81_FR_2802 81 FR 2791 - Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act

81 FR 2791 - Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 11 (January 19, 2016)

Page Range2791-2803
FR Document2016-00736

In section 518(e) of the Clean Water Act (CWA), Congress authorized EPA to treat eligible federally recognized Indian tribes in a similar manner as states for purposes of administering section 303 and certain other provisions of the CWA, and directed the agency to promulgate regulations effectuating this authorization. EPA has issued regulations establishing a process for federally recognized tribes to obtain treatment in a similar manner as states (TAS) for several provisions of the CWA; 50 tribes, for example, have obtained TAS authority to issue water quality standards under CWA section 303(c). EPA, however, has not yet promulgated regulations expressly establishing a process for such tribes to obtain TAS authority to administer the water quality restoration provisions of CWA section 303(d), including issuing lists of impaired waters and developing total maximum daily loads (TMDLs) under CWA section 303(d), as states routinely do. EPA is now proposing to remedy this gap. By establishing regulatory procedures for eligible tribes to obtain TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program, the proposed rule would enable eligible tribes to obtain authority to identify impaired waters on their reservations and to establish TMDLs, which serve as plans for attaining and maintaining applicable water quality standards (WQS). The proposal is comparable to similar regulations that EPA issued in the 1990s for the CWA Section 303(c) WQS and CWA Section 402 and 404 Permitting Programs, and includes features designed to minimize paperwork and unnecessary reviews. EPA requests comments on all aspects of the proposed rule.

Federal Register, Volume 81 Issue 11 (Tuesday, January 19, 2016)
[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)]
[Proposed Rules]
[Pages 2791-2803]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-00736]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 130

[EPA-HQ-OW-2014-0622; FRL-9941-33-OW]
RIN 2040-AF52


Treatment of Indian Tribes in a Similar Manner as States for 
Purposes of Section 303(d) of the Clean Water Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In section 518(e) of the Clean Water Act (CWA), Congress 
authorized EPA to treat eligible federally recognized Indian tribes in 
a similar manner as states for purposes of administering section 303 
and certain other provisions of the CWA, and directed the agency to 
promulgate regulations effectuating this authorization. EPA has issued 
regulations establishing a process for federally recognized tribes to 
obtain treatment in a similar manner as states (TAS) for several 
provisions of the CWA; 50 tribes, for example, have obtained TAS 
authority to issue water quality standards under CWA section 303(c). 
EPA, however, has not yet promulgated regulations expressly 
establishing a process for such tribes to obtain TAS authority to 
administer the water quality restoration provisions of CWA section 
303(d), including issuing lists of impaired waters and developing total 
maximum daily loads (TMDLs) under CWA section 303(d), as states 
routinely do. EPA is now proposing to remedy this gap. By establishing 
regulatory procedures for eligible tribes to obtain TAS for the CWA 
Section 303(d) Impaired Water Listing and TMDL Program, the proposed 
rule would enable eligible tribes to obtain authority to identify 
impaired waters on their reservations and to establish TMDLs, which 
serve as plans for attaining and maintaining applicable water quality 
standards (WQS). The proposal is comparable to similar regulations that 
EPA issued in the 1990s for the CWA Section 303(c) WQS and CWA Section 
402 and 404 Permitting Programs, and includes features designed to 
minimize paperwork and unnecessary reviews. EPA requests comments on 
all aspects of the proposed rule.

DATES: EPA must receive comments on or before March 21, 2016. EPA will 
discuss this proposed rule and answer questions about it in one or more 
webinars during the above comment period. If you are interested, see 
EPA's Web site at http://www2.epa.gov/tmdl/tribal-consultation-rulemaking-provide-more-opportunities-tribes-engage-clean-water-act for 
the date and time of the webinar(s) and instructions on how to register 
and participate. Additionally, under the Paperwork Reduction Act (PRA), 
comments on the information collection provisions are best assured of 
consideration if the Office of Management and Budget (OMB) receives a 
copy of your comments on or before February 18, 2016.

ADDRESSES: Submit your comments, identified by Docket identification 
(ID) No. EPA-HQ-OW-2014-0622, at http://www.regulations.gov. Follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or removed from Regulations.gov. EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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

[[Page 2792]]

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

SUPPLEMENTARY INFORMATION: This supplementary information is organized 
as follows:

I. General Information
    A. Does this action apply to me?
    B. Over what area may tribes apply for TAS for the CWA Section 
303(d) impaired water listing and TMDL program?
    C. What should I consider as i prepare my comments for EPA?
    1. Resubmitting Relevant Comments From Consultations and 
Listening Sessions
    2. Submitting CBI
    3. Tips for Preparing Your Comments
II. What is the statutory and regulatory history of TAS under the 
CWA?
    A. Statutory History
    B. Regulatory History
III. Why might a tribe be interested in seeking TAS authority for 
the CWA Section 303(d) impaired water listing and TMDL program?
IV. What program responsibilities would tribes have upon obtaining 
TAS for the CWA Section 303(d) impaired water listing and TMDL 
program?
    A. Identification of Impaired Waters and Submission of Section 
303(d) Lists
    B. Establishment and Submission of TMDLs
    C. EPA Review of Lists and TMDLs
V. What are EPA's proposed procedures for a tribe to seek TAS for 
the CWA Section 303(d) impaired water listing and TMDL program?
VI. What special circumstances may exist regarding qualification for 
TAS for the CWA Section 303(d) impaired water listing and TMDL 
program?
VII. What procedure would EPA follow in reviewing a tribe's TAS 
application?
    A. Notice to Appropriate Governmental Entities
    B. Avoidance of Duplicative Notice and Comment Procedures
    C. Treatment of Competing or Conflicting Claims
    D. EPA's Decision Process
VIII. What is an example of a stepwise approach for tribes applying 
for TAS for CWA programs?
IX. What financial and technical support is available from EPA to 
tribes as they choose to develop and implement a CWA Section 303(d) 
impaired water listing and TMDL program?
X. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Tribal Consultation and Coordination
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    This proposed rule applies to federally recognized tribal 
governments with reservations interested in seeking TAS eligibility to 
administer the CWA Section 303(d) Impaired Water Listing and TMDL 
Program. Although this proposed rule would not apply directly to any 
other entity, state and local governments or other Indian tribes, as 
well as other entities, may be interested to the extent they are 
adjacent to the Indian reservation\1\ lands of TAS applicant tribes, 
share water bodies with such tribes, and/or discharge pollutants to 
waters of the United States located within or adjacent to such 
reservations. The table below provides examples of entities that could 
be affected by this action or have an interest in it.
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    \1\ See ``Over What Area May Tribes Apply for TAS for the CWA 
Section 303(d) Impaired Water Listing and TMDL Program?'' below.

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                                  Examples of potentially affected or
           Category                       interested entities
------------------------------------------------------------------------
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 proposed rule on 
a particular entity, please consult the person listed in the preceding 
FOR FURTHER INFORMATION CONTACT section.

B. Over what area may tribes apply for TAS for the CWA Section 303(d) 
impaired water listing and TMDL program?

    Under section 518(e) of the CWA, 33 U.S.C. 1377(e), Indian tribes 
may seek TAS authorization to administer certain CWA programs 
pertaining to water resources of their reservations. Tribes are not 
eligible to administer CWA programs pertaining to any non-reservation 
Indian country \2\ or any other type of non-reservation land. The term 
``federal Indian reservation'' is defined at CWA section 518(h)(1) to 
include all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation. See CWA sections 518(e)(2), (h)(1); see also 40 CFR 
131.3(k). EPA's longstanding position is that reservations include both 
formal reservations (e.g., named reservations established through 
federal treaties with tribes, federal statutes, or Executive Orders of 
the President) as well as tribal trust lands that may not be formally 
designated as reservations, but that qualify as informal reservations. 
See, e.g., 56 FR 64876, 64881 (December 12, 1991); Arizona Public 
Service Co. v. EPA, 211 F.3d 1280, 1292-1294 (D.C. Cir. 2000), cert. 
denied sub nom., Michigan v. EPA, 532 U.S. 970 (2001). Tribes may seek 
TAS authorization for both formal and informal reservations, and both 
types of lands are referred to herein as ``reservations.''
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    \2\ The term Indian country is defined at 18 U.S.C. 1151.
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    Although this proposal would facilitate eligible tribes' 
administration of an additional regulatory program, nothing in this 
proposed rule changes, expands, or contracts the geographic scope of 
potential tribal TAS eligibility under the CWA.

[[Page 2793]]

C. What should I consider as I prepare my comments for EPA?

    1. Resubmitting Relevant Comments from Consultations and Listening 
Sessions. EPA held multiple consultations and listening sessions with 
tribes and states concerning TAS for CWA section 303(d) lists and 
TMDLs, and considered views and comments received from these sessions 
in developing this proposal. This proposed rule has evolved from the 
materials EPA shared at the time. Therefore, if you submitted comments 
based on these sessions and want EPA to consider them as part of the 
public comment opportunity for this proposed action, you must resubmit 
your comments to EPA in accordance with the instructions outlined in 
this document.
    2. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disc 
that you mail to EPA, mark the outside of the disc as CBI and then 
identify electronically within the disc the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. EPA will not disclose information so 
marked except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.
    3. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the proposed action by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Explain why you agree or disagree, suggest alternatives, 
substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples that help to illustrate your 
concerns.
     Explain your views as clearly as possible.
     Submit your comments consistent with the DATES section of 
this document.

