Revising the Federal Water Quality Standards Regulation to Protect Tribal Reserved Rights
Path Forward on 2024 Tribal Reserved Rights Rule
On April 26, 2024, the EPA finalized a rule that revised the water quality standards regulations at 40 CFR part 131 to require that states consider and protect off reservation “reserved” rights when a federally recognized Tribe asserts such rights in writing to the EPA and a state in the WQS context. The rule specifically focused on rights to aquatic or aquatic-dependent resources expressed or implied in federal treaties, statutes, or executive orders. The agency has reviewed the 2024 Tribal Reserved Rights Rule in the context of ongoing litigation brought by 12 states in the U.S. District Court for the District of North Dakota. The EPA has concluded that the 2024 Tribal Reserved Rights Rule exceeded the agency’s authority under the Clean Water Act. In a March 6, 2026, filing with the court, the agency announced its intent to develop a proposed action that would rescind the 2024 rule. The EPA is currently conducting tribal consultation and will soon seek public comment on the forthcoming proposal.
2024 Final Rule
- Final Rule: Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights
- Fact Sheet: Final Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (pdf)
- Press Release: EPA Announces Final Rule to Protect Water Quality Where Tribes have Treaty and Reserved Rights
- Example Implementation Scenario for Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (pdf)
2022 Proposed Rule
- Proposed Rule: Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights
- Fact Sheet: Proposed Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights (pdf)
- Press Release: EPA Announces Proposal to Protect Tribal Reserved Rights in Water Quality Standards and Best Practices for Tribal Treaty and Reserved Rights
Tribal Consultation and Coordination on the 2026 Rulemaking
On March 23, 2026, EPA initiated consultation and coordination with federally recognized Indian Tribes on the agency’s upcoming proposal to rescind its 2024 Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights. This rulemaking process will be conducted in accordance with the EPA Policy on Consultation and Coordination with Indian Tribes. EPA invites Tribal leaders and their designated consultation representatives to participate in this process.
Tribal consultation ends on April 21, 2026. Pending the input that EPA receives during the Tribal consultation period, EPA anticipates a proposed rule will be available for public comment later this year. This will provide an additional opportunity for Tribes to comment during the public comment period on the proposal.
EPA invites interested Tribal governments to request individual government-to-government consultation with EPA by contacting Holly Galavotti at Galavotti.holly@epa.gov or (202) 819-7159.
Please request individual consultations by April 7, 2026 to allow enough time for scheduling before the consultation period ends. We anticipate that consultations will need to be conducted virtually.
Tribes-Only Consultation and Coordination Kick-Off Session
EPA will hold a virtual Tribal consultation and coordination kick-off session on March 31, 2026.
While this kick-off session does not constitute individual Tribal-EPA government-to-government consultation, it is hoped the sessions will provide further information to Tribes to make an informed decision about whether to request an individual consultation.
Tribal Consultation and Coordination on the 2022 Proposed Rule
The EPA conducted Tribal engagement and consultation on the concepts reflected in the 2022 proposed rule between June and September 2021, prior to drafting the proposed rule. The proposed rule reflected input received through that engagement and consultation. Once the proposed rule was released for public review, the EPA invited a second round of consultation and coordination on the proposed rule between November 30, 2022 and February 28, 2023. These processes were conducted in accordance with the EPA Policy on Consultation with Indian Tribes.
Summary of Tribal Consultation on the 2022 Proposed Rule and 2024 Final Rule
A summary report of Tribal consultation and engagement to inform the 2022 proposed rule and 2024 final rule is available below.
Tribes-Only Listening Sessions on the 2022 Proposed Rule
The EPA held two online listening sessions for Tribal leaders and staff on the 2022 proposed rule during the second round of consultation and coordination on that rulemaking:
- Thursday, January 5, 2023
- Tuesday, January 10, 2023
Tribes-Only Pre-Proposal Listening Sessions
The EPA also held two pre-proposal online national listening sessions for Tribal leaders and staff during the first period of Tribal engagement and consultation on the concepts reflected in the 2022 proposed rule:
- Listening Session for Revising the Federal Water Quality Standards Regulations to Protect Tribal Reserved Rights – July 19, 2021
- Second Listening Session for Revising the Federal Water Quality Standards Regulations to Protect Tribal Reserved Rights – August 23, 2021
Public Hearings on the 2022 Proposed Rule
The EPA held two public hearings so that interested parties could provide oral comments on the proposed rule.
- Tuesday, January 24, 2023
- Tuesday, January 31, 2023
The EPA considered all oral comments provided during the hearings along with written comments submitted via the docket for this rulemaking (available at Docket ID No. EPA-HQ-OW-2021-0791).
- PRESENTATION: Proposed Revisions to the Federal Water Quality Standards Regulation to Protect Tribal Reserved Rights (1/24/23) (pdf)
- TRANSCRIPT: Proposed Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights - Public Hearing #1 (1/24/23) (pdf)
- TRANSCRIPT: Proposed Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights - Public Hearing #2 (pdf)
Written Comments on the 2022 Proposed Rule
The EPA accepted public comments on the proposed rule between December 6, 2022 and March 6, 2023. All written comments that were submitted on the proposal – including those submitted by Tribes – can be accessed at regulations.gov (Docket ID No. EPA-HQ-OW-2021-0791). All comment letters received during the pre-proposal Tribal consultation period are also available at regulations.gov (Docket ID No. EPA-HQ-OW-2021-0791).