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On November 12, 2024, the NAM filed an amicus brief urging the District of North Dakota to vacate EPA’s final rule requiring states to consider tribal treaty-reserved rights in setting water quality standards. In this case, Idaho v. EPA, red states—Idaho, North Dakota, Alaska, Wyoming and South Dakota—sued EPA, arguing that the final rule exceeds its authority under the Clean Water Act. The rule's methodology, which uses counterfactual estimates of fish consumption by tribal subsistence fishers to set water quality standards, will result in excessively stringent criteria wherever tribes assert treaty-protected fishing rights. The rule could impose hundreds of millions of dollars in water treatment costs on regulated entities nationwide to satisfy standards that are more stringent than natural background detection levels of relevant pollutants.

We argue in support of the states’ motion for summary judgment that considering tribal treaty rights will lead to widespread impairment designations for bodies of water across the country, triggering heightened permitting restrictions and cleanup plans that are unachievable. Further, the district court’s endorsement of EPA’s expansion of its authority to require consideration of tribal rights would revise the range of interests that Congress intended the agency to place under the CWA and authorize EPA to consult all manner of legal authorities in search of new sources of rulemaking power.