Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules 2791 

collection requirements as defined in 5 

CFR part 1320 that are not already 

required by law or not already approved 

for use. Accordingly, the review 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.) and 

its implementing regulations at 5 CFR 

part 1320 do not apply. 

List of Subjects in 36 CFR Part 261 

Prohibitions, Law enforcement, 

National forests. 

Therefore, for the reasons set out in 

the preamble, we propose to amend part 

261 of title 36 of the Code of Federal 

Regulations as follows: 

PART 261—PROHIBITIONS 

■ 1. The authority citation for part 261 

continues to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 

4601–6d, 472, 551, 620(f), 1133(c)–(d)(1), 

1246(i). 

Subpart C—Prohibitions in Regions 

■ 2. Revise § 261.77 to read as follows: 

§ 261.77 Prohibitions in Region 8, 

Southern Region. 

(a) Using or occupying any area of 

National Forest System land abutting 

the Chattooga River for the purpose of 

entering or going upon the River in, on, 

or upon any floatable object or craft of 

every kind or description, unless 

authorized by permit or through a 

special use authorization. (The 

Chattooga River is located in the 

Nantahala National Forest in North 

Carolina, the Sumter National Forest in 

South Carolina and the Chattahoochee 

National Forest in Georgia.) 

(b) Using or occupying within the 

scope of any commercial operation or 

business any area of National Forest 

System land abutting the Chattooga 

River for the purpose of entering or 

going upon the River in, on, or upon any 

floatable object or craft of every kind or 

description, unless permitted under a 

special use authorization. 

(c) Violating or failing to comply with 

any of the terms or conditions of any 

special use authorization or permit 

authorizing the occupancy and use 

specified in paragraph (a) or (b) of this 

section is prohibited. 

(d) Entering, going, riding, or floating 

upon any portion or segment of the 

Chattooga River within National Forest 

System land in, on, or upon any 

floatable object or craft of every kind or 

description, unless authorized by a 

permit or through a special use 

authorization. 

(e) Entering, going, riding, or floating 

within the scope of any commercial 

operation or business upon any portion 

or segment of the Chattooga River 

within National Forest System land in, 

on, or upon any floatable object or craft 

of every kind or description, unless 

permitted under a special use 

authorization. 

(f) Violating or failing to comply with 

any of the terms or conditions of any 

special use authorization or permit 

authorizing the occupancy and use 

specified in paragraph (d) or (e) of this 

section is prohibited. 

Dated: December 21, 2015. 

Thomas L. Tidwell, 

Chief, Forest Service. 

[FR Doc. 2016–00888 Filed 1–15–16; 8:45 am] 

BILLING CODE 3411–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 130 

[EPA–HQ–OW–2014–0622; FRL–9941–33– 

OW] 

RIN 2040–AF52 

Treatment of Indian Tribes in a Similar 

Manner as States for Purposes of 

Section 303(d) of the Clean Water Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In section 518(e) of the Clean 

Water Act (CWA), Congress authorized 

EPA to treat eligible federally 

recognized Indian tribes in a similar 

manner as states for purposes of 

administering section 303 and certain 

other provisions of the CWA, and 

directed the agency to promulgate 

regulations effectuating this 

authorization. EPA has issued 

regulations establishing a process for 

federally recognized tribes to obtain 

treatment in a similar manner as states 

(TAS) for several provisions of the 

CWA; 50 tribes, for example, have 

obtained TAS authority to issue water 

quality standards under CWA section 

303(c). EPA, however, has not yet 

promulgated regulations expressly 

establishing a process for such tribes to 

obtain TAS authority to administer the 

water quality restoration provisions of 

CWA section 303(d), including issuing 

lists of impaired waters and developing 

total maximum daily loads (TMDLs) 

under CWA section 303(d), as states 

routinely do. EPA is now proposing to 

remedy this gap. By establishing 

regulatory procedures for eligible tribes 

to obtain TAS for the CWA Section 

303(d) Impaired Water Listing and 

TMDL Program, the proposed rule 

would enable eligible tribes to obtain 

authority to identify impaired waters on 

their reservations and to establish 

TMDLs, which serve as plans for 

attaining and maintaining applicable 

water quality standards (WQS). The 

proposal is comparable to similar 

regulations that EPA issued in the 1990s 

for the CWA Section 303(c) WQS and 

CWA Section 402 and 404 Permitting 

Programs, and includes features 

designed to minimize paperwork and 

unnecessary reviews. EPA requests 

comments on all aspects of the proposed 

rule. 

DATES: EPA must receive comments on 

or before March 21, 2016. EPA will 

discuss this proposed rule and answer 

questions about it in one or more 

webinars during the above comment 

period. If you are interested, see EPA’s 

Web site at http://www2.epa.gov/tmdl/

tribal-consultation-rulemaking-providemore-opportunities-tribes-engage-cleanwater-act for the date and time of the 

webinar(s) and instructions on how to 

register and participate. Additionally, 

under the Paperwork Reduction Act 

(PRA), comments on the information 

collection provisions are best assured of 

consideration if the Office of 

Management and Budget (OMB) 

receives a copy of your comments on or 

before February 18, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket identification (ID) 

No. EPA–HQ–OW–2014–0622, at 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit http://

www2.epa.gov/dockets/commentingepa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Furtak, Assessment and 

Watershed Protection Division, Office of 

Wetlands, Oceans and Watersheds 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
2792 Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules 

1See ‘‘Over What Area May Tribes Apply for TAS 

for the CWA Section 303(d) Impaired Water Listing 

and TMDL Program?’’ below. 

2The term Indian country is defined at 18 U.S.C. 

1151. 

(4503T), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: (202) 566–1167; fax number: 

(202) 566–1331; email address: 

TASTMDL@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information is organized 

as follows: 

I. General Information 

A. Does this action apply to me? 

B. Over what area may tribes apply for TAS 

for the CWA Section 303(d) impaired 

water listing and TMDL program? 

C. What should I consider as i prepare my 

comments for EPA? 

1. Resubmitting Relevant Comments From 

Consultations and Listening Sessions 

2. Submitting CBI 

3. Tips for Preparing Your Comments 

II. What is the statutory and regulatory 

history of TAS under the CWA? 

A. Statutory History 

B. Regulatory History 

III. Why might a tribe be interested in seeking 

TAS authority for the CWA Section 

303(d) impaired water listing and TMDL 

program? 

IV. What program responsibilities would 

tribes have upon obtaining TAS for the 

CWA Section 303(d) impaired water 

listing and TMDL program? 

A. Identification of Impaired Waters and 

Submission of Section 303(d) Lists 

B. Establishment and Submission of 

TMDLs 

C. EPA Review of Lists and TMDLs 

V. What are EPA’s proposed procedures for 

a tribe to seek TAS for the CWA Section 

303(d) impaired water listing and TMDL 

program? 

VI. What special circumstances may exist 

regarding qualification for TAS for the 

CWA Section 303(d) impaired water 

listing and TMDL program? 

VII. What procedure would EPA follow in 

reviewing a tribe’s TAS application? 

A. Notice to Appropriate Governmental 

Entities 

B. Avoidance of Duplicative Notice and 

Comment Procedures 

C. Treatment of Competing or Conflicting 

Claims 

D. EPA’s Decision Process 

VIII. What is an example of a stepwise 

approach for tribes applying for TAS for 

CWA programs? 

IX. What financial and technical support is 

available from EPA to tribes as they 

choose to develop and implement a 

CWA Section 303(d) impaired water 

listing and TMDL program? 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Tribal 

Consultation and Coordination 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

This proposed rule applies to 

federally recognized tribal governments 

with reservations interested in seeking 

TAS eligibility to administer the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program. Although this 

proposed rule would not apply directly 

to any other entity, state and local 

governments or other Indian tribes, as 

well as other entities, may be interested 

to the extent they are adjacent to the 

Indian reservation1 lands of TAS 

applicant tribes, share water bodies with 

such tribes, and/or discharge pollutants 

to waters of the United States located 

within or adjacent to such reservations. 

The table below provides examples of 

entities that could be affected by this 

action or have an interest in it. 

Category Examples of potentially affected or interested entities 

Tribes .................................................................. Federally recognized tribes with reservations that are interested in applying for TAS for CWA 

Section 303(d) impaired water listing and TMDL Program, and other interested tribes. 

States .................................................................. States adjacent to reservations of potential applicant tribes. 

Industry dischargers ........................................... Industrial and other commercial entities discharging pollutants to waters within or adjacent to 

reservations of potential applicant tribes. 

Municipal dischargers ......................................... Publicly owned treatment works or other facilities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. 

If you have questions regarding the 

effect of this proposed rule on a 

particular entity, please consult the 

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. Over what area may tribes apply for 

TAS for the CWA Section 303(d) 

impaired water listing and TMDL 

program? 

Under section 518(e) of the CWA, 33 

U.S.C. 1377(e), Indian tribes may seek 

TAS authorization to administer certain 

CWA programs pertaining to water 

resources of their reservations. Tribes 

are not eligible to administer CWA 

programs pertaining to any nonreservation Indian country 2 or any other 

type of non-reservation land. The term 

‘‘federal Indian reservation’’ is defined 

at CWA section 518(h)(1) to include all 

land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government 

notwithstanding the issuance of any 

patent, and including rights-of-way 

running through the reservation. See 

CWA sections 518(e)(2), (h)(1); see also 

40 CFR 131.3(k). EPA’s longstanding 

position is that reservations include 

both formal reservations (e.g., named 

reservations established through federal 

treaties with tribes, federal statutes, or 

Executive Orders of the President) as 

well as tribal trust lands that may not be 

formally designated as reservations, but 

that qualify as informal reservations. 

See, e.g., 56 FR 64876, 64881 (December 

12, 1991); Arizona Public Service Co. v. 

