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 tribes (e.g., Water Quality Standards (WQS), National 

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 United South and Eastern Tribes, provided comments. 

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

• EPA conducted pre-proposal consultation and coordination with intergovernmental associations

in October 20141. 

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, Environmental 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 2

 
o 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.

• Intergovernmental 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 progressing. 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 Information 

• 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.

Page 2 of 2