II. What is the statutory and regulatory history of TAS under the CWA?

A. Statutory History

    Congress added section 518 to the CWA as part of amendments made in 
1987. Section 518(e) authorizes EPA to treat eligible Indian tribes in 
the same manner as it treats states for a variety of purposes, 
including administering each of the principal CWA regulatory programs 
and receiving grants under several CWA funding authorities. Section 
518(e) is commonly known as the ``TAS'' provision. Section 303 is 
expressly identified in section 518(e) as one of the provisions 
available for TAS.
    Section 518(e) also requires EPA to promulgate regulations 
specifying the TAS process for applicant tribes. Section 518(h) defines 
``Indian tribe'' to mean any Indian tribe, band, group, or community 
recognized by the Secretary of the Interior and exercising governmental 
authority over a federal Indian reservation.

B. Regulatory History

    Pursuant to section 518(e), EPA promulgated several final 
regulations establishing TAS criteria and procedures for Indian tribes 
interested in administering programs under the Act. The relevant 
regulations addressing TAS requirements for the principal CWA 
regulatory programs are:
     40 CFR 131.8 for section 303(c) water quality standards, 
published at 56 FR 64876 (December 12, 1991) (final rule);
     40 CFR 131.4(c) for CWA section 401 water quality 
certification, published at 56 FR 64876 (December 12, 1991);
     40 CFR 123.31-34 for CWA section 402 National Pollutant 
Discharge Elimination System (NPDES) permits and other provisions, and 
40 CFR 501.22-25 for the sewage sludge management program. Final rule 
published December 22, 1993 (58 FR 67966); and
     40 CFR 233.60-62 for CWA section 404 dredge or fill 
permits. Final rule published February 11, 1993 (58 FR 8172).
    In 1994, EPA amended the above regulations to simplify the TAS 
process and eliminate unnecessary and duplicative procedural 
requirements. See 59 FR 64339 (December 14, 1994) (the ``Simplification 
Rule''). For example, the Simplification Rule eliminated the need for a 
tribe to prequalify for TAS before applying to administer the section 
402 and section 404 permit programs. Instead, the rule provided that a 
tribe would seek to establish its TAS eligibility at the program 
approval stage (subject to notice and comment procedures in the Federal 
Register). However, the rule retained the separate TAS prequalification 
requirement (including local notice and comment procedures) for section 
303(c) water quality standards and section 401 water quality 
certifications. Id.; see also, 40 CFR 131.8(c)(2), (3).\3\ The TAS 
regulations for CWA regulatory programs have remained intact since 
promulgation of the Simplification Rule. EPA is now proposing to 
address a gap in its current TAS regulations, by proposing regulations 
that would specify how tribes may seek TAS for the Section 303(d) 
Impaired Water Listing and TMDL Program.
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    \3\ Under the CWA and EPA's regulations, tribes may 
simultaneously (1) apply for TAS under CWA section 518 for the 
purpose of administering water quality standards and (2) submit 
actual standards for EPA review under section 303(c). Although they 
may proceed together, a determination of TAS eligibility and an 
approval of actual water quality standards are two distinct actions.
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III. Why might a tribe be interested in seeking TAS authority for the 
CWA Section 303(d) Impaired Water Listing and TMDL Program?

    TAS for the CWA Section 303(d) Impaired Water Listing and TMDL 
Program would provide a tribe with the opportunity to participate 
directly in restoring and protecting its reservation waters through 
implementing the Program, as Congress authorized under CWA section 
518(e). In the rest of this document, EPA refers to the functions 
identified in CWA section 303(d) regarding listing of impaired waters 
and establishment of TMDLs as the ``Section 303(d) Impaired Water 
Listing and TMDL Program'' or ``303(d) Program.'' Section 303(d) 
provides for states and authorized tribes to: (1) Develop lists of 
impaired waters (and establish priority rankings for waters on the 
lists) and (2) establish TMDLs for these waters. By listing impaired 
waters, a state or authorized tribe identifies those waters in its 
territory that are not currently meeting EPA-approved or EPA-
promulgated WQS (collectively referred to as ``applicable WQS''). A 
TMDL is a planning document intended to address impairment of waters, 
including the calculation and allocation to point and nonpoint sources 
of the maximum amount of a pollutant that a water body can receive and 
still meet applicable WQS, with a margin of safety.
    By obtaining TAS for section 303(d), tribes can take the lead role 
in identifying and establishing a priority ranking for impaired water 
bodies on their reservations and in establishing

[[Page 2794]]

TMDLs and submitting them to EPA for approval. These are important 
informational and planning steps that tribes can take to restore and 
maintain the quality of reservation waters.
    TMDLs must allocate the total pollutant load among contributing 
point sources (``waste load allocations'' or ``WLAs'') and nonpoint 
sources (``load allocations'' or ``LAs'') (40 CFR 130.2). Point source 
WLAs are addressed through the inclusion of water quality-based 
effluent limits in national pollutant discharge elimination system 
(NPDES) permits issued to such sources. Under EPA's regulations, NPDES 
permitting authorities shall ensure that ``[e]ffluent limits developed 
to protect a narrative water quality criterion, a numeric water quality 
criterion, or both, are consistent with the assumptions and 
requirements of any available wasteload allocation for the discharge 
prepared by the State and approved by EPA pursuant to 40 CFR 130.7.'' 
40 CFR 122.44(d)(1)(vii)(B). WLAs under 40 CFR 122.44(d)(1)(vii)(B) 
would include WLAs developed by a tribe with TAS authorization and 
approved by EPA pursuant to 40 CFR 130.7. For water bodies impaired by 
pollutants from nonpoint sources, authorized tribes would not acquire 
new or additional implementation authorities when listing such impaired 
water bodies and establishing TMDLs. Instead, the mechanisms for 
implementing the nonpoint source pollutant reductions (LAs) identified 
in any tribal TMDLs would include existing tribal authorities, other 
federal agencies' policies and procedures, as well as voluntary and 
incentive-based programs.
    This proposed rule would not require anything of tribes that are 
not interested in TAS for the 303(d) Program. Based on pre-proposal 
input, not all tribes will be interested in obtaining TAS for 303(d), 
and some may consider other approaches that might benefit their 
reservation waters. Clean Water Act section 319 watershed-based plans, 
for example, may help tribes protect and restore water resources 
threatened or impaired by nonpoint source pollution.\4\
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    \4\ See Handbook for Developing and Managing Tribal Nonpoint 
Source Pollution Programs under Section 319 of the Clean Water Act, 
February 2010, available at http://www2.epa.gov/sites/production/files/2015-09/documents/2010_02_19_nps_tribal_pdf_tribal_handbook2010.pdf.
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IV. What program responsibilities would tribes have upon obtaining TAS 
for the CWA Section 303(d) impaired water listing and TMDL program?

    The goal of the CWA is ``to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' CWA 
section 101(a). Identification of impaired waters and TMDLs are 
important tools for achieving that goal. After a tribe receives EPA 
approval of its eligibility to implement a CWA Section 303(d) Impaired 
Water Listing and TMDL Program, it is treated in a manner similar to a 
state and, for purposes of list and TMDL development, it would become 
an ``authorized tribe.'' Generally, the federal statutory and 
regulatory requirements for state 303(d) programs would be applicable 
to authorized tribes (see proposed Sec.  130.16(c)(5)). The following 
paragraphs identify important 303(d) Program responsibilities that 
tribes with TAS would assume and implement.

A. Identification of Impaired Waters and Submission of Section 303(d) 
Lists

    Under section 303(d) of the CWA, every two years authorized tribes 
would be required to develop lists of waters not meeting, or not 
expected to meet, applicable water quality standards. 40 CFR 130.7(d). 
These lists are commonly called ``impaired waters lists'' or ``303(d) 
lists.'' Impaired waters are waters for which technology-based 
limitations and other required controls are not stringent enough to 
meet applicable CWA water quality standards. Threatened waters are 
waters that currently attain applicable WQS, but for which existing and 
readily available data and information indicate that applicable WQS 
will likely not be met by the time the next list of impaired or 
threatened waters is due to EPA.\5\ The authorized tribe's section 
303(d) list would include all impaired and threatened waters. In this 
document, EPA uses the term ``impaired waters'' to refer to both 
impaired and threatened waters.\6\ The authorized tribe would be 
required to ``assemble and evaluate all existing and readily available 
information'' in developing its section 303(d) list. 40 CFR 
130.7(b)(5). EPA's regulations include a non-exhaustive list of water 
quality-related data and information to be considered. Id. The tribe 
would establish priorities for development of TMDLs for waters on its 
section 303(d) list based on the severity of the pollution and the uses 
to be made of the waters. 40 CFR 130.7(b)(4). The tribe would then 
submit its list of impaired waters to EPA for review and approval.
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    \5\ Guidance for 2006 Assessment, Listing and Reporting 
Requirements Pursuant to Sections 303(d), 305(b) and 314 of the 
Clean Water Act, July 29, 2005, available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/2006irg-report.pdf.
    \6\ Under EPA's regulations, ``water quality limited segments'' 
include both impaired waters and threatened waters, and are defined 
as ``any segment where it is known that water quality does not meet 
applicable water quality standards, and/or is not expected to meet 
applicable water quality standards, even after the application of 
the technology-based effluent limitations required by sections 
301(b) and 306 of the Act.'' 40 CFR 130.2(j).
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    Like states, authorized tribes would be required to submit their 
``303(d) lists'' to EPA for approval every two years on April 1 (lists 
are due April 1 of even-numbered years). As indicated in Sec.  
130.16(c)(5) of the proposed rule, a tribe gaining TAS status would be 
provided at least 24 months to submit its first impaired waters list to 
EPA. The tribe's first impaired waters list would be due to EPA the 
next listing cycle due date that is at least 24-months from the later 
of (1) the date the tribe's TAS application for 303(d) is approved, or 
(2) the date EPA-approved/promulgated WQS for the tribe's waters are 
effective. (See section VII for the procedure EPA would follow in 
reviewing a tribe's TAS application.). Thus, for example, if EPA 
approves a tribe's TAS application on March 15, 2016, and the tribe's 
WQS on June 30, 2016, the tribe's first list would be due on April 1, 
2020. The tribe could submit its list to EPA prior to that date, if it 
chooses.
    Most tribes that would be eligible for TAS authorization under 
today's proposed rule are likely to be recipients of CWA section 106 
grants and would thus be required to submit section 106 grant work 
plans annually. If a tribe's CWA section 106 grant work plan includes 
ambient water quality monitoring activities, the tribe is also required 
to develop an assessment report pursuant to the CWA section 106 grant 
reporting requirements.\7\ EPA encourages tribes that obtain TAS for 
the CWA Section 303(d) Program and also develop CWA section 106 
assessment reports to combine their CWA section 303(d) impaired waters 
list with their CWA section 106 assessment report, and submit the 
combined report electronically through the Assessment TMDL Tracking and 
Implementation System (ATTAINS).\8\ In this way such tribes could 
create a combined CWA 303(d)/106 report that is similar to a

