the quality and physical characteristics of the water(s) being evaluated, (2) public comments, (3) attainability considerations, and (4) the value and/or benefits (including environmental, social, cultural, and/or economic value/benefits) associated with the use. The EPA also recommended that states work closely with the EPA when developing such “use and value demonstrations” for non-101(a)(2) uses in their waters. 89 See Water Quality Standards Regulatory Revisions, 80 FR 51027 (August 21, 2015). In the EPA's view, many waters where Tribal reserved rights apply will have significant environmental, social, cultural and/or economic use and value for protecting those rights in accordance with 40 CFR 131.9. In such cases, the EPA expects that a state would either explicitly adopt a use to protect the Tribal reserved rights or conclude that its current uses encompass the rights. This is because, as emphasized in comments from Tribes, the exercise of rights reserved by Tribes is an intrinsic part of Tribal life and of deep cultural, economic, and subsistence importance to Tribes. For example, where a right holder has a reserved subsistence fishing right on a river, that river would have use and value for protecting subsistence fishing. As such, the state would either explicitly adopt a use to protect subsistence fishing or determine that its current use designation already encompasses subsistence fishing. There may be situations, however, where the use and value of certain waters suggests that designating uses for those waters to protect the reserved right is a higher priority than for other waters where the right applies. For example, natural physical characteristics in one waterbody may inhibit growth or survival of a resource covered by a Tribal reserved right, such that there is little value in designating uses for that waterbody to specifically protect the reserved right. As with any evaluation of waters' use and value for various purposes, compliance with the requirement at 40 CFR 131.9(a)(1) will require a case-specific evaluation of the waters and circumstances in question. The EPA recommends that states work closely with right holders and with the EPA when undertaking such an analysis. The final rule reflects two key modifications from the use requirement in the proposed rulemaking, which at 40 CFR 131.9(c)(1) proposed to require states to “[d]esignate uses . . . that either expressly incorporate protection of the [T]ribal reserved rights or encompass such rights[.]” 90 First, the EPA aligned the rule's requirement regarding designation of uses with the language of section 303(c)(2)(A) of the CWA by requiring that states must “[t]ake into consideration . . . Tribal reserved rights in adopting or revising designated uses[.]” Some commenters viewed the proposed requirement in 40 CFR 131.9(c)(1) that states must “[d]esignate uses . . .” as a broad mandate requiring states to adopt designated uses and asserted this was inconsistent with the CWA's framework set forth in section 303(c) and improperly usurped states' roles. The EPA's intent in proposing 40 CFR 131.9(c)(1) was not to impose a new use designation requirement, but rather to make explicit that designating a use to protect rights to aquatic and/or aquatic-dependent resources reserved to Tribes by treaty, statute, or Executive order was one option available to states. It was not intended as a mandate. Given the confusion expressed in comments, the EPA is revising the proposed rulemaking language on designated uses to align with the CWA language. 90 See Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 5, 2022). The second key change the EPA made between proposed 40 CFR 131.9(c) and final 40 CFR 131.9(a)(1) was to remove proposed 40 CFR 131.9(c)(1) through (3), which provided that, in order to meet the requirements of proposed 40 CFR 131.9(a), “states must” either: (1) designate uses and (2) establish criteria to protect Tribal reserved rights, “and/or” (3) use applicable antidegradation requirements to maintain water quality that protects Tribal reserved rights. 91 As explained immediately above, the final rule includes a revised requirement with respect to designated uses, set forth at 40 CFR 131.9(a)(1). The final rule also includes a revised requirement regarding criteria, related to proposed 40 CFR 131.9(c)(2), that is described below in section IV.B.3 of this preamble. For the reasons explained immediately below, the EPA is not finalizing a requirement related to antidegradation, as set forth at proposed 40 CFR 131.9(c)(3). 