[Federal Register Volume 81, Number 186 (Monday, September 26, 2016)]
[Rules and Regulations]
[Pages 65901-65917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22882]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 130

[EPA-HQ-OW-2014-0622; FRL-9952-61-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: Final rule.

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SUMMARY: In section 518(e) of the Clean Water Act (CWA), Congress 
authorized the Environmental Protection Agency (EPA) to treat eligible 
federally recognized Indian tribes in a similar manner as a state 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; for example, 53 
tribes have obtained TAS authority to issue water quality standards 
under CWA section 303(c). EPA has not yet promulgated regulations 
expressly establishing a process for 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), as states routinely do. EPA is now 
remedying this gap. By establishing regulatory procedures for eligible 
tribes to obtain TAS for the CWA Section 303(d) Impaired Water Listing 
and TMDL Program, this final rule enables 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 rule is comparable to 
similar regulations that EPA issued in the 1990s for the CWA Section 
303(c) WQS and CWA Section 402 and Section 404 Permitting Programs, and 
includes features designed to minimize paperwork and unnecessary 
reviews.

DATES: This final rule is effective October 26, 2016.

ADDRESSES: EPA has established a docket for this rule under Docket 
identification (ID) No. EPA-HQ-OW-2014-0622. All documents in the 
docket are listed and accessible for viewing at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ruth Chemerys, Assessment and 
Watershed Protection Division, Office of Wetlands, Oceans and 
Watersheds (4503T), Environmental Protection Agency, 1200 Pennsylvania 
Ave. NW., Washington, DC 20460; telephone number: (202) 566-1216; 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. How was this rule developed?

[[Page 65902]]

    D. What is the Agency's authority for issuing this rule?
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 will 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 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 will EPA follow in reviewing a tribe's TAS 
application?
    A. Notice to Appropriate Governmental Entities
    B. Avoidance of Duplicative Notice and Comment Procedures
    1. What did EPA consider regarding the notice and comment 
exemption?
    2. What is EPA's position on certain public comments regarding 
notice and comment?
    C. Treatment of Competing or Conflicting Claims
    D. EPA's Decision Process
VIII. What are EPA's expectations regarding WQS and WQS TAS as 
prerequisites for tribes applying for TAS authority for the 303(d) 
Program?
    A. What did EPA consider regarding WQS and WQS TAS as 
prerequisites for 303(d) TAS?
    B. What is EPA's position on certain public comments regarding 
WQS and WQS TAS as prerequisites for 303(d) TAS?
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. What is EPA's position on certain other public comments received?
    A. Impact on State/Local Authority for CWA Programs
    B. Relation to May 16, 2016, Interpretive Rule
XI. 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
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    This 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 rule applies directly only to Indian tribes applying for TAS, 
state and local governments, as well as other entities including other 
Indian tribes, 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.

------------------------------------------------------------------------
                                               Examples of potentially
                 Category                      affected or 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.
------------------------------------------------------------------------

    If you have questions regarding the effect of this 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. 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 rule facilitates eligible tribes' administration of 
an additional regulatory program, nothing in this rule changes, 
expands, or contracts the geographic scope of potential tribal TAS 
eligibility under the CWA.

[[Page 65903]]

C. How was this rule developed?

    In developing this rule, EPA conducted consultation and 
coordination with tribes and states before proposing this rule in the 
Federal Register on January 19, 2016. 81 FR 2791. On March 28, 2014, 
EPA initiated consultation and coordination with federally recognized 
Indian tribes concerning the planned proposed rulemaking. On September 
19, 2014, EPA invited input from intergovernmental associations and met 
with them on October 1, 2014. Additional consultation and coordination 
occurred in 2015. During the 60-day public comment period in 2016, EPA 
provided informational webinars for the public, tribes, and states, and 
conducted further consultation and coordination with tribes and states. 
Following the public comment period, EPA also participated in 
informational meetings with tribes.
    EPA received over 830 public comments on the proposed rule. EPA 
received over 800 mass email comments in support of the rule, as well 
as individual comments from nine tribes and tribal associations, 
expressing support for the rule. EPA also received individual comments 
from eight states, one local government, one local non-governmental 
organization, two regulated entities, several private citizens, and one 
federal agency. Most states generally were neutral regarding the 
proposed rule overall. Some states cited special circumstances 
regarding applicability of the rule in their states. Two states and the 
two local entities opposed the proposed rule, citing concern regarding 
impacts on state and local programs, as well as objections to EPA's 
proposed (now final) interpretive rule regarding tribal jurisdiction 
under the Clean Water Act. Revised Interpretation of Clean Water Act 
Tribal Provision, 80 FR 47430 (August 7, 2015) (proposed rule); 81 FR 
30183 (May 16, 2016) (final rule).
    This final rule establishing regulatory procedures for eligible 
tribes to obtain TAS for the CWA Section 303(d) Impaired Water Listing 
and TMDL Program reflects EPA's careful consideration of all the 
comments. The comments and EPA's responses to the comments are 
available in the public docket at http://www.regulations.gov.

D. What is the Agency's authority for issuing this rule?

    The CWA, 33.U.S.C. 1251, et seq, including section 518 (33 
U.S.C.1377).

