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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 

 

Prepared by EPA Office of Wetlands, Oceans and Watersheds

October 2015

Issue 

• There is tribal interest 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.  

Section 518 requires EPA to establish procedures for tribes to obtain TAS for the various CWA

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

• Tribal comments were supportive of EPA’s work on the proposed rulemaking.

• EPA conducted pre‐proposal consultation and coordination with intergovernmental associations.

• Intergovernmental associations and member states, among other things, expressed interest in

tribes’ views on the planned proposed rulemaking, and the number and location of tribes that

have TAS for the CWA Section 303(c) WQS Program.

• This planned proposed rulemaking to establish a TAS process for Listing and TMDLs is separate

from the Agency’s proposal of a new approach to tribal jurisdiction to administer CWA regulatory

programs.  
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Status and Next Steps 

• This effort is progressing. EPA staff members are continuing to review input received during

consultation and coordination with tribes and states, and are developing a planned proposed

rule for consideration within EPA.   

• The proposal could be published in the Federal Register as soon as late 2015.  

• There would then be 60 days for public comment, and opportunities for further consultation and

coordination with states and tribes. No final action will be taken without full consideration of

public comments.

For Further Information 

• Further information on this planned proposed rulemaking is available at

http://water.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.