13. The Agencies repealed the 2015 Clean Water Rule and then reversed their longstanding policy by promulgating a new, much narrower interpretation of the “waters of the United States.” Definition of “Waters of the United States” — Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) [hereinafter the 2019 Repeal Rule]; The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) [hereinafter the 2020 Navigable Waters Rule]. The 2020 Navigable Waters Rule follows the directive of Executive Order 13,778, but without due regard for established law. 14. The 2019 Repeal Rule and 2020 Navigable Waters Rule are inconsistent with both the CWA’s objective of “maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” and the Rapanos significant nexus test. 15. The 2019 Repeal Rule and the 2020 Navigable Waters Rule harm the Pueblos by removing federal CWA water pollution protections from many of the ephemeral streams and other waterbodies that sustain the Pueblos. These rules remove CWA protections from 79% to 97% of stream miles in the Pueblo of Laguna. These rules remove CWA protections from 94% of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands. 16. Where a waterbody is not determined to be a “water of the United States,” the Pueblos alone are left to establish and administer water pollution control programs at their own expense.
17. However, the Pueblos rely on the Agencies to implement nearly all of the CWA’s pollution programs on their behalf and do not have the financial or administrative resources or capacity to administer these programs themselves.
18. Further, both Pueblos rely on the federal jurisdiction of the CWA to protect themselves from upstream pollution. 19. For the Pueblos, high water quality is essential to day-to-day life, as well as cultural and religious practices.
20. The removal of federal jurisdiction creates the imminent risk of the degradation and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as cultural and religious practices.
The 60-Day Notice of Intent to Sue under the Clean Water Act outlines violations of federal agency duties under the Act that will affect water quality of the Menominee River and adjacent wetlands, and downstream to Green Bay, as a result of the Back Forty Mine Project.
On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements. This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status. The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.
The Final Interpretive Rule published in the Federal Register is here.
The EPA’s Response to Public Comments on the Revised Interpretation here.
EPA proposes to conclude definitively that section 518 includes an express delegation of authority by Congress to eligible Indian tribes to administer regulatory programs over their entire reservations. This reinterpretation would eliminate the need for applicant tribes to demonstrate inherent authority to regulate under the Act, thus allowing tribes to implement the congressional delegation of authority unhindered by requirements not specified in the statute. The reinterpretation would also bring EPA’s treatment of tribes under the Clean Water Act in line with EPA’s treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of Indian reservation areas.
The proposed rule would streamline the TAS process for many tribes seeking eligibility to administer water quality standards and other Clean Water Act programs.
See the Federal Register announcement here. The deadline for comments is October 6, 2015.
From the announcement:
The effect of this proposal would be to relieve tribes of the need to demonstrate their inherent authority when they apply for TAS to administer CWA regulatory programs. In particular, this proposal would eliminate any need to demonstrate that the applicant tribe retains inherent authority to regulate the conduct of nonmembers of the tribe on fee lands under the test established by the Supreme Court in Montana. Instead, applicant tribes would be able to rely on the congressional delegation of authority in section 518 as the source of their authority to regulate their entire reservations under the CWA, without distinguishing among various categories of on-reservation land. As EPA explained in connection with the CAA, such a territorial approach that treats Indian reservations uniformly promotes rational, sound management of environmental resources that might be subjected to mobile pollutants that disperse over wide areas without regard to land ownership. See 59 FR at 43959. As specifically recognized by the district court in Montana v. EPA, the same holds true for regulation under the CWA. Montana, 941 F. Supp. at 952.
The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.
The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of noncontact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because of the effect of such discharge on bowhead whales, including deflection from their migratory paths.
The panel denied the petition in all other respects because the EPA’s issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.