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 December 12, 1991 (56 FR 64876);
     40 CFR 131.4(c) for CWA section 401 water quality 
certification, published December 12, 1991 (56 FR 64876);
     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, published 
December 22, 1993 (58 FR 67966); and
     40 CFR 233.60-62 for CWA section 404 dredge or fill 
permits, published February 11, 1993 (58 FR 8172).
    In 1994, EPA amended the above regulations to simplify the TAS 
process and eliminate unnecessary and duplicative requirements. 59 FR 
64339 (December 14, 1994) (``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 addressing a gap in its current TAS regulations by 
finalizing regulations that specify how tribes may seek TAS for the CWA 
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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    On May 16, 2016, EPA published an interpretive rule revising the 
Agency's approach to tribal jurisdiction under the CWA. Revised 
Interpretation of Clean Water Act Tribal Provision, 81 FR 30183 (May 
16, 2016). In the interpretive rule, EPA concluded definitively that 
section 518 includes an express delegation of authority by Congress to 
Indian tribes to administer regulatory programs over their entire 
reservations, subject to the eligibility requirements in section 518. 
This reinterpretation eliminates the need for applicant tribes to 
demonstrate inherent authority to regulate under the CWA, thus allowing 
tribes to implement the congressional delegation of authority. The 
reinterpretation also brings EPA's treatment of tribes under the CWA in 
line with EPA's treatment of tribes under the Clean Air Act, which has 
similar statutory language addressing tribal regulation of Indian 
reservation areas.
    The interpretive rule did not result in any revisions to the 
application procedures of EPA's TAS regulations as codified in the Code 
of Federal Regulations. EPA will continue to review CWA TAS 
applications in accordance with existing TAS regulations, which provide 
the procedural infrastructure for the TAS application and review 
processes. This rule, which is closely based on the existing CWA TAS 
regulations, provides similar regulatory infrastructure for tribes 
interested in applying to administer the section 303(d) Program. Any 
application of the interpretive rule would occur solely in the context 
of an EPA final decision approving a tribe's TAS application based on 
the revised interpretation of tribal jurisdiction. See, e.g., 81 FR at 
30185.

[[Page 65904]]

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 provides 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 notice, 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 
under the CWA in identifying and establishing a priority ranking for 
impaired water bodies on their reservations and in establishing 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 waste load 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, or 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 rule does not require anything of tribes that are not 
interested in TAS for the 303(d) Program. Based on pre- and post-
proposal input, EPA understands that 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 will 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 40 CFR 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 
will 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 within the 
scope of its 303(d) TAS authorization. In this notice, 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).\7\ 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 https://www.epa.gov/sites/production/files/2015-10/documents/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).
    \7\ Section 303(d)(1) requires states to ``establish a priority 
ranking'' for the segments it identifies on the list, taking into 
account the severity of the pollution and the uses to be made of 
such segments, and to establish TMDLs ``in accordance with the 
priority ranking.'' EPA will review the priority ranking but does 
not take action to approve or disapprove it. 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 https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.
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    Like states, authorized tribes are 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

[[Page 65905]]

section 130.16(c)(5) of this rule, a tribe gaining TAS status is 
provided at least 24 months to submit its first impaired waters list to 
EPA. The tribe's first impaired waters list is 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 will follow in reviewing a 
tribe's TAS application.). Thus, for example, if EPA approves a tribe's 
TAS application on March 15, 2017 and the tribe's WQS on June 30, 2017, 
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 this 
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 a tribal 
assessment report (TAR) pursuant to the CWA section 106 grant reporting 
requirements.\8\ EPA encourages tribes that obtain TAS for the CWA 
Section 303(d) Program and also develop CWA section 106 TARs to 
consider combining their CWA section 303(d) impaired waters list with 
their CWA section 106 TAR, and to submit the integrated report 
electronically through the Assessment TMDL Tracking and Implementation 
System (ATTAINS).\9\ ATTAINS is a database and Web site used for state 
reporting and displaying of CWA 303(d) and 305(b) \10\ ``Integrated 
Report'' \11\ and TMDL data. EPA is working with tribes on a pilot for 
submitting TAR information into ATTAINS.
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    \8\ 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.
    \9\ ``Water Quality Assessment and TMDL Information,'' available 
at http://ofmpub.epa.gov/waters10/attains_index.home.
    \10\ 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. 40 CFR 130.4(a); 54 FR 14354, 14357 (April 11, 1989).
    \11\ 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 https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.
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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 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 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, this rule establishes 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 are codified 
in a new section 130.16 of the water quality planning and management 
regulation. Section 130.16 identifies (1) the criteria an applicant 
tribe is required to meet to be treated in a similar manner as a state, 
(2) the information the tribe is required to provide in its application 
to EPA, and (3) the procedure EPA will use to review the tribal 
application. 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 rule are closely based on the existing 
TAS regulation at 40 CFR 131.8, which established the TAS process for 
the CWA Section 303(c) WQS Program. EPA established the TAS process for 
WQS in 1991, and the great majority of TAS activity for regulatory 
programs under the CWA has occurred in the WQS Program. 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 TAS 
rule.
    The TAS criteria tribes are 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 regulatory language, the tribe 
must (1) be federally recognized and meet the definitions in sections 
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 requires the tribe to be federally 
recognized by the U.S. Department of the Interior (DOI) and meet the 
definitions in sections 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 section 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 section 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 IB 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 requires the tribe to have a governing body 
``carrying out substantial governmental duties and

[[Page 65906]]

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 is 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 
rule, a tribe must include a descriptive statement of its authority to 
regulate water quality, which should include a statement signed by the 
tribe's legal counsel, or an equivalent official, explaining the legal 
basis for the tribe's regulatory authority, and appropriate additional 
documentation (e.g., maps, tribal codes, and ordinances).
    As described in EPA's May 16, 2016, interpretive rule, EPA 
previously took an initial cautious approach that required tribes 
applying for eligibility to administer regulatory programs under the 
CWA to demonstrate their inherent tribal authority over the relevant 
regulated activities on their reservations. See, e.g., 81 FR at 30185-
86; 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 
civil jurisdiction over nonmember activities on nonmember fee land, but 
retain inherent civil authority to regulate nonmember activities on fee 
land 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--to the extent a demonstration of 
inherent regulatory authority is needed--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 reiterates 
the generalized statutory and factual findings set forth in those prior 
TAS rulemakings, which apply equally to the regulation of water quality 
under the CWA Section 303(d) Program.
    EPA has also separately revised 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. 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 May 16, 2016, as 
part of an entirely separate regulatory action, EPA published in the 
Federal Register a rule to reinterpret the CWA tribal provision as 
including such an express delegation of authority by Congress. 81 FR 
30183. Under that reinterpretation, applicant Indian tribes are no 
longer required to demonstrate inherent authority to regulate their 
reservation waters under the CWA. Among other things, tribes are thus 
no longer 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, under that reinterpretation, absent rare circumstances that 
may affect a tribe's ability to effectuate the delegation of authority, 
a tribe is 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. Id.
    In the preamble to the proposed 303(d) TAS rule, EPA noted that the 
proposed rule 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 reinterpretation 
of section 518, EPA's existing TAS regulations--including 40 CFR 131.8, 
upon which this 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. The same 
is true of this rule, which establishes procedures needed to fill the 
gap in TAS regulatory infrastructure for the CWA Section 303(d) 
Program. Now that the May 16, 2016, interpretative rule is finalized, 
the revised interpretation would be applied in the context of EPA's 
review of a TAS application submitted under these CWA section 303(d) 
regulations. Finalization of these procedural regulations, however, is 
a separate and distinct regulatory action from the reinterpretation and 
is not based upon, nor does it depend upon that earlier action.
    The fourth criterion requires 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 should 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 will also consider