[[Page 2795]]

state's CWA 303(d)/305(b) \9\ ``Integrated Report.'' \10\
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    \7\ See Final Guidance on Awards of Grants to Indian Tribes 
under Section 106 of the Clean Water Act (http://www2.epa.gov/sites/production/files/2014-09/documents/final-tribal-guidance.pdf) at 
page 8-1.
    \8\ See ``Water Quality Assessment and TMDL Information,'' 
available at http://ofmpub.epa.gov/waters10/attains_index.home.
    \9\ CWA section 305(b) requires states to provide every two 
years an assessment of the quality of all their waters. EPA 
explicitly exempted tribes from the section 305(b) reporting 
requirement. See 40 CFR 130.4(a); 54 FR 14354, 14357 (April 11, 
1989).
    \10\ See Guidance for 2006 Assessment, Listing and Reporting 
Requirements Pursuant to Sections 303(d), 305(b) and 314 of the 
Clean Water Act, July 29, 2005, (available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/2006irg-report.pdf) for more 
information on the Integrated Report.
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B. Establishment and Submission of TMDLs

    Under the CWA, each state and authorized tribe must, ``from time to 
time,'' establish and submit TMDLs for pollutants causing impairments 
in all the waters on its 303(d) list. CWA sections 303(d)(1)(C) and 
303(d)(2). States and authorized tribes set priorities for developing 
TMDLs for their impaired and listed waters.
    TMDLs must be established ``at a level necessary to implement the 
applicable water quality standards with seasonal variations and a 
margin of safety which takes into account any lack of knowledge 
concerning the relationship between effluent limitations and water 
quality.'' CWA section 303(d)(1)(C). Where a TMDL makes allocation 
tradeoffs between point and nonpoint sources, the TMDL record must also 
demonstrate ``reasonable assurance'' that the nonpoint source 
allocations will be achieved. 40 CFR 130.2(i). Calculations to 
establish TMDLs must be subject to public review. 40 CFR 
130.7(c)(1)(ii). Once established, the state or authorized tribe 
submits the TMDL to EPA for review.

C. EPA Review of Lists and TMDLs

    Once EPA receives a list or TMDL, it must either approve or 
disapprove that list or TMDL within 30 days. CWA section 303(d)(2). If 
EPA disapproves the list or TMDL, EPA must establish a replacement list 
or TMDL within 30 days of disapproval. 40 CFR 130.7(d)(2).

V. What are EPA's proposed procedures for a tribe to seek TAS for the 
CWA Section 303(d) Impaired Water Listing and TMDL Program?

    Consistent with the statutory requirement in section 518 of the 
CWA, the proposed rule would establish the procedures by which an 
Indian tribe may apply and qualify for TAS for purposes of the CWA 
Section 303(d) Impaired Water Listing and TMDL Program. Such procedures 
would be codified in a new section 130.16 of the water quality planning 
and management regulation. Section 130.16 would identify (1) the 
criteria an applicant tribe would be required to meet to be treated in 
a similar manner as states, (2) the information the tribe would be 
required to provide in its application to EPA, and (3) the procedure 
EPA would use to review the tribal application. Proposed section 130.16 
is intended to ensure that tribes treated in a similar manner as states 
for the purposes of the CWA Section 303(d) Impaired Water Listing and 
TMDL Program are qualified, consistent with CWA requirements, to 
conduct a Listing and TMDL Program. The procedures are meant to provide 
more opportunities for tribes to engage fully in the Program and are 
not intended to act as a barrier to tribal assumption of the 303(d) 
Program.
    The TAS procedures in this proposed rule are closely based on the 
existing TAS regulation at 40 CFR 131.8, which establishes the TAS 
process for the CWA Section 303(c) WQS Program. EPA established the TAS 
process for WQS in 1991, and that program has been the focus of the 
great majority of TAS activity for regulatory programs under the CWA as 
well as all of the other environmental statutes administered by the 
Agency. The WQS TAS rule has proven very effective in ensuring that 
applicant tribes satisfy statutory TAS criteria and are prepared to 
administer WQS programs under the Act. It thus served as a useful model 
for this proposed TAS rule.
    The TAS criteria tribes would be required to meet for purposes of 
the CWA Section 303(d) Impaired Water Listing and TMDL Program 
originate in CWA section 518. As reflected in the proposed regulatory 
language, the tribe must: (1) Be federally recognized and meet the 
definitions in Sec.  131.3(k) and (l); (2) carry out substantial 
governmental duties and powers; (3) have appropriate authority to 
regulate the quality of reservation waters; and (4) be reasonably 
expected to be capable of administering the Impaired Water Listing and 
TMDL Program. These criteria are discussed below.
    The first criterion for TAS would require the tribe to be federally 
recognized by the U.S. Department of the Interior (DOI) and meet the 
definitions in Sec.  131.3(k) and (l). The tribe may address the 
recognition requirement either by stating that it is included on the 
list of federally recognized tribes published periodically by DOI, or 
by submitting other appropriate documentation (e.g., if the tribe is 
federally recognized but is not yet included on the DOI list). The 
definition of ``tribe'' in Sec.  131.3(l), along with requiring federal 
recognition, additionally requires that the tribe is exercising 
governmental authority over a Federal Indian reservation. ``Federal 
Indian reservation'' is defined in Sec.  131.3(k) as ``all land within 
the limits of any Indian reservation under the jurisdiction of the 
United States Government, notwithstanding the issuance of any patent, 
and including rights-of-way running through the reservation.'' (See 
further discussion of the term ``reservation'' in section I B. of this 
preamble.). The governmental authority and reservation aspects of these 
definitions would be addressed in the tribe's application, including as 
part of its descriptive statements that it currently carries out 
substantial governmental duties and powers over a defined area, and 
that it has authority to regulate water quality over a reservation.
    The second criterion would require the tribe to have a governing 
body ``carrying out substantial governmental duties and powers.'' The 
Agency considers ``substantial governmental duties and powers'' to mean 
that the tribe is currently performing governmental functions to 
promote the health, safety, and welfare of the affected population 
within a defined geographical area. See 54 FR at 39101. Examples of 
such functions may include, but are not limited to, the power to tax, 
the power of eminent domain, and police power. Federal recognition by 
DOI would not, in and of itself, satisfy this criterion. EPA expects 
that most tribes should be able to meet this criterion without much 
difficulty. Id.
    To address the second criterion, the tribe would be required to 
submit a descriptive statement demonstrating that the tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. The descriptive statement should: (1) 
Describe the form of tribal government; (2) describe the types of 
essential governmental functions currently performed, such as those 
listed above; and (3) identify the sources of authorities to perform 
these functions (e.g., tribal constitutions and codes).
    The third criterion, concerning tribal authority, means that a 
tribe seeking TAS for purposes of the CWA Section 303(d) Impaired Water 
Listing and TMDL Program must adequately demonstrate authority to 
manage and protect water resources within the borders of the tribe's 
reservation. To verify authority and satisfy the third criterion of the 
proposed rule, a tribe would be required to include a statement signed 
by the tribal legal counsel, or an equivalent official, explaining the 
legal basis for the tribe's

