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Panel answers common implementation questions and flags legal and jurisdictional limits
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Summary
In a Q&A following presentations, panelists addressed EPA's absence from the call, how the Sackett decision affects the rule's statutory reach, whether the rule forces adjudication (it does not), how water quantity and narrative standards can protect tribal uses, and the risk that the rule could be withdrawn or litigated.
After presentations, hosts opened the webinar to audience questions on scope, implementation, and legal risk.
EPA participation: Ken Norton said an internal EPA directive restricted Office of Water staff from participating that morning; the organizers received notification and a substitute presenter filled in. "We just got a notification... that it was an internal directive at EPA that all external presentations will be restricted," Norton said.
Waters-of-the-U.S. scope: Donna Downing explained the rule operates under Clean Water Act section 303 and therefore applies to "waters of the United States" subject to that statute, but Sackett v. EPA (May 2023) narrowed that universe. She said the rule does not change the definition of tribal reserved rights, but the reduced scope of waters-of-the-U.S. may limit the statutory reach of enforceable standards submitted for EPA review; states and tribes can still adopt standards under state or tribal law.
Adjudication and evidence: Panelists confirmed the TRR rule does not require adjudication of tribal water rights. Daniel Cordales (NARF) said while adjudicated rights make incorporation into standards easier, many assertions can be supported with existing evidence and the rule allows states discretion when information is insufficient.
Permitting and development: Donna Downing and other panelists described how water quality standards feed into section 401 certifications, NPDES permits and Corps section 404/permits; stronger or newly protective standards that reflect tribal uses can influence permitting decisions for projects such as oil and gas development. Schult stressed that pursuing such avenues typically requires legal counsel and data.
Rule stability: Asked whether the current administration might renege on the rule, Daniel Cordales said "short answer is yes" there is concern; withdrawing a final rule would require a new rulemaking and litigation by states or others is already underway in some quarters.
Next steps: Panelists recommended tribes bring data, request consultation, use EPA technical-assistance avenues, and engage state agencies early in triennial-review or project-specific processes. The webinar concluded with a reminder of the second session (January 30, 2025) focused on state implementation.