[[Page 65907]]

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 section 130.16 (a) and (b). The application must, in 
general, nclude a statement regarding federal recognition by DOI, 
documentation that the tribal governing body is exercising substantial 
duties and powers, documentation of 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 rule also provides 
that where a tribe has previously qualified for TAS for purposes of a 
different EPA program, the tribe need only provide the required 
information that has not been submitted as part of a prior TAS 
application. To facilitate review of tribal applications, EPA requests 
that a tribe, in its 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.
    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 is not required to do so, EPA's approach allows a 
tribe to submit a combined application, which addresses the criteria 
and application requirements of sections 131.8 and 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.\12\
---------------------------------------------------------------------------

    \12\ EPA takes no position in this rule 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.
---------------------------------------------------------------------------

    Under section 130.16(b), which requires tribal applicants to submit 
a statement describing their authority to regulate water quality, EPA 
encourages tribes to include 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. The provision for a legal counsel's statement is 
designed to 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 rule provides 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 authority 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 eligibility criteria, including the TAS 
criteria set forth in section 518 of the CWA. This rule relates solely 
to the CWA TAS requirement; it thus has no effect on the separate 
requirement of section 10211(b) of SAFETEA.

What is EPA's position on certain public comments regarding special 
circumstances?

    EPA received several comments asserting that special circumstances 
limit particular tribes' ability to obtain TAS for the CWA 303(d) 
Program. For instance, one state asserted that, under federal law 
specific to that state, the state has primary regulatory authority and 
jurisdiction for environmental programs throughout the state, including 
over Indian territories and waters. The state requested that EPA 
confirm that in this state, a tribe would not be eligible to attain TAS 
for the 303(d) Program or any other CWA regulatory program. One state 
asserted that a tribe located in the state is precluded by federal 
statute specific to that tribe from regulating reservation land that is 
owned in fee by non-tribal citizens. An industry commenter asserted 
that the tribe where its facility is located entered into a binding 
agreement waiving regulatory authority over the commenter's facility, 
and accordingly, making the tribe ineligible to assert jurisdiction 
over the facility for CWA purposes.
    EPA appreciates the information about special circumstances 
provided in the comments. Importantly, the precise outcome of any such 
circumstance could only be determined in the context of a particular 
tribe's TAS application and upon a full record of information 
addressing the issue. The substance of these specific situations is 
thus outside the scope of--and is not affected by--this rule. This rule 
only establishes criteria and a process for tribes to apply for TAS for 
the 303(d) Program; it does not adjudicate the outcome of that process 
for any particular tribe. However, EPA notes that the comments are both 
illustrative and instructive regarding the types of special 
circumstances and jurisdictional issues that may affect a tribe's 
ability to obtain TAS for the 303(d) Program. Federal statutes other 
than the CWA may, for instance, limit a particular tribe's or group of 
tribes' ability to participate, in whole or in part, in CWA regulation 
through the TAS process. Before approving a tribe's TAS eligibility, 
EPA would carefully consider whether any binding contractual 
arrangements or other legal documents such as tribal charters or 
constitutions might affect the

[[Page 65908]]

tribe's regulatory authority generally, or with regard to any specific 
members of the regulated community. Finally, under this rule--and 
consistent with TAS requirements for other regulatory programs--the 
geographic scope of the reservation boundaries over which a tribe 
asserts authority would continue to be a relevant and appropriate issue 
for consideration in the TAS process. Sections 130.16(b)(3) and (c)(2) 
of this rule require applicant tribes to address these types of issues 
in their jurisdictional statements and provide states and other 
appropriate entities an appropriate opportunity to comment and inform 
EPA of any potential impediments to tribal regulatory authority. These 
comment opportunities help ensure that EPA's decision making is well 
informed.
    EPA also received comments on the proposed rule from the State of 
Oklahoma regarding section 10211(b) of SAFETEA. In its comments, the 
State of Oklahoma requested additional information regarding the 
process or sequence of events that will be used to ensure that this 
provision of SAFETEA is satisfied in the context of particular tribal 
TAS applications that may be submitted following finalization of this 
rule. EPA notes that section 10211(b) expressly contains certain 
procedural requirements--i.e., the state/tribal cooperative agreement 
must be subject to EPA review and approval after notice and an 
opportunity for public hearing. Nothing in this rule alters or affects 
those requirements. Further, because the SAFETEA requirement must be 
satisfied for a tribe in Oklahoma to obtain TAS to regulate under an 
EPA statute, the final cooperative agreement must be fully executed and 
approved by EPA before EPA can approve a 303(d) TAS application. 
Because the State of Oklahoma is a required signatory to the agreement, 
this sequence of events ensures that the State will have a full 
opportunity to participate in the TAS process--separate from 
opportunities that states have through EPA's TAS notice and comment 
procedures. Nothing in this rule alters or affects Oklahoma's 
participation in the SAFETEA cooperative agreement or the requirement 
that the agreement be in place as a prerequisite to TAS for the 303(d) 
Program. EPA notes that there are no regulations establishing 
procedures for the State and applicant tribes to negotiate SAFETEA 
cooperative agreements or for tribes to submit, and EPA to review, such 
agreements. There is thus flexibility for the State and applicant 
tribes in Oklahoma to work together to develop these agreements as they 
deem appropriate.

