The Environmental Protection Agency (EPA) has withdrawn a proposed rule to establish federal water quality standards (WQS) for water on Indian reservations that currently do not have WQS, and provoked split reactions among tribes, with some welcoming the rule, while others viewed it as an attempt to challenge tribal sovereignty. 

In addition, WQS has also been involved in water rights negotiations, a lawyer representing the Navajo Nation told The Driller.  

Last month, the EPA announced it is withdrawing the proposed rule “Federal Baseline Water Quality Standards for Indian Reservations” that was published in the Federal Register on May 5, 2023.

The WQS rule for Indian reservation waters was proposed under the Clean Water Act (CWA) and sought to establish human health and environmental objectives as the basis for CWA protections, according to the EPA. Under the proposed rule, EPA was to consult with tribes to determine how best to implement baseline WQS in a manner that would address location-specific water quality conditions and tribal circumstances with all relevant public participation requirements to ensure transparency for stakeholders.

In addition, the tribes were to seek authority to administer their own WQS program under the CWA’s provision that directs eligible tribes be treated in a similar manner as states, EPA says. Furthermore, baseline WQS would not apply in circumstances where tribes—in conjunction with state authority—currently have EPA-approved WQS.

When enacting federal environmental policy, EPA recognized tribal authority in the early 1970s and implemented “treatment as a state” (TAS) for reservations, says a report by James M. Grijalva, a law professor at the University of North Dakota. The TAS policy is “critically important” for EPA to produce site-specific WQS for individual reservations because while the inhabitants of reservations face similar health risks as non-Indians, such health risks are not identical, according to the report “Ending the Interminable Gap in Indian Country Water Quality Protection” that was submitted to EPA.

Tribal welfare concerns are often quite different because environmental quality is inextricably entwined with indigenous culture based on ancient relations with the natural environment, the report says. So, water pollution permits that do not account for indigenous cultural uses of water risks environmental injustice in a manner reminiscent of early colonial attempts at assimilation, according to the report.

The national policy of tribal self-determination held possibilities for incorporating cultural values into the water pollution permitting process, but when the CWA was enacted in 1972 tribes were not included in the provisions for local roles by state governments, the report says.

However, not long after the EPA was created, the agency recognized that tribes were excluded, so it adopted a policy acknowledging tribes as the appropriate local governments for making site-specific environmental value judgments that would animate federal programs, and Congress followed suit, amending the CWA to authorize tribal TAS for a number of programs including WQS.

Tribal TAS status effectively embraced self-determination by placing the responsibility for articulating tribal uses of reservation waters, and the criteria for protecting them, on tribes, and those tribal value judgments were then to be translated into pollution permit conditions ensuring protection of tribal health and welfare, the report says.

Therefore, a handful of Indian tribes developed WQS with great success, but the majority of tribes have not taken advantage of the opportunity, with a number of reasons cited for the tribes’ hesitation including a “fear of litigation challenging tribal sovereignty and the status of their lands” as likely key factors, the report says.

The proposed rule being used as a means to impinge tribal sovereignty is a concern expressed by tribes, including the Pyramid Lake Paiute Tribe, which recommended the EPA provide tribes with a choice to “opt-in” to the WQS as a way to ensure tribal sovereignty. If the EPA is going to promulgate water quality standards that will be “quasi-tailored” for individual reservations, a “provision to enable a tribe to elect to not be included (in the WSQ), should be disregarded entirely,” and replaced with an option “for tribes to opt-in” to the program, the Pyramid Lake Paiute Tribe said in a letter to the EPA.

However, some tribes—such as the Leech Lake Band of Ojibwe—expressed guarded support for the proposed rule. In a letter to the EPA, the Leech Lake Band of Ojibwe said the WQS could be “beneficial” to tribes that do not possess their own WQS. However, they also urged the EPA to provide the tribes with guidance and “adequate and consistent funding” so the tribes can develop WQS for individual reservations because a “generalized approach” toward WQS on reservations probably will not work. “A generalized process and procedure…will not serve any purpose to protect tribal waters for tribal lifeways and existing conditions,” says the Leech Lake Band’s letter.

In the wake of EPA withdrawing the proposed rule, the agency says it will continue to work closely with, and offer support to, tribes that wish to develop and administer their own WQS under the CWA.

While the federal effort has been underway, states have also been working with tribes to establish WQS, Dwight Witherspoon, an attorney for the Navajo Department of Justice, told The Driller.

“Water quality standards have been discussed in particular states,” including Arizona, Witherspoon said following a hearing on Jan. 23, 2025 held by the House Subcommittee on Water, Wildlife and Fisheries. The hearing was on the bill the “WaterSMART Access for Tribes Act,” introduced by Rep. Melanie Stansbury (D-N.M.) which Witherspoon testified on. “I know in that (WQS) was one of the things discussed in the negotiations for water settlement in Arizona,” Witherspoon said. Arizona is one of three states in which the Navajo Nation Reservation is located, the other two being New Mexico and Utah.

Click here to read the Federal Register notice announcing the withdrawal of the proposed rule.