EPA and the Army Corps have supplemented their proposed WOTUS rule with alternatives that could sharply reduce federal protection for Tribal waters in a prepublication document shared at the link above.

The agencies are now considering limiting “relatively permanent” waters to those flowing virtually year-round and requiring wetlands to contain perennial surface water continuously connected to another jurisdictional water, a standard they acknowledge would exclude most intermittent streams and a majority of currently jurisdictional adjacent wetlands, with especially significant effects in the arid West.

The proposal would result in significant implications for Tribes, since most eligible Tribes lack TAS authority to administer Clean Water Act programs, many lack resources to build equivalent Tribal programs, and pollution may originate in adjacent jurisdictions. In other words, the federalism premise that another sovereign can simply regulate waters abandoned by the federal government often fails in Indian country. The Tribal regulatory gap would effectively be made more consequential under this proposed substantially narrower federal rule. Tribes may request government-to-government consultation at CWAwotus@epa.gov once the supplemental notice is published in the Federal Register, opening the 30-day comment period.

From the supplemental notice of proposed rulemaking:

The agencies acknowledge that because they generally implement Clean Water Act programs on Tribal lands, a reduced scope of Federal jurisdiction as a result of the Sackett decision will affect Tribes differently than it will affect States. Currently, of the Tribes that are eligible, most have not received treatment in a manner similar to a State (TAS) status to administer Clean Water Act regulatory programs. While some Tribes have established Tribal water programs under Tribal law or have the authority to establish Tribal programs under Tribal law, many Tribes are still building capacity and may lack resources to create a Tribal water program under Tribal law, to administer a program, or to expand programs that currently exist.

Therefore, Tribes may disproportionately rely on the Federal Government for water program implementation and enforcement of water quality violations. Tribes may also be affected by pollution from adjacent jurisdictions. Many Tribes are located in the arid West, where there are fewer waters that may meet the relatively permanent standard. Nonetheless, the proposed rule, as supplemented by this notice, preserves Tribal authority to choose whether to include waters that are not covered under the Clean Water Act under Tribal laws and regulations. Any decision by the Tribes to protect beyond the limits of the Clean Water Act is not compelled by the statute or by this proposed rule, as supplemented.