VII. What procedure will EPA follow in reviewing a tribe's TAS 
application?

A. Notice to Appropriate Governmental Entities

    The EPA review procedure, included in section 130.16(c), specifies 
that the Regional Administrator, following receipt of tribal 
applications, will process such applications in a timely manner. EPA 
will 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 will 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 will provide a 30-
day opportunity to comment to EPA on the tribe's assertion of 
authority. See, e.g., 56 FR at 64884. EPA will 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, EPA's 
notice and comment procedure applies unless such process would be 
duplicative of a notice and comment process already performed in 
connection with EPA's approval, after the effective date of this rule, 
of the same tribe's prior application for TAS for another CWA 
regulatory program.

B. Avoidance of Duplicative Notice and Comment Procedures

    In this rule, EPA includes provisions intended to help avoid 
unnecessary and wasteful duplication of the notice and comment 
procedures described in section VII.A. Specifically, the rule (section 
130.16(c)(4)) provides that, where a tribe has previously qualified for 
TAS for a CWA regulatory program \13\ 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.
---------------------------------------------------------------------------

    \13\ 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 regarding the tribe's assertion 
of jurisdiction would be duplicative of the process already undertaken 
during EPA's review of the prior TAS application. Under these 
circumstances, the rule avoids such duplication of efforts by providing 
that the relevant EPA Regional Administrator will 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 
are present, the notice and comment process described in section 
130.16(c)(2) applies. For example, if the geographic reservation area 
over which an applicant tribe asserts authority is different from the 
area covered by a prior TAS application or EPA approval, the process in 
section 130.16(c)(2) applies and provides 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 section 130.16(c)(2) 
notice and comment process.
    This approach applies prospectively only, i.e., where the tribe 
obtains TAS for the CWA Section 303(c) WQS Program, CWA Section 402 
NPDES Program or Sludge Management Program, or CWA section 404 dredge 
and fill Permit Program after the effective date of this rule. In other 
words, if a tribe first gains TAS for 303(c) or another CWA regulatory 
program after this rule is finalized, and subsequently seeks TAS for 
the 303(d) Program, additional notice and comment would not be required 
as part of the 303(d) TAS application unless different jurisdictional 
issues or significant new factual or legal information relevant to 
jurisdiction are presented in the 303(d) application. However, if a 
tribe had been approved for TAS only for 303(c) or another CWA program 
prior to the effective date of this rule, the notice and comment 
procedures of section 130.16(c)(2) will apply. Further notice and 
comment may not be necessary, for example, where a tribe has been 
approved for a TAS application for 303(c) (WQS) after the

[[Page 65909]]

effective date of this rule, and then subsequently applies for TAS for 
the 303(d) Program. If that tribe had previously demonstrated that it 
may effectuate the congressional delegation of authority for a CWA 
regulatory program, and the tribe is applying for the same geographic 
area, a new notice and comment procedure generally would not be needed 
for the 303(d) TAS. A tribe in this circumstance might note in its 
303(d) TAS application that it is applying for the same geographic 
scope and using the same legal basis as the previous CWA TAS regulatory 
approval.
    EPA notes that the notice and comment procedures (and the exemption 
thereto) described in this rule relate solely to tribal assertions of 
authority as part of TAS applications. They do not address any issues 
relating to notice and comment on section 303(d) lists and TMDLs 
associated with 303(d) Program implementation by a TAS-eligible tribe.
1. What did EPA consider regarding the notice and comment exemption?
    In the proposed rule, EPA proposed to apply this exemption 
generally--that is, to all tribal applications that meet the exemption 
criteria even if the earlier CWA TAS approval occurred prior to the 
finalization of the 303(d) TAS rule. EPA requested comment on its 
proposed exemption and alternative approaches. In addition, we 
requested comment on whether the section 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 the 
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). 
EPA also considered not providing such a notice and comment exemption, 
regardless of whether tribes have obtained TAS for other CWA regulatory 
programs.
2. What is EPA's position on certain public comments regarding notice 
and comment?
    EPA received several comments on the proposed notice and comment 
approach, including from several tribes, several states, one local 
government, and one non-governmental organization. The tribal 
commenters generally expressed support for the proposed approach, 
noting that tribes that have TAS approval for another CWA program 
should not have to go through additional delay for a duplicative notice 
and comment process. Two tribal commenters also noted that the approach 
should not be limited to prospective applications, with one commenter 
asserting that anyone with objections to previous applications already 
had an opportunity to express those concerns. States, local entities, 
and industry generally opposed the proposed streamlined notice and 
comment approach. One state asserted that states should have an 
opportunity to comment on all applications, regardless of previous TAS 
applications. One state commenter, while generally opposed to the 
approach, indicated that the approach at a minimum should be applied 
prospectively only. One state asserted that the proposed approach would 
not provide an opportunity to have input to the development of a new 
tribal program. Another state noted that the public should have an 
opportunity to comment on a program such as 303(d) that may have more 
direct and broader public implications than other TAS programs. One 
state commenter supported the proposed approach, but said that it 
should be applied prospectively only. A local government and a 
nongovernmental organization asserted that the approach limits due 
process and expands tribal control over non-tribal persons and lands.
    EPA agrees with the commenters who supported the proposed approach 
as an effective and efficient means to ensure appropriate notice 
procedures on tribal assertions of authority in 303(d) TAS 
applications, while avoiding unnecessary and wasteful duplication. EPA 
also appreciates, but disagrees with, the comments that additional 
notice and comment should be required, regardless of previous CWA TAS 
applications. As discussed previously, where different jurisdictional 
issues or information are not present, additional notice and comment 
procedures would be duplicative of the process already undertaken 
during EPA's review of a prior TAS application. Eliminating unnecessary 
burdens is consistent with longstanding EPA and Executive policy to 
support tribal self-determination and promote and streamline tribal 
involvement in managing and regulating their lands and environments. 
See, e.g., Executive Order 13175, 65 FR 67249, November 9, 2000; 
Presidential Memorandum: Government-to-Government Relations with Native 
American Tribal Governments, 59 FR 22951, April 29, 1994; EPA Policy 
for the Administration of Environmental Programs on Indian 
Reservations, November 8, 1984.\14\ This rule thus maintains the notice 
and comment exemption in section 130.16(c)(4).
---------------------------------------------------------------------------

    \14\ EPA Policy for the Administration of Environmental Programs 
on Indian Reservations, November 1984, available at https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-1984-indian-policy.
---------------------------------------------------------------------------