[[Page 2796]]

regulatory authority, and appropriate additional documentation (e.g., 
maps, tribal codes and ordinances).
    In promulgating prior CWA TAS regulations, EPA took an initial 
cautious approach that required tribes applying for eligibility to 
administer regulatory programs under the statute to demonstrate their 
inherent tribal authority over the relevant regulated activities on 
their reservations. See, e.g., 56 FR at 64877-81. This included a 
demonstration of inherent regulatory authority over the activities of 
non-tribal members on lands they own in fee within a reservation under 
the principles of Montana v. United States, 450 U.S. 544 (1981), and 
its progeny. Montana held that, absent a federal grant of authority, 
tribes generally lack inherent jurisdiction over nonmember activities 
on nonmember fee land, but retain inherent civil jurisdiction over 
nonmember activities within the reservation where (i) nonmembers enter 
into ``consensual relationships with the tribe or its members, through 
commercial dealing, contracts, leases, or other arrangements'' or (ii) 
``. . . [nonmember] conduct threatens or has some direct effect on the 
political integrity, the economic security, or the health or welfare of 
the tribe.'' Montana, 450 U.S. at 565-66.
    In addressing the second exception of Montana regarding the effects 
of nonmember conduct, EPA has previously described the Agency's 
operating approach to require a showing that the potential impacts of 
regulated activities on the tribe are serious and substantial. 56 FR at 
64878. EPA also explained that the activities regulated under the 
various environmental statutes, including the CWA, generally have 
serious and substantial potential impacts on human health and welfare. 
Id. EPA described the Agency's expert assessment regarding the critical 
importance of water quality management to self-government and also 
explained that because of the mobile nature of pollutants in surface 
waters and the relatively small size of water bodies on reservations, 
it would be very likely that any water quality impairment on non-Indian 
fee land within a reservation would also impair water quality on tribal 
lands. Id. at 64878-79. EPA stated that its generalized findings 
regarding the relationship of water quality to tribal health and 
welfare would supplement the factual showing tribes would make in 
applying for TAS. Id. EPA reiterates the generalized statutory and 
factual findings set forth in those prior TAS rulemakings and believes 
they apply equally to TAS applications for the CWA Section 303(d) 
Program. As discussed below, EPA has also separately proposed to revise 
its interpretation of the CWA tribal provision by conclusively 
determining that Congress intended to delegate authority to eligible 
tribes to regulate their entire reservations under the CWA irrespective 
of land ownership. If and when this revised interpretation is 
finalized, it will be applied in reviewing any TAS application 
submitted under the regulations proposed today. Unless and until that 
revised interpretation is finalized, however, EPA will continue to 
evaluate TAS applications consistent with the Agency's current approach 
and will continue to apply the generalized findings set forth in prior 
CWA TAS rulemakings in making case-by-case determinations regarding 
tribes' inherent regulatory authority.
    In prior CWA TAS promulgations, EPA recognized that there was 
significant support for the view that Congress had intended to delegate 
authority to eligible Indian tribes to administer CWA regulatory 
programs over their entire reservations, irrespective of land 
ownership, and EPA expressly stated that the issue of tribal authority 
under the CWA remained open for further consideration in light of 
additional congressional or judicial guidance. See, e.g., 56 FR at 
64878-81. On August 7, 2015, EPA published in the Federal Register a 
proposed rule to reinterpret the CWA tribal provision as including such 
an express delegation of authority by Congress. 80 FR 47430. If EPA 
finalizes that reinterpretation, applicant Indian tribes would no 
longer be required to demonstrate inherent authority to regulate their 
reservation waters under the CWA. Among other things, tribes would thus 
no longer be required to meet the test established in Montana v. United 
States, 450 U.S. 544 (1981), and its progeny with regard to exercises 
of inherent tribal regulatory authority over nonmember activity. Id. 
Instead, a tribe would be able to rely on the congressional delegation 
of authority included in section 518 of the statute as the source of 
authority to administer CWA regulatory programs over its entire 
reservation as part of its legal statement.
    The proposed TAS rule for the CWA Section 303(d) Impaired Water 
Listing and TMDL Program is intended to provide appropriate TAS 
application and review procedures irrespective of which interpretation 
of tribal authority under the Act applies. As explained in EPA's 
proposed reinterpretation, EPA's existing TAS regulations--including 40 
CFR 131.8, upon which this proposed rule is modeled--accommodate either 
interpretation of tribal authority under the CWA and provide 
appropriate application procedures to ensure that relevant 
jurisdictional information is provided to EPA and made available for 
comment. 80 FR 47430. EPA thus proposes to establish the basic TAS 
application and review procedures proposed today notwithstanding that 
the proposed reinterpretation remains pending. Once these rules are 
finalized, EPA will review any TAS applications for the CWA Section 
303(d) Program in accordance with the interpretation of CWA tribal 
jurisdiction that applies at the time.
    The fourth criterion would require that the tribe, in the Regional 
Administrator's judgment, be reasonably expected to be capable of 
administering an effective CWA Section 303(d) Impaired Water Listing 
and TMDL Program. To meet this requirement, tribes would either: (1) 
show that they have the necessary management and technical skills, or 
(2) submit a plan detailing steps for acquiring the necessary 
management and technical skills. When considering tribal capability, 
EPA would also consider whether the tribe can demonstrate the existence 
of institutions that exercise executive, legislative, and judicial 
functions, and whether the tribe has a history of successful managerial 
performance of public health or environmental programs.
    The specific information required for tribal applications to EPA is 
described in proposed Sec.  130.16 (a) and (b). The application would 
be required, in general, to include a statement regarding federal 
recognition by DOI, documentation that the tribal governing body is 
exercising substantial duties and powers, documentation of tribal 
authority to regulate water quality on the reservation, a narrative 
statement of tribal capability to administer the CWA Section 303(d) 
Impaired Water Listing and TMDL Program, and any other information 
requested by the Regional Administrator.
    Consistent with EPA's other TAS regulations, the proposed rule also 
provides that where a tribe has previously qualified for TAS for 
purposes of a different EPA program, the tribe is only required to 
provide information that has not been submitted as part of a prior TAS 
application. To facilitate review of tribal applications, EPA would 
request that a tribal application inform EPA whether the tribe has been 
approved for TAS or deemed eligible to receive authorization for any 
other EPA program. See 59 FR at 64340.

[[Page 2797]]

    The TAS application procedures and criteria for the CWA Sections 
303(c) WQS and 303(d) Impaired Water Listing and TMDL Programs are 
similar in many respects, and a tribe interested in both programs may 
wish to streamline the application process by combining a request for 
TAS eligibility for 303(c) and 303(d) into a single application. 
Although a tribe would not be required to do so, EPA's proposed 
approach would allow a tribe to submit a combined application, which 
addresses the criteria and application requirements of Sec.  131.8 and 
proposed Sec.  130.16, to EPA if the tribe is interested in applying 
for TAS for both the CWA Section 303(c) and 303(d) Programs.

VI. What special circumstances may exist regarding qualification for 
TAS for the CWA Section 303(d) impaired water listing and TMDL program?

    There could be rare instances where special circumstances limit or 
preclude a particular tribe's ability to be authorized to administer 
the 303(d) Program over its reservation. For example, there could be a 
separate federal statute establishing unique jurisdictional 
arrangements for a specific state or a specific reservation that could 
affect a tribe's ability to exercise authority under the CWA. It is 
also possible that provisions in particular treaties or tribal 
constitutions could limit a tribe's ability to exercise relevant 
authority.\11\
---------------------------------------------------------------------------

    \11\ EPA takes no position in this proposal regarding whether 
any particular tribe or Indian reservation is subject to any 
potential impediment relating to authority to take on the 303(d) 
Program. Any such issue would need to be addressed on a case-by-case 
basis and with the benefit of a full record of relevant information 
that would be developed during the processing of a particular TAS 
application. To the extent EPA is ever called upon to make a 
decision regarding this type of issue, such a decision would be 
rendered in the context of EPA's final action on a specific TAS 
application, and any judicial review of that decision would occur in 
that context.
---------------------------------------------------------------------------

    The application requirements of Sec.  130.16 (a) and (b) would 
require tribes to submit a statement of their legal counsel (or 
equivalent official) describing the basis for their assertion of 
authority. The statement can include copies of documents such as tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and resolutions. If EPA finalizes this proposed action, the requirement 
for a legal counsel's statement would ensure that applicant tribes 
appropriately describe the bases of their authority and address any 
special circumstances regarding their assertion of authority to 
administer the 303(d) Program. The proposed rule would provide an 
appropriate opportunity for ``appropriate governmental entities'' 
(i.e., states, tribes and other federal entities located contiguous to 
the reservation of the applicant tribe) to comment on an applicant 
tribe's assertion of authority and, among other things, inform EPA of 
any special circumstances that they believe could affect a tribe's 
ability to administer the 303(d) Program.
    EPA is also aware that section 10211(b) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act of 2005 (``SAFETEA''), 
Public Law 109-59, 119 Stat. 1144 (August 10, 2005) established a 
unique TAS requirement with respect to Indian tribes located in the 
State of Oklahoma. Under section 10211(b) of SAFETEA, tribes in 
Oklahoma seeking TAS under a statute administered by EPA for the 
purpose of administering an environmental regulatory program must, in 
addition to meeting applicable TAS requirements under the relevant EPA-
administered environmental statute, enter into a cooperative agreement 
with the state that is subject to EPA approval and that provides for 
the tribe and state to jointly plan and administer program 
requirements. This requirement of SAFETEA applies apart from, and in 
addition to, existing TAS criteria, including the TAS criteria set 
forth in section 518 of the CWA. EPA's proposal relates solely to the 
CWA TAS requirement; it would thus have no effect on the separate 
requirement of section 10211(b) of SAFETEA.

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

A. Notice to Appropriate Governmental Entities

    The proposed EPA review procedure, included in Sec.  130.16(c), 
specifies that the Regional Administrator, following receipt of tribal 
applications, would process such applications in a timely manner. EPA 
would promptly notify the tribe that the complete application has been 
received. Within 30 days after receipt of a tribe's complete TAS 
application for 303(d), EPA would provide notice to appropriate 
governmental entities (i.e., states, tribes, and other federal entities 
located contiguous to the reservation of the applicant tribe) of the 
complete application and the substance of and basis for the tribe's 
assertion of authority over reservation waters, and would provide a 30 
day opportunity to comment to EPA on the tribe's assertion of 
authority. See, e.g., 56 FR at 64844. EPA would also provide, 
consistent with prior practice, sufficiently broad notice (e.g., 
through local newspapers, electronic media, or other appropriate media) 
to inform other potentially interested entities of the applicant 
tribe's complete application and of the opportunity to provide relevant 
information regarding the tribe's assertion of authority. As described 
below, this aspect of EPA's review procedure would apply unless such 
process would be duplicative of a notice and comment process already 
performed in connection with the same tribe's prior application for TAS 
for another CWA regulatory program.