EPA, 211 F.3d 1280, 1292–1294 (D.C. 

Cir. 2000), cert. denied sub nom., 

Michigan v. EPA, 532 U.S. 970 (2001). 

Tribes may seek TAS authorization for 

both formal and informal reservations, 

and both types of lands are referred to 

herein as ‘‘reservations.’’ 

Although this proposal would 

facilitate eligible tribes’ administration 

of an additional regulatory program, 

nothing in this proposed rule changes, 

expands, or contracts the geographic 

scope of potential tribal TAS eligibility 

under the CWA. 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules 2793 

3Under the CWA and EPA’s regulations, tribes 

may simultaneously (1) apply for TAS under CWA 

section 518 for the purpose of administering water 

quality standards and (2) submit actual standards 

for EPA review under section 303(c). Although they 

may proceed together, a determination of TAS 

eligibility and an approval of actual water quality 

standards are two distinct actions. 

C. What should I consider as I prepare 

my comments for EPA? 

1. Resubmitting Relevant Comments 

from Consultations and Listening 

Sessions. EPA held multiple 

consultations and listening sessions 

with tribes and states concerning TAS 

for CWA section 303(d) lists and 

TMDLs, and considered views and 

comments received from these sessions 

in developing this proposal. This 

proposed rule has evolved from the 

materials EPA shared at the time. 

Therefore, if you submitted comments 

based on these sessions and want EPA 

to consider them as part of the public 

comment opportunity for this proposed 

action, you must resubmit your 

comments to EPA in accordance with 

the instructions outlined in this 

document. 

2. Submitting CBI. Do not submit CBI 

to EPA through http://

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disc that you mail to 

EPA, mark the outside of the disc as CBI 

and then identify electronically within 

the disc the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. EPA will not disclose 

information so marked except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. 

3. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the proposed action by 

docket number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Explain why you agree or disagree, 

suggest alternatives, substitute language 

for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples that help 

to illustrate your concerns. 

• Explain your views as clearly as 

possible. 

• Submit your comments consistent 

with the DATES section of this 

document. 

II. What is the statutory and regulatory 

history of TAS under the CWA? 

A. Statutory History 

Congress added section 518 to the 

CWA as part of amendments made in 

1987. Section 518(e) authorizes EPA to 

treat eligible Indian tribes in the same 

manner as it treats states for a variety of 

purposes, including administering each 

of the principal CWA regulatory 

programs and receiving grants under 

several CWA funding authorities. 

Section 518(e) is commonly known as 

the ‘‘TAS’’ provision. Section 303 is 

expressly identified in section 518(e) as 

one of the provisions available for TAS. 

Section 518(e) also requires EPA to 

promulgate regulations specifying the 

TAS process for applicant tribes. 

Section 518(h) defines ‘‘Indian tribe’’ to 

mean any Indian tribe, band, group, or 

community recognized by the Secretary 

of the Interior and exercising 

governmental authority over a federal 

Indian reservation. 

B. Regulatory History 

Pursuant to section 518(e), EPA 

promulgated several final regulations 

establishing TAS criteria and 

procedures for Indian tribes interested 

in administering programs under the 

Act. The relevant regulations addressing 

TAS requirements for the principal 

CWA regulatory programs are: 

• 40 CFR 131.8 for section 303(c) 

water quality standards, published at 56 

FR 64876 (December 12, 1991) (final 

rule); 

• 40 CFR 131.4(c) for CWA section 

401 water quality certification, 

published at 56 FR 64876 (December 12, 

1991); 

• 40 CFR 123.31–34 for CWA section 

402 National Pollutant Discharge 

Elimination System (NPDES) permits 

and other provisions, and 40 CFR 

501.22–25 for the sewage sludge 

management program. Final rule 

published December 22, 1993 (58 FR 

67966); and 

• 40 CFR 233.60–62 for CWA section 

404 dredge or fill permits. Final rule 

published February 11, 1993 (58 FR 

8172). 

In 1994, EPA amended the above 

regulations to simplify the TAS process 

and eliminate unnecessary and 

duplicative procedural requirements. 

See 59 FR 64339 (December 14, 1994) 

(the ‘‘Simplification Rule’’). For 

example, the Simplification Rule 

eliminated the need for a tribe to 

prequalify for TAS before applying to 

administer the section 402 and section 

404 permit programs. Instead, the rule 

provided that a tribe would seek to 

establish its TAS eligibility at the 

program approval stage (subject to 

notice and comment procedures in the 

Federal Register). However, the rule 

retained the separate TAS 

prequalification requirement (including 

local notice and comment procedures) 

for section 303(c) water quality 

standards and section 401 water quality 

certifications. Id.; see also, 40 CFR 

131.8(c)(2), (3).3 The TAS regulations 

for CWA regulatory programs have 

remained intact since promulgation of 

the Simplification Rule. EPA is now 

proposing to address a gap in its current 

TAS regulations, by proposing 

regulations that would specify how 

tribes may seek TAS for the Section 

303(d) Impaired Water Listing and 

TMDL Program. 

III. Why might a tribe be interested in 

seeking TAS authority for the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program? 

TAS for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program would provide a tribe with the 

opportunity to participate directly in 

restoring and protecting its reservation 

waters through implementing the 

Program, as Congress authorized under 

CWA section 518(e). In the rest of this 

document, EPA refers to the functions 

identified in CWA section 303(d) 

regarding listing of impaired waters and 

establishment of TMDLs as the ‘‘Section 

303(d) Impaired Water Listing and 

TMDL Program’’ or ‘‘303(d) Program.’’ 

Section 303(d) provides for states and 

authorized tribes to: (1) Develop lists of 

impaired waters (and establish priority 

rankings for waters on the lists) and (2) 

establish TMDLs for these waters. By 

listing impaired waters, a state or 

authorized tribe identifies those waters 

in its territory that are not currently 

meeting EPA-approved or EPApromulgated WQS (collectively referred 

to as ‘‘applicable WQS’’). A TMDL is a 

planning document intended to address 

impairment of waters, including the 

calculation and allocation to point and 

nonpoint sources of the maximum 

amount of a pollutant that a water body 

can receive and still meet applicable 

WQS, with a margin of safety. 

By obtaining TAS for section 303(d), 

tribes can take the lead role in 

identifying and establishing a priority 

ranking for impaired water bodies on 

their reservations and in establishing 


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2794 Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules 

4See Handbook for Developing and Managing 

Tribal Nonpoint Source Pollution Programs under 

Section 319 of the Clean Water Act, February 2010, 

available at http://www2.epa.gov/sites/production/

files/2015-09/documents/2010_02_19_nps_tribal_

pdf_tribal_handbook2010.pdf. 

5 Guidance for 2006 Assessment, Listing and 

Reporting Requirements Pursuant to Sections 

303(d), 305(b) and 314 of the Clean Water Act, July 

29, 2005, available at http://water.epa.gov/lawsregs/ 

lawsguidance/cwa/tmdl/upload/2006irg-report.pdf. 

6Under EPA’s regulations, ‘‘water quality limited 

segments’’ include both impaired waters and 

threatened waters, and are defined as ‘‘any segment 

where it is known that water quality does not meet 

applicable water quality standards, and/or is not 

expected to meet applicable water quality 

standards, even after the application of the 

technology-based effluent limitations required by 

sections 301(b) and 306 of the Act.’’ 40 CFR 

130.2(j). 

7See Final Guidance on Awards of Grants to 

Indian Tribes under Section 106 of the Clean Water 

Act (http://www2.epa.gov/sites/production/files/

2014-09/documents/final-tribal-guidance.pdf) at 

page 8–1. 

8See ‘‘Water Quality Assessment and TMDL 

Information,’’ available at http://ofmpub.epa.gov/

waters10/attains_index.home. 

TMDLs and submitting them to EPA for 

approval. These are important 

informational and planning steps that 

tribes can take to restore and maintain 

the quality of reservation waters. 

TMDLs must allocate the total 

pollutant load among contributing point 

sources (‘‘waste load allocations’’ or 

‘‘WLAs’’) and nonpoint sources (‘‘load 

allocations’’ or ‘‘LAs’’) (40 CFR 130.2). 

Point source WLAs are addressed 

through the inclusion of water qualitybased effluent limits in national 

pollutant discharge elimination system 

(NPDES) permits issued to such sources. 

Under EPA’s regulations, NPDES 

permitting authorities shall ensure that 

‘‘[e]ffluent limits developed to protect a 

narrative water quality criterion, a 

numeric water quality criterion, or both, 

are consistent with the assumptions and 

requirements of any available wasteload 

allocation for the discharge prepared by 

the State and approved by EPA pursuant 

to 40 CFR 130.7.’’ 40 CFR 

122.44(d)(1)(vii)(B). WLAs under 40 

CFR 122.44(d)(1)(vii)(B) would include 

WLAs developed by a tribe with TAS 

authorization and approved by EPA 

pursuant to 40 CFR 130.7. For water 

bodies impaired by pollutants from 

nonpoint sources, authorized tribes 

would not acquire new or additional 

implementation authorities when listing 

such impaired water bodies and 

establishing TMDLs. Instead, the 

mechanisms for implementing the 

nonpoint source pollutant reductions 

(LAs) identified in any tribal TMDLs 

would include existing tribal 

authorities, other federal agencies’ 

policies and procedures, as well as 

voluntary and incentive-based 

programs. 

This proposed rule would not require 

anything of tribes that are not interested 

in TAS for the 303(d) Program. Based on 

pre-proposal input, not all tribes will be 

interested in obtaining TAS for 303(d), 

and some may consider other 

approaches that might benefit their 

reservation waters. Clean Water Act 

section 319 watershed-based plans, for 

example, may help tribes protect and 

restore water resources threatened or 

impaired by nonpoint source pollution.4

IV. What program responsibilities 

would tribes have upon obtaining TAS 

for the CWA Section 303(d) impaired 

water listing and TMDL program? 

