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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

USEPA Office of Wetlands, Oceans and Watersheds

October 2014

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Overview of Today’s Meeting

• Issue & Purpose

• Basics of the Impaired Water Listing and Total Maximum Daily

Load (TMDL) Program

• Treatment in a Similar Manner as a State (TAS) Background

• Consultation and Coordination

• Relationship to Potential Reinterpretation of Clean Water Act

Provision Regarding Tribal Eligibility to Administer Regulatory

Programs

• Working Schedule

• For More Information

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Issue

• Section 518 of the Clean Water Act (CWA) authorizes treatment of tribes in a similar

manner as states for several programs – including the Section 303(d) Impaired Water

Listing and TMDL Program – and directs EPA to promulgate TAS regulations.

• Because existing regulations do not explicitly address TAS for the 303(d) Program, EPA

plans to propose a new regulation.

• With 48 tribes having obtained TAS for the Section 303(c) Water Quality Standards (WQS)

Program, tribes are now expressing interest in obtaining TAS for section 303(d).

Purpose

To describe a planned proposed rulemaking to establish the process for tribes to obtain TAS

for the CWA Section 303(d) Impaired Water Listing and TMDL Program, as required by the

CWA.  

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Adopt Water Quality Standards

Monitor & Assess Waters

List Impaired & Threatened Waters

Develop TMDLs including load and

wasteload allocations  

Clean Water Act

Framework for Restoring Polluted Waters

Implement the TMDL

303(d) Program

40 CFR 130.7

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What is the Impaired Waters Listing and

TMDL Program?

• The CWA provides for states, territories, and

authorized tribes to:

• Solicit and compile existing and readily available water

quality data and information

• Develop lists of impaired waters every two years (2012,

2014, 2016...)

• Establish TMDLs for waters on the list

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Developing a 303(d) List of Impaired and

Threatened Waters

• Assemble all readily available water quality data

• Develop assessment methodology

• Water quality data and applicable WQS used to make listing decisions

• Identify waters that do not meet WQS (impaired) or are not

likely to meet WQS (threatened)

• Establish priority ranking of all listed waters

• Identify specific waters targeted for TMDL development (in

next 2 years)

• Request and respond to public comments

• Submit final impaired and threatened waters list to EPA for

approval (2 year cycle)

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The National Picture

• ~ 42,000 waters listed as impaired

• Top causes of impairments:

• pathogens

• metals

• nutrients

• low dissolved oxygen

• sediment

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What is a TMDL?

• A calculation of the maximum amount of a pollutant that a

waterbody can receive and still meet WQS, an allocation of that

amount to the pollutant’s sources, and a margin of safety.

The TMDL comes in the form of a technical document or

plan.

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Developing TMDLs

• TMDLs are established in accordance with priority rankings

developed by a 303(d) program authority for each waterbody /

pollutant combination.

• TMDLs often address multiple impairments within a watershed

• TMDLs and supporting documents typically include: • data summary / analysis,

• pollutant source assessment,

• pollutant loading targets,

• calculations for loading capacity, wasteload allocation (WLA; point sources), load

allocation (LA; nonpoint sources), margin of safety (MOS),

• reasonable assurance demonstration, and

• summary of and response to public comments

• TMDLs may be accompanied by an implementation plan

designed to meet WQS and restore water quality

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Developing TMDLs, cont.

• The CWA provides for states, territories, and authorized tribes to

develop TMDLs for waters on the 303(d) list, and in accordance with

priority ranking

• Typically, a TMDL could take a year or two to develop, or more if it is

very complex

• EPA guidance provides that TMDL development schedules for all

impaired waters in a particular jurisdiction should be “expeditious” and

“normally extend from eight to thirteen years in length, but could be

shorter or slightly longer” depending on jurisdiction‐specific factors

• TMDL alternatives may exist in some circumstances

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How is a TMDL Used to Reduce Water

Pollution?