91 Id. The EPA requested comments on whether two proposed antidegradation policy options related to Tier 2 and Tier 3 could be used to protect Tribal reserved rights in lieu of the proposed requirements for designated uses and criteria at 40 CFR 131.9(c)(1) and (2), respectively. Some commenters expressed concerns that, as drafted, the proposed rulemaking implied that applying antidegradation requirements alone could satisfy the statement set forth at proposed 40 CFR 131.9(a) that WQS must protect Tribal reserved rights and expressed confusion about whether the proposed requirement at 40 CFR 131.9(c)(3) differed from the requirements already encompassed in the existing WQS regulation at 40 CFR 131.12. The EPA has determined not to include the proposed provision related to antidegradation because the existing antidegradation requirements can be used to protect reserved rights. Among other requirements, 40 CFR 131.12 specifies that states must develop and adopt a statewide antidegradation policy. As specified in 40 CFR 131.12(a)(2), that policy must require that water quality be maintained and protected for high quality waters unless the state finds that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. This requirement applies to all high quality waters, including those where reserved rights apply. In addition, the existing regulation at 40 CFR 131.12(a)(3) specifies that an antidegradation policy must also provide for the maintenance and protection of water quality where states have determined that such waters constitute an Outstanding National Resource Water (ONRW). Again, this requirement applies to ONRWs where reserved rights apply. In the final rule, the EPA streamlined and clarified the operative requirements set forth in 40 CFR 131.9 by removing the language related to antidegradation. The EPA concluded that existing antidegradation tools specified at 40 CFR 131.12 can be used to protect Tribal reserved rights, therefore the EPA determined it was not necessary to include an additional provision related to antidegradation in 40 CFR 131.9. The final rule does not change or affect the antidegradation requirements in the EPA's existing WQS regulation at 40 CFR 131.12 or add any new antidegradation regulatory requirements regarding protection of Tribal reserved rights. However, the EPA recommends that states consider applying ONRW protections to maintain and protect waters where Tribal reserved rights apply. The EPA also recommends that states amend their antidegradation implementation methods to explicitly account for Tribal reserved rights when evaluating whether to authorize a lowering of water quality in Tier 2 waters. 2. Accounting for Suppression Effects In the final rule, 40 CFR 131.9(a)(2) requires that, where a right holder has asserted a Tribal reserved right and where supported by available data and information, the state must “[t]ake into consideration the anticipated future exercise of the Tribal reserved right unsuppressed by water quality[.]” This requirement is intended to address situations where existing water quality does not allow for right holders to fully exercise their reserved rights. For example, a Tribe's exercise of its right to fish for subsistence is suppressed if the Tribe consumes fish below subsistence levels due to concerns about contamination. Consideration of suppression effects is important to minimize the potential that WQS merely reinforce an existing suppressed use or allow further contamination and/or depletion of the aquatic resources such that it leads to a “downward spiral” of further reduction/suppression. 92 92 National Environmental Justice Advisory Council, Fish Consumption and Environmental Justice, pp. 44-49 (2002) (NEJAC Fish Consumption Report) available at https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf. The EPA proposed to require, at 40 CFR 131.9(a)(1), states to establish WQS to “protect” the exercise of Tribal reserved rights “unsuppressed by water quality or availability of the aquatic or aquatic-dependent resource.” 93 The requirement related to suppression in the final rule reflects several key modifications to the proposed requirement: first, the EPA made it less prescriptive, while maintaining a requirement that states consider the effect suppression is having on the exercise of Tribal reserved rights; second, the EPA clarified the need to evaluate the “anticipated future” exercise of Tribal reserved rights unsuppressed by water quality; and third, the EPA removed the reference to availability of the resource. 93 See Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights Proposed Rule, 87 FR 74361, 74378 (December 5, 2022). Requiring consideration of the anticipated future exercise of Tribal reserved rights unsuppressed by water quality is consistent with the objectives of CWA section 303(c)(2)(A), the oversight authority that Congress granted the EPA in CWA section 303(c), and the EPA's existing WQS regulation, and builds on the EPA's longstanding recommendations on derivation of human health criteria. Specifically, requiring states to consider suppression effects in establishing WQS is consistent with the CWA goal in section 101(a) to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” section 303(c)(2)(A)'s requirement that WQS “shall be such as to protect the public health or welfare” and “enhance the quality of the water,” and the EPA's longstanding position that WQS are water quality goals that are not intended to merely reflect currently attained or existing conditions. 94 As the “Purpose” section in the existing WQS regulation at 40 CFR 131.2 explains, WQS “serve the dual purposes of establishing the water quality goals for a specific water body and serve as the regulatory basis for the establishment of water-quality-based treatment controls and strategies[.]” Relatedly, the EPA's longstanding regulation at 40 CFR 131.3 defines designated uses as “those uses specified in water quality standards for each water body or segment whether or not they are being attained ” (emphasis added). This definitional language illustrates the principle that WQS may be set based on goals for future water quality, even if such goals are not presently attained. 