The goal of the CWA is ‘‘to restore 

and maintain the chemical, physical, 

and biological integrity of the Nation’s 

waters.’’ CWA section 101(a). 

Identification of impaired waters and 

TMDLs are important tools for achieving 

that goal. After a tribe receives EPA 

approval of its eligibility to implement 

a CWA Section 303(d) Impaired Water 

Listing and TMDL Program, it is treated 

in a manner similar to a state and, for 

purposes of list and TMDL 

development, it would become an 

‘‘authorized tribe.’’ Generally, the 

federal statutory and regulatory 

requirements for state 303(d) programs 

would be applicable to authorized tribes 

(see proposed § 130.16(c)(5)). The 

following paragraphs identify important 

303(d) Program responsibilities that 

tribes with TAS would assume and 

implement. 

A. Identification of Impaired Waters and 

Submission of Section 303(d) Lists 

Under section 303(d) of the CWA, 

every two years authorized tribes would 

be required to develop lists of waters 

not meeting, or not expected to meet, 

applicable water quality standards. 40 

CFR 130.7(d). These lists are commonly 

called ‘‘impaired waters lists’’ or 

‘‘303(d) lists.’’ Impaired waters are 

waters for which technology-based 

limitations and other required controls 

are not stringent enough to meet 

applicable CWA water quality 

standards. Threatened waters are waters 

that currently attain applicable WQS, 

but for which existing and readily 

available data and information indicate 

that applicable WQS will likely not be 

met by the time the next list of impaired 

or threatened waters is due to EPA.5 The 

authorized tribe’s section 303(d) list 

would include all impaired and 

threatened waters. In this document, 

EPA uses the term ‘‘impaired waters’’ to 

refer to both impaired and threatened 

waters.6 The authorized tribe would be 

required to ‘‘assemble and evaluate all 

existing and readily available 

information’’ in developing its section 

303(d) list. 40 CFR 130.7(b)(5). EPA’s 

regulations include a non-exhaustive 

list of water quality-related data and 

information to be considered. Id. The 

tribe would establish priorities for 

development of TMDLs for waters on its 

section 303(d) list based on the severity 

of the pollution and the uses to be made 

of the waters. 40 CFR 130.7(b)(4). The 

tribe would then submit its list of 

impaired waters to EPA for review and 

approval. 

Like states, authorized tribes would 

be required to submit their ‘‘303(d) 

lists’’ to EPA for approval every two 

years on April 1 (lists are due April 1 

of even-numbered years). As indicated 

in § 130.16(c)(5) of the proposed rule, a 

tribe gaining TAS status would be 

provided at least 24 months to submit 

its first impaired waters list to EPA. The 

tribe’s first impaired waters list would 

be due to EPA the next listing cycle due 

date that is at least 24-months from the 

later of (1) the date the tribe’s TAS 

application for 303(d) is approved, or (2) 

the date EPA-approved/promulgated 

WQS for the tribe’s waters are effective. 

(See section VII for the procedure EPA 

would follow in reviewing a tribe’s TAS 

application.). Thus, for example, if EPA 

approves a tribe’s TAS application on 

March 15, 2016, and the tribe’s WQS on 

June 30, 2016, the tribe’s first list would 

be due on April 1, 2020. The tribe could 

submit its list to EPA prior to that date, 

if it chooses. 

Most tribes that would be eligible for 

TAS authorization under today’s 

proposed rule are likely to be recipients 

of CWA section 106 grants and would 

thus be required to submit section 106 

grant work plans annually. If a tribe’s 

CWA section 106 grant work plan 

includes ambient water quality 

monitoring activities, the tribe is also 

required to develop an assessment 

report pursuant to the CWA section 106 

grant reporting requirements.7 EPA 

encourages tribes that obtain TAS for 

the CWA Section 303(d) Program and 

also develop CWA section 106 

assessment reports to combine their 

CWA section 303(d) impaired waters list 

with their CWA section 106 assessment 

report, and submit the combined report 

electronically through the Assessment 

TMDL Tracking and Implementation 

System (ATTAINS).8 In this way such 

tribes could create a combined CWA 

303(d)/106 report that is similar to a 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
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9CWA section 305(b) requires states to provide 

every two years an assessment of the quality of all 

their waters. EPA explicitly exempted tribes from 

the section 305(b) reporting requirement. See 40 

CFR 130.4(a); 54 FR 14354, 14357 (April 11, 1989). 

10See Guidance for 2006 Assessment, Listing and 

Reporting Requirements Pursuant to Sections 

303(d), 305(b) and 314 of the Clean Water Act, July 

29, 2005, (available at http://water.epa.gov/

lawsregs/lawsguidance/cwa/tmdl/upload/2006irgreport.pdf) for more information on the Integrated 

Report. 

state’s CWA 303(d)/305(b) 9 ‘‘Integrated 

Report.’’ 10

B. Establishment and Submission of 

TMDLs 

Under the CWA, each state and 

authorized tribe must, ‘‘from time to 

time,’’ establish and submit TMDLs for 

pollutants causing impairments in all 

the waters on its 303(d) list. CWA 

sections 303(d)(1)(C) and 303(d)(2). 

States and authorized tribes set 

priorities for developing TMDLs for 

their impaired and listed waters. 

TMDLs must be established ‘‘at a level 

necessary to implement the applicable 

water quality standards with seasonal 

variations and a margin of safety which 

takes into account any lack of 

knowledge concerning the relationship 

between effluent limitations and water 

quality.’’ CWA section 303(d)(1)(C). 

Where a TMDL makes allocation 

tradeoffs between point and nonpoint 

sources, the TMDL record must also 

demonstrate ‘‘reasonable assurance’’ 

that the nonpoint source allocations will 

be achieved. 40 CFR 130.2(i). 

Calculations to establish TMDLs must 

be subject to public review. 40 CFR 

130.7(c)(1)(ii). Once established, the 

state or authorized tribe submits the 

TMDL to EPA for review. 

C. EPA Review of Lists and TMDLs 

Once EPA receives a list or TMDL, it 

must either approve or disapprove that 

list or TMDL within 30 days. CWA 

section 303(d)(2). If EPA disapproves 

the list or TMDL, EPA must establish a 

replacement list or TMDL within 30 

days of disapproval. 40 CFR 130.7(d)(2). 

V. What are EPA’s proposed procedures 

for a tribe to seek TAS for the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program? 

Consistent with the statutory 

requirement in section 518 of the CWA, 

the proposed rule would establish the 

procedures by which an Indian tribe 

may apply and qualify for TAS for 

purposes of the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. Such procedures would be 

codified in a new section 130.16 of the 

water quality planning and management 

regulation. Section 130.16 would 

identify (1) the criteria an applicant 

tribe would be required to meet to be 

treated in a similar manner as states, (2) 

the information the tribe would be 

required to provide in its application to 

EPA, and (3) the procedure EPA would 

use to review the tribal application. 

Proposed section 130.16 is intended to 

ensure that tribes treated in a similar 

manner as states for the purposes of the 

CWA Section 303(d) Impaired Water 

Listing and TMDL Program are 

qualified, consistent with CWA 

requirements, to conduct a Listing and 

TMDL Program. The procedures are 

meant to provide more opportunities for 

tribes to engage fully in the Program and 

are not intended to act as a barrier to 

tribal assumption of the 303(d) Program. 

The TAS procedures in this proposed 

rule are closely based on the existing 

TAS regulation at 40 CFR 131.8, which 

establishes the TAS process for the 

CWA Section 303(c) WQS Program. EPA 

established the TAS process for WQS in 

1991, and that program has been the 

focus of the great majority of TAS 

activity for regulatory programs under 

the CWA as well as all of the other 

environmental statutes administered by 

the Agency. The WQS TAS rule has 

proven very effective in ensuring that 

applicant tribes satisfy statutory TAS 

criteria and are prepared to administer 

WQS programs under the Act. It thus 

served as a useful model for this 

proposed TAS rule. 

The TAS criteria tribes would be 

required to meet for purposes of the 

CWA Section 303(d) Impaired Water 

Listing and TMDL Program originate in 

CWA section 518. As reflected in the 

proposed regulatory language, the tribe 

must: (1) Be federally recognized and 

meet the definitions in § 131.3(k) and 

(l); (2) carry out substantial 

governmental duties and powers; (3) 

have appropriate authority to regulate 

the quality of reservation waters; and (4) 

be reasonably expected to be capable of 

administering the Impaired Water 

Listing and TMDL Program. These 

criteria are discussed below. 

The first criterion for TAS would 

require the tribe to be federally 

recognized by the U.S. Department of 

the Interior (DOI) and meet the 

definitions in § 131.3(k) and (l). The 

tribe may address the recognition 

requirement either by stating that it is 

included on the list of federally 

recognized tribes published periodically 

by DOI, or by submitting other 

appropriate documentation (e.g., if the 

tribe is federally recognized but is not 

yet included on the DOI list). The 

definition of ‘‘tribe’’ in § 131.3(l), along 

with requiring federal recognition, 

additionally requires that the tribe is 

exercising governmental authority over 

a Federal Indian reservation. ‘‘Federal 

Indian reservation’’ is defined in 

§ 131.3(k) as ‘‘all land within the limits 

of any Indian reservation under the 

jurisdiction of the United States 

Government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the 

reservation.’’ (See further discussion of 

the term ‘‘reservation’’ in section I B. of 

this preamble.). The governmental 

authority and reservation aspects of 

these definitions would be addressed in 

the tribe’s application, including as part 

of its descriptive statements that it 

currently carries out substantial 

governmental duties and powers over a 

defined area, and that it has authority to 

regulate water quality over a 

reservation. 

