Applying for Treatment in a Similar Manner as a State (TAS) under CWA §§303&401

1. Applying for Treatment in a similar manner as a State (TAS) under CWA §§303&401(Water Quality Standards & Water Quality Certification Programs)

2. What is Treatment in a similar manner as a state (TAS) for the Clean Water Act’s (CWA’s) Section 303 – Water Quality Standards Program? • CWA Sec. 518 (e)(2) authorizes EPA to treat a tribe as a state for functions that manage and protect water resources “within the borders of an Indian reservation.” • The CWA 303 (water quality standards) program protects “surface waters” or “Waters of the US.” • Tribes may apply to EPA for Water Quality Standards (WQS) TAS • TAS for WQS approval process is similar to that of CWA 106 & CWA 319.

3. Basic Requirements for TAS approval The Tribe must be: • Federally Recognized; • Have a governing body carrying out substantial governmental duties and powers over a Federal Indian Reservation; • Have appropriate authority to regulate the quality of reservation waters; and, • Be capable of carrying out the functions of an effective water quality standards program.

4. What does it Mean to receive TAS for WQS (Sec. 303) ? • Administer the WQS Program (but not other CWA programs) • Eligible to apply for federal approval of tribal water quality standards

5. What DOES it mean to receive TAS for Sec 401? • Prepare Water quality certifications for federal permits and licenses for activities that discharge to reservation waters. • federal permits & licenses: NPDES; Sec. 404 permit • evaluate whether discharge is consistent with Tribe’s WQS and decide to grant, deny, or condition a water quality certification under Sec 401 of the CWA.

6. Does TAS for Sec. 303 & 401 give a Tribe enforcement authority? • No. EPA’s approval would not impose any direct enforceable requirements on any party. • Once approved, WQS can serve as a basis for actions such as effluent limits in permits, which are enforceable.

7. EPA’s Procedures to Review TAS Applications for Sec 303 & 401 • Step 1 – Tribe Submits Application • EPA and the tribe often engage in pre-application discussions (works with the tribe to develop the application). • Tribe submits application to EPA Region. • EPA evaluates completeness of the application. • EPA holds conference call with the tribe to identify any gaps in the application or issues. • Tribe may submit supplemental information, as appropriate. • EPA establishes the official public Docket.

8. EPA’s Procedures to Review TAS Applications for Standards (cont’d) • Step 2 – Comment Period • EPA notifies appropriate governmental entities, starting a 30-day period for comment on the Tribe’s application. • Public Notice of Comment Opportunity also published in local newspapers (comments to be submitted through appropriate governmental entities) • Tribe has opportunity to respond to comments. • Step 3 – EPA Review • EPA team reviews the application and the comments. • EPA may request more information from the tribe.

9. EPA’s Procedures to Review TAS Applications for Standards (cont’d) • Step 4 – Final Decision • EPA team reviews application, any proposed Findings of Fact, all comments submitted. • EPA team submits for final review within the Agency. • Regional Administrator or delegatee makes final decision. • If approved, EPA prepares decision document and other appropriate documentation. • Regional Administrator notifies tribe in writing and transmits appropriate supporting materials.

10. What are Water Quality Standards? • Water Quality Standards are a tribe’s statement of its water quality goals for its surface waters. • Three Parts to Standards • Designated Uses • Criteria to protect those uses (numeric or narrative) • General Implementation Policies (e.g., Antidegradation) • Tribes typically adopt both numeric and narrative criteria.

11. Beneficial uses of waters Aquatic Life Swimmable Fishable Drinking Water

12. Numeric Criteria • Represents a level of water quality that supports a particular use • EPA develops recommended WQ criteria ( 130 • chemical criteria • Tribes adopt standards • EPA has approval authority

13. Numeric Criteria Pyramid Lake Paiute Tribe Numeric Example

14. Narrative Criteria Develop Where numeric criteria cannot be established or to supplement numeric criteria Example:  Surface waters shall be free from toxic substances in toxic amounts.

