Field Notes from the Headwaters Report

By: Daniel Cordalis
July 31, 2025
Published as part of The Headwaters Report

Since the last Field Notes posting in late May, time has passed like a year. The volume of issues coming from Washington, DC, has us moving at a rapid pace. In the last two months, the administration and Congress have been through the final negotiations and passage of the 1,000+-page budget reconciliation bill (aka, the One Big Beautiful Bill, or, the Megabill), numerous agencies releasing National Environmental Policy Act (NEPA) guidance or proposed rules, the start of Clean Water Act (CWA) regulation rollbacks, high court decisions greenlighting federal employee firings, and energy project fast-tracking, to name a few. 

Meanwhile, Tribal water issues continue to burn at a steady rate, with the re-introduction of twelve water rights-related bills in Congress, constituting new settlements and amendments to existing settlements; Colorado River management plan development to beat the 2026 deadline; more Klamath River water distribution disputes; and the federal withdrawal of the Columbia River Agreement that supported the restoration of salmon in the river and Tribal rights to the river’s fisheries.  

Because there are so many things to update, below are snapshots of key issues and concepts, followed by noteworthy regulatory issues: 

  • NARF and the Western States Water Council are co-hosting the Reserved Rights Settlement Symposium on August 6, a one-day virtual event. The goal of this symposium is to bring together Tribal, federal, and state leaders to discuss the political state of water settlement, congressional advocacy, settlement implementation, and other issues to support ongoing and future settlement efforts. We hope you can attend.  
  • Colorado River – June conference hosted by Colorado Law, Getches-Wilkinson Center: we heard terrific updates from Tribal Nations, state and federal officials, conservation organizations, climate scientists, and others about the state of the Colorado River Basin. A few overarching takeaways for our team: 
  • Climate policy is water policy. Significant greenhouse gas reductions are necessary to fight the “beyond awful” projected climate impacts on the basin’s annual river flows. Ignoring climate policy will lead to future disputes and greater uncertainty and frustration due to decreasing available water. 
  • Unquantified Tribal water rights are difficult, if not impossible, to get recognized and accounted for in water management. Like the Navajo Nation’s unquantified rights that led to the negative 2023 Navajo Nation v. Department of Interior U.S. Supreme Court decision, unquantified Tribal rights are a long-deferred, important opportunity for Tribal Nations to build sustainable and healthy communities and economies, but the United States is severely limited in their ability to support widespread resolution of these rights and it is overly conservative in management planning, restricting the ability of Tribes to protect their water rights. For example, the Indian Peaks Band of Paiute Indians in Southwest Utah has, so far, been unable to get the Interior Department to recognize the potential scope of the Band’s water rights while it works toward approval of a large water pipeline that would pull water from the Band’s original reservation to which it still holds water rights to. It will be critical to develop proposals for the protection of these Tribal water rights, trust assets, in all federal decision making. 
  • Federal staffing changes are beginning to hurt Tribal water issues. 
  • Two federal departments, Interior and Justice, have primary roles in supporting Tribal Nations’ water rights claims. Staffing in these departments is being reduced through voluntary resignations, urged by the administration’s push to significantly cut and hamstring the federal workforce, especially in positions that support environmental justice, climate, and other equity work.  
  • The numbers:  
  • The Interior Department’s Secretary’s Indian Water Rights Office has three (3) full-time staff to lead and manage all Tribal water rights settlements, whether in the assessment, negotiation, or implementation phases. The office last two staff this year. 
  • The Interior Department’s Solicitor’s Office, Branch of Indian Water, lost two staff and has five attorneys to handle all Tribal water issues that come before the Department.   
  • Regional Solicitor’s offices are losing career staff with significant expertise, including the Portland office who is losing their hydropower relicense and Federal Regulatory Energy Commission expert as well as attorneys working on Tribal claims in Pacific Northwest water adjudications. 
  • The Justice Department, through the Environment and Natural Resources Division (ENRD), which houses the Tribal Resources Branch, is losing longstanding career staff that represent Tribes in adjudications, water settlements, and other Tribal water matters. 
  • We are rapidly approaching an inflection point whereby the federal government will not be able to meet its trust responsibilities to Tribal Nations because they do not have the staffing nor the expertise to competently protect Tribal water rights and trust assets.  
  • Klamath River Water Management Policy Change – The administration and Interior Department made its first significant move involving Tribal water in May when, in Klamath River litigation over water use, it switched positions on how the Bureau of Reclamation meets Endangered Species Act needs when it also has delivery obligations under federal irrigation contracts. Previously, the government asserted the ESA provided a legal requirement to reduce irrigation deliveries pursuant to certain contract language, a position the district court agreed with in ruling for the Tribes and United States. But now, Interior has chosen to flip its position and claim those contracts actually override competing ESA interests, claiming different contracts from a different irrigation project in California control the Klamath contracts. Klamath irrigators applauded this change while the Tribal Nations are fighting this in court. This change affects how Reclamation manages Klamath water, how it accounts for in-river releases (i.e., water for the Klamath River as opposed to diverting water to agriculture), and ultimately whether it may owe compensation for reducing water deliveries to meet ESA legal requirements (this may be the irrigators’ goal). The downstream Karuk, Hoopa, and Yurok Nations have senior and time immemorial fishing and water rights in the Klamath River that will be affected by this position and that may be trampled by this change.  