The second criterion would require 

the tribe to have a governing body 

‘‘carrying out substantial governmental 

duties and powers.’’ The Agency 

considers ‘‘substantial governmental 

duties and powers’’ to mean that the 

tribe is currently performing 

governmental functions to promote the 

health, safety, and welfare of the 

affected population within a defined 

geographical area. See 54 FR at 39101. 

Examples of such functions may 

include, but are not limited to, the 

power to tax, the power of eminent 

domain, and police power. Federal 

recognition by DOI would not, in and of 

itself, satisfy this criterion. EPA expects 

that most tribes should be able to meet 

this criterion without much difficulty. 

Id. 

To address the second criterion, the 

tribe would be required to submit a 

descriptive statement demonstrating 

that the tribal governing body is 

currently carrying out substantial 

governmental duties and powers over a 

defined area. The descriptive statement 

should: (1) Describe the form of tribal 

government; (2) describe the types of 

essential governmental functions 

currently performed, such as those 

listed above; and (3) identify the sources 

of authorities to perform these functions 

(e.g., tribal constitutions and codes). 

The third criterion, concerning tribal 

authority, means that a tribe seeking 

TAS for purposes of the CWA Section 

303(d) Impaired Water Listing and 

TMDL Program must adequately 

demonstrate authority to manage and 

protect water resources within the 

borders of the tribe’s reservation. To 

verify authority and satisfy the third 

criterion of the proposed rule, a tribe 

would be required to include a 

statement signed by the tribal legal 

counsel, or an equivalent official, 

explaining the legal basis for the tribe’s 


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regulatory authority, and appropriate 

additional documentation (e.g., maps, 

tribal codes and ordinances). 

In promulgating prior CWA TAS 

regulations, EPA took an initial cautious 

approach that required tribes applying 

for eligibility to administer regulatory 

programs under the statute to 

demonstrate their inherent tribal 

authority over the relevant regulated 

activities on their reservations. See, e.g., 

56 FR at 64877–81. This included a 

demonstration of inherent regulatory 

authority over the activities of non-tribal 

members on lands they own in fee 

within a reservation under the 

principles of Montana v. United States, 

450 U.S. 544 (1981), and its progeny. 

Montana held that, absent a federal 

grant of authority, tribes generally lack 

inherent jurisdiction over nonmember 

activities on nonmember fee land, but 

retain inherent civil jurisdiction over 

nonmember activities within the 

reservation where (i) nonmembers enter 

into ‘‘consensual relationships with the 

tribe or its members, through 

commercial dealing, contracts, leases, or 

other arrangements’’ or (ii) ‘‘. . . 

[nonmember] conduct threatens or has 

some direct effect on the political 

integrity, the economic security, or the 

health or welfare of the tribe.’’ Montana, 

450 U.S. at 565–66. 

In addressing the second exception of 

Montana regarding the effects of 

nonmember conduct, EPA has 

previously described the Agency’s 

operating approach to require a showing 

that the potential impacts of regulated 

activities on the tribe are serious and 

substantial. 56 FR at 64878. EPA also 

explained that the activities regulated 

under the various environmental 

statutes, including the CWA, generally 

have serious and substantial potential 

impacts on human health and welfare. 

Id. EPA described the Agency’s expert 

assessment regarding the critical 

importance of water quality 

management to self-government and 

also explained that because of the 

mobile nature of pollutants in surface 

waters and the relatively small size of 

water bodies on reservations, it would 

be very likely that any water quality 

impairment on non-Indian fee land 

within a reservation would also impair 

water quality on tribal lands. Id. at 

64878–79. EPA stated that its 

generalized findings regarding the 

relationship of water quality to tribal 

health and welfare would supplement 

the factual showing tribes would make 

in applying for TAS. Id. EPA reiterates 

the generalized statutory and factual 

findings set forth in those prior TAS 

rulemakings and believes they apply 

equally to TAS applications for the 

CWA Section 303(d) Program. As 

discussed below, EPA has also 

separately proposed to revise its 

interpretation of the CWA tribal 

provision by conclusively determining 

that Congress intended to delegate 

authority to eligible tribes to regulate 

their entire reservations under the CWA 

irrespective of land ownership. If and 

when this revised interpretation is 

finalized, it will be applied in reviewing 

any TAS application submitted under 

the regulations proposed today. Unless 

and until that revised interpretation is 

finalized, however, EPA will continue 

to evaluate TAS applications consistent 

with the Agency’s current approach and 

will continue to apply the generalized 

findings set forth in prior CWA TAS 

rulemakings in making case-by-case 

determinations regarding tribes’ 

inherent regulatory authority. 

In prior CWA TAS promulgations, 

EPA recognized that there was 

significant support for the view that 

Congress had intended to delegate 

authority to eligible Indian tribes to 

administer CWA regulatory programs 

over their entire reservations, 

irrespective of land ownership, and EPA 

expressly stated that the issue of tribal 

authority under the CWA remained 

open for further consideration in light of 

additional congressional or judicial 

guidance. See, e.g., 56 FR at 64878–81. 

On August 7, 2015, EPA published in 

the Federal Register a proposed rule to 

reinterpret the CWA tribal provision as 

including such an express delegation of 

authority by Congress. 80 FR 47430. If 

EPA finalizes that reinterpretation, 

applicant Indian tribes would no longer 

be required to demonstrate inherent 

authority to regulate their reservation 

waters under the CWA. Among other 

things, tribes would thus no longer be 

required to meet the test established in 

Montana v. United States, 450 U.S. 544 

(1981), and its progeny with regard to 

exercises of inherent tribal regulatory 

authority over nonmember activity. Id. 

Instead, a tribe would be able to rely on 

the congressional delegation of 

authority included in section 518 of the 

statute as the source of authority to 

administer CWA regulatory programs 

over its entire reservation as part of its 

legal statement. 

The proposed TAS rule for the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program is intended to 

provide appropriate TAS application 

and review procedures irrespective of 

which interpretation of tribal authority 

under the Act applies. As explained in 

EPA’s proposed reinterpretation, EPA’s 

existing TAS regulations—including 40 

CFR 131.8, upon which this proposed 

rule is modeled—accommodate either 

interpretation of tribal authority under 

the CWA and provide appropriate 

application procedures to ensure that 

relevant jurisdictional information is 

provided to EPA and made available for 

comment. 80 FR 47430. EPA thus 

proposes to establish the basic TAS 

application and review procedures 

proposed today notwithstanding that 

the proposed reinterpretation remains 

pending. Once these rules are finalized, 

EPA will review any TAS applications 

for the CWA Section 303(d) Program in 

accordance with the interpretation of 

CWA tribal jurisdiction that applies at 

the time. 

The fourth criterion would require 

that the tribe, in the Regional 

Administrator’s judgment, be reasonably 

expected to be capable of administering 

an effective CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. To meet this requirement, 

tribes would either: (1) show that they 

have the necessary management and 

technical skills, or (2) submit a plan 

detailing steps for acquiring the 

necessary management and technical 

skills. When considering tribal 

capability, EPA would also consider 

whether the tribe can demonstrate the 

existence of institutions that exercise 

executive, legislative, and judicial 

functions, and whether the tribe has a 

history of successful managerial 

performance of public health or 

environmental programs. 

The specific information required for 

tribal applications to EPA is described 

in proposed § 130.16 (a) and (b). The 

application would be required, in 

general, to include a statement regarding 

federal recognition by DOI, 

documentation that the tribal governing 

body is exercising substantial duties and 

powers, documentation of tribal 

authority to regulate water quality on 

the reservation, a narrative statement of 

tribal capability to administer the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program, and any other 

information requested by the Regional 

Administrator. 

Consistent with EPA’s other TAS 

regulations, the proposed rule also 

provides that where a tribe has 

previously qualified for TAS for 

purposes of a different EPA program, 

the tribe is only required to provide 

information that has not been submitted 

as part of a prior TAS application. To 

facilitate review of tribal applications, 

EPA would request that a tribal 

application inform EPA whether the 

tribe has been approved for TAS or 

deemed eligible to receive authorization 

for any other EPA program. See 59 FR 

at 64340. 


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11EPA takes no position in this proposal 

regarding whether any particular tribe or Indian 

reservation is subject to any potential impediment 

relating to authority to take on the 303(d) Program. 

Any such issue would need to be addressed on a 

case-by-case basis and with the benefit of a full 

record of relevant information that would be 

developed during the processing of a particular 

TAS application. To the extent EPA is ever called 

upon to make a decision regarding this type of 

issue, such a decision would be rendered in the 

context of EPA’s final action on a specific TAS 

application, and any judicial review of that decision 

would occur in that context. 

12Specifically, the CWA Section 303(c) WQS 

Program, CWA Section 402 NPDES Program or 

Sewage Sludge Management Program, or CWA 

Section 404 Dredge and Fill Permit Program. 

The TAS application procedures and 

criteria for the CWA Sections 303(c) 

WQS and 303(d) Impaired Water Listing 

and TMDL Programs are similar in 

many respects, and a tribe interested in 

both programs may wish to streamline 

the application process by combining a 

request for TAS eligibility for 303(c) and 

303(d) into a single application. 

Although a tribe would not be required 

to do so, EPA’s proposed approach 

would allow a tribe to submit a 

combined application, which addresses 

the criteria and application 

requirements of § 131.8 and proposed 

§ 130.16, to EPA if the tribe is interested 

in applying for TAS for both the CWA 

Section 303(c) and 303(d) Programs. 

VI. What special circumstances may 

exist regarding qualification for TAS 

for the CWA Section 303(d) impaired 

water listing and TMDL program? 

