On Tuesday, February 18, 2025 The Institute for Energy Research delivered a petition seeking reconsideration of the Tribal Reserved Rights Rule, 89 Fed. Reg. 35,717 (May 2, 2024), and Rulemaking to Amend 40 C.F.R. Part 131 to the office of the Environmental Protection Agency’s Administrator.
The Biden administration altered long-standing precedent to prioritize tribal water rights claims in state water planning processes. This undermines the ability of states to manage their own sovereign waters, an authority that is supposed to be vested in state government. The rule, which requires states to consider and enforce asserted tribal water rights when developing water quality standards, exceeds the EPA’s legal authority and conflicts with the Clean Water Act. This petition requests reconsideration of a rule titled “Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights,” published on May 2, 2024, by the Biden administration.
Accompanying the petition, IER President Tom Pyle provided the following letter:
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Administrator and Assistant Administrator:
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 553, the Institute for Energy Research respectfully requests that the U.S. Environmental Protection Agency (“EPA”) reconsider the final rule entitled Water Quality Standards Regulatory Revisions To Protect Tribal Reserved Rights, 89 Fed. Reg. 35,717 (May 2, 2024), and initiate notice-and-comment rulemaking to rescind the Rule’s preamble and to amend the requirements for State water quality standards at 40 C.F.R. Part 131.
For the first time in the decades-long history of the Clean Water Act of 1972, the Tribal Reserved Rights Rule requires States to interpret and enforce asserted Tribal rights to water resources when developing water quality standards for waters within the States’ sovereign territory. This sweeping mandate far exceeds the EPA’s remit to review State standards for compliance with the CWA’s requirements and cannot be squared with Congress’s express and unmistakable policy of preserving the traditional authority of States to regulate land and water uses.
As detailed in the attached petition, the EPA lacked statutory authority to impose such requirements for State designated uses and water quality criteria, let alone on the subject of reserved rights to water and water resources asserted under Federal treaties, statutes, or Executive Orders with connection to the CWA. Nor did the EPA adequately consider the shattering costs to States and regulated parties, including small businesses, of mandating the protection of express or implied Tribal reserved rights. Unless the EPA reconsiders its novel position, the Rule will require wholesale revision of water quality standards in any State where any Tribe asserts any reserved right involving water. On its own terms, the Rule jeopardizes the orderly administration of the CWA by upending decades of established practice without resolving critical threshold questions about who may assert rights, how such rights are to be interpreted, and when and how the EPA will deem State standards insufficient to protect such asserted rights. The resulting uncertainty is unnecessary to achieve the objectives of the CWA—to promote the public health and welfare through enhanced water quality—and cannot be justified by a desire to protect the asserted water rights of particular entities at the expense of State sovereignty.
The Institute for Energy Research respectfully requests that the EPA reconsider and rescind the preamble of the Tribal Reserved Rights Rule and amend 40 C.F.R. Part 131 to comply with the text, structure, and express purposes of the CWA. Specifically, the EPA should initiate notice-and-comment rulemaking to strike 40 C.F.R. § 131.3(r) and (s), 40 C.F.R. § 131.5(a)(9), 40 C.F.R. § 136(g), and 40 C.F.R. § 131.9, and amend 40 C.F.R. § 131.5(b) and 40 C.F.R. § 131.20 to remove references to the requirements added by the Rule.
Sincerely,
Tom Pyle, President
The Institute for Energy Research
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The full petition is available to review here.
