### Planned Proposed Rulemaking to Address the Process for Tribes to Obtain Treatment in a Similar Manner as States for the Clean Water Act Impaired Water Listing and Total Maximum Daily Load Program
Prepared by EPA Office of Wetlands, Oceans and Watersheds May 2015

Issue

• There is tribal interest in obtaining Treatment in a Similar Manner as a State (TAS) for the Clean Water Act (CWA) Section 303(d) Impaired Water Listing and Total Maximum Daily Load (TMDL) Program.

• CWA section 518 provides that eligible tribes may seek TAS for CWA section 303; however existing regulations do not explicitly address how tribes obtain TAS for the 303(d) Program. Section 518 requires EPA to establish procedures for tribes to obtain TAS for the various CWA programs. Regulations are already in place expressly establishing a TAS process for most of the other relevant CWA programs available to t ribes ( e.g. , Water Quality Standards (WQS), N ational Pollutant Discharge Elimination System (NPDES), section 404 permitting for the discharge of dredged or fill material ).
Action and Purpose

• EPA is developing a proposed rulemaking to provide more opportunities for tribes to fully engage in the Impaired Water Listing and TMDL Program.

• In this rulemaking, EPA would propose a process for tribes to apply to EPA for authority to establish lists of impaired waters and TMDLs pursuant to section 303(d) of the CWA.
Background

• EPA conducted tribal consultation and coordination on the planned proposed rulemaking from April 8, 2014 to June 6, 2014.

• About 40 tribes, including tribal representatives participating on the National Tribal Water Council and the inter

- tribal consortium Unite d South and Eastern Tribes, provided comments.

• Tribal c omments were supportive of EPA’s work on the proposed rulemaking.

• EPA conducted pre

- proposal consultation and coordination with intergovernmental associations in October 2014 1

. o EPA hosted a meeting on October 1 , 2014 attended by representatives from the Association of Clean Water Administrators, National Conference of State Legislatures, Western Governors’ Association (WGA) , Environmental Council of States, and the Western States Water Council (WSWC ).

o Personnel from the State of Maine requested a follow

- up meeting, which was held on October 28, 2014.

1 The National Governors Association, National Conference of State Legislatures, Council of State Governments, Western Governors’ Association, Southern Governors’ Association, Midwestern Governors Association, Coalition of Northeastern Governors, Environmen tal Council of States, Association of Clean Water Administrators, and Western States Water Council were invited per a September 19, 2014 letter from Tom Wall, Director, Assessment and Watershed Protection Division.
Page 1 of 2o The WSWC also requested a follow

- up meeting ; personnel from 11 states and representatives from the WSWC and the WGA attended the meeting on October 30, 2014.

• I ntergovernmental associations and member states , among other things , expressed interest in tribes’ views on the planned proposed rulemaking, and the number and location of tribes that have TAS for the CWA Section 303( c ) WQS Program.

• This planned proposed rulemaking to establish a TAS process for Listing and TMDLs is separate from the Agency’s consideration of a new approach to tribal jurisdiction to administer CWA regulatory programs

. Status and Next Steps

• This effort is progressi ng. EPA staff members are continuing to review input received during consultation and coordination with tribes and states, and are developing a planned proposed rule for consideration within EPA.

• The proposal could be published in the Federal Register as early as mid

- to

- late 2015.

• There would then be 60 days for public comment, and opportunities for further consultation and coordination with states and tribes. No final action will be taken without full consideration of public comments.

For Further In formation

• Further information on this planned proposed rulemaking is available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/policy.cfm

. • To ask questions or provide comments, please email Sarah Furtak at furtak .sarah@epa.gov or write: Sarah Furtak, Watershed Branch (mail code 4503T), Assessment and Watershed Protection Division, Office of Water, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460.

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