There could be rare instances where 

special circumstances limit or preclude 

a particular tribe’s ability to be 

authorized to administer the 303(d) 

Program over its reservation. For 

example, there could be a separate 

federal statute establishing unique 

jurisdictional arrangements for a 

specific state or a specific reservation 

that could affect a tribe’s ability to 

exercise authority under the CWA. It is 

also possible that provisions in 

particular treaties or tribal constitutions 

could limit a tribe’s ability to exercise 

relevant authority.11

The application requirements of 

§ 130.16 (a) and (b) would require tribes 

to submit a statement of their legal 

counsel (or equivalent official) 

describing the basis for their assertion of 

authority. The statement can include 

copies of documents such as tribal 

constitutions, by-laws, charters, 

executive orders, codes, ordinances, and 

resolutions. If EPA finalizes this 

proposed action, the requirement for a 

legal counsel’s statement would ensure 

that applicant tribes appropriately 

describe the bases of their authority and 

address any special circumstances 

regarding their assertion of authority to 

administer the 303(d) Program. The 

proposed rule would provide an 

appropriate opportunity for 

‘‘appropriate governmental entities’’ 

(i.e., states, tribes and other federal 

entities located contiguous to the 

reservation of the applicant tribe) to 

comment on an applicant tribe’s 

assertion of authority and, among other 

things, inform EPA of any special 

circumstances that they believe could 

affect a tribe’s ability to administer the 

303(d) Program. 

EPA is also aware that section 

10211(b) of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act of 2005 (‘‘SAFETEA’’), Public Law 

109–59, 119 Stat. 1144 (August 10, 

2005) established a unique TAS 

requirement with respect to Indian 

tribes located in the State of Oklahoma. 

Under section 10211(b) of SAFETEA, 

tribes in Oklahoma seeking TAS under 

a statute administered by EPA for the 

purpose of administering an 

environmental regulatory program must, 

in addition to meeting applicable TAS 

requirements under the relevant EPAadministered environmental statute, 

enter into a cooperative agreement with 

the state that is subject to EPA approval 

and that provides for the tribe and state 

to jointly plan and administer program 

requirements. This requirement of 

SAFETEA applies apart from, and in 

addition to, existing TAS criteria, 

including the TAS criteria set forth in 

section 518 of the CWA. EPA’s proposal 

relates solely to the CWA TAS 

requirement; it would thus have no 

effect on the separate requirement of 

section 10211(b) of SAFETEA. 

VII. What procedure would EPA follow 

in reviewing a tribe’s TAS application? 

A. Notice to Appropriate Governmental 

Entities 

The proposed EPA review procedure, 

included in § 130.16(c), specifies that 

the Regional Administrator, following 

receipt of tribal applications, would 

process such applications in a timely 

manner. EPA would promptly notify the 

tribe that the complete application has 

been received. Within 30 days after 

receipt of a tribe’s complete TAS 

application for 303(d), EPA would 

provide notice to appropriate 

governmental entities (i.e., states, tribes, 

and other federal entities located 

contiguous to the reservation of the 

applicant tribe) of the complete 

application and the substance of and 

basis for the tribe’s assertion of 

authority over reservation waters, and 

would provide a 30 day opportunity to 

comment to EPA on the tribe’s assertion 

of authority. See, e.g., 56 FR at 64844. 

EPA would also provide, consistent 

with prior practice, sufficiently broad 

notice (e.g., through local newspapers, 

electronic media, or other appropriate 

media) to inform other potentially 

interested entities of the applicant 

tribe’s complete application and of the 

opportunity to provide relevant 

information regarding the tribe’s 

assertion of authority. As described 

below, this aspect of EPA’s review 

procedure would apply unless such 

process would be duplicative of a notice 

and comment process already 

performed in connection with the same 

tribe’s prior application for TAS for 

another CWA regulatory program. 

B. Avoidance of Duplicative Notice and 

Comment Procedures 

EPA is proposing to include 

provisions intended to help avoid 

unnecessary and wasteful duplication of 

the notice and comment procedures 

described in VII A. Specifically, EPA 

proposes that, where a tribe has 

previously qualified for TAS for a CWA 

regulatory program12 and EPA has 

provided notice and an opportunity to 

comment on the tribe’s assertion of 

authority as part of its review of the 

prior application, no further notice 

would be provided with regard to the 

same tribe’s application for the 303(d) 

Program, unless the section 303(d) TAS 

application presents different 

jurisdictional issues or significant new 

factual or legal information relevant to 

jurisdiction to the Regional 

Administrator. Proposed § 130.16(c)(4). 

This proposed approach would apply to 

all tribes that have previously obtained 

TAS for the CWA Section 303(c) WQS 

Program, CWA Section 402 NPDES 

Program or Sewage Sludge Management 

Program, or CWA Section 404 Dredge 

and Fill Permit Program. 

Where different jurisdictional issues 

or information are not present, 

additional notice and comment are 

likely to be duplicative of the process 

already undertaken during EPA’s review 

of the prior TAS application. Under 

these circumstances, the proposed rule 

would avoid such duplication of efforts 

by authorizing the relevant EPA 

Regional Administrator to process a 

TAS application for the 303(d) Program 

without a second notice and comment 

process. 

Where different jurisdictional issues 

or new or changed information is 

present, the notice and comment 

process described in § 130.16(c)(2) 

would apply. For example, if the 

geographic reservation area over which 


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13A chart listing EPA approvals for tribes to 

administer a WQS program, and EPA’s approvals of 

tribes’ WQS is available at http://water.epa.gov/

scitech/swguidance/standards/wqslibrary/

approvtable.cfm. 

an applicant tribe asserts authority is 

different from the area covered by a 

prior TAS application or EPA approval, 

the process proposed in § 130.16(c)(2) 

would apply and would provide an 

appropriate opportunity for comment on 

the tribe’s assertion of authority over the 

new area. In such circumstances, a tribe 

may find it appropriate and useful to 

update its prior TAS application at the 

same time it applies for TAS for 303(d). 

This would help ensure that the tribe’s 

TAS eligibility for the various CWA 

programs covers the same geographic 

area. Such a combined TAS application 

would be subject to the § 130.16(c)(2) 

notice and comment process. 

EPA requests comment on its 

proposed approach or alternative 

approaches. In addition, we request 

comment on whether the § 130.16(c)(4) 

notice and comment exemption should 

instead be available only 

prospectively—i.e., only where the 

applicant tribe obtains TAS for the CWA 

Section 303(c) WQS Program, CWA 

Section 402 NPDES Program or Sewage 

Sludge Management Program, or CWA 

section 404 Dredge and Fill Permit 

Program after this proposed rule is 

finalized (and, again, only if different 

jurisdictional issues or significant new 

factual or legal information relevant to 

jurisdiction are not present in the tribe’s 

303(d) TAS application). One practical 

result of this alternative approach 

would be that if one of the 50 tribes that 

has previously obtained TAS for the 

CWA Section 303(c) WQS Program were 

to apply for TAS for the 303(d) Program 

after this proposed rule is finalized, the 

notice and comment process would be 

required. 

C. Treatment of Competing or 

Conflicting Claims 

Where a tribe’s assertion of authority 

is subject to a competing or conflicting 

claim, the proposed procedures provide 

that the Regional Administrator, after 

due consideration and in consideration 

of any other comments received, would 

determine whether the tribe has 

adequately demonstrated authority to 

regulate water quality on the reservation 

for purposes of the 303(d) Program. 

Where the Regional Administrator 

concludes that a tribe has not 

adequately demonstrated its authority 

with respect to an area in dispute, then 

tribal assumption of the CWA Section 

303(d) Impaired Water Listing and 

TMDL Program may be restricted 

accordingly. If a dispute is focused on 

a limited area, this would not 

necessarily delay EPA’s decision to treat 

the tribe in a similar manner as a state 

for non-disputed areas. 

This proposed procedure does not 

imply that states, tribes, other federal 

agencies, or any other entity have veto 

power over tribal TAS applications. 

Rather, it is intended to assist EPA in 

gathering information that may be 

relevant to the Agency’s determination 

whether the applicant tribe has the 

necessary authority to administer the 

CWA Section 303(d) Impaired Water 

Listing and TMDL Program. EPA would 

not rely solely on the assertions of a 

commenter who challenges a tribe’s 

assertion of authority, but rather make 

an independent evaluation of the tribal 

showing. 

D. EPA’s Decision Process 

The proposed rule requires EPA to 

process a tribe’s TAS application in a 

timely manner, but does not specify a 

precise time frame for review of tribal 

TAS applications. Each TAS application 

will present its own set of legal and 

factual issues, and EPA anticipates that 

in some cases it may be necessary to 

request additional information when 

examining tribal TAS applications. 

Similarly, the Agency’s experience with 

states applying for various EPA 

programs and with tribes applying for 

TAS for the WQS Program indicates that 

additional engagement between EPA 

and the applicant may be necessary 

before final decisions are made. EPA 

expects that similar exchanges with 

tribes will often be helpful and enhance 

EPA’s processing of tribal TAS 

applications for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. 

Where the Regional Administrator 

determines that a tribal TAS application 

satisfies the requirements of proposed 

§ 130.16(a) and (b), the Regional 

Administrator would promptly notify 

the tribe that the tribe has qualified for 

TAS for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. A decision by the Regional 

Administrator that a tribe does not meet 

the requirements for TAS for purposes 

of the CWA Section 303(d) Impaired 

Water Listing and TMDL Program 

would not preclude the tribe from 

resubmitting the application at a future 

date. If the Regional Administrator 

determines that a tribal application is 

deficient or incomplete, EPA will 

identify such deficiencies and gaps so 

the tribe can make changes as 

appropriate or necessary. 

VIII. What is an example of a stepwise 

approach for tribes applying for TAS 

authority for CWA programs? 

