Epa proposes rule changes that would strip tribal nations of key water protection powers

The Environmental Protection Agency has announced controversial changes to Clean Water Act regulations that would significantly limit tribal nations’ ability to protect their water resources and enforce treaty rights. The proposed rule would narrow the scope of water quality reviews that tribes and states can conduct on federal projects like dams, mines, and pipelines.

Currently, tribes can perform comprehensive “activity as a whole” reviews that evaluate all potential water quality impacts, including spill risks and effects on wildlife and cultural resources. The EPA’s proposal would restrict these assessments to “discharge only” reviews, focusing solely on pollution levels rather than broader environmental impacts. This represents a rollback of expanded protections established under the Biden administration in 2023.

The changes would also make it harder for tribal nations to gain regulatory authority through the Treatment as a Similar Manner as a State (TAS) program. Only 84 of over 570 federally recognized tribes currently have TAS status, and the new rule would require tribes to meet more rigorous standards to conduct water quality reviews. Legal experts warn this creates an unfair burden on smaller tribes that lack extensive environmental departments but still need to protect their water resources.

“Treaty rights are one of the strongest mechanisms to enforce against the federal government,” explained University of Colorado law professor Heather Tanana. The EPA’s own tribal consultation report showed widespread opposition to the changes, with tribes clearly stating the modifications would undermine their sovereignty and ability to protect their communities. The proposal faces a 30-day public comment period and is expected to trigger litigation if finalized.