12/18/2015

1

Planned Proposed Rulemaking to Provide 

More Opportunities for Tribes to Fully 

Engage in the Clean Water Act Impaired 

Water Listing and Total 

Maximum Daily Load Program

James Havard

USEPA Office of Wetlands, Oceans and Watersheds

October 28, 2015

1

Overview

• Issue & Purpose 

• Basics of the Impaired Water Listing and Total Maximum Daily 

Load (TMDL) Program

• Consultation and Coordination

• Working Timeline

2
12/18/2015

2

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.

• Section 518 of the 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.

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. 

3

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

4
12/18/2015

3

What is the Impaired Water Listing and 

TMDL Program?

•Under the CWA, states, territories, and authorized 

tribes:

• Assemble and evaluate 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

5

Developing a 303(d) List of Impaired and 

Threatened Waters

• Assemble and evaluate all readily available water quality data

• Develop assessment methodology 

• Water quality data and applicable water quality standards (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)

6
12/18/2015

4

The National Picture

• ~ 43,000 waters listed as impaired

• Top causes of impairments:

• pathogens

• nutrients

• metals (other than mercury)

• organic enrichment/oxygen depletion

• sediment

7

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. 

8
12/18/2015

5

Developing TMDLs

• TMDLs are established considering 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

9

Developing TMDLs, cont.

• Under the CWA, states, territories, and authorized tribes 

develop TMDLs for waters on the 303(d) list

• Typically, a TMDL could take a year or two to develop, or 

more if it is very complex

• TMDL interim alternatives may exist in some circumstances

10
12/18/2015

6

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

11

10/19/2015

12

0

10000

20000

30000

40000

50000

60000

70000

80000

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Cumulative Number of TMDLs

Fiscal Year

TMDL Production History

Annual TMDLs Cumulative TMDLs
12/18/2015

7

Consultation and Coordination 

• 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 also conducted pre-proposal consultation and coordination 

with intergovernmental associations

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

proposed rule and continue consultation and coordination with 

tribes and states

13

Working Timeline

• Late 2015: Publish proposed rule in Federal Register for 60-

day public comment; Opportunities for further tribal 

consultation and coordination; Consultation and 

coordination with states

• Early to mid 2016: Review / respond to comments; Draft 

final rule and preamble

• Mid to late 2016: Publish final rule; Outreach / coordination 

with tribes and others

14
12/18/2015

8

For More Information

Contact:

Sarah Furtak

furtak.sarah@epa.gov

(202) 566-1167

• 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 Assessment, TMDL Tracking, and ImplementatioN Database, 

http://iaspub.epa.gov/waters10/attains_nation_cy.control?p_report_type=T

• USEPA Recovery Potential Screening Tool, 

http://gispub.epa.gov/wsio/states/states.html

• USEPA Watershed Index Online, http://gispub.epa.gov/wsio/

15