EPA expects that the tribes most 

likely to be interested in applying for 

TAS for the 303(d) Program will be 

those that also have TAS for CWA 

section 303(c) and have applicable WQS 

for their reservation waters. EPA has 

taken final action approving TAS for 

WQS for 50 tribes. Forty-two of those 

tribes have EPA-approved WQS, and 

one tribe without TAS for WQS has 

federally promulgated WQS.13 By virtue 

of their involvement in the WQS 

Program, these tribes will already have 

demonstrated an interest in directly 

administering certain fundamental 

elements of the CWA as well as the 

resources and capacity to do so. Since 

applicable WQS are a foundation of the 

approach to protecting water quality 

under the CWA, establishing EPAapproved/EPA-promulgated WQS for 

reservation water bodies will be an 

important first step for tribes interested 

in protecting and restoring their 

reservation waters. As tribes gain 

experience developing and 

administering applicable WQS on their 

reservations, they may become 

interested in greater involvement in 

additional programs—such as the 303(d) 

Program—designed to ensure that 

applicable WQS are achieved. Obtaining 

TAS to implement a CWA Section 

303(d) Impaired Water Listing and 

TMDL Program for its reservation waters 

is one potential next step for interested 

tribes. Under section 303(d), a tribe 

would use applicable WQS as the basis 

for identifying impaired waters and 

calculating TMDLs, which quantify the 

maximum amount of a pollutant that a 

water body can receive and still meet 

the WQS. 

Table 1, below, is an example of one 

step-wise approach that tribes may 

follow in developing their water quality 

programs under the CWA and 

ultimately seeking TAS for the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program. This is only one 

possible approach, and, under this 

approach, not all the identified steps 

would need to be taken sequentially 

(e.g., some could be completed in 

parallel). 


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TABLE 1—EXAMPLE OF A STEP-WISE APPROACH TO REGULATORY ACTIVITIES FOR TRIBES INTERESTED IN APPLYING FOR

TAS AUTHORITY TO IMPLEMENT THE CWA SECTION 303(d) IMPAIRED WATER LISTING AND TMDL PROGRAM

Step 1: Tribe seeks TAS for CWA 303(c): WQS • Tribe decides to evaluate and address water quality within its reservation by establishing 

WQS under the CWA. 

• Tribe identifies and inventories reservation water bodies. 

• Tribe applies for TAS for WQS. 

Step 2: Tribe Adopts WQS ................................. • Tribe develops its water quality goals. 

• Tribe drafts WQS for EPA approval. 

• EPA approves tribal WQS. 

Step 3: Tribe seeks TAS for CWA Section 

303(d): Impaired Water Listing and TMDL 

Program.

• Tribe decides to assess water quality conditions (i.e., comparing water quality monitoring 

data and information against applicable WQS), identify impaired waters, and develop 

TMDLs. 

• Tribe applies for TAS to implement a 303(d) program under the CWA. 

• EPA approves TAS for 303(d). 

Step 4: Tribe implements the CWA Section 

303(d) Impaired Water Listing and TMDL Program.

Tribe conducts activities required by 40 CFR 130.7, including but not limited to: 

• Assembles and evaluates all existing and readily available water quality-related data and information on reservation water bodies (data may have been gathered by an established, 

comprehensive monitoring program). 

• Develops section 303(d) list of impaired waters (that is, reservation water bodies that do not 

meet or are not likely to meet applicable WQS). 

• Prioritizes list of impaired water bodies for TMDL development. 

• Submits section 303(d) list to EPA for approval. 

• Develops TMDLs for listed waters. 

• Submits TMDLs to EPA for approval. 

Step 5: Tribe implements TMDLs (not required 

by 40 CFR 130.7).

• Carry out watershed-specific plans to implement TMDLs. 

• Monitors TMDL implementation and effectiveness. 

Step 6: Tribe seeks other CWA regulatory programs.Possibilities include: 

• CWA Section 402 NPDES Program. 

• CWA Section 405 Sewage Sludge Management Program. 

• CWA Section 404 Dredge and Fill Permit Program. 

The proposed rule does not require 

tribes to have applicable WQS in place 

on their reservations prior to applying 

for TAS eligibility for the 303(d) 

Program. Under section 303(d), 

however, states and authorized tribes 

must develop lists of impaired waters 

and TMDLs based on applicable WQS. 

CWA sections 303(d)(1) and (2). 

Although EPA expects that the tribes 

most likely to be interested in 

administering the 303(d) Program are 

those that do have such WQS, the 

proposed rule would not preclude other 

tribes from obtaining TAS status for 

section 303(d) purposes and thus 

ensuring that TAS eligibility 

requirements are satisfactorily 

addressed prior to expending resources 

on developing WQS. This approach 

would also allow tribes, at their 

discretion, to streamline and minimize 

expenditures on TAS procedures by 

combining TAS requests for sections 

303(c) and 303(d) into a single 

application. Since authorized tribes 

must list waters and develop TMDLs 

based on applicable WQS, however, 

EPA also specifically invites public 

comment on whether applicable WQS 

should instead be a prerequisite for 

obtaining TAS for the CWA Section 

303(d) Impaired Water Listing and 

TMDL Program. 

The proposed rule also does not 

require tribes seeking TAS eligibility for 

the 303(d) Program to have previously 

obtained EPA approval for TAS for the 

WQS Program. EPA specifically invites 

public comment on whether a tribe 

applying for TAS for the 303(d) Program 

should instead be required to have 

already received EPA approval—or at 

least simultaneously apply—for TAS for 

CWA Section 303(c) WQS Program. 

IX. What financial and technical 

support is available from EPA to tribes 

as they choose to develop and 

implement a CWA Section 303(d) 

impaired water listing and TMDL 

program? 

Pre-proposal input from tribes 

indicates that resources and funding 

available for TMDL development will be 

important considerations for tribes in 

deciding whether to apply for TAS for 

CWA section 303(d) purposes. The 

Impaired Water Listing and TMDL 

Program is not a grant program, and no 

federal grant funds are available directly 

from the Impaired Water Listing and 

TMDL Program. A tribe may be able to 

use its General Assistance Program 

(GAP) Grant under the Indian 

Environmental General Assistance 

Program Act to support development of 

a section 303(d) program and capacity to 

implement such a program, but GAP 

funds are not available for ongoing 

program implementation. Tribes 

interested in this approach would need 

to contact their Regional GAP Program 

coordinator. In addition, existing 

sources of tribal funding such as CWA 

section 319 grants and section 106 

grants are already tightly constrained 

and may not be available to support 

additional work under section 303(d). 

Some tribes that receive CWA funding 

may be able to identify program 

activities that could also support 303(d) 

activities (e.g., assessing water quality to 

develop impaired water lists, 

developing a nonpoint source watershed 

plan that would also implement the 

nonpoint source portions of a TMDL), 

but the availability of such 

opportunities is uncertain. 

As resources allow, EPA may be able 

to work cooperatively with tribes, as 

appropriate, on impaired water listing 

and TMDL issues in Indian country. For 

example, EPA may develop training 

and/or provide other technical support 

to tribes interested in obtaining TAS for 

303(d) and implementing a CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program if EPA staff and 

other resources are available to do so. 

As a general matter, however, EPA 

cannot assure that funding will be 

available for a tribe developing or 

implementing the 303(d) Program, and a 

tribe considering whether to apply to 

administer the Program will need to 

carefully assess its priorities and the 

availability of EPA assistance or other 

resources. 


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X. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was, therefore, not 

submitted to the Office of Management 

and Budget for review. 

B. Paperwork Reduction Act (PRA) 

EPA has submitted the information 

collection requirements in this proposed 

legislative rule to OMB for approval 

under the PRA. The Information 

Collection Request (ICR) document that 

EPA prepared has been assigned EPA 

ICR number 2515.01. You can find a 

copy of the ICR in the docket for this 

proposed rule, and it is briefly 

summarized here. If EPA finalizes the 

proposed rule, this ICR would 

supplement the current information 

collection requirements in EPA ICR 

number 1560.10 (National Water 

Quality Inventory Reports (Renewal)) 

and address the tribes’ CWA Section 

303(d) Impaired Water Listing and 

TMDL TAS application and 303(d) 

Program implementation burden, as 

well as EPA’s burden for reviewing the 

tribes’ applications and 303(d) Program 

submittals. OMB approved the existing 

ICR number 1560.10 in December 2012. 

This proposed legislative rule would 

establish a process for tribes to obtain 

TAS for the 303(d) Program. As 

described in the ICR, EPA estimates the 

total burden on tribes to apply for TAS 

for the 303(d) Program would be 3,240 

staff hours annually for an estimated 12 

tribes that would apply for and receive 

TAS approval per year. 

Tribes that receive TAS approval 

would then need to implement the 

requirements of section 303(d) to list 

impaired waters, set TMDL priorities, 

and develop TMDLs. EPA estimates that 

such 303(d) Program implementation 

burden would entail 86,664 staff hours 

for the estimated 12 tribes. ICR 1560.10 

already includes the estimated burden 

for states to implement section 303(d), 

but does not include estimates for tribes. 

Therefore, the ICR for this proposed rule 

includes tribal section 303(d) 

implementation burden as well as the 

TAS application burden described in 

the previous paragraph. 

As discussed in section V, EPA’s 

regulations require that a tribe seeking 

to administer a CWA regulatory program 

must submit information to EPA 

demonstrating that the tribe meets the 

statutory criteria described in section V. 

EPA requires this information in order 

to determine that the tribe is eligible to 

administer the program. Similarly, EPA 

requires the information—in this case, 

the lists of impaired waters and the 

TMDLs—from the authorized tribes 

once they begin implementing the 

program. 

Respondents/affected entities: Any 

federally recognized tribe with a 

reservation can potentially apply to 

administer a regulatory program under 

the CWA. Tribes with TAS for the 

303(d) Program would then implement 

the Program, as described in section IV. 

