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Tribes defend EPA’s tribal reserved‑rights rule as 12 states sue to block it
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Summary
The EPA’s tribal reserved‑rights rule, effective June 3, 2024, requires states to consider tribal reserved rights when setting water quality standards. Twelve states sued to block the rule; tribes and the Native American Rights Fund say the rule clarifies existing Clean Water Act obligations and are defending it in court.
The Environmental Protection Agency’s rule requiring states to consider tribal reserved rights when setting water quality standards — effective June 3, 2024 — is at the center of a multi‑party legal fight that could shape how off‑reservation waters are managed, tribal representatives and state officials said during an NCAI webinar.
"The final rule requires states to consider tribal reserve rights when developing water quality standards," Donna Downing, senior legal policy adviser at the National Association of Wetland Managers, said in opening remarks summarizing the rule’s purpose. The panel emphasized the rule applies to treaty, legislative and executive‑order based reserved rights that protect access to aquatic resources under the Clean Water Act framework.
Tribes, joined by legal groups including the Native American Rights Fund, have intervened to defend the rule after a coalition of 12 states filed suit and moved for a preliminary injunction in July 2024. "The states are arguing … that the rule exceeds EPA's authority under the Clean Water Act," said Daniel Cordales, a staff attorney with the Native American Rights Fund. He summarized the states' contentions that the rule is "arbitrary and capricious," raises major‑questions concerns and improperly directs how states should interpret tribal treaty rights.
NARF and tribal intervenors counter that the rule provides a clear process for consideration of tribal rights under the Clean Water Act (section 303) and does not create a separate entitlement for tribal members. "The tribal reserve rights of aquatic resources are due the same protection as all other existing uses," Cordales said, adding the rule "is not creating a special program for tribal members. It's including them just as they would include every other person who's asserting a use of that designated water."
On timing, Cordales told the webinar that summary judgment briefing was underway and that a merits hearing could occur later in the year. He said the court did not rule on the states' preliminary injunction motion after it was filed in mid‑2024. Panelists also noted that if the current administration or EPA decided to rescind the rule, the agency would have to follow public‑notice‑and‑comment procedures to do so.
Why this matters: panelists warned that failure to consider tribal reserved rights in state water quality approvals can be reversible. Cordales cited case law suggesting courts have vacated state standards that ignored tribal rights, and said the rule is intended to set a predictable process states and tribes can use in those reviews.
The next steps are procedural: the litigation will proceed through summary judgment and further briefing; tribes, their counsel and the EPA (absent changes in the federal position) will continue to defend the rule. Participants said they expect states and tribes that work cooperatively to bring jointly developed proposals to EPA where possible, while litigation plays out.
—Reporting draws on presentations and Q&A from panelists including Donna Downing, Daniel Cordales and others during the NCAI webinar.
