The Environmental Protection Agency recently proposed a revision to the Clean Water Act, specifically targeting a section of the law that regulates water quality and limits the authority of states and tribes over federal projects. This move has raised concerns among experts, who believe that it could strip tribes of an essential tool to enforce treaty rights and hinder their ability to protect tribal citizens.
Miles Johnson, the legal director at Columbia Riverkeeper, emphasized the significance of the proposed modification, stating that it could impact the ability of states and tribes to impose conditions on or even block projects under federal jurisdiction. Currently, developers seeking to build various infrastructure projects must obtain certification from tribes or states confirming compliance with federal water quality standards. This certification process involves holistic reviews of projects, evaluating all potential impacts on water quality, including spill risks, threats to cultural resources, and impacts on wildlife.
However, the newly proposed rule would limit reviews to “discharge only,” allowing states and tribes to assess projects based solely on the amount of pollution they would release. This narrow scope of oversight could potentially weaken the regulatory authority of tribes and states in protecting water quality.
Furthermore, the proposed rule introduces changes to how tribes can gain regulatory authority under the Treatment in a Similar Manner as a State program. This program allows tribes to act as regulators and set conditions to limit factors that could pollute waters near tribal lands. The proposed change would restrict this authority to tribes that have obtained TAS status, reducing the regulatory powers available to tribes with limited resources.
Heather Tanana, a law professor at the University of Colorado, highlighted the importance of treaty rights as a mechanism for tribes to enforce protections against the federal government and other entities. She expressed concerns that reverting to pre-2023 rules could place higher demands on tribes to demonstrate larger-scale capacity, particularly in the form of dedicated water departments.
During the Biden administration, tribes advocated for a baseline rule that would allow all tribes some input in federal projects while pursuing TAS status. However, industry pushback and political developments led to the withdrawal of this rule in December 2024. The EPA’s 2025 report on tribal consultations indicated widespread opposition to the proposed changes, with tribes expressing concerns about the potential impact on their sovereignty and ability to protect their communities.
A 30-day public comment period on the proposed rule is currently underway, with expectations of litigation following its finalization. Tribes are exploring various options to protect their waterways and way of life, underscoring their commitment to preserving the natural resources that have sustained their communities for generations.
