1

Rulemaking to Provide More Opportunities

for Tribes to Engage in the Clean Water Act

Impaired Water Listing and Total

Maximum Daily Load Program

Tribal Consultation Webinar

Tuesday, April 29, 2014

1:00pm – 3:00pm Eastern

1

Speaker:  

Sarah Furtak, Environmental Protection Specialist, USEPA’s Office of Wetlands,

Oceans and Watersheds

Moderator:

Matthew Richardson, Acting Tribal Coordinator, USEPA’s Office of Water

Webinar Logistics

• To Ask a Question – Type your question in the “Questions”

tool box on the right side of your screen and click “Send.”

Also, we will open the phone line after the presentation and

have time for questions and dialogue with our audience,

speaker, and moderator.

• To Report Any Technical Issues (such as audio problems) –

Type your  issue in the “Questions”  tool box on the right

side of your screen and click “Send” and we will respond by

posting an answer in the “Questions” box.

2
2

Overview of Today’s Webinar

• Issue & Purpose

• Basics of the Impaired Water Listing and Total Maximum Daily

Load (TMDL) Program

• Impaired Water Listing and TMDL Program Tribal Status and

Coordination

• Examples of Valuable Tribal Input

• Working Timeline

3

Issue

• There is tribal interest in obtaining Treatment in a Similar Manner as a State

(TAS) for Clean Water Act (CWA) Section 303(d) Impaired Water Listing and

TMDL Program

• Existing regulations do not explicitly address TAS for the 303(d) Program

Purpose

Consult with tribes about a proposed rule to provide more opportunities for

tribes to fully engage in the CWA Section 303(d) Impaired Water Listing and

TMDL Program

 Clarify the process for tribes to obtain TAS authority for the 303(d) Program;

 Inform and coordinate with tribes during rulemaking now in development; and

 Engage tribes to increase understanding of Listing and TMDL Program.

4
3

Adopt Water Quality Standards

Monitor & Assess Waters

List Impaired & Threatened Waters

Develop TMDLs including load and

wasteload allocations  

Implement the TMDL

303(d) Program

40 CFR 130.7

Clean Water Act

Framework for Restoring Polluted Waters

5

What is the Impaired Waters Listing and

TMDL Program?

•Under CWA section 303(d), states, territories, and

authorized tribes:

• 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

6
4

Developing a 303(d) List of Impaired and

Threatened Waters

• Assemble all readily available water quality data

• Develop assessment methodology that explains how the water

quality data and the applicable water quality standards (WQS)

will be used to make listing decisions

• Establish priority ranking of all listed waters and 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 yr

cycle)

7

The National Picture

• ~ 42,000 waters listed as impaired

• Top causes of impairments:

• pathogens

• metals

• nutrients

• low dissolved oxygen

• sediment

8
5

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.

9

Developing TMDLs

• TMDLs are established according to the 303(d) list priority

ranking 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), and

• summary of and response to public comments

• TMDLs may be accompanied by an implementation plan

designed to meet WQS and restore water quality

10
6

Developing TMDLs, cont.

• States, territories, and authorized tribes develop TMDLs for waters on

303(d) list, and in accordance with priority ranking

• 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

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

complex, but EPA guidance provides an eight to thirteen year time frame

to complete development of a TMDL once a water body has been listed

• TMDL alternatives may exist in some circumstances

11

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

12
7

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

• Between 1999 and 2012, 197 TMDLs for Indian country waters have been

established in EPA Region 10 (Idaho, Oregon, Washington).

13

TAS Background

There are 566 federally recognized tribes

Program

Pollution Control Program Grants (106)

Number of Tribes with TAS

266

WQS (303(c)) 48  (39 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 April 17, 2014

14
8

TAS Background

• Under the CWA, EPA shall, in consultation with Indian tribes,

promulgate final regulations which specify how Indian tribes

shall be treated similar to a state 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)

15

303(d) TAS Tribal Consultation and

Coordination

• Through a rulemaking, EPA will 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

 Rulemaking is a process for developing and issuing

regulations (sometimes called “rules”)

• EPA will work with tribes to propose this rule

• Webinars, outreach, coordination and communication with

tribes beginning in 2014

 Tribal consultation underway (April 8‐May 22, 2014)

16
9

303(d) TAS Tribal Consultation and Coordination,

cont.

• You may be interested in this rulemaking if your tribe:

• Is one of over 60 tribes found eligible for or seeking

eligibility for TAS for WQS under the CWA and is interested

in submitting an application for TAS for CWA Section 303(d)

Impaired Water Listing and TMDL Program,

• Is interested in submitting a joint application for WQS and

Impaired Water Listing and TMDL Programs,

• Is interested in developing impaired water lists and TMDLs,

or

• Has an interest in impaired water listing and TMDLs in

other areas (for example, in an adjacent state).

17

303(d) TAS Tribal Consultation and Coordination,

cont.

• Policy, process, and resource considerations for this

rulemaking may include:

•Importance of EPA‐approved/promulgated WQS as a

practical prerequisite for issuing 303(d) lists/TMDLs

• Streamline and/or combine TAS applications for 303(c)

and 303(d) into a single application

• Support for tribes as tribes take on additional

responsibilities under the CWA

18
10

Additional Reasons for Rulemaking:

• National Tribal Water Council – The Council would like to know

more about ‐‐ and be involved in discussions with EPA regarding

‐‐ the development of the 303(d) TAS process following our

sharing the draft 303(d) Long‐Term Vision with the Council.

• 48 Tribes have TAS for WQS – Some tribes have begun to

inquire about the process for obtaining TAS for CWA section

303(d).

• 1984 Indian Policy ‐‐ EPA will assist tribes to build capacity for

environmental programs.  Principles 3 and 4 of the Policy

commit EPA to assist tribes in assuming regulatory and program

management responsibilities and to remove barriers to working

with tribes.

19

EPA Values All Tribal Input, Including:

• Input from the 48 tribes that have undergone the WQS TAS

process

• Input from tribes regarding experiences that tribes have had

in protecting, restoring, and maintaining water quality

• Reasons why a tribe may or may not be interested in seeking

TAS authority for the Impaired Water Listing and TMDL

Program

20
11

Proposed 303(d) Rule Timeline

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

supporting documents

 Concurrent tribal consultation April 8‐May 22, 2014

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

day public comment; Concurrent tribal consultation

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

Preamble / rule revisions

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

tribes

21

Questions?

22
12

For More Information

Contact for tribal consultation:

Sarah Furtak

furtak.sarah@epa.gov

(202) 566‐1167

Acting Office of Water Tribal Coordinator:

Matthew Richardson

(202) 564‐2947

richardson.matthew@epa.gov

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

23