15. Other types of water quality criteria: • Biological criteria – a description of the desired aquatic community, for example, based on the numbers and kinds of organisms expected to be present in a water body. • Nutrient Criteria: a means to protect against nutrient over-enrichment and, • Sediment Criteria: A description of conditions that will avoid adverse effects of contaminated and uncontaminated sediments.

16. Water Quality Criteria • States and authorized Tribes adopt water quality criteria that include parameters stringent enough to protect designated uses. • Adopt criteria that EPA publishes under §304(a) of the Clean Water Act; • Modify the §304(a) criteria to reflect site-specific conditions; or • Adopt criteria based on other scientifically-defensible methods.

17. What is an Antidegradation Policy? • Antidegradation implementation A set of procedures to be followed when evaluating activities that may impact the quality of waters TIER 1: Protecting “existing uses” TIER 2: Higher quality waters TIER 3: Outstanding National Resource Waters

18. Water Quality Standards Review and Revision • Triennial Reviews: The Clean Water Act requires States and authorized Indian Tribes to review their standards from time to time, but at least once every three years, and revise if appropriate. • Updates may be needed if: • New federal or tribal statutes, regs or guidance • Legal actions involving WQS • New/updated scientific information • Input from members of public • Water quality monitoring data • Results of previous triennial reviews • Changes in attainability of WQS • Other necessary clarifications

19. Process for Development of Tribal WQS • Develop proposed standards • Review State Standards • Draft Tribal Standards • Must hold a public hearing on the proposed standards • Minimum 45-day advance notice • Documents available at least 30 days in advance • Submit standards within 30 days of adopting standards to EPA for approval

20. Process for EPA review of tribal WQS • EPA reviews: • Designated uses consistent with CWA 101(a)(2) “fishable/swimmable” • Methods used and analyses to support WQS • Criteria sufficient to protect designated uses • Includes antidegradation policy • Tribal legal authority certifies that WQS were duly adopted according to Tribal law • General info supporting scientific bases for non-101(a)(2) uses • Info on implementation policies of WQS (e.g., mixing zones) • Use Attainability Analysis (UAA) for lowering water quality • Record of public participation (notice, hearing, response to comments) • EPA initiates ESA consultation on aquatic life or wildlife related WQS

21. Benefits of TAS under the CWA 303 (Water Quality Standards) program • Demonstrate tribal capacity • Ensures waters are fishable and swimmable for everyone, including tribal members and non-members • TAS provides EPA recognition of a tribe’s water quality standards under 303. • Once established and approved by EPA, the tribes water quality standards would serve as a basis for limits in permits for discharges into reservation waters e.g., National Pollutant Discharge Elimination System (NPDES) permits. Such limits are then enforceable under the CWA.

22. Benefits of TAS under the CWA §401 Water Quality Certification Program • Provides Tribes with mechanism to require conditions for discharges to reservation waters • With approved TAS for WQS and 401, Tribes review proposed federal permits and licenses for activities that may result in a discharge • Tribes certify that discharges comply with WQS or other Tribal laws and provide conditions to include in the permit

23. Tribes in R9 with approved TAS under WQS • Hoopa Valley Tribe (CA) • White Mountain Apache Tribe (AZ) • Hualapai Indian Tribe (AZ) • Big Pine Band of Owens Valley (CA) • Navajo Nation (AZ,NM,UT) • Cortina Band of Wintun Indians • Morongo Band of Mission Indians • Rincon Band of Luiseno Indians • Gila River Indian Communities • Twenty-Nine Palms (CA) • Pyramid Lake Paiute Tribe (NV) • Hopi Tribe (AZ) • Havasupai Tribe (AZ) • Dry Creek Rancheria Band of Pomo Indians (CA) • Bishop Paiute Tribe (CA) • Pala Band of Luiseno Mission Indians

24. Tribes in R9 with approved Water Quality Standards • Big Pine Paiute Tribe • Bishop Paiute Tribe • Hoopa Valley Tribe • Hopi Tribe • Hualapai Tribe • Navajo Nation • Pyramid Lake Paiute Tribe • White Mountain Apache • Twenty-Nine Palms Band

25. QUESTIONS??