Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 131</CFR> <DEPDOC>[EPA-HQ-OW-2021-0791; FRL-8599-02-OW]</DEPDOC> <RIN>RIN 2040-AG17</RIN> <SUBJECT>Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on June 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov</E> . <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">brundage.jennifer@epa.gov</E> or <E T="03">gravuer.kelly@epa.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> This final rule is organized as follows: <EXTRACT> <FP SOURCE="FP-2">I. Executive Summary</FP> <FP SOURCE="FP-2">II. General Information</FP> <FP SOURCE="FP1-2">A. Does this action apply to me?</FP> <FP SOURCE="FP1-2">B. How did the EPA develop this final rule?</FP> <FP SOURCE="FP-2">III. Statutory and Regulatory Background</FP> <FP SOURCE="FP1-2">A. Clean Water Act</FP> <FP SOURCE="FP1-2">B. Tribal Reserved Rights</FP> <FP SOURCE="FP1-2">C. EPA Authority</FP> <FP SOURCE="FP-2">IV. Overview of This Final Rule</FP> <FP SOURCE="FP1-2">A. Definitions and Scope</FP> <FP SOURCE="FP1-2">B. Protecting Applicable Tribal Reserved Rights</FP> <FP SOURCE="FP1-2">C. Designated Use Revisions, WQS Variances, and Existing Uses</FP> <FP SOURCE="FP1-2">D. General WQS Policies</FP> <FP SOURCE="FP1-2">E. Roles, Responsibilities, and WQS Submission Requirements</FP> <FP SOURCE="FP1-2">F. The EPA's Tribal Engagement and Consultation</FP> <FP SOURCE="FP1-2">G. The EPA's Oversight Authority of New and Revised State WQS</FP> <FP SOURCE="FP1-2">H. Triennial Reviews</FP> <FP SOURCE="FP-2">V. Economic Analysis</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> <FP SOURCE="FP1-2">A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review</FP> <FP SOURCE="FP1-2">B. Paperwork Reduction Act (PRA)</FP> <FP SOURCE="FP1-2">C. Regulatory Flexibility Act (RFA)</FP> <FP SOURCE="FP1-2">D. Unfunded Mandates Reform Act (UMRA)</FP> <FP SOURCE="FP1-2">E. Executive Order 13132: Federalism</FP> <FP SOURCE="FP1-2">F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments</FP> <FP SOURCE="FP1-2">G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks</FP> <FP SOURCE="FP1-2">H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use</FP> <FP SOURCE="FP1-2">I. National Technology Transfer and Advancement Act of 1995</FP> <FP SOURCE="FP1-2">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</FP> <FP SOURCE="FP1-2">K. Congressional Review Act (CRA)</FP> </EXTRACT> <HD SOURCE="HD1">I. Executive Summary</HD> 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  <SU>1</SU> <FTREF/> with regard to Tribal reserved rights in the WQS context; and (3) establish and clarify the EPA's related responsibilities and oversight role. <FTNT> <SU>1</SU>  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. </FTNT> 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 T="03">e.g.,</E> cancer risk level, hazard quotient, or illness rate) as the state would otherwise use to develop criteria to protect the state's general population ( <E T="03">i.e.,</E> non-right holders), paired with exposure inputs ( <E T="03">e.g.,</E> 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. <HD SOURCE="HD1">II. General Information</HD> <HD SOURCE="HD2">A. Does this action apply to me?</HD> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 255k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━