By: Michelle Diffenderfer & Christopher D. Johns
On May 2, 2024, the U.S. Environmental Protection Agency (EPA) published its final rule titled Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights. 89 Fed. Reg. 35,717 (May 2, 2024) (Final Rule). The Final Rule aims to provide a regulatory framework for states and tribes to use when establishing or revising water quality standards under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1389 (2024) (CWA), for waters where federally recognized tribes hold federally reserved rights that depend on those waters. Many federally recognized tribes hold rights to access and use lands for culturally significant purposes, including usual and customary rights to hunt, fish, and gather plants. Maintaining clean water in areas where Tribes hold rights is crucial, as pollution can render these rights meaningless. For example, if waters become too contaminated for fish to survive or for tribal members to safely consume their catch, the rights lose their practical value.
Shortly after the EPA published, Idaho, North Dakota, Alaska, Iowa, Nebraska, South Carolina, South Dakota, Wyoming, Montana, Louisiana, Utah and Texas (State Plaintiffs) filed a lawsuit against the EPA in the United States District Court for the District of North Dakota asking the Court to stay and vacate the Final Rule. Twelve Tribes have since intervened in defense of the Final Rule, including the Nez Perce Tribe, the Quinault Indian Nation, the Bay Mills Indian Community, the Puyallup Tribe of Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Sokaogon Chippewa Community, the Confederated Salish & Kootenai Tribes of the Flathead Reservation, the Red Lake Band of Chippewa Indians, the Fond du Lac Band of Lake Superior Chippewa, the Grand Traverse Band of Ottawa and Chippewa Indians, the White Earth Band of the Minnesota Chippewa Tribe, and the Port Gamble S’Klallam Tribe. As of February 2, 2025, the case was placed in abeyance for 90 days to allow time for the EPA to brief the new administration on the Final Rule.
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