B. Avoidance of Duplicative Notice and Comment Procedures

    EPA is proposing to include provisions intended to help avoid 
unnecessary and wasteful duplication of the notice and comment 
procedures described in VII A. Specifically, EPA proposes that, where a 
tribe has previously qualified for TAS for a CWA regulatory program\12\ 
and EPA has provided notice and an opportunity to comment on the 
tribe's assertion of authority as part of its review of the prior 
application, no further notice would be provided with regard to the 
same tribe's application for the 303(d) Program, unless the section 
303(d) TAS application presents different jurisdictional issues or 
significant new factual or legal information relevant to jurisdiction 
to the Regional Administrator. Proposed Sec.  130.16(c)(4). This 
proposed approach would apply to all tribes that have previously 
obtained TAS for the CWA Section 303(c) WQS Program, CWA Section 402 
NPDES Program or Sewage Sludge Management Program, or CWA Section 404 
Dredge and Fill Permit Program.
---------------------------------------------------------------------------

    \12\ Specifically, the CWA Section 303(c) WQS Program, CWA 
Section 402 NPDES Program or Sewage Sludge Management Program, or 
CWA Section 404 Dredge and Fill Permit Program.
---------------------------------------------------------------------------

    Where different jurisdictional issues or information are not 
present, additional notice and comment are likely to be duplicative of 
the process already undertaken during EPA's review of the prior TAS 
application. Under these circumstances, the proposed rule would avoid 
such duplication of efforts by authorizing the relevant EPA Regional 
Administrator to process a TAS application for the 303(d) Program 
without a second notice and comment process.
    Where different jurisdictional issues or new or changed information 
is present, the notice and comment process described in Sec.  
130.16(c)(2) would apply. For example, if the geographic reservation 
area over which

[[Page 2798]]

an applicant tribe asserts authority is different from the area covered 
by a prior TAS application or EPA approval, the process proposed in 
Sec.  130.16(c)(2) would apply and would provide an appropriate 
opportunity for comment on the tribe's assertion of authority over the 
new area. In such circumstances, a tribe may find it appropriate and 
useful to update its prior TAS application at the same time it applies 
for TAS for 303(d). This would help ensure that the tribe's TAS 
eligibility for the various CWA programs covers the same geographic 
area. Such a combined TAS application would be subject to the Sec.  
130.16(c)(2) notice and comment process.
    EPA requests comment on its proposed approach or alternative 
approaches. In addition, we request comment on whether the Sec.  
130.16(c)(4) notice and comment exemption should instead be available 
only prospectively--i.e., only where the applicant tribe obtains TAS 
for the CWA Section 303(c) WQS Program, CWA Section 402 NPDES Program 
or Sewage Sludge Management Program, or CWA section 404 Dredge and Fill 
Permit Program after this proposed rule is finalized (and, again, only 
if different jurisdictional issues or significant new factual or legal 
information relevant to jurisdiction are not present in the tribe's 
303(d) TAS application). One practical result of this alternative 
approach would be that if one of the 50 tribes that has previously 
obtained TAS for the CWA Section 303(c) WQS Program were to apply for 
TAS for the 303(d) Program after this proposed rule is finalized, the 
notice and comment process would be required.

C. Treatment of Competing or Conflicting Claims

    Where a tribe's assertion of authority is subject to a competing or 
conflicting claim, the proposed procedures provide that the Regional 
Administrator, after due consideration and in consideration of any 
other comments received, would determine whether the tribe has 
adequately demonstrated authority to regulate water quality on the 
reservation for purposes of the 303(d) Program. Where the Regional 
Administrator concludes that a tribe has not adequately demonstrated 
its authority with respect to an area in dispute, then tribal 
assumption of the CWA Section 303(d) Impaired Water Listing and TMDL 
Program may be restricted accordingly. If a dispute is focused on a 
limited area, this would not necessarily delay EPA's decision to treat 
the tribe in a similar manner as a state for non-disputed areas.
    This proposed procedure does not imply that states, tribes, other 
federal agencies, or any other entity have veto power over tribal TAS 
applications. Rather, it is intended to assist EPA in gathering 
information that may be relevant to the Agency's determination whether 
the applicant tribe has the necessary authority to administer the CWA 
Section 303(d) Impaired Water Listing and TMDL Program. EPA would not 
rely solely on the assertions of a commenter who challenges a tribe's 
assertion of authority, but rather make an independent evaluation of 
the tribal showing.

D. EPA's Decision Process

    The proposed rule requires EPA to process a tribe's TAS application 
in a timely manner, but does not specify a precise time frame for 
review of tribal TAS applications. Each TAS application will present 
its own set of legal and factual issues, and EPA anticipates that in 
some cases it may be necessary to request additional information when 
examining tribal TAS applications. Similarly, the Agency's experience 
with states applying for various EPA programs and with tribes applying 
for TAS for the WQS Program indicates that additional engagement 
between EPA and the applicant may be necessary before final decisions 
are made. EPA expects that similar exchanges with tribes will often be 
helpful and enhance EPA's processing of tribal TAS applications for the 
CWA Section 303(d) Impaired Water Listing and TMDL Program.
    Where the Regional Administrator determines that a tribal TAS 
application satisfies the requirements of proposed Sec.  130.16(a) and 
(b), the Regional Administrator would promptly notify the tribe that 
the tribe has qualified for TAS for the CWA Section 303(d) Impaired 
Water Listing and TMDL Program. A decision by the Regional 
Administrator that a tribe does not meet the requirements for TAS for 
purposes of the CWA Section 303(d) Impaired Water Listing and TMDL 
Program would not preclude the tribe from resubmitting the application 
at a future date. If the Regional Administrator determines that a 
tribal application is deficient or incomplete, EPA will identify such 
deficiencies and gaps so the tribe can make changes as appropriate or 
necessary.

VIII. What is an example of a stepwise approach for tribes applying for 
TAS authority for CWA programs?

    EPA expects that the tribes most likely to be interested in 
applying for TAS for the 303(d) Program will be those that also have 
TAS for CWA section 303(c) and have applicable WQS for their 
reservation waters. EPA has taken final action approving TAS for WQS 
for 50 tribes. Forty-two of those tribes have EPA-approved WQS, and one 
tribe without TAS for WQS has federally promulgated WQS.\13\ By virtue 
of their involvement in the WQS Program, these tribes will already have 
demonstrated an interest in directly administering certain fundamental 
elements of the CWA as well as the resources and capacity to do so. 
Since applicable WQS are a foundation of the approach to protecting 
water quality under the CWA, establishing EPA-approved/EPA-promulgated 
WQS for reservation water bodies will be an important first step for 
tribes interested in protecting and restoring their reservation waters. 
As tribes gain experience developing and administering applicable WQS 
on their reservations, they may become interested in greater 
involvement in additional programs--such as the 303(d) Program--
designed to ensure that applicable WQS are achieved. Obtaining TAS to 
implement a CWA Section 303(d) Impaired Water Listing and TMDL Program 
for its reservation waters is one potential next step for interested 
tribes. Under section 303(d), a tribe would use applicable WQS as the 
basis for identifying impaired waters and calculating TMDLs, which 
quantify the maximum amount of a pollutant that a water body can 
receive and still meet the WQS.
---------------------------------------------------------------------------

    \13\ A chart listing EPA approvals for tribes to administer a 
WQS program, and EPA's approvals of tribes' WQS is available at 
http://water.epa.gov/scitech/swguidance/standards/wqslibrary/approvtable.cfm.
---------------------------------------------------------------------------

    Table 1, below, is an example of one step-wise approach that tribes 
may follow in developing their water quality programs under the CWA and 
ultimately seeking TAS for the CWA Section 303(d) Impaired Water 
Listing and TMDL Program. This is only one possible approach, and, 
under this approach, not all the identified steps would need to be 
taken sequentially (e.g., some could be completed in parallel).