    EPA also notes that the notice and comment procedures described in 
this rule are not required by the CWA or other federal law. Instead, 
they are provided by EPA as a matter of the Agency's discretion to 
ensure that EPA's decision making on tribal assertions of authority in 
TAS applications is well-informed, including by any relevant 
information that may be made available by appropriate governmental 
entities.
    EPA has, however, decided to make the notice and comment exemption 
available only prospectively. Limiting the notice and comment exemption 
to prospective applications is appropriate because the notice and 
comment exemption will not provide any streamlining benefit to tribes 
with prior CWA TAS approvals in light of EPA's recent publication of an 
interpretive rule revising the Agency's approach to tribal jurisdiction 
under the CWA. Revised Interpretation of Clean Water Act Tribal 
Provision, 81 FR 30183 (May 16, 2016). In the interpretive rule, EPA 
announced the Agency's conclusion that section 518 of the CWA includes 
a delegation of authority from Congress to eligible tribes to regulate 
waters throughout their reservations under the statute, irrespective of 
who owns the relevant reservation area. This revised interpretation 
thus eliminated the need for tribes seeking TAS for the purpose of 
administering a CWA regulatory program to demonstrate their inherent 
authority to regulate reservation water resources under principles of 
federal Indian law. To date, all of the tribes that have been approved 
by EPA for eligibility to administer a CWA regulatory program were 
approved consistent with EPA's prior (pre-interpretive rule) approach 
to tribal jurisdiction. Because the interpretive rule revised EPA's 
approach to tribal jurisdiction, new TAS applications for a CWA 
regulatory program, including the 303(d) Program, will proceed under 
the revised interpretation, thus presenting a different jurisdictional 
issue than prior applications. Even if EPA opted to apply the notice 
and comment exemption retrospectively, the procedures of section 
130.16(c)(2) would apply in all such cases because the circumstances 
authorizing the exemption of section 130.16(c)(4) will be absent. 
Applying the exemption retrospectively would not provide the intended 
streamlining

[[Page 65910]]

benefit, given the existence of different jurisdictional issues. Going 
forward, however, EPA will apply the exemption per the provisions in 
section 130.16(c)(4).

C. Treatment of Competing or Conflicting Claims

    Where a tribe's assertion of authority is subject to a competing or 
conflicting claim, the procedures in this rule provide that the 
Regional Administrator, after due consideration and in consideration of 
any other comments received, will 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 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 will 
consider comments but will make an independent evaluation of the tribal 
showing.

D. EPA's Decision Process

    The 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 section 130.16(a) and (b), 
the Regional Administrator will 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 an 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 are EPA's expectations regarding WQS and WQS TAS as 
prerequisites for tribes applying for TAS authority for the 303(d) 
Program?

    This final rule does not require tribes to have applicable WQS in 
place for their reservation waters prior to applying for TAS 
eligibility for the 303(d) Program. The 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. 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). Accordingly, 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 53 tribes. Forty-two of those tribes have 
EPA-approved WQS, and one tribe without TAS for WQS has EPA-promulgated 
WQS.\15\ These tribes will already have demonstrated an interest in 
directly administering certain fundamental elements of the CWA as well 
as the capacity to do so.
---------------------------------------------------------------------------

    \15\ EPA maintains a current list of authorized tribes and 
tribal WQS approvals at https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards.
---------------------------------------------------------------------------

    Since applicable WQS are a foundation of the CWA's water quality-
based approach to protecting our nation's waters, EPA recommends that 
establishing EPA-approved/EPA-promulgated WQS for reservation water 
bodies is 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 CWA 
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.
    Table 1 is an example of a 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. Many of 
the identified steps could be completed in parallel rather than 
sequentially. In particular, this approach does not preclude a tribe 
from seeking TAS for the 303(d) Program, either separately or 
concurrently with TAS for the WQS Program.

  Table 1--Example of a Step-Wise Approach to Regulatory Activities for
  Tribes Interested in Applying for TAS Authority To Implement the CWA
         Section 303(d) Impaired Water Listing and TMDL Program
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Step 1: Tribe seeks TAS for CWA 303(c)    Tribe decides to
 WQS.                                     evaluate and address water
                                          quality within its reservation
                                          by establishing WQS under the
                                          CWA.
                                          Tribe identifies and
                                          inventories reservation water
                                          bodies.
                                          Tribe applies for TAS
                                          for WQS.
                                          EPA approves tribe's
                                          TAS application.
Step 2: Tribe Adopts WQS...............   Tribe develops its
                                          water quality goals.
                                          Tribe drafts and
                                          adopts WQS and submits for EPA
                                          approval.
                                          EPA approves tribal
                                          WQS.

[[Page 65911]]

 
Step 3: Tribe seeks TAS for CWA Section   Tribe decides to
 303(d) Impaired Water Listing and TMDL   assess water quality
 Program.                                 conditions against applicable
                                          WQS (i.e., comparing water
                                          quality monitoring data and
                                          information against applicable
                                          WQS), identify impaired
                                          waters, and develop TMDLs.
                                          Tribe applies for TAS
                                          to implement a 303(d) Program
                                          under the CWA.
                                          EPA approves TAS for
                                          303(d).
Step 4: Tribe implements the CWA         Tribe conducts activities
 Section 303(d) Impaired Water Listing    identified in 40 CFR 130.7,
 and TMDL Program.                        including but not limited to:
                                             Assembles and
                                             evaluates all existing and
                                             readily available water
                                             quality-related data and
                                             information on reservation
                                             water bodies.
                                             Develops section
                                             303(d) list of impaired
                                             waters (that is,
                                             reservation water bodies
                                             that do not meet or are not
                                             likely to meet applicable
                                             WQS).
                                             Prioritizes list of
                                             impaired water bodies for
                                             TMDL development.
                                             Submits section
                                             303(d) list to EPA for
                                             approval.
                                             Develops TMDLs for
                                             listed waters.
                                             Submits TMDLs to
                                             EPA for approval.
Step 5: Tribe implements TMDLs (not       Tribe carries out
 required by 40 CFR 130.7).               watershed-specific plans and
                                          actions to implement TMDLs.
                                          Tribe 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.
------------------------------------------------------------------------