94 See Water Quality Standards Regulatory Revisions, 80 FR 51020, 51025 (August 21, 2015) (“When conducting a UAA and soliciting input from the public, states and authorized Tribes need to consider not only what is currently attained, but also what is attainable in the future after achievable gains in water quality are realized.”). The requirement at 40 CFR 131.9(a)(2) also builds on the EPA's longstanding guidance addressing derivation of water quality criteria to protect designated uses. For example, in the EPA's Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000 Methodology), the agency refers to human health criteria as “health goals ” (emphasis added). 95 The EPA's 2016 Guidance for Conducting Fish Consumption Surveys recommends avoiding establishing standards based on suppressed conditions and recommends gathering information about anticipated future conditions. 96 In 2013, in a guidance document addressing human health criteria and fish consumption rates, the agency noted the importance of avoiding “suppression effects” that may occur when a fish consumption rate “reflects an artificially diminished level of consumption from an appropriate baseline level of consumption . . . because of a perception that fish are contaminated with pollutants.” 97 95 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004 at 1-5, https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics. 96 See USEPA. 2016. Guidance for Conducting Fish Consumption Surveys. EPA-823B16002 at 18, https://www.epa.gov/sites/default/files/2016-12/documents/guidance-fish-consumption-surveys.pdf (“Environmental standards utilizing suppressed rates may contribute to a scenario in which future aquatic environments will support no better than suppressed rates” and p. 84: “. . . by asking people to predict their level of future use under the change of a single condition ( e.g., alleviation of their concerns about contamination), a survey can provide useful information on the qualitative scale of change that usage rates are likely to undergo as remediation and/or risk communication progresses.”). 97 Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/sites/default/files/2015-12/documents/hh-fish-consumption-faqs.pdf (“It is also important to avoid any suppression effect that may occur when a fish consumption rate for a given subpopulation reflects an artificially diminished level of consumption from an appropriate baseline level of consumption for that subpopulation because of a perception that fish are contaminated with pollutants.”). The requirement in this final rule builds both on the agency's prior guidance on avoiding establishing WQS based on suppressed fish consumption rates, which was not specific to consideration of Tribal reserved rights, as well as on the case-specific actions the agency took in Maine, Washington, and Idaho, discussed previously in section III.B.2 of this preamble, where Tribal reserved rights were a factor in determining the appropriate fish consumption rate. In 2015 and 2016, in disapproving human health criteria for Maine and Washington, respectively, the EPA stated that, where Tribal rights applied, human health criteria must be based on fish consumption data “that reasonably represent Tribal consumers taking fish from Tribal waters and fishing practices unsuppressed by concerns about the safety of the fish available to them to consume.” 98 In 2019, the agency revisited the position taken in the Maine and Washington actions, acknowledging the EPA's prior consideration of suppression in evaluating fish consumption rates, but indicating that the concept of requiring a state to use an unsuppressed fish consumption rate based on heritage or historic data was “new and novel[.]” 99 The EPA noted that its applicable guidance did not explain how “historic fish consumption rates are to be used in deriving” criteria, and indicated that requirements to use heritage or historic data “should have been presented for thorough public notice and comment prior to being incorporated into the EPA's human health criteria recommendations.” 100 This final rule is informed by the general principles reflected in the EPA's pre-2019 guidance. In addition, while this final rule does not mandate use of historic or heritage data, in this rule, the EPA expressly addressed any implied procedural deficiency based on the agency's 2019 assertion by requesting public comment on the concepts of requiring protection of unsuppressed exercise of Tribal reserved rights and of using heritage or historic data to evaluate suppression (discussed further in subsequent paragraphs). 98 Letter from H. Curtis Spalding, Regional Administrator, EPA Region 1, to Patricia W. Aho, Commissioner, Maine Department of Environmental Protection, “Re: Review and Decision on Water Quality Standards Revisions”, Attachment A at 3 (February 2, 2015); see also Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 FR 85417, 85424 (November 28, 2016) (“It is also important, where sufficient data are available, to select a FCR that reflects consumption that is not suppressed by concerns about the safety of available fish.”). 99 See Water Quality Standards Regulatory Re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-09427. Public record. Not legal advice.