Respondent’s obligation to respond: 

The information discussed in this 

proposed rule is required from a tribe 

only if the tribe seeks and is found 

eligible to administer a CWA Section 

303(d) Impaired Water Listing and 

TMDL Program. See EPA’s proposed 

regulations cited in section V of this 

document. 

Estimated number of respondents: 

The total potential pool of respondents 

is the over 300 tribes with reservations. 

Although there are 566 federally 

recognized Indian tribes in the United 

States, the CWA allows only those tribes 

with reservations to apply for authority 

to administer programs. EPA estimates 

that an average of 12 tribes per year 

would apply under this proposed rule, 

and an average of 12 tribes per year 

would implement the 303(d) Program 

over the three year period of the ICR. 

Frequency of response: Application 

by a tribe to be eligible to administer the 

303(d) Program is a one-time collection 

of information. Tribes submit impaired 

water lists to EPA every two years, and 

submit TMDLs to EPA from time to time 

as described in section IV of this 

document. 

Total estimated burden: 89,904 tribal 

staff hours per year for TAS for 303(d) 

Program application activities and 

303(d) Program implementation 

activities. Burden is defined at 5 CFR 

1320.3(b). 

This estimate may overstate actual 

burden because EPA used a 

conservatively high estimate of the 

annual rate of tribal applications. This 

estimate was used to ensure that the ICR 

does not underestimate tribal burden, 

given that EPA used a simplifying 

steady-state assumption in estimating 

annualized tribal application costs. 

Also, EPA used conservatively high 

estimates of 303(d) implementation 

burden (i.e., 303(d) listing and number 

of TMDLs that tribes would submit to 

EPA annually), as further described in 

the draft ICR number 2515.01. 

Total estimated cost: $4,185,269, 

including staff salaries and the cost of 

support contractors for an annual 

average of 12 tribes to apply for TAS 

and implement the 303(d) Program. This 

action does not entail capital or 

operation and maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

Submit your comments on the 

Agency’s need for this information, the 

accuracy of the provided burden 

estimates and any suggested methods 

for minimizing respondent burden to 

EPA using the docket identified in the 

ADDRESSES section at the beginning of 

this proposed rule. You may also send 

your ICR-related comments to OMB’s 

Office of Information and Regulatory 

Affairs via email to 

oira_submissions@omb.eop.gov, 

Attention: Desk Officer for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after receipt, OMB must receive 

comments no later than February 18, 

2016. EPA will respond to any ICRrelated comments in the final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This action affects only Indian 

tribes that seek TAS for the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

This proposed action would only 

apply to tribal governments that seek 

eligibility to administer the 303(d) 

Program. Although it could be of 

interest to some state governments, it 


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14The ten associations were: 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 of 

Northeastern Governors, the Environmental Council 

of the States, the Association of Clean Water 

Administrators, and the Western States Water 

Council. 

would not apply directly to any state 

government or to any other entity. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

consulted with state associations and 

representatives of state governments to 

obtain meaningful and timely input for 

consideration in this proposal. By letter 

dated September 19, 2014, EPA invited 

10 national and regional state 

associations to an October 1, 2014, 

informational meeting at EPA in 

Washington, DC.14 As a result of this 

meeting and other outreach, EPA 

participated in two follow-on meetings 

with a subset of these associations and 

their members as well as certain 

individual states during the month of 

October 2014. Records of these meetings 

and copies of written comments and 

questions submitted by states and state 

associations are included in the docket 

for this proposed rule. 

Some participants expressed interest 

in: (1) the nature of comments received 

from tribes during the pre-proposal 

tribal consultation and coordination 

(April 8–June 6, 2014); (2) where they 

could find the list of tribes having TAS 

for the WQS Program; (3) whether the 

TAS process for CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program would be consistent with other 

TAS processes; and (4) whether there is 

a process in place to consult with states 

where a tribe applies for TAS for 303(d). 

Some states also had questions about 

issues unique to their situations. EPA 

considered this input in developing the 

proposed rule, particularly in 

developing sections V to IX. EPA 

specifically solicits additional comment 

on this proposed action from state 

officials. 

F. Executive Order 13175: Tribal 

Consultation and Coordination 

This action has tribal implications 

because it will directly affect tribes 

interested in administering the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program. However, it would 

neither impose substantial direct 

compliance costs on federally 

recognized tribal governments, nor 

preempt tribal law. Tribes are not 

required to administer a 303(d) program. 

Where a tribe chooses to do so, the 

proposed rule will provide a regulatory 

process for the tribe to apply and for 

EPA to act on the tribe’s application. 

EPA consulted and coordinated with 

tribal officials under the EPA Policy on 

Consultation and Coordination with 

Indian Tribes early in the process of 

developing this proposed regulation to 

permit them to have meaningful and 

timely input into its development. A 

summary of that consultation and 

coordination follows. 

EPA initiated a tribal consultation and 

coordination process for this action by 

sending a ‘‘Notification of Consultation 

and Coordination’’ letter on March 28, 

2014, to all 566 federally-recognized 

tribes. The letter invited tribal leaders 

and designated consultation 

representative(s) to participate in the 

tribal consultation and coordination 

process. EPA held a webinar concerning 

this matter for tribal representatives on 

April 29, 2014. A total of 46 tribal 

representatives participated. 

Additionally, tribes and tribal 

organizations sent five comment letters 

to EPA. Records of this webinar and 

copies of written comments and 

questions submitted by tribes and 

intertribal consortia are included in the 

docket for this proposed rule. 

Tribal comments generally supported 

EPA’s plan to propose a TAS rule for the 

303(d) Program. Some comments 

expressed the need for additional 

financial and technical support as tribes 

obtain TAS for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. EPA considered the tribal 

comments in developing this proposal, 

and intends to remain sensitive to tribal 

resource issues in its budgeting and 

planning process. However, EPA cannot 

assure or assume that additional 

funding will be available for a tribe 

developing or implementing the 303(d) 

Program. A tribe choosing to administer 

such programs will need to carefully 

weigh its priorities and any available 

EPA assistance as described in section 

IX above. 

EPA specifically solicits additional 

comment on this proposed action From 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to think could disproportionately 

affect children, per the definition of 

‘‘covered regulatory action’’ in section 

2–202 of the Executive Order. This 

action is not subject to Executive Order 

13045 because it does not concern an 

environmental health or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The proposed rule would not have 

potential to cause disproportionately 

high and adverse human health or 

environmental effects on minority, lowincome, or indigenous populations. This 

proposed rule would have no direct 

impacts on human health or the 

environment. The proposed rule would 

affect processes and information 

collection only. The proposed rule 

would put in place the procedures 

interested tribes would follow to seek 

TAS for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program. The action is likely to result in 

the collection of information or data that 

could be used to assess potential 

impacts on the health or environmental 

conditions in Indian country (see 

sections III and IV). As described in 

sections III and IV, above, under CWA 

section 303(d), authorized tribes would 

be required to develop lists of impaired 

waters, submit these lists to EPA, and 

develop TMDLs for pollutants causing 

impairments in the waters on the 303(d) 

lists. TAS for 303(d) would provide 

authorized tribes the opportunity to 

participate directly in protecting their 

reservation waters through the Section 

303(d) Impaired Water Listing and 

TMDL Program, as Congress intended 

through CWA section 518(e). EPA also 

expects this proposed rule would 

advance the goals of the CWA as 

interested tribes apply for TAS to 

administer the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program for reservation water bodies. 

The action is likely to increase the 

availability of information to indigenous 

populations as interested tribes obtain 

TAS for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program and begin implementing the 

Program. In short, tribes with TAS 

assume the primary role in deciding (1) 

what waters on their reservations are 


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impaired and in need of restoration, (2) 

the priority ranking for TMDL 

development, and (3) what the TMDLs 

and pollutant source allocations for 

those waters should look like. 

EPA provided meaningful 

participation opportunities for tribes in 

the development of this proposed rule, 

as described in ‘‘F. Executive Order 

13175: Tribal Consultation and 

Coordination,’’ above. 

List of Subjects in 40 CFR Part 130 

Environmental protection, Grant 

programs-environmental protection, 

Indians-lands, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Water pollution control, 

Water supply. 

Dated: January 6, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, the U.S. Environmental 

Protection Agency proposes to amend 

40 CFR part 130 as follows: 

PART 130—WATER QUALITY 

PLANNING AND MANAGEMENT 

■ 1. The authority citation for part 130 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 2. Add § 130.16 to read as follows: 

§ 130.16 Treatment of Indian Tribes in a 

similar manner as States for purposes of 

section 303(d) of the Clean Water Act. 

(a) The Regional Administrator may 

accept and approve a tribal application 

for purposes of administering the Clean 

Water Act (CWA) Section 303(d) 

Impaired Water Listing and Total 

Maximum Daily Load (TMDL) Program 

if the tribe meets the following criteria: 

(1) The Indian tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in § 131.3 (k) and (l) of 

this chapter; 

(2) The Indian tribe has a governing 

body carrying out substantial 

governmental duties and powers; 

(3) The CWA Section 303(d) Impaired 

Water Listing and TMDL Program to be 

administered by the Indian tribe 

pertains to the management and 

protection of water resources that are 

within the borders of the Indian 

reservation and held by the Indian tribe, 

within the borders of the Indian 

reservation and held by the United 

States in trust for Indians, within the 

borders of the Indian reservation and 

held by a member of the Indian tribe if 

such property interest is subject to a 

trust restriction on alienation, or 

otherwise within the borders of the 

Indian reservation; and 

(4) The Indian tribe is reasonably 

expected to be capable, in the Regional 

Administrator’s judgment, of carrying 

out the functions of an effective CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program in a manner 

consistent with the terms and purposes 

of the Act and applicable regulations. 

(b) Requests by Indian tribes for 

administration of the CWA Section 

303(d) Impaired Waters Listing and 

TMDL Program should be submitted to 

the appropriate EPA Regional 

Administrator. The application shall 

include the following information, 

provided that where the tribe has 

previously qualified for eligibility or 

‘‘treatment as a state’’ (TAS) under 

another EPA-administered program, the 

tribe need only provide the required 

information that has not been submitted 

in a previous application: 

(1) A statement that the tribe is 

recognized by the Secretary of the 

Interior. 

(2) A descriptive statement 

demonstrating that the tribal governing 

body is currently carrying out 

substantial governmental duties and 

powers over a defined area. The 

statement should: 

(i) Describe the form of the tribal 

government; 

(ii) Describe the types of 

governmental functions currently 

performed by the tribal governing body 

such as, but not limited to, the exercise 

of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population, taxation, and the 

exercise of the power of eminent 

domain; and 

(iii) Identify the source of the tribal 

government’s authority to carry out the 

governmental functions currently being 

performed. 

(3) A descriptive statement of the 

tribe’s authority to regulate water 

quality. The statement should include: 

(i) A map or legal description of the 

area over which the tribe asserts 

authority to regulate surface water 

quality; 

(ii) A statement by the tribe’s legal 

counsel (or equivalent official) that 

describes the basis for the tribe’s 

assertion of authority and may include 

a copy of documents such as tribal 

constitutions, by-laws, charters, 

executive orders, codes, ordinances, 

and/or resolutions that support the 

tribe’s assertion of authority; and 

(iii) An identification of the surface 

waters that the tribe proposes to assess 

for potential impaired water listing and 

TMDL development. 

(4) A narrative statement describing 

the capability of the Indian tribe to 

administer an effective CWA Section 

303(d) Impaired Water Listing and 

TMDL Program. The narrative statement 

should include: 

(i) A description of the Indian tribe’s 

previous management experience that 

may include the administration of 

programs and services authorized by the 

Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 

450, et seq.), the Indian Mineral 

Development Act (25 U.S.C. 2101, et 

seq.), or the Indian Sanitation Facility 

Construction Activity Act (42 U.S.C. 

2004a); 

(ii) A list of existing environmental or 

public health programs administered by 

the tribal governing body and copies of 

related tribal laws, policies, and 

regulations; 

(iii) A description of the entity (or 

entities) that exercise the executive, 

legislative, and judicial functions of the 

tribal government; 

(iv) A description of the existing, or 

proposed, agency of the Indian tribe that 

will assume primary responsibility for 

establishing, reviewing, implementing 

and revising impaired water lists and 

TMDLs; 

(v) A description of the technical and 

administrative capabilities of the staff to 

administer and manage an effective 

CWA Section 303(d) Impaired Water 

Listing and TMDL Program or a plan 

that proposes how the tribe will acquire 

the needed administrative and technical 

expertise. The plan must address how 

the tribe will obtain the funds to acquire 

the administrative and technical 

expertise. 

(5) Additional documentation 

required by the Regional Administrator 

that, in the judgment of the Regional 

Administrator, is necessary to support a 

tribal application. 

(c) Procedure for processing a tribe’s 

application. (1) The Regional 

Administrator shall process an 

application of a tribe submitted 

pursuant to paragraph (b) of this section 

in a timely manner. The Regional 

Administrator shall promptly notify the 

tribe of receipt of the application. 

(2) Except as provided below in 

paragraph (c)(4) of this section, within 

30 days after receipt of the tribe’s 

application the Regional Administrator 

shall provide appropriate notice. Notice 

shall: 

(i) Include information on the 

substance and basis of the tribe’s 

assertion of authority to regulate the 

quality of reservation waters; and 

(ii) Be provided to all appropriate 

governmental entities. 

(iii) Provide 30 days for comments to 

be submitted on the tribal application. 

Comments shall be limited to the tribe’s 

assertion of authority. 


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(3) If a tribe’s asserted authority is 

subject to a competing or conflicting 

claim, the Regional Administrator, after 

due consideration, and in consideration 

of other comments received, shall 

determine whether the tribe has 

adequately demonstrated that it meets 

the requirements of paragraph (a)(3) of 

this section. 

(4) Where EPA has previously 

determined that a tribe qualifies for TAS 

for the CWA Section 303(c) Water 

Quality Standards Program, CWA 

Section 402 National Pollutant 

Discharge Elimination System Program, 

or CWA Section 404 Dredge and Fill 

Permit Program, and EPA has provided 

notice and an opportunity to comment 

on the tribe’s assertion of authority to 

appropriate governmental entities as 

part of its review of the prior 

application, no further notice to 

governmental entities, as described in 

paragraph (c)(2) of this section, shall be 

provided with regard to the same tribe’s 

application for the CWA Section 303(d) 

Impaired Water Listing and TMDL 

Program, unless the application presents 

to the EPA Regional Administrator 

different jurisdictional issues or 

significant new factual or legal 

information relevant to jurisdiction. 

(5) Where the Regional Administrator 

determines that a tribe meets the 

requirements of this section, he or she 

shall promptly provide written 

notification to the tribe that the tribe is 

authorized to administer the CWA 

Section 303(d) Impaired Water Listing 

and TMDL Program. Such tribe shall be 

considered a ‘‘State’’ for purposes of 

CWA section 303(d) and its 

implementing regulations. With respect 

to the timing requirement for submittal 

of an authorized tribe’s first list of 

impaired waters pursuant to 

§ 130.7(d)(1), the tribe’s first list is due 

on the next listing cycle due date that 

is 24 months after the later of either: 

(i) The date EPA approves the tribe’s 

TAS application pursuant to this section 

or 

(ii) The date EPA-approved or EPApromulgated water quality standards 

become effective for the tribe’s 

reservation waters. 

[FR Doc. 2016–00736 Filed 1–15–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2015–0032; FRL–9939–32] 

Withdrawal of Pesticide Petitions for 

Establishment or Modification of 

Pesticide Chemical Tolerances or 

Tolerance Exemptions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of withdrawal of 

pesticide petitions. 

SUMMARY: This document announces the 

withdrawal of pesticide petitions 

requesting the establishment or 

modification of tolerances or tolerance 

exemptions for residues of pesticide 

chemicals in or on various commodities. 

The petitions were either withdrawn 

voluntarily by the petitioners or by the 

Agency. 

DATES: The pesticide petitions in this 

document are withdrawn as of January 

19, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Susan Lewis, Registration Division (RD) 

(7505P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; main telephone 

number: (703) 305–7090; email address: 

RDFRNotices@epa.gov. The mailing 

address for each contact person is: 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Although this action only applies to 

the petitioners in question, it is directed 

to the public in general. Since various 

individuals or entities may be 

interested, the Agency has not 

attempted to describe all the specific 

entities that may be interested in this 

action. If you have any questions 

regarding this action, please consult the 

person listed at the end of the 

withdrawal summary for the pesticide 

petition of interest. 

B. How can I get copies of this document 

and other related information? 

The docket for this action, identified 

by docket identification (ID) number 

EPA–HQ–OPP–2014–0008, is available 

at http://www.regulations.gov or at the 

OPP Docket in the Environmental 

Protection Agency Docket Center (EPA/ 

DC), West William Jefferson Clinton 

Bldg., Rm. 3334, 1301 Constitution Ave. 

NW., Washington, DC 20460–0001. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the OPP 

Docket is (703) 305–5805. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets. 

II. What action is the agency taking? 

EPA is announcing the withdrawal of 

pesticide petitions received under 

section 408 of the Federal Food, Drug, 

and Cosmetic Act (FFDCA), 21 U.S.C. 

346a, requesting the establishment or 

modification of tolerances or tolerance 

exemptions in 40 CFR part 180 for 

residues of pesticide chemicals in or on 

various food commodities. 

Pursuant to 40 CFR 180.7(f), a 

summary of each of the petitions 

covered by this document, prepared by 

the petitioner, was included in a docket 

EPA created for each rulemaking. The 

docket for each of the petitions is 

available online at http://

www.regulations.gov. 

Withdrawals by Petitioners 

1. PP 0E7820 (spirodiclofen). EPA 

issued a notice in the Federal Register 

of February 4, 2010 (76 FR 17374) 

(EPA–HQ–OPP–2011–0087), which 

announced the filing of a pesticide 

petition (PP 0E7820) by Interregional 

Research Project Number 4 (IR–4), 500 

College Road East, Suite 201 W, 

Princeton, NJ 08540. The petition 

proposed to establish tolerances in 40 

CFR part 180 for residues of the 

insecticide spirodiclofen, 3-(2,4- 

dichlorophenyl)-2-oxo-1- 

oxaspiro[4,5]dec-3-en-4-yl 2,2- 

dimethylbutanoate, in or on sugar apple, 

cherimoya, atemoya, custard apple, 

ilama, soursop, biriba, guava, feijoa, 

jaboticaba, wax jambu, starfruit, 

passionfruit, persimmon and acerola at 

0.45 ppm; and lychee, longan, Spanish 

lime, rambutan and pulasan at 3.5 ppm. 

On April 17, 2014, IR–4 notified EPA 

that it was withdrawing this petition. 

2. PP 9E7632 (spirodiclofen). EPA 

issued a notice in the Federal Register 

of February 4, 2010 (75 FR 5790) (EPA– 

HQ–OPP–2009–0861), which 

announced the filing of a pesticide 

petition (PP 9E7632) by Interregional 

Research Project No. 4 (IR–4), 500 

College Road East, Suite 201 W, 

Princeton, NJ 08540. The petition 

proposed to amend the tolerances in 40 

CFR 180.608 by revising the tolerance 

expression under paragraphs (a)(1) and 

(a)(2) to read as follows: (a)(1). 

Tolerances are established for residues 


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