A. What did EPA consider regarding WQS and WQS TAS as prerequisites for 
303(d) TAS?

    In the proposed rule, EPA did not propose to require tribes to have 
CWA-applicable WQS--i.e., either approved by EPA or promulgated by 
EPA--in place on their reservations prior to applying for TAS 
eligibility under CWA section 518 for purposes of administering the 
303(d) Program. This approach is consistent with other CWA and EPA 
programs, which authorize tribes to seek TAS eligibility without 
requiring as a prerequisite the existence of any separate EPA-approved 
tribal environmental programs. Because the listing of waters and 
development of TMDLs under section 303(d) must be based on applicable 
WQS (see CWA sections 303(d)(1) and (2)), EPA specifically invited 
public comment in the proposed rule on whether applicable WQS should 
instead be a prerequisite for obtaining TAS eligibility for the CWA 
Section 303(d) Impaired Water Listing and TMDL Program. EPA also 
invited public comment on whether a tribe applying for TAS for the 
303(d) Program should be required to have already received EPA 
approval--or at least simultaneously apply--for TAS for the CWA Section 
303(c) WQS Program.

B. What is EPA's position on certain public comments regarding WQS and 
WQS TAS as prerequisites for 303(d) TAS?

    EPA received comments on this topic from several tribes and tribal 
organizations, as well as several states. Two tribal organizations and 
one tribe asserted that applicable WQS should not be required prior to 
a tribe applying for TAS for the 303(d) Program. One of these tribal 
commenters reasoned that developing WQS requires time and should not be 
a barrier to tribes seeking 303(d) TAS. Another tribe asserted that WQS 
should not be required, in order to allow for an expedited process for 
a tribe seeking 303(d) TAS. One tribe commented that WQS should be 
required because lists of impaired waters must be based on applicable 
WQS. Five states asserted that WQS should be required because lists 
must be based on applicable WQS. One of these states also commented 
that both WQS and TAS for 303(c) should be required. Another state 
commented that resources would be wasted by tribes developing 
applications, and by the government in reviewing applications, for a 
program that tribes cannot implement without WQS.
    EPA also received comments on whether a tribe should have TAS for 
303(c) before applying for 303(d) TAS, or at least apply concurrently 
for 303(c) and 303(d) TAS. Two tribes asserted that TAS for 303(c) 
should not be a requirement in order for a tribe to seek 303(d) TAS. 
Two states supported the opposite position: That TAS for 303(c) should 
be in place before a tribe applies for 303(d) TAS. Another state also 
asserted that tribes should apply for 303(c) TAS prior to, or at least 
concurrent with, their application for 303(d) TAS.
    EPA agrees with the commenters that WQS are the basis for the 
development of impaired waters lists and TMDLs. See sections 303(d)(1) 
and (2). As discussed in Section IV, 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). Impaired waters are waters for which 
technology-based limitations and other required controls are not 
stringent enough to meet applicable CWA water quality standards. 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.
    Although 303(d) lists and TMDLs are developed based on applicable 
WQS, EPA disagrees that the Agency should impose a regulatory 
requirement that such WQS must be in place before a tribe can apply 
under section 518 for 303(d) TAS eligibility. Similarly, EPA disagrees 
that the Agency should impose a regulatory requirement that a tribe 
must have TAS for 303(c) prior to applying for 303(d) TAS. This rule 
establishes the process for a tribe to seek TAS for the 303(d) Program. 
The process of applying for 303(d) TAS eligibility under section 518 is 
a separate step distinct from the process of implementing section 
303(d) through the development of 303(d) lists or

[[Page 65912]]

TMDLs. The TAS review focuses on the applicant tribe's governmental 
functions, authority, and capability to administer the program. 
Approval of the tribe's TAS application does not, by itself, allow the 
tribe to submit lists of impaired waters and establish TMDLs. 
Authorizing tribes to seek TAS eligibility in the absence of applicable 
WQS thus creates no conflict with the CWA requirement that such WQS 
provide the basis for 303(d) lists and TMDLs. Once a tribe has TAS for 
the 303(d) Program, the tribe would still be required to develop lists 
and TMDLs on the basis of applicable WQS, once they are in place. In 
addition, the 303(d) TAS application process is designed to provide an 
opportunity for tribes to begin to engage with the 303(d) Program. . . 
. EPA does not intend for it to act as a barrier. Requiring applicable 
WQS as a prerequisite to a TAS application would establish an 
unnecessary barrier to tribes seeking TAS eligibility for the 303(d) 
Program. See, e.g., EPA Policy for the Administration of Environmental 
Programs on Indian Reservations, November 8, 1984 and Executive Order 
13175, 65 FR 67249, November 9, 2000.
    EPA notes that, under this approach, tribes seeking and obtaining 
303(d) TAS eligibility will have ample opportunity to develop and seek 
EPA approval or establishment of WQS that would be the basis for 
section 303(d) implementation. This rule takes into consideration the 
time needed for development of WQS. As indicated in section 
130.16(c)(5) of this rule, an authorized tribe's first impaired waters 
list must be submitted to EPA on 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.
    Similarly, making TAS for section 303(c) a requirement for tribes 
seeking TAS for 303(d) would be unduly restrictive of tribal options 
regarding the development of WQS and implementation of the 303(d) 
Program. As discussed, eligible tribes may develop lists or TMDLs under 
303(d) based on any WQS that are ``applicable'' under the Act. 
``Applicable'' WQS include EPA-approved tribal WQS as well as those 
promulgated by EPA. See CWA sections 303(d)(1) and (2). Thus, a tribe 
may reasonably decide to seek TAS for section 303(d) now to prepare 
itself to develop lists and TMDLs in anticipation of having either EPA-
approved tribal or EPA-promulgated WQS in place at a later date. 
Requiring a tribe to apply for and receive 303(c) TAS to develop its 
own WQS would be an unnecessary step for a tribe seeking to develop 
lists and TMDLs based on EPA-promulgated WQS. In fact, requiring a 
tribe to have 303(c) TAS prior to seeking 303(d) TAS would prevent a 
tribe from choosing to implement federal WQS under section 303(d), 
without also unnecessarily expending resources to pursue 303(c) TAS.
    Finally, although EPA expects that the tribes most likely to be 
interested in applying for TAS for section 303(d) will be those that 
also have TAS for section 303(c) and have applicable WQS, the rule 
should not preclude other tribes from obtaining TAS status for section 
303(d), and thus ensuring that TAS eligibility requirements are 
satisfactorily addressed prior to expending resources on developing 
WQS. While one commenter asserted that resources would be wasted on 
303(d) applications in the absence of tribal WQS, EPA disagrees and 
concludes that the approach finalized in this rule will allow tribes, 
at their discretion, to streamline and minimize expenditures on TAS 
procedures. For example, a tribe could combine TAS requests for 
sections 303(c) and 303(d) into a single application--an option that 
EPA encourages, but does not require. Requiring that WQS be in place 
prior to applying for 303(d) TAS would eliminate the ability for tribes 
to streamline their TAS applications by applying concurrently for 
303(c) and 303(d) TAS. In any event, questions regarding how best to 
expend tribal resources and to organize and address tribal 
environmental priorities in pursuing eligibility for CWA programs 
should be left to the sovereign decision making of tribal governments.

