On March 6, 2023, the comment period closed for the Environmental Protection Agency’s proposed rulemaking, Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (87 FR 74361). Several states submitted comments to the docket, including Alaska, California, Idaho, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and Wyoming.
The Western States generally expressed concerns about the Constitutional and statutory authority of EPA, the states, and the tribes to undertake this effort to determine and quantify tribal treaty rights, a process that usually involves the courts, and a complex legal endeavor which the water quality agencies are ill-suited to accomplish at all, much less within the short time allotted. They raised problems with EPA abdicating its trustee responsibilities, or shifting them to the states without clear definitions or the funding or other resources necessary to accomplish these new objectives. Several states noted that EPA’s estimate of costs vastly underestimates the work at the state level that goes into developing or modifying water quality standards, much less the amount of effort that would be required to determine tribal treaty rights that may impact state water quality standards. Moreover, they noted that the anticipated costs and other burdens appear disproportionate to the limited potential benefits, particularly when state water quality standards already take into consideration the goal of fishable-swimmable water quality wherever attainable, and protective of everyone regardless of geographic location. The sequence of implementation, requiring considerable state efforts and resources to identify tribal reserved rights and modifications to water quality standards, followed by EPA-tribal consultation to assess whether those state efforts are sufficiently protective, and the potential for subsequent EPA-imposed water quality standards if the state’s standards are deemed insufficient, raised concerns as well. The states also noted that the state-tribal relationships are a matter of intricate sovereign-to-sovereign effort over a period of many years, and are not best suited to regulatory mandates. Some states expressed additional water quality-quantity concerns, which could implicate Winters reserved water rights outside the authority of the Clean Water Act. Finally, the states noted that despite EPA’s assertions to the contrary, the proposed rule most definitely implicates federalism concerns requiring meaningful consultation with co-regulator states.
Alaska Department of Environmental Conservation
California State Water Resources Control Board
Idaho Attorney General’s Office
Idaho Congressional Delegation
Idaho Department of Environmental Quality
North Dakota Department of Environmental Quality
Oklahoma Office of the Secretary of Energy and Environment
Oregon Department of Environmental Quality
South Dakota Department of Agriculture and Natural Resources
Texas Commission on Environmental Quality
Utah Department of Natural Resources
Wyoming Governor Mark Gordon
Wyoming Department of Environmental Quality
Wyoming State Engineer’s Office