Further, in its change, Interior made the incredible leap that it need not accommodate Yurok’s water needs for its summer Boat Dance ceremonial water needs (again, flipping positions on this where Interior previously determined the Tribe had a right to the water) because there is no federal statute requiring water for the ceremonial purpose and because the Tribe’s asserted water right for this ceremony is not quantified (see note above on the exposure Tribes face due to unquantified water rights). Rather than look at the purposes of the reservation to define Yurok water needs and water rights (as Winters and subsequent U.S. Supreme Court decisions require), Interior claims the 2023 Navajo Nation decision precludes those releases and that it will reconsider future releases for the ceremony. But, Navajo Nation does not support this position and, instead, stands for the proposition that there is no trust-based duty unless there is express federal acknowledgement (e.g., statute) of such a duty, not that the government cannot continue to recognize implied water rights (i.e., Winters) or provide water for Tribes if not statutorily based. We have seen industry make similar arguments alleging Tribal rights must be curtailed due to Navajo Nation, but those arguments have failed. 
 
Interior’s position is extremely disheartening in that it does not acknowledge Tribal water rights and, instead, rolls over them and makes very weak legal arguments to subordinate those rights to junior irrigator contracts. As the administration’s first statement on Tribal water, this is a bad start. 

Regulatory Issues to Follow 

  • EPA 
  • The Clean Water Act (CWA) Tribal Reserved Rights Rule litigation continues to be paused at the request of EPA. We anticipate that EPA may ultimately seek to change the rule due to industry and state requests. 
  • CWA section 401 revision. On July 7, EPA issued a request for information regarding the 401 water quality certification process, presumably to change the 2023 CWA section 401 rule revision, which replaced the Trump Administration’s 2020 rule. See this excellent explainer about section 401, explaining how Tribes with Treatment as a State (TAS) and states have important interest at stake in the 401 certification process. NARF is collaborating with other organizations and Tribal Nations to submit comments. If you are interested in participating, please contact Lily Cohen or Melissa Kay.  
  • National Environmental Policy Act (NEPA) 
  • The Trump Administration moved quickly to rescind all Council of Environmental Quality (CEQ) NEPA regulations through Executive Order 14,154 (Unleashing American Energy), regulation that all agencies implementing NEPA had followed for decades. Further, two federal court decisions concluded that CEQ did not have the authority to issue regulations under NEPA, clearing the way for the administration’s recission.  
  • In the place of CEQ regulations, the administration directed each agency to develop its own procedures and guidelines for NEPA implementation, which they have been doing this month. These NEPA changes are intended to speed-up NEPA environmental review to support quicker energy-project permitting. Accordingly, the proposals cut back significantly on their effort to consult with Tribal Nations and obtain input from Tribal communities. NARF is tracking the below NEPA regulations in concert with other entities: 

That’s all for now, please reach out if interested in learning more~ 

Daniel 

By: Daniel Cordalis
May 21, 2025
Published as part of The Headwaters Report

The first 100 days of the second Trump administration have been very busy. The president has signed more than 140 executive orders, many testing the limits of executive authority, and signed dozens of proclamations and memorandums setting out new policy directives. These directives are reshaping how the federal government operates and what issues it prioritizes. The new administration is engaging in widespread agency staffing reduction initiatives, major regulatory changes designed to reduce perceived regulatory burdens, federal funding cuts and freezes, and removal of equity- and climate-based initiatives. Through executive policy making, the White House is altering international trade practices and reshaping domestic policy to increase energy production from federal public lands. Understandably, there is a lot of social unease, and the economy is reacting negatively to the rapid changes and uncertainty. These changes are not insubstantial. To be clear: these are significant departures from established federal policies and practices that constitute a drastic reformation of government operations.  

So far, tens of thousands of federal employees across the federal government have either resigned or been fired, and there are numerous agency reorganization initiatives and reductions in force (known as “RIF”) taking place that will likely not be completed for months. These staffing reductions and agency changes will likely negatively impact Tribal Nations and the public’s ability to interact with the federal government both to implement and enforce federal policy and the law. NARF is tracking closely how these new efforts are affecting Indian Country and we will take action when needed to protect the rights of Tribal Nations, such as our lawsuit challenging funding and staff reductions at Bureau of Indian Education schools.  

On the environmental front, the White House has issued overarching climate-related directives, including executive orders to withdraw from the Paris climate agreement, to increase domestic energy production on public and private lands, and to bypass environmental justice, as well as state laws and policies aimed at combatting climate change. On the ground, the administration is working to scale back environmental protections and programs, particularly at the Environmental Protection Agency (EPA) under Administrator Lee Zeldin. For example, EPA is revisiting its 2009 conclusion that carbon dioxide endangers human health and welfare (the endangerment finding), a conclusion that allowed EPA to regulate carbon dioxide as a greenhouse gas under the Clean Air Act. EPA is also accepting input into how it defines “waters of the United States” for Clean Water Act jurisdictional purposes.  

