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EPA’s Planned Proposed Rulemaking to Address the Process for Tribes to Obtain 

Treatment in a Similar Manner as States for the Clean 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 Wetlands, Oceans and Watersheds 

Participants: Michelle Hale, Division Director, 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 Office 

 Trisha Oeth, Administrator, Colorado Water Quality Control Commission 

 Barry Burnell, Administrator, Idaho Water Quality Division, Department of 

 Environmental Quality 

 Tom Stiles, Kansas Department of Health and Environment, 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, Oklahoma Water Resources 

 Board 

 Mark Hildebrand, Oklahoma Department of Environmental Quality 

 Kent Woodmansey, South Dakota Department of Environment and Natural 

 Resources, Feedlot Permit Program 

 Kelli Buscher, South Dakota Department of Environment and Natural 

 Resources, Surface Water Quality Program 

 Rich Hanson, South Dakota Department of Environment and Natural 

Resources, Watershed Protection Program 

 Tom Laurie, Tribal and Environmental Affairs, Washington Department of 

 Ecology 

 Bill DiRenzo, WYPDES Point Sources Program Manager 

 Kevin Hyatt, Wyoming TMDL Program Principal 

 Carlee Brown, Western Governors’ Association Policy Advisor – Water 

 Chris Scolari, Western Governors’ Association Policy Advisor – Energy and 

Waste 

 Tony Willardson, Western States Water Council (WSWC) Executive Director 

 Nathan Bracken, WSWC Assistant Director and General 

Counsel 
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The meeting began with introductions. Sarah Furtak then gave the presentation “EPA’s Planned 

Proposed Rulemaking to Address the Process for Tribes to Obtain Treatment in a Similar 

Manner as States for the Clean Water Act Impaired Water Listing and Total Maximum Daily 

Load Program” (October 1, 2014) that is available within docket EPA-HQ-OW-2014-0622). 

EPA then addressed issues and comments from WSWC, including 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 considered by EPA in developing the 

proposed rule.

QUESTIONS

(1) General: 

(a) What is the geographic distribution of tribes expressing 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)/TMDLs differ from, or be inconsistent 

with the criteria for obtaining TAS for other CWA programs? 

(b) Is TAS authority for the WQS program and NPDES a prerequisite 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 TMDLs as there is for state TMDLs? 

(b) Will tribal TMDLs be reviewed and approved by the same 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 upstream states, including tribal 

impairments and prioritizations? 

(c) What authority might tribal TMDLs have on upstream states? 

(5) TMDL operation on tribal lands: 

(a) How will the tribes prioritize their 303(d) list? 

(b) Will there be expectations of the tribes similar to those identified in the national 

303(d) TMDL vision? 
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(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 Metlakatla) 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 change this policy? 

(2) Oklahoma has 39 tribes that do not have physical reservations, which Congress recognized 

when it established a special requirement that no TAS approvals can be granted without a 

cooperative agreement with the state. Would the proposal affect or alter Oklahoma’s unique 

situation with regard to the additional requirements that Congress has enacted for tribes seeking 

TAS in Oklahoma?