Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (Final Rule)

Under the Clean Water Act (CWA), states and authorized Tribes (i.e., Tribes with authority to administer a CWA water quality standards program in the same manner as states) establish water quality standards (WQS) for waters of the United States under their jurisdiction. Many federally recognized Tribes hold rights to CWA-protected aquatic and aquatic-dependent resources through treaties, statutes, or executive orders, in waters of the U.S. subject to state WQS. This rule establishes a framework for how Tribal reserved rights, as defined in this final rule, must be considered in establishing WQS. This rule requires that if a right holder 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 or encompass the right. The current WQS regulation at 40 CFR Part 131 requires states and authorized Tribes to include supporting information to accompany WQS submissions to help the EPA determine whether the submitted new and revised WQS are consistent with the CWA. The rule adds two new requirements to 40 CFR Part 131: 1) the rule adds a condition that right holders must assert their rights in writing before their rights can be considered for protection by the rule; and 2) where applicable, state and authorized Tribal WQS submissions must provide any information provided by right holders about relevant Tribal reserved rights and documentation of how that information was considered; and data and methods used to develop the water quality standards. This ICR provides estimates of burden and cost to all federally recognized Tribes asserting reserved rights and to states and authorized Tribes with WQS to implement new collection requirements in the rule.

The latest form for Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (Final Rule) expires 2027-08-31 and can be found here.

Authorized Tribes

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