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## 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 Maxi mum Daily Load (TMDL) Program • Consultation and Coordination • Working Timeline 212/18/2015

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## Issue • There is tribal interest in obtaining Treatment in a Similar Manner as a State (TAS) for Clean Water Act (CWA) Section 303(d) Impa ired Water Listing and TMDL Program. • Section 518 of the CWA authorizes treatment of trib es in a similar manner as states for several programs – including the Secti on 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 establ ish the process for tribes to obtain TAS for the CWA Section 303(d) Imp aired 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
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## What is the Impaired Water Listing and TMDL Program? • Under the CWA, states, territories, and authorized tribes: • Assemble and evaluate existing and readily availabl e water quality data and information • Develop lists of impaired waters every two years (2 012, 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 q uality data • Develop assessment methodology • Water quality data and applicable water quality sta ndards (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 developm ent (in next 2 years) • Request and respond to public comments • Submit final impaired and threatened waters list toEPA for approval (2 year cycle) 612/18/2015

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## The National Picture • ~ 43,000 waters listed as impaired • Top causes of impairments: • pathogens • nutrients • metals (other than mercury) • organic enrichment/oxygen depletion • 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 alloca tion 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. 812/18/2015

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## Developing TMDLs • TMDLs are established considering priority rankingsdeveloped 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 alloca tion (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 devel op, or more if it is very complex • TMDL interim alternatives may exist in some circumstances 1012/18/2015

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## How is a TMDL Used to Reduce Water Pollution? • National Pollutant Discharge Elimination System (NP DES) permits must include limits consistent with a TMDL’s WLA • Nonpoint sources are not directly regulated under t he CWA. Therefore, TMDL LAs for nonpoint sources provide gu idance to inform federal, state, or tribal action under ot her authorities
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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 2014Cumulative Number of TMDLs

Fiscal Year TMDL Production History

Annual TMDLs Cumulative TMDLs12/18/2015

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## 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 suppo rtive • EPA also conducted pre-proposal consultation and co ordination with intergovernmental associations • EPA plans to issue a Federal Register notice publication of a proposed rule and continue consultation and coordin ation with tribes and states 13 

## Working Timeline • Late 2015: Publish proposed rule in Federal Registe r for 60- day public comment; Opportunities for further triba l 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 / co ordination with tribes and others 1412/18/2015

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## For More Information Contact: Sarah Furtak furtak.sarah@epa.gov (202) 566-1167 • USEPA Impaired Waters and Total Maximum Daily LoadsHome 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.co ntrol?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