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 indicated that resources and funding 
available for TMDL development would be important considerations for 
tribes in deciding whether to apply for TAS for CWA section 303(d) 
purposes. During the public comment period, EPA also received comments 
from tribes reiterating the importance of funding and technical 
assistance for tribes interested in TAS for the 303(d) Program. As 
noted in section XI.F of the preamble to this rule, EPA considered 
tribal comments in developing this final rule, and intends to remain 
sensitive to tribal resource issues in its budgeting and planning 
process. EPA understands the tribes' resource concerns, but observes 
that 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 303(d) Program implementation. Tribes 
interested in using GAP funds should contact their Regional GAP Program 
coordinator. In addition, other potential 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), but the availability of such funding 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 intends to 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 to develop or implement the 303(d) Program; a 
tribe considering whether to apply to administer the Program should 
carefully assess its priorities and the availability of EPA assistance 
or other resources.

X. What is EPA's position on certain other public comments received?

    In this section, EPA responds to several additional topics that 
were raised in public comments.

A. Impact on State/Local Authority for CWA Programs

    EPA received several comments regarding the impact of the rule on 
local and state authority over water quality programs. One state 
commented that the rule should clarify the meaning of ``within the 
borders of the Indian reservation'' to reflect that a state may have 
legal holdings within the exterior border of a reservation that do not 
qualify as Indian land. One local government commented that the

[[Page 65913]]

proposed rule supplants the role of state and local governments in 
managing county or municipal waters on Indian reservations, and tribal 
jurisdiction applies only to federal trust parcels. The local 
government commenter also asserted that states, counties, and 
municipalities are complying with section 303(d) and therefore there is 
no need to expand tribal government involvement. The commenter further 
asserted that the rule would exacerbate state-tribal jurisdictional 
issues. A local water organization also commented that the rule 
supplants state and local authority, asserting that only the state has 
regulatory authority over water in the states.
    EPA appreciates these comments and wishes to clarify that this rule 
has no effect on the scope of existing state implementation of section 
303(d). Generally speaking, civil regulatory authority in Indian 
country lies with the federal government and the relevant Indian tribe, 
not with the states. See, e.g., Alaska v. Native Village of Venetie 
Tribal Gov't, 522 U.S. 520, 527 n.1, 1998. In the absence of an express 
demonstration of authority by a state for such areas, and an EPA 
finding that the state has authority for those Indian country waters, 
EPA has generally excluded Indian country from its approvals of state 
regulatory programs under the CWA and excluded waterbodies in Indian 
country from its approval of state 303(d) lists and TMDLs.
    This rule relates solely to the process for tribes to seek TAS for 
the purpose of administering CWA section 303(d) over their reservation 
waters; it has no effect on the scope of existing CWA regulatory 
programs administered by states. It neither diminishes nor enlarges the 
scope of such approved state programs.
    There are uncommon situations where a federal statute other than 
the CWA grants a state jurisdiction to regulate in areas of Indian 
country. For example, in a few cases EPA has approved states to operate 
CWA regulatory programs in areas of Indian country where the states 
demonstrated jurisdiction based on such a separate federal statute. 
This rule does not address or affect such jurisdiction that other 
federal statutes may provide to states.

B. Relation to May 16, 2016, Interpretive Rule

    Several of the comments EPA received on the proposed rule raised 
issues relating to EPA's separate interpretive rule revising the 
Agency's approach to tribal jurisdiction under the CWA. The 
interpretive rule was pending at the time EPA received these comments, 
but the rule has since been finalized. 81 FR 30183. One commenter 
supported the interpretive rule and asked EPA to cross-reference it in 
the 303(d) TAS rule. One state asked how the interpretive rule would be 
applied where there is state-specific law addressing unique issues 
arising in that state. Two states, one local government, and two 
industry commenters expressed opposition to the interpretive rule. 
Reasons for opposing the re-interpretation included objections to 
tribal jurisdiction over non-member activities and concern regarding 
impacts on state CWA programs.
    EPA appreciates the issues raised by the commenters but notes that 
any questions or comments regarding the interpretive rule are outside 
the scope of this final rule. This rule relates solely to the 
procedures that will apply to tribal applications for TAS for the 
section 303(d) Program and to EPA's review of such applications. This 
rule thus fills a gap in TAS infrastructure, and fulfills the 
requirement of CWA section 518(e) that EPA promulgate final regulations 
specifying how tribes shall be treated as states for purposes of 
section 303(d). This rule provides appropriate TAS procedures 
irrespective of which interpretation of tribal jurisdiction applies. 
The rulemaking itself neither adopts, nor implements, any particular 
approach to tribal jurisdiction. It simply provides a process for 
tribes to apply for TAS, and for EPA to review such applications (with 
relevant input from appropriate governmental entities and others). Any 
application of EPA's revised approach to tribal jurisdiction under 
section 518 as described in the final interpretive rule would occur in 
the context of EPA's final decision on a particular tribe's TAS 
application for a CWA regulatory program, in this case the 303(d) 
Program. EPA also notes that the issues raised by commenters regarding 
the then-proposed interpretive rule were addressed by EPA in the 
context of finalizing that rule. 81 FR 30183.\16\
---------------------------------------------------------------------------

    \16\ EPA's Response to Public Comments on Revised Interpretation 
of Clean Water Act Tribal Provision at https://www.regulations.gov/document?D=EPA-HQ-OW-2014-0461-0110.
---------------------------------------------------------------------------

XI. 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

    The Office of Management and Budget (OMB) determined that this 
action is not a significant regulatory action and therefore it was not 
submitted to the OMB for review.