[[Page 2799]]



  Table 1--Example of a Step-Wise Approach to Regulatory Activities for
  Tribes Interested in Applying for TAS Authority To Implement the CWA
         Section 303(d) Impaired Water Listing and TMDL Program
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Step 1: Tribe seeks TAS for     Tribe decides to evaluate and
 CWA 303(c): WQS.               address water quality within its
                                reservation by establishing WQS under
                                the CWA.
                                Tribe identifies and inventories
                                reservation water bodies.
                                Tribe applies for TAS for WQS.
Step 2: Tribe Adopts WQS.....   Tribe develops its water quality
                                goals.
                                Tribe drafts WQS for EPA
                                approval.
                                EPA approves tribal WQS.
Step 3: Tribe seeks TAS for     Tribe decides to assess water
 CWA Section 303(d): Impaired   quality conditions (i.e., comparing
 Water Listing and TMDL         water quality monitoring data and
 Program.                       information against applicable WQS),
                                identify impaired waters, and develop
                                TMDLs.
                                Tribe applies for TAS to
                                implement a 303(d) program under the
                                CWA.
                                EPA approves TAS for 303(d).
Step 4: Tribe implements the   Tribe conducts activities required by 40
 CWA Section 303(d) Impaired    CFR 130.7, including but not limited to:
 Water Listing and TMDL         Assembles and evaluates all
 Program.                       existing and readily available water
                                quality-related data and information on
                                reservation water bodies (data may have
                                been gathered by an established,
                                comprehensive monitoring program).
                                Develops section 303(d) list of
                                impaired waters (that is, reservation
                                water bodies that do not meet or are not
                                likely to meet applicable WQS).
                                Prioritizes list of impaired
                                water bodies for TMDL development.
                                Submits section 303(d) list to
                                EPA for approval.
                                Develops TMDLs for listed
                                waters.
                                Submits TMDLs to EPA for
                                approval.
Step 5: Tribe implements        Carry out watershed-specific
 TMDLs (not required by 40      plans to implement TMDLs.
 CFR 130.7).                    Monitors TMDL implementation and
                                effectiveness.
Step 6: Tribe seeks other CWA  Possibilities include:
 regulatory programs.           CWA Section 402 NPDES Program.
                                CWA Section 405 Sewage Sludge
                                Management Program.
                                CWA Section 404 Dredge and Fill
                                Permit Program.
------------------------------------------------------------------------

    The proposed rule does not require tribes to have applicable WQS in 
place on their reservations prior to applying for TAS eligibility for 
the 303(d) Program. Under section 303(d), however, states and 
authorized tribes must develop lists of impaired waters and TMDLs based 
on applicable WQS. CWA sections 303(d)(1) and (2). Although EPA expects 
that the tribes most likely to be interested in administering the 
303(d) Program are those that do have such WQS, the proposed rule would 
not preclude other tribes from obtaining TAS status for section 303(d) 
purposes and thus ensuring that TAS eligibility requirements are 
satisfactorily addressed prior to expending resources on developing 
WQS. This approach would also allow tribes, at their discretion, to 
streamline and minimize expenditures on TAS procedures by combining TAS 
requests for sections 303(c) and 303(d) into a single application. 
Since authorized tribes must list waters and develop TMDLs based on 
applicable WQS, however, EPA also specifically invites public comment 
on whether applicable WQS should instead be a prerequisite for 
obtaining TAS for the CWA Section 303(d) Impaired Water Listing and 
TMDL Program.
    The proposed rule also does not require tribes seeking TAS 
eligibility for the 303(d) Program to have previously obtained EPA 
approval for TAS for the WQS Program. EPA specifically invites public 
comment on whether a tribe applying for TAS for the 303(d) Program 
should instead be required to have already received EPA approval--or at 
least simultaneously apply--for TAS for CWA Section 303(c) WQS Program.

IX. What financial and technical support is available from EPA to 
tribes as they choose to develop and implement a CWA Section 303(d) 
impaired water listing and TMDL program?

    Pre-proposal input from tribes indicates that resources and funding 
available for TMDL development will be important considerations for 
tribes in deciding whether to apply for TAS for CWA section 303(d) 
purposes. The Impaired Water Listing and TMDL Program is not a grant 
program, and no federal grant funds are available directly from the 
Impaired Water Listing and TMDL Program. A tribe may be able to use its 
General Assistance Program (GAP) Grant under the Indian Environmental 
General Assistance Program Act to support development of a section 
303(d) program and capacity to implement such a program, but GAP funds 
are not available for ongoing program implementation. Tribes interested 
in this approach would need to contact their Regional GAP Program 
coordinator. In addition, existing sources of tribal funding such as 
CWA section 319 grants and section 106 grants are already tightly 
constrained and may not be available to support additional work under 
section 303(d). Some tribes that receive CWA funding may be able to 
identify program activities that could also support 303(d) activities 
(e.g., assessing water quality to develop impaired water lists, 
developing a nonpoint source watershed plan that would also implement 
the nonpoint source portions of a TMDL), but the availability of such 
opportunities is uncertain.
    As resources allow, EPA may be able to work cooperatively with 
tribes, as appropriate, on impaired water listing and TMDL issues in 
Indian country. For example, EPA may develop training and/or provide 
other technical support to tribes interested in obtaining TAS for 
303(d) and implementing a CWA Section 303(d) Impaired Water Listing and 
TMDL Program if EPA staff and other resources are available to do so. 
As a general matter, however, EPA cannot assure that funding will be 
available for a tribe developing or implementing the 303(d) Program, 
and a tribe considering whether to apply to administer the Program will 
need to carefully assess its priorities and the availability of EPA 
assistance or other resources.

[[Page 2800]]

X. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    EPA has submitted the information collection requirements in this 
proposed legislative rule to OMB for approval under the PRA. The 
Information Collection Request (ICR) document that EPA prepared has 
been assigned EPA ICR number 2515.01. You can find a copy of the ICR in 
the docket for this proposed rule, and it is briefly summarized here. 
If EPA finalizes the proposed rule, this ICR would supplement the 
current information collection requirements in EPA ICR number 1560.10 
(National Water Quality Inventory Reports (Renewal)) and address the 
tribes' CWA Section 303(d) Impaired Water Listing and TMDL TAS 
application and 303(d) Program implementation burden, as well as EPA's 
burden for reviewing the tribes' applications and 303(d) Program 
submittals. OMB approved the existing ICR number 1560.10 in December 
2012.
    This proposed legislative rule would establish a process for tribes 
to obtain TAS for the 303(d) Program. As described in the ICR, EPA 
estimates the total burden on tribes to apply for TAS for the 303(d) 
Program would be 3,240 staff hours annually for an estimated 12 tribes 
that would apply for and receive TAS approval per year.
    Tribes that receive TAS approval would then need to implement the 
requirements of section 303(d) to list impaired waters, set TMDL 
priorities, and develop TMDLs. EPA estimates that such 303(d) Program 
implementation burden would entail 86,664 staff hours for the estimated 
12 tribes. ICR 1560.10 already includes the estimated burden for states 
to implement section 303(d), but does not include estimates for tribes. 
Therefore, the ICR for this proposed rule includes tribal section 
303(d) implementation burden as well as the TAS application burden 
described in the previous paragraph.
    As discussed in section V, EPA's regulations require that a tribe 
seeking to administer a CWA regulatory program must submit information 
to EPA demonstrating that the tribe meets the statutory criteria 
described in section V. EPA requires this information in order to 
determine that the tribe is eligible to administer the program. 
Similarly, EPA requires the information--in this case, the lists of 
impaired waters and the TMDLs--from the authorized tribes once they 
begin implementing the program.
    Respondents/affected entities: Any federally recognized tribe with 
a reservation can potentially apply to administer a regulatory program 
under the CWA. Tribes with TAS for the 303(d) Program would then 
implement the Program, as described in section IV.
    Respondent's obligation to respond: The information discussed in 
this proposed rule is required from a tribe only if the tribe seeks and 
is found eligible to administer a CWA Section 303(d) Impaired Water 
Listing and TMDL Program. See EPA's proposed regulations cited in 
section V of this document.
    Estimated number of respondents: The total potential pool of 
respondents is the over 300 tribes with reservations. Although there 
are 566 federally recognized Indian tribes in the United States, the 
CWA allows only those tribes with reservations to apply for authority 
to administer programs. EPA estimates that an average of 12 tribes per 
year would apply under this proposed rule, and an average of 12 tribes 
per year would implement the 303(d) Program over the three year period 
of the ICR.
    Frequency of response: Application by a tribe to be eligible to 
administer the 303(d) Program is a one-time collection of information. 
Tribes submit impaired water lists to EPA every two years, and submit 
TMDLs to EPA from time to time as described in section IV of this 
document.
    Total estimated burden: 89,904 tribal staff hours per year for TAS 
for 303(d) Program application activities and 303(d) Program 
implementation activities. Burden is defined at 5 CFR 1320.3(b).
    This estimate may overstate actual burden because EPA used a 
conservatively high estimate of the annual rate of tribal applications. 
This estimate was used to ensure that the ICR does not underestimate 
tribal burden, given that EPA used a simplifying steady-state 
assumption in estimating annualized tribal application costs. Also, EPA 
used conservatively high estimates of 303(d) implementation burden 
(i.e., 303(d) listing and number of TMDLs that tribes would submit to 
EPA annually), as further described in the draft ICR number 2515.01.
    Total estimated cost: $4,185,269, including staff salaries and the 
cost of support contractors for an annual average of 12 tribes to apply 
for TAS and implement the 303(d) Program. This action does not entail 
capital or operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to EPA using the docket identified in the 
ADDRESSES section at the beginning of this proposed rule. You may also 
send your ICR-related comments to OMB's Office of Information and 
Regulatory Affairs via email to [email protected], 
Attention: Desk Officer for EPA. Since OMB is required to make a 
decision concerning the ICR between 30 and 60 days after receipt, OMB 
must receive comments no later than February 18, 2016. EPA will respond 
to any ICR-related comments in the final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This action 
affects only Indian tribes that seek TAS for the CWA Section 303(d) 
Impaired Water Listing and TMDL Program.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.
    This proposed action would only apply to tribal governments that 
seek eligibility to administer the 303(d) Program. Although it could be 
of interest to some state governments, it

[[Page 2801]]

would not apply directly to any state government or to any other 
entity.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA consulted with state associations and representatives 
of state governments to obtain meaningful and timely input for 
consideration in this proposal. By letter dated September 19, 2014, EPA 
invited 10 national and regional state associations to an October 1, 
2014, informational meeting at EPA in Washington, DC.\14\ As a result 
of this meeting and other outreach, EPA participated in two follow-on 
meetings with a subset of these associations and their members as well 
as certain individual states during the month of October 2014. Records 
of these meetings and copies of written comments and questions 
submitted by states and state associations are included in the docket 
for this proposed rule.
---------------------------------------------------------------------------

    \14\ The ten associations were: the National Governors 
Association, the National Conference of State Legislatures, the 
Council of State Governments, the Western Governors' Association, 
the Southern Governors' Association, the Midwestern Governors 
Association, the Coalition of Northeastern Governors, the 
Environmental Council of the States, the Association of Clean Water 
Administrators, and the Western States Water Council.
---------------------------------------------------------------------------

    Some participants expressed interest in: (1) the nature of comments 
received from tribes during the pre-proposal tribal consultation and 
coordination (April 8-June 6, 2014); (2) where they could find the list 
of tribes having TAS for the WQS Program; (3) whether the TAS process 
for CWA Section 303(d) Impaired Water Listing and TMDL Program would be 
consistent with other TAS processes; and (4) whether there is a process 
in place to consult with states where a tribe applies for TAS for 
303(d). Some states also had questions about issues unique to their 
situations. EPA considered this input in developing the proposed rule, 
particularly in developing sections V to IX. EPA specifically solicits 
additional comment on this proposed action from state officials.