• National Pollutant Discharge Elimination System (NPDES)

permits must include limits consistent with a TMDL’s WLA

• Nonpoint sources are not directly regulated under the CWA.  

Therefore, TMDL LAs for nonpoint sources provide guidance

to inform federal, state, or tribal action under other

authorities

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0

10000

20000

30000

40000

50000

60000

70000

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Cumulative Number of TMDLs

Fiscal Year

Over 65,000 TMDLs Completed

Annual TMDLs Cumulative TMDLs

12/16/2013

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TAS Background

There are 566 federally recognized tribes

Program Number of Tribes with TAS

Pollution Control Program Grants (106) 268

WQS (303(c)) 48  (40 tribes have approved

WQS;  1 tribe without TAS has

federally promulgated WQS)

Listing and TMDLs (303(d)) 0

NPDES (402) 0

Nonpoint Source Grants and Planning (319) 180

Data as of September 5, 2014

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TAS Background

• Under the CWA, EPA shall promulgate final regulations that

specify how Indian tribes shall be treated similar to states for

purposes of the Act

• Other CWA programs (e.g., 106, 303(c), 319, 402) have

promulgated final TAS regulations

• Existing regulations do not explicitly address steps to take for

obtaining TAS for 303(d)

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Consultation and Coordination

• Through a rulemaking, EPA plans to propose a process for tribes to apply

to EPA for TAS eligibility to establish lists of impaired waters and TMDLs

pursuant to section 303(d) of the CWA

• Statutory TAS criteria would apply

• EPA is evaluating specific TAS application procedures

• EPA conducted tribal consultation and coordination on the planned

proposed rulemaking from April 8 to June 6, 2014

• About 40 tribes provided comments, which were supportive

• EPA is now consulting with intergovernmental associations

• EPA plans to issue a Federal Register notice publication of a proposed

rule and continue

• coordination with the Association of Clean Water Administrators (ACWA)

• tribal consultation and coordination

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Relationship to Potential Reinterpretation of

Clean Water Act Provision Regarding Tribal

Eligibility to Administer Regulatory Programs

• This planned proposed rulemaking to establish a TAS process for

Listing and TMDLs is separate from the EPA Office of Water’s

potential reinterpretation of the Agency’s approach to tribal

jurisdiction to administer CWA regulatory programs, a subject about

which many state associations have recently been briefed.

• EPA is planning to proceed with the proposed rulemaking to establish

a TAS process for listing and TMDLs irrespective of the

reinterpretation.

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Working Schedule

• Now to late 2014: EPA begins to draft preamble, rule and

supporting documents

Intergovernmental Association Outreach Meeting

October 1, 2014; EPA requests PRE‐PROPOSAL comments

by November 1, 2014, or as soon as possible thereafter

• Late 2014: Publish proposed rule in Federal Register for 60‐

day public comment; Concurrent tribal consultation;  

Coordination with ACWA

• Late 2014 to mid‐2015: Review / respond to comments;

Draft preamble / any rule revisions

• Late 2015: Publish final rule; Outreach / coordination with

tribes and others

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For More Information

• To view background materials:

http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/policy.cfm

• To ask questions or provide comments/views, please email Sarah Furtak at

furtak.sarah@epa.gov by November 1, 2014

References:

• USEPA Impaired Waters and Total Maximum Daily Loads Home Page, http://epa.gov/owow/tmdl

• USEPA New Vision for the CWA 303(d) Program, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/programvision.cfm

• USEPA “New Policies for Establishing and Implementing Total Maximum Daily Loads (TMDLs)” Memo, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/ratepace.cfm

• USEPA Indian Policies and 1984 Indian Policy, http://www.epa.gov/indian/basicinfo/presidential‐docs.html

• USEPA Assessment, TMDL Tracking, and ImplementatioN Database, http://iaspub.epa.gov/waters10/attains_nation_cy.control?p_report_type=T

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Questions?

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