EPA Proposed Rule Would Limit Tribal Authority Over Infrastructure Permitting

2/15/2026

WASHINGTON, D.C.   –  On January 13, 2026, the Environmental Protection Agency (EPA) announced a Proposed Rule that would limit the ability of Indian Tribes to review and approve infrastructure projects that may impact Tribal waters.  Section 401 of the Clean Water Act (CWA) provides Indian Tribes and states, the ability to review and approve any federal license or permit for the construction or operation of facilities that will result in a discharge into Tribal waters.  This includes pipelines, mines, dams and any other project that needs a federal license or permit.

EPA is proposing two critical limitations on the ability of Tribes to review these projects:

• First, EPA would narrow CWA Section 401 review to a “discharge-only” focus, in contrast to the current “activity-based” review.  This would ignore all the impacts that an activity may have on Tribal waters beyond simple discharge.

• Second, EPA would eliminate the ability of Tribes to obtain standalone CWA Section 401 authority.  Under the current regulations, Tribes can apply under the CWA to obtain “treatment in a manner similar to a state” status and specifically seek Section 401 authority to review and approve infrastructure projects impacting Tribal waters.  Under the Proposed Rule, EPA would require Tribes to develop a full water quality standards program under Section 303(c) of the CWA as a prerequisite for exercising Section 401 authority. 
  

EPA states that the Proposed Rule is necessary to return Section 401 to its “proper statutory purpose.”  The Proposed Rule is available here.  Comments on the Proposed Rule are due February 17, 2026.

In a report summarizing Tribal consultation held during the Summer of 2025, EPA writes that Indian Tribes “unanimously opposed” the Proposed Rule.  The EPA Summary Report provides a good description of the unanimous Tribal opposition.  EPA reports that:

Tribes collectively emphasized Tribes have a fundamental responsibility and right to prevent, reduce, and eliminate pollution. Tribes noted that section 401 of the Clean Water Act is an important tool that empowers Tribes to protect their aquatic resources from potential adverse impacts of federally licensed or permitted projects.

The summary report is available here.

While the summary report states that “EPA considered the Tribal input in the development of the proposed rule,” it is unclear whether EPA resolved or addressed the unanimous opposition of Tribes to the Proposed Rule.  EPA’s Policy on Consultation and Coordination with Indian Tribes requires that EPA address comments provided by Tribes.  Even if Tribes cannot file comments by the February 17, 2026 deadline, Tribes may still submit comments to EPA as a part of EPA’s obligation to maintain open and ongoing consultation with Indian Tribes.

Skenandore Wilson LLP is dedicated to the representation of Tribal Nations, Tribal entities, and individual Tribal members throughout Indian Country.  Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our Tribal clients.  To learn more about how we can assist you, contact us at info@skenandorewilson.com or 608-608-1210.