UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF WETLANDS, OCEANS AND WATERSHEDS 

September 19,2014 

Dear Intergoverrunental Association Colleague: 

The U.S. Environmental Protection Agency is considering a rulemaking to provide more 

opportunities for tribes to fully engage in the Clean Water Act (CWA) Section 303(d) Impaired 

Water Listing and Total Maximum Daily Load (TMDL) Program. This action would provide 

such opportunities by establishing the process for tribes to obtain Treatment in a Similar Manner 

as a State (TAS) authority for the Program. The purpose of this letter is to seek your input on 

this action at this early stage, prior to a formal proposal. 

The CW A provides for states, territories, and authorized tribes to: I) develop lists of impaired 

waters; 2) establish priority rankings for waters on the lists; and 3) develop TMDLs for these 

waters. Impaired waters are waters for which technology-based regulations and other required 

controls are not stringent enough to meet CW A water quality standards. A TMDL is a 

calculation ofthe maximum amount of a pollutant that a water body can receive and still meet 

water quality standards with a margin of safety. 

I would like to invite you to a meeting to be held on Wednesday, October 1, 2014 at 2:00-3:00 

p.m. in room 1117 A of the William Jefferson Clinton East Building (formerly "EPA East" 

Building). You may enter the building at 1201 Constitution Avenue, N.W. Please be sure to 

arrive at least 15 minutes in advance ofthe meeting time, and to bring a photo ID for entry. The 

purpose of this meeting is for EPA to provide background information and outline its plans for 

the action, solicit initial feedback from association representatives, and discuss approaches for 

conducting further outreach to and obtaining input from your associations' state members. If 

you or staff members of your association are not able to attend in person, participation is 

available by audio conference by dialing 1-866-299-3188, and entering code 202-566-11 67# at 

the prompt. 

This planned proposed rulemaking to establish a T AS process for Listing and TMDLs is separate 

from the EPA Office of Water's potential reinterpretation ofthe Agency's approach to tribal 

jurisdiction to administer CW A 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 T AS process for listing and TMDLs irrespective of the reinterpretation. 

I am enclosing a two-page description of this planned proposed action to provide more 

opportunities for tribes to fully engage in the CW A Section 303( d) Impaired Water Listing and 

TMDL Program, which we will discuss in more detail at the meeting on October 1. We are very 

interested to hear your views during the meeting, and points of contact will be provided to 

facilitate your comments and input after the meeting. 
We are inviting the following intergovernmental associations to participate in this meeting: the 

National Governors Association, the National Conference of State Legislatures, the Council of 

State Governments, the Western Governors Association, the Southern Governors Association, 

the Midwestern Governors Association, the Coalition ofNortheastern Governors, the 

Environmental Council ofthe States, the Association of Clean Water Administrators, and the 

Western States Water Council. 

Please let us know if you will be able to participate in this meeting by contacting Andrew 

Hanson in the EPA's Office of Congressional and Intergovernmental Relations at 

hanson.andrew@epa.gov or (202) 564-3664. 

If you have any questions regarding the planned proposed rulemaking, you may contact me at 

wall.tom@epa.gov or (202) 564-4179, or Sarah Furtak at furtak.sarah@epa.gov or 

(202) 566-1167. 

Sincerely, 

Tom Wall, Director 

Assessment and Watershed Protection Division 

Enclosure 

2 
Planned Proposed Rulemaking to Provide More Opportunities for Tribes to Fully Engage in 

the Clean Water Act Section 303(d) Impaired Water Listing and TMDL Program 

Issue 

Prepared by EPA Office of Wetlands, Oceans and Watersheds 

September 2014 

• There is tribal int erest 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. 

Regulations are already in place expressly establishing a TAS process for each 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. 

• Comments were supportive of EPA's work on the proposed rulemaking. 

• EPA is conducting pre-proposal consultation and coordination with intergovernmental 

associations and plans to further coordinate with the Association of Clean Water Administrators 

(ACWA) concurrently with the public comment period should we proceed with a proposed rule. 

EPA also plans to conduct additional tribal consultation during the public comment period should 

we proceed with a proposed rule. 

• 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 Time Frame and Next Steps 

• April 8-June 6, 2014: Tribal consultation (Completed). 

• Mid to Late 2014: EPA begins to draft preamble, rule and supporting documents; 

Intergovernmental association consultation. 

• Late 2014: Publish proposed rule in Federal Register for 60-day public comment; Concurrent 

tribal consultation and coordination with ACWA. 

• Late 2014 to mid-2015: Review I respond to comments; Draft preamble I any rule revisions. 

• Late 2015: Publish final rule; Outreach I coordination with tribes. 

For Further Information 

• Further informat ion on this planned proposed rulemaking is available at 

http:ljwater.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. 

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