[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)]
[Proposed Rules]
[Pages 2791-2803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00736]


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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.

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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-provide-more-opportunities-tribes-engage-clean-water-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/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sarah Furtak, Assessment and Watershed 
Protection Division, Office of Wetlands, Oceans and Watersheds

[[Page 2792]]

(4503T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: (202) 566-1167; fax number: 
(202) 566-1331; email address: [email protected].

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 reservation\1\ 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.
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    \1\ See ``Over What Area May Tribes Apply for TAS for the CWA 
Section 303(d) Impaired Water Listing and TMDL Program?'' below.

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                                  Examples of potentially affected or
           Category                       interested entities
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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.
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    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 non-reservation 
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.''
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    \2\ The term Indian country is defined at 18 U.S.C. 1151.
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    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.

[[Page 2793]]

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.
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    \3\ Under 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.
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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 EPA-
promulgated 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

[[Page 2794]]

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 quality-based 
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\
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    \4\ See 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.
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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 Sec.  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.
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    \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.
    \6\ Under 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).
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    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 Sec.  
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

[[Page 2795]]

state's CWA 303(d)/305(b) \9\ ``Integrated Report.'' \10\
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    \7\ See 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.
    \8\ See ``Water Quality Assessment and TMDL Information,'' 
available at http://ofmpub.epa.gov/waters10/attains_index.home.
    \9\ CWA 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).
    \10\ See 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) for more 
information on the Integrated Report.
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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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 2796]]

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 Sec.  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.

[[Page 2797]]

    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 Sec.  131.8 and 
proposed Sec.  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\
---------------------------------------------------------------------------

    \11\ EPA 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.
---------------------------------------------------------------------------

    The application requirements of Sec.  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 EPA-
administered 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 Sec.  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 program\12\ 
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 Sec.  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.
---------------------------------------------------------------------------

    \12\ Specifically, 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 Sec.  
130.16(c)(2) would apply. For example, if the geographic reservation 
area over which

[[Page 2798]]

an applicant tribe asserts authority is different from the area covered 
by a prior TAS application or EPA approval, the process proposed in 
Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 EPA-approved/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.
---------------------------------------------------------------------------

    \13\ A 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.
---------------------------------------------------------------------------

    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).

[[Page 2799]]



  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     Tribe decides to evaluate and
 CWA 303(c): WQS.               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     Tribe decides to assess water
 CWA Section 303(d): Impaired   quality conditions (i.e., comparing
 Water Listing and TMDL         water quality monitoring data and
 Program.                       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   Tribe conducts activities required by 40
 CWA Section 303(d) Impaired    CFR 130.7, including but not limited to:
 Water Listing and TMDL         Assembles and evaluates all
 Program.                       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        Carry out watershed-specific
 TMDLs (not required by 40      plans to implement TMDLs.
 CFR 130.7).                    Monitors TMDL implementation and
                                effectiveness.
Step 6: Tribe seeks other CWA  Possibilities include:
 regulatory programs.           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.

[[Page 2800]]

X. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/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 [email protected], 
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 ICR-related 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

[[Page 2801]]

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.
---------------------------------------------------------------------------

    \14\ The 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.
---------------------------------------------------------------------------

    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, low-income, 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

[[Page 2802]]

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

0
1. The authority citation for part 130 continues to read as follows:

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

0
2. Add Sec.  130.16 to read as follows:


Sec.  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 Sec.  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.

[[Page 2803]]

    (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 Sec.  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 EPA-promulgated 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