F. Executive Order 13175: Tribal Consultation and Coordination

    This action has tribal implications because it will directly affect 
tribes interested in administering the CWA Section 303(d) Impaired 
Water Listing and TMDL Program. However, it would neither impose 
substantial direct compliance costs on federally recognized tribal 
governments, nor preempt tribal law. Tribes are not required to 
administer a 303(d) program. Where a tribe chooses to do so, the 
proposed rule will provide a regulatory process for the tribe to apply 
and for EPA to act on the tribe's application.
    EPA consulted and coordinated with tribal officials under the EPA 
Policy on Consultation and Coordination with Indian Tribes early in the 
process of developing this proposed regulation to permit them to have 
meaningful and timely input into its development. A summary of that 
consultation and coordination follows.
    EPA initiated a tribal consultation and coordination process for 
this action by sending a ``Notification of Consultation and 
Coordination'' letter on March 28, 2014, to all 566 federally-
recognized tribes. The letter invited tribal leaders and designated 
consultation representative(s) to participate in the tribal 
consultation and coordination process. EPA held a webinar concerning 
this matter for tribal representatives on April 29, 2014. A total of 46 
tribal representatives participated. Additionally, tribes and tribal 
organizations sent five comment letters to EPA. Records of this webinar 
and copies of written comments and questions submitted by tribes and 
intertribal consortia are included in the docket for this proposed 
rule.
    Tribal comments generally supported EPA's plan to propose a TAS 
rule for the 303(d) Program. Some comments expressed the need for 
additional financial and technical support as tribes obtain TAS for the 
CWA Section 303(d) Impaired Water Listing and TMDL Program. EPA 
considered the tribal comments in developing this proposal, and intends 
to remain sensitive to tribal resource issues in its budgeting and 
planning process. However, EPA cannot assure or assume that additional 
funding will be available for a tribe developing or implementing the 
303(d) Program. A tribe choosing to administer such programs will need 
to carefully weigh its priorities and any available EPA assistance as 
described in section IX above.
    EPA specifically solicits additional comment on this proposed 
action From tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to think could disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health or safety 
risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The proposed rule would not have potential to cause 
disproportionately high and adverse human health or environmental 
effects on minority, low-income, or indigenous populations. This 
proposed rule would have no direct impacts on human health or the 
environment. The proposed rule would affect processes and information 
collection only. The proposed rule would put in place the procedures 
interested tribes would follow to seek TAS for the CWA Section 303(d) 
Impaired Water Listing and TMDL Program. The action is likely to result 
in the collection of information or data that could be used to assess 
potential impacts on the health or environmental conditions in Indian 
country (see sections III and IV). As described in sections III and IV, 
above, under CWA section 303(d), authorized tribes would be required to 
develop lists of impaired waters, submit these lists to EPA, and 
develop TMDLs for pollutants causing impairments in the waters on the 
303(d) lists. TAS for 303(d) would provide authorized tribes the 
opportunity to participate directly in protecting their reservation 
waters through the Section 303(d) Impaired Water Listing and TMDL 
Program, as Congress intended through CWA section 518(e). EPA also 
expects this proposed rule would advance the goals of the CWA as 
interested tribes apply for TAS to administer the CWA Section 303(d) 
Impaired Water Listing and TMDL Program for reservation water bodies.
    The action is likely to increase the availability of information to 
indigenous populations as interested tribes obtain TAS for the CWA 
Section 303(d) Impaired Water Listing and TMDL Program and begin 
implementing the Program. In short, tribes with TAS assume the primary 
role in deciding (1) what waters on their reservations are

[[Page 2802]]

impaired and in need of restoration, (2) the priority ranking for TMDL 
development, and (3) what the TMDLs and pollutant source allocations 
for those waters should look like.
    EPA provided meaningful participation opportunities for tribes in 
the development of this proposed rule, as described in ``F. Executive 
Order 13175: Tribal Consultation and Coordination,'' above.

List of Subjects in 40 CFR Part 130

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

    Dated: January 6, 2016.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, the U.S. Environmental 
Protection Agency proposes to amend 40 CFR part 130 as follows:

PART 130--WATER QUALITY PLANNING AND MANAGEMENT

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

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

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


Sec.  130.16  Treatment of Indian Tribes in a similar manner as States 
for purposes of section 303(d) of the Clean Water Act.

    (a) The Regional Administrator may accept and approve a tribal 
application for purposes of administering the Clean Water Act (CWA) 
Section 303(d) Impaired Water Listing and Total Maximum Daily Load 
(TMDL) Program if the tribe meets the following criteria:
    (1) The Indian tribe is recognized by the Secretary of the Interior 
and meets the definitions in Sec.  131.3 (k) and (l) of this chapter;
    (2) The Indian tribe has a governing body carrying out substantial 
governmental duties and powers;
    (3) The CWA Section 303(d) Impaired Water Listing and TMDL Program 
to be administered by the Indian tribe pertains to the management and 
protection of water resources that are within the borders of the Indian 
reservation and held by the Indian tribe, within the borders of the 
Indian reservation and held by the United States in trust for Indians, 
within the borders of the Indian reservation and held by a member of 
the Indian tribe if such property interest is subject to a trust 
restriction on alienation, or otherwise within the borders of the 
Indian reservation; and
    (4) The Indian tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions of an 
effective CWA Section 303(d) Impaired Water Listing and TMDL Program in 
a manner consistent with the terms and purposes of the Act and 
applicable regulations.
    (b) Requests by Indian tribes for administration of the CWA Section 
303(d) Impaired Waters Listing and TMDL Program should be submitted to 
the appropriate EPA Regional Administrator. The application shall 
include the following information, provided that where the tribe has 
previously qualified for eligibility or ``treatment as a state'' (TAS) 
under another EPA-administered program, the tribe need only provide the 
required information that has not been submitted in a previous 
application:
    (1) A statement that the tribe is recognized by the Secretary of 
the Interior.
    (2) A descriptive statement demonstrating that the tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. The statement should:
    (i) Describe the form of the tribal government;
    (ii) Describe the types of governmental functions currently 
performed by the tribal governing body such as, but not limited to, the 
exercise of police powers affecting (or relating to) the health, 
safety, and welfare of the affected population, taxation, and the 
exercise of the power of eminent domain; and
    (iii) Identify the source of the tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the tribe's authority to regulate 
water quality. The statement should include:
    (i) A map or legal description of the area over which the tribe 
asserts authority to regulate surface water quality;
    (ii) A statement by the tribe's legal counsel (or equivalent 
official) that describes the basis for the tribe's assertion of 
authority and may include a copy of documents such as tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions that support the tribe's assertion of authority; and
    (iii) An identification of the surface waters that the tribe 
proposes to assess for potential impaired water listing and TMDL 
development.
    (4) A narrative statement describing the capability of the Indian 
tribe to administer an effective CWA Section 303(d) Impaired Water 
Listing and TMDL Program. The narrative statement should include:
    (i) A description of the Indian tribe's previous management 
experience that may include the administration of programs and services 
authorized by the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25 
U.S.C. 2101, et seq.), or the Indian Sanitation Facility Construction 
Activity Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the tribal governing body and copies of related tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) that exercise the 
executive, legislative, and judicial functions of the tribal 
government;
    (iv) A description of the existing, or proposed, agency of the 
Indian tribe that will assume primary responsibility for establishing, 
reviewing, implementing and revising impaired water lists and TMDLs;
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective CWA Section 303(d) 
Impaired Water Listing and TMDL Program or a plan that proposes how the 
tribe will acquire the needed administrative and technical expertise. 
The plan must address how the tribe will obtain the funds to acquire 
the administrative and technical expertise.
    (5) Additional documentation required by the Regional Administrator 
that, in the judgment of the Regional Administrator, is necessary to 
support a tribal application.
    (c) Procedure for processing a tribe's application. (1) The 
Regional Administrator shall process an application of a tribe 
submitted pursuant to paragraph (b) of this section in a timely manner. 
The Regional Administrator shall promptly notify the tribe of receipt 
of the application.
    (2) Except as provided below in paragraph (c)(4) of this section, 
within 30 days after receipt of the tribe's application the Regional 
Administrator shall provide appropriate notice. Notice shall:
    (i) Include information on the substance and basis of the tribe's 
assertion of authority to regulate the quality of reservation waters; 
and
    (ii) Be provided to all appropriate governmental entities.
    (iii) Provide 30 days for comments to be submitted on the tribal 
application. Comments shall be limited to the tribe's assertion of 
authority.

