WASHINGTON – Today, May 2, the U.S. Environmental Protection Agency (EPA) announced a final rule that will help protect water quality where Tribes hold and assert rights to aquatic and aquatic-dependent resources. For the first time, this action establishes a clear and consistent national framework for EPA and states to consider Tribal treaty and reserved rights when establishing Water Quality Standards under the Clean Water Act. In addition, this rule advances the Biden-Harris Administration’s commitment to uphold the United States’ treaty and federal trust responsibility to federally recognized Tribes. When implemented, this final rule will better protect waters that Tribes depend on for fishing, gathering wild rice, cultural practices, and other uses.
“President Biden is committed to ensuring that all people have access to clean and safe water. Strengthening our regulations to support Tribes and protect precious water resources is essential,” said EPA Administrator Michael S. Regan. “With this action, EPA is establishing clear rules of the road that will support healthier Tribal communities. We look forward to partnering with Tribes and our state co-regulators to implement Clean Water Act protections consistent with Tribal treaty and reserved rights.”
Historically, EPA has addressed Tribal reserved rights under the Clean Water Act on a case-by-case basis in state-specific actions. This practice fostered uncertainty for Tribes, states, and entities seeking to comply with Clean Water Act requirements. EPA’s final rule provides clarity and transparency by revising the federal water quality standards regulation to better protect Tribal reserved rights under the Clean Water Act. With this action, EPA is ensuring that water quality standards are established taking into consideration Clean Water Act-protected aquatic and aquatic-dependent resources where Tribes hold and assert rights to those resources under federal treaties, statutes, or executive orders. This final regulatory framework will be applied consistently while accounting for local conditions and factors to inform the development of specific water quality standards.
With this action, EPA is honoring the federal trust responsibility and striving to protect Tribal reserved rights related to water resources, consistent with commitments outlined in the agency’s 2021 action plan, Strengthening the Nation-to-Nation Relationship with Tribes to Secure a Sustainable Water Future.
“The Tribal Reserved Rights rule protects the rights of Tribal citizens, accorded by treaties, statutes, and other federal laws, to hunt, fish, and gather food in their usual and accustomed territories—including areas under state jurisdiction,” said National Tribal Water Council Chairman Ken Norton. “When treaties are honored as the highest law of the land, as the Constitution directs, it is a victory for Tribes across the nation.”
“Upholding treaty reserved rights in Ceded Territories is the right thing to do, both for Tribal members and the environment. As stressors such as climate change, pollutants and development harm the environment, it is increasingly important for Tribal members to have the opportunity to exercise their rights in Ceded Territories,” said Leech Lake Band of Ojibwe Environmental Director, Brandy Toft. “It is our hope that this rule will assist to preserve the Leech Lake Band of Ojibwe’s treaty protected right to harvest resources, such as fish and wild rice for subsistence, for generations to come.”
“In the Anishinaabe (or Ojibwe) language, gibimaaji’igomin nibi means ‘water is life,’” according to Jason Schlender, Executive Administrator of the Great Lakes Indian Fish and Wildlife Commission (GLIFWC). “Anishinaabe people recognize that clean water sustains the more-than-human relatives (natural resources) that they rely on to continue their lifeways. It was these lifeways that our member Tribes were protecting when they reserved the right to hunt, fish, and gather on land that they ceded (or sold) in treaties with the United States. GLIFWC welcomes federal actions that will ensure that water quality is improved and sustained to ensure the continued health of our more-than-human relations.”
“Elwha Tribe is pleased that the federal rule will ensure that Tribes will be heard,” said Lower Elwha Klallam Tribe Vice-Chairman Russell N. Hepfer. “I always advocate for consultation to occur early and often. Water quality is important for our human health and for our resources. More important for our future generations. Elwha Tribes looks forward to consultation with EPA as this rule is implemented.”
The final rule will be effective 30 days after publication in the Federal Register. Learn more about EPA’s final Tribal Reserved Rights rule.
Background
Water quality standards define the water quality goals for a waterbody and provide a regulatory basis for many actions under the Clean Water Act, including reporting on water quality conditions and status; developing water quality-based effluent limits in National Pollution Discharge Elimination System permits for point-sources; and setting targets for Total Maximum Daily Loads.