Other agencies are also working to undo current regulatory requirements that may impede energy and other economic development. In late April, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration proposed to modify what it means to “harm” wildlife so Endangered Species Act protections would not include modification of wildlife habitat, making it easier to develop and use land where endangered species live. 

While we have seen a lot of activity from cabinet-level political appointees working to enact the president’s agenda, the administration has been very slow (as it was in 2017) to fill in other political appointments, but that is picking up a bit now that we are into mid-May. This is causing some stagnation in issue areas that the administration does not have a particular focus on, including water issues (other than supporting irrigators in California and in the Upper Klamath River Basin).  Of particular concern for water-related issues: we still do not have a Commissioner of the Bureau of Reclamation.  

Interior Department 

We do not have clarity on how the Interior Department will direct policy regarding Tribal water issues.  Interior Secretary Doug Burgum made affirmative comments supporting the resolution of Tribal water issues through settlement in his confirmation hearing, but little has happened since. For now, Scott Cameron, a Senior Advisor to the Secretary and Interior Department appointee under the first Trump Administration, has been Interior’s lead on Colorado River management negotiations. Three other Interior Department nominees will be critical to support Tribal water: Billy Kirkland (Navajo/Diné), nominated for Assistant Secretary for Indian Affairs; Andrea Travnicek, nominated for Assistant Secretary for Water and Science, and; William Doffermyre, nominated to be Solicitor of the Department of the Interior. Travnicek and Doffermyre are in the Senate confirmation process, but Kirkland will not onboard until this summer. As such, we will have to wait to see how the department’s political appointee staffing shapes up and what direction leadership will take on Tribal water issues.  

The Interior Department is the lead federal department handling Tribal water issues and a handful of Interior agencies and programs work on them, including the Bureau of Indian Affairs, the Secretary’s Indian Water Rights Office (SIWRO), the Bureau of Reclamation, the Solicitor’s Office, the Indian Trust Litigation Office, and often Secretary’s counselors and advisors.  

Finally, one of Indian Country’s most dedicated federal employees, Pam Williams, SIWRO director, retired on April 18. Pam, with thirty-five years of federal service in the Interior Department working on Tribal water rights settlements, will be missed tremendously and we thank her for her service on incredibly difficult and important issues.  

Congressional Activity 

In Congress, Tribal Nations have been quick to reintroduce water-related legislation in both the Senate and House of Representatives. Because none of the twelve Tribal water rights settlements or settlement amendments bills passed at the end of 2024, the Tribes must restart the congressional approval process. The Senate Committee on Indian Affairs passed six water rights settlement bills on March 5, 2025, and the bills will next head to the Senate floor for consideration. The House of Representatives has not held any hearings on the bills in its chambers.    

Immediately, Congress, and the House of Representatives specifically, is consumed with drafting and negotiating the budget reconciliation bill. The budget reconciliation bill is legislation addressed at budget-specific items like spending and revenues or changing the debt limit. General policy issues are not allowed in the reconciliation bill, although much of the bill includes items that reflect policy proposals. Reconciliation is a special process that allows the Senate to pass legislation with only a simple majority, 51 votes, rather than the 60 votes typically needed.  

Each House committee drafts its piece of the bill. The House Natural Resources Committee’s portion seeks to increase fossil fuel production and mining on public lands, while cutting environmental reviews.  Included in the bill are: 

  • Reinstatement of two mining projects blocked by Biden Administration, Ambler Road through the Gates of the Arctic National Park and Preserve, Alaska, and Twin Metals in Minnesota’s Boundary Waters Canoe Area Wilderness. 
  • Requirements that the Interior Department offer up 30 chances for companies to bid on opportunities to drill in the Gulf of Mexico over the next 15 years. 
  • Requirements that six similar auctions to be held for drilling inside Alaska’s Cook Inlet.  
  • A late amendment to sell certain public lands in Nevada and Utah. 
  • The reinstatement of leases to drill in the Arctic National Wildlife Refuge and four new drilling auctions there. 
  • Additional Arctic drilling opportunities in the National Petroleum Reserve-Alaska.  
  • $2.5 billion for California water storage and conveyance improvements funding, aimed at raising Shasta Dam and increasing water storage in Shasta Reservoir. 
  • Pay-for expedited environmental reviews (NEPA), reviews would then be exempted from court challenge. 
  • More opportunities to mine for coal on federal public lands. 

House committees are working through their approval process, but it appears there will be a lot of negotiating to get the bill passed.   

In all, there is a lot of activity to redefine the federal government’s role as public trustee and to create more energy development and fewer environmental restrictions. We are tracking all the policy developments and will continue to provide monthly updates on issues of importance to Indian Country. 

Events We are Tracking 
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