[[Page 2803]]

    (3) If a tribe's asserted authority is subject to a competing or 
conflicting claim, the Regional Administrator, after due consideration, 
and in consideration of other comments received, shall determine 
whether the tribe has adequately demonstrated that it meets the 
requirements of paragraph (a)(3) of this section.
    (4) Where EPA has previously determined that a tribe qualifies for 
TAS for the CWA Section 303(c) Water Quality Standards Program, CWA 
Section 402 National Pollutant Discharge Elimination System Program, or 
CWA Section 404 Dredge and Fill Permit Program, and EPA has provided 
notice and an opportunity to comment on the tribe's assertion of 
authority to appropriate governmental entities as part of its review of 
the prior application, no further notice to governmental entities, as 
described in paragraph (c)(2) of this section, shall be provided with 
regard to the same tribe's application for the CWA Section 303(d) 
Impaired Water Listing and TMDL Program, unless the application 
presents to the EPA Regional Administrator different jurisdictional 
issues or significant new factual or legal information relevant to 
jurisdiction.
    (5) Where the Regional Administrator determines that a tribe meets 
the requirements of this section, he or she shall promptly provide 
written notification to the tribe that the tribe is authorized to 
administer the CWA Section 303(d) Impaired Water Listing and TMDL 
Program. Such tribe shall be considered a ``State'' for purposes of CWA 
section 303(d) and its implementing regulations. With respect to the 
timing requirement for submittal of an authorized tribe's first list of 
impaired waters pursuant to Sec.  130.7(d)(1), the tribe's first list 
is due on the next listing cycle due date that is 24 months after the 
later of either:
    (i) The date EPA approves the tribe's TAS application pursuant to 
this section or
    (ii) The date EPA-approved or EPA-promulgated water quality 
standards become effective for the tribe's reservation waters.

[FR Doc. 2016-00736 Filed 1-15-16; 8:45 am]
 BILLING CODE 6560-50-P



                                                                             Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                            2791

                                                      collection requirements as defined in 5                 or segment of the Chattooga River                      authority to identify impaired waters on
                                                      CFR part 1320 that are not already                      within National Forest System land in,                 their reservations and to establish
                                                      required by law or not already approved                 on, or upon any floatable object or craft              TMDLs, which serve as plans for
                                                      for use. Accordingly, the review                        of every kind or description, unless                   attaining and maintaining applicable
                                                      provisions of the Paperwork Reduction                   permitted under a special use                          water quality standards (WQS). The
                                                      Act of 1995 (44 U.S.C. 3501 et seq.) and                authorization.                                         proposal is comparable to similar
                                                      its implementing regulations at 5 CFR                     (f) Violating or failing to comply with              regulations that EPA issued in the 1990s
                                                      part 1320 do not apply.                                 any of the terms or conditions of any                  for the CWA Section 303(c) WQS and
                                                                                                              special use authorization or permit                    CWA Section 402 and 404 Permitting
                                                      List of Subjects in 36 CFR Part 261                     authorizing the occupancy and use                      Programs, and includes features
                                                        Prohibitions, Law enforcement,                        specified in paragraph (d) or (e) of this              designed to minimize paperwork and
                                                      National forests.                                       section is prohibited.                                 unnecessary reviews. EPA requests
                                                        Therefore, for the reasons set out in                   Dated: December 21, 2015.                            comments on all aspects of the proposed
                                                      the preamble, we propose to amend part                  Thomas L. Tidwell,
                                                                                                                                                                     rule.
                                                      261 of title 36 of the Code of Federal                  Chief, Forest Service.                                 DATES: EPA must receive comments on
                                                      Regulations as follows:                                                                                        or before March 21, 2016. EPA will
                                                                                                              [FR Doc. 2016–00888 Filed 1–15–16; 8:45 am]
                                                                                                                                                                     discuss this proposed rule and answer
                                                      PART 261—PROHIBITIONS                                   BILLING CODE 3411–15–P
                                                                                                                                                                     questions about it in one or more
                                                                                                                                                                     webinars during the above comment
                                                      ■ 1. The authority citation for part 261
                                                                                                                                                                     period. If you are interested, see EPA’s
                                                      continues to read as follows:                           ENVIRONMENTAL PROTECTION                               Web site at http://www2.epa.gov/tmdl/
                                                        Authority: 7 U.S.C. 1011(f); 16 U.S.C.                AGENCY                                                 tribal-consultation-rulemaking-provide-
                                                      4601–6d, 472, 551, 620(f), 1133(c)–(d)(1),                                                                     more-opportunities-tribes-engage-clean-
                                                      1246(i).                                                40 CFR Part 130
                                                                                                                                                                     water-act for the date and time of the
                                                                                                              [EPA–HQ–OW–2014–0622; FRL–9941–33–                     webinar(s) and instructions on how to
                                                      Subpart C—Prohibitions in Regions                       OW]                                                    register and participate. Additionally,
                                                      ■   2. Revise § 261.77 to read as follows:              RIN 2040–AF52                                          under the Paperwork Reduction Act
                                                                                                                                                                     (PRA), comments on the information
                                                      § 261.77 Prohibitions in Region 8,
                                                                                                              Treatment of Indian Tribes in a Similar                collection provisions are best assured of
                                                      Southern Region.
                                                                                                              Manner as States for Purposes of                       consideration if the Office of
                                                         (a) Using or occupying any area of                   Section 303(d) of the Clean Water Act                  Management and Budget (OMB)
                                                      National Forest System land abutting
                                                                                                                                                                     receives a copy of your comments on or
                                                      the Chattooga River for the purpose of                  AGENCY:  Environmental Protection
                                                                                                                                                                     before February 18, 2016.
                                                      entering or going upon the River in, on,                Agency (EPA).
                                                                                                                                                                     ADDRESSES: Submit your comments,
                                                      or upon any floatable object or craft of                ACTION: Proposed rule.
                                                      every kind or description, unless                                                                              identified by Docket identification (ID)
                                                      authorized by permit or through a                       SUMMARY:   In section 518(e) of the Clean              No. EPA–HQ–OW–2014–0622, at
                                                      special use authorization. (The                         Water Act (CWA), Congress authorized                   http://www.regulations.gov. Follow the
                                                      Chattooga River is located in the                       EPA to treat eligible federally                        online instructions for submitting
                                                      Nantahala National Forest in North                      recognized Indian tribes in a similar                  comments. Once submitted, comments
                                                      Carolina, the Sumter National Forest in                 manner as states for purposes of                       cannot be edited or removed from
                                                      South Carolina and the Chattahoochee                    administering section 303 and certain                  Regulations.gov. EPA may publish any
                                                      National Forest in Georgia.)                            other provisions of the CWA, and                       comment received to its public docket.
                                                         (b) Using or occupying within the                    directed the agency to promulgate                      Do not submit electronically any
                                                      scope of any commercial operation or                    regulations effectuating this                          information you consider to be
                                                      business any area of National Forest                    authorization. EPA has issued                          Confidential Business Information (CBI)
                                                      System land abutting the Chattooga                      regulations establishing a process for                 or other information whose disclosure is
                                                      River for the purpose of entering or                    federally recognized tribes to obtain                  restricted by statute. Multimedia
                                                      going upon the River in, on, or upon any                treatment in a similar manner as states                submissions (audio, video, etc.) must be
                                                      floatable object or craft of every kind or              (TAS) for several provisions of the                    accompanied by a written comment.
                                                      description, unless permitted under a                   CWA; 50 tribes, for example, have                      The written comment is considered the
                                                      special use authorization.                              obtained TAS authority to issue water                  official comment and should include
                                                         (c) Violating or failing to comply with              quality standards under CWA section                    discussion of all points you wish to
                                                      any of the terms or conditions of any                   303(c). EPA, however, has not yet                      make. EPA will generally not consider
                                                      special use authorization or permit                     promulgated regulations expressly                      comments or comment contents located
                                                      authorizing the occupancy and use                       establishing a process for such tribes to              outside of the primary submission (i.e.
                                                      specified in paragraph (a) or (b) of this               obtain TAS authority to administer the                 on the web, cloud, or other file sharing
                                                      section is prohibited.                                  water quality restoration provisions of                system). For additional submission
                                                         (d) Entering, going, riding, or floating             CWA section 303(d), including issuing                  methods, the full EPA public comment
                                                      upon any portion or segment of the                      lists of impaired waters and developing                policy, information about CBI or
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS




                                                      Chattooga River within National Forest                  total maximum daily loads (TMDLs)                      multimedia submissions, and general
                                                      System land in, on, or upon any                         under CWA section 303(d), as states                    guidance on making effective
                                                      floatable object or craft of every kind or              routinely do. EPA is now proposing to                  comments, please visit http://
                                                      description, unless authorized by a                     remedy this gap. By establishing                       www2.epa.gov/dockets/commenting-
                                                      permit or through a special use                         regulatory procedures for eligible tribes              epa-dockets.
                                                      authorization.                                          to obtain TAS for the CWA Section                      FOR FURTHER INFORMATION CONTACT:
                                                         (e) Entering, going, riding, or floating             303(d) Impaired Water Listing and                      Sarah Furtak, Assessment and
                                                      within the scope of any commercial                      TMDL Program, the proposed rule                        Watershed Protection Division, Office of
                                                      operation or business upon any portion                  would enable eligible tribes to obