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EPA’s Planned Proposed Rulemaking to Address the Pr ocess for Tribes to Obtain
Treatment in a Similar Manner as States for the Cle an Water Act Impaired Water Listing and Total Maximum Daily Load Program – Meeting with the Western States Water
Council Thursday, October 30, 2014 1:00 – 2:00 p.m. Eastern Time Meeting Summary

EPA Presenter: Sarah Furtak, EPA Office of Wetlan ds, Oceans and Watersheds

Participants: Michelle Hale, Division Directo r, Alaska Department of Environmental

Conservation, Division of Water Cindy Gilder, Alaska Department of Environmental Conservation, Division of Water, Non-Point Source Section Jacqueline Schafer, Alaska Attorney General’s Of fice Trisha Oeth, Administrator, Colorado Water Qu ality Control Commission

Barry Burnell, Administrator, Idaho Water Qualit y Division, Department of Environmental Quality Tom Stiles, Kansas Department of Health and E nvironment, Office of

Watershed Planning Jay Weiner, Montana Attorney General’s Office

Scott Verhines, State Engineer, New Mexico Greg Ridgley, General Counsel, Office of the New Mexico State Engineer Maggie Olson, North Dakota Department of Health Lauren Sturgeon, Director of External Affairs, O klahoma Water Resources
Board Mark Hildebrand, Oklahoma Department of Environm ental Quality Kent Woodmansey, South Dakota Department of Envi ronment and Natural Resources, Feedlot Permit Program Kelli Buscher, South Dakota Department of Enviro nment and Natural Resources, Surface Water Quality Program Rich Hanson, South Dakota Department of Environm ent and Natural Resources, Watershed Protection Program Tom Laurie, Tribal and Environmental Affairs, Wa shington Department of Ecology Bill DiRenzo, WYPDES Point Sources Program Ma nager

Kevin Hyatt, Wyoming TMDL Program Principal Carlee Brown, Western Governors’ Association Policy Advisor – Water

Chris Scolari, Western Governors’ Association Po licy Advisor – Energy and
Waste Tony Willardson, Western States Water Council (WSWC) Executive Director

Nathan Bracken, WSWC Assistant Director and Gene ral
CounselPage 2 of 3

The meeting began with introductions. Sarah Furtak then gave the presentation “EPA’s Planned Proposed Rulemaking to Address the Process for Trib es to Obtain Treatment in a Similar Manner as States for the Clean Water Act Impaired W ater Listing and Total Maximum Daily Load Program” (October 1, 2014) that is available w ithin docket EPA-HQ-OW-2014-0622).

EPA then addressed issues and comments from WSWC, i ncluding those further below that were provided ahead of the call. EPA presenters provided responses consistent with the presentation
materials and other information available at http://www.epa.gov/tmdl/tribal-consultationrulemaking-provide-more-opportunities-tribes-engage -clean-water-act

. Views and comments were acknowledged, and will be c onsidered by EPA in developing the proposed rule.

QUESTIONS (1) General: (a) What is the geographic distribution of tribes e xpressing interest in having 303(d) authority? (b) How many tribes currently have TAS authority to operate CWA programs?

(2) TAS authority for TMDLs: (a) Will the criteria for obtaining TAS for 303(d)/TMDL s differ from, or be inconsistent with the criteria for obtaining TAS for other CWA p rograms? (b) Is TAS authority for the WQS program and NPDES a pr erequisite for TAS 303(d) authority? (c) Could a tribe operate a TMDL program if it lacks an approved WQS program? (d) Who would develop TMDLs for tribal lands if a tribe does not have TAS TMDL authority?

(3) Development of tribal TMDLs: (a) Will there be EPA oversight/approval for tribal TMD Ls as there is for state TMDLs? (b) Will tribal TMDLs be reviewed and approved by the s ame EPA person assigned to the respective states? (c) What types of consultation and communications would take place with states in the development of tribal TMDLs?

(4) Differences between state and tribal TMDLs: (a) How will EPA address situations in which tribal TMDLs are more stringent than state

TMDLs? (b) How might tribal 303(d) programs impact upstrea m states, including tribal impairments and prioritizations? (c) What authority might tribal TMDLs have on upstr eam states?

(5) TMDL operation on tribal lands: (a) How will the tribes prioritize their 303(d) lis t? (b) Will there be expectations of the tribes simila r to those identified in the national 303(d) TMDL vision?Page 3 of 3 (c) Has EPA identified and listed an impaired water and developed a TMDL on tribal
land?

(6) When will EPA finalize the final guidance memo on inter-jurisdictional TMDLs?

STATE-SPECIFIC QUESTIONS

(1) Tribes in Alaska (with the exception of Metlak atla) do not have jurisdiction over water due to a non-reservation based system under federal law . EPA’s policy is that Alaska tribes are not eligible for TAS. Would this proposed rulemaking c hange this policy?

(2) Oklahoma has 39 tribes that do not have physica l reservations, which Congress recognized when it established a special requirement that no T AS approvals can be granted without a cooperative agreement with the state. Would the pro posal affect or alter Oklahoma’s unique situation with regard to the additional requirement s that Congress has enacted for tribes seeking
TAS in Oklahoma?