B. Paperwork Reduction Act (PRA)

    EPA has submitted the information collection requirements in this 
legislative rule to OMB for approval under the PRA. The Information 
Collection Request (ICR) document that EPA prepared has been assigned 
EPA ICR number 2553.02. You can find a copy of the ICR in the docket 
for this rule, and it is briefly summarized here. This ICR supplements 
the current information collection requirements in EPA ICR number 
1560.11 (National Water Quality Inventory Reports (Renewal)) and 
addresses 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. ICR 1560.11 is a renewal of ICR 1560.10. OMB 
approved ICR number 1560.11 in March 2016.
    This legislative rule establishes 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 and have applicable WQS will 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 
annually for the estimated 12 tribes. ICR 1560.11 already includes the 
estimated burden for states to implement section 303(d), but does not 
include estimates for tribes. Therefore, the ICR for this rule includes 
the tribal section 303(d) implementation burden as well as the TAS 
application burden described in the previous paragraph.
    As discussed in section V of this notice, 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

[[Page 65914]]

the 303(d) Program. The CWA would require an authorized tribe to submit 
additional information to EPA--in this case, the lists of impaired 
waters and the TMDLs--once the tribe begins implementing the 303(d) 
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 rule is required from a tribe only if the tribe seeks TAS and is 
found eligible to administer a CWA Section 303(d) Impaired Water 
Listing and TMDL Program. See EPA's regulations cited in section V of 
this notice.
    Estimated number of respondents: Over 300 tribes with reservations 
could potentially apply for 303(d) TAS. Although there are 567 
federally recognized Indian tribes in the United States as of this 
rule, 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 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. 
Authorized tribes implementing the 303(d) Program would 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 notice.
    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 conservatively high 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) Program 
implementation burden (i.e., 303(d) listing and number of TMDLs that 
tribes would submit to EPA annually), as further described in the ICR 
number 2553.02.
    Total estimated cost: $4,185,264, 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 include 
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.

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 action only applies to tribal governments that seek 
eligibility to administer the 303(d) Program. Although it could be of 
interest to some state governments, it does 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 rule. 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.\17\ As a result 
of this meeting and other outreach, EPA participated in two subsequent 
meetings with a subset of these associations and their members as well 
as certain individual states during 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 rule.
---------------------------------------------------------------------------

    \17\ 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 rule, 
particularly in developing sections V to IX. EPA also consulted with 
state associations and state representatives during the public comment 
period, including a webinar for state representatives and informational 
communications with individual state representatives. In comments on 
the proposed rule, most states generally were neutral regarding the 
proposed rule overall. Some states cited special circumstances 
regarding applicability of the rule in their states, or provided 
comments objecting to EPA's proposed (now final) interpretive rule 
regarding tribal jurisdiction under the CWA. See Revised Interpretation 
of Clean Water Act Tribal Provision, 81 FR 30183 (May 16, 2016).

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 will neither impose 
substantial direct compliance costs on federally recognized tribal 
governments, nor preempt tribal law. Thus, this action is not subject 
to consultation under Executive Order 13175. Tribes are not required to 
administer a 303(d) Program. Where a tribe chooses to do so, the rule 
provides a regulatory process for the tribe to apply and for EPA to act 
on the tribe's application.

[[Page 65915]]

    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 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 as of that date.\18\ 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 pre-proposal 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 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.
---------------------------------------------------------------------------

    \18\ There are now 567 federally recognized tribes. 81 FR 26826 
(May 4, 2016).
---------------------------------------------------------------------------

    During the 60-day public comment period on the proposed rule in 
2016, EPA provided informational webinars for tribes and conducted 
further consultation and coordination with tribes. EPA initiated a 
tribal consultation and coordination process on the proposed rule by 
sending a ``Notification and Coordination'' letter on January 19, 2016, 
to the 566 federally-recognized tribes as of that date. Following the 
public comment period, EPA also participated in informational meetings 
with tribes. As noted in Section I, EPA received comments from nine 
tribes and tribal associations on the proposed rule. Tribal comments 
generally supported the proposed rule. Several comments re-iterated the 
need for additional funding and technical support as tribes begin to 
implement the 303(d) Program. EPA considered the tribal comments in 
developing this final rule, 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.

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 rule does not have potential to cause disproportionately high 
and adverse human health or environmental effects on minority, low-
income, or indigenous populations. This rule would have no direct 
impacts on human health or the environment. The rule affects processes 
and information collection only. The rule puts 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 with applicable WQS 
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 rule will 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 water quality 
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 under the CWA in deciding (1) what waters on their 
reservations are 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 rule, as described in ``F. Executive Order 
13175: Tribal Consultation and Coordination,'' above.

K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 130

    Environmental protection, Grant programs-environmental protection, 
Indian lands, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

    Dated: September 16, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, the U.S. Environmental 
Protection Agency amends 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. Section 130.16 is added to read as follows:


Sec.  130.16   Treatment of Indian tribes in a similar manner as states 
for purposes of the Clean Water Act.

    (a) The Regional Administrator may accept and approve a tribal 
application for purposes of administering the Clean

[[Page 65916]]

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 Water 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; 
and
    (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 Sec.  130.16(b) 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;
    (ii) Be provided to all appropriate governmental entities; and
    (iii) Provide 30 days for comments to be submitted on the tribal 
application. Comments shall be limited to the tribe's assertion of 
authority.
    (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 Sec.  130.16(a)(3).
    (4) Where, after the effective date of this rule, EPA has 
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 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 tribe's 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

[[Page 65917]]

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 at least 
24 months from 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. 2016-22882 Filed 9-23-16; 8:45 a.m.]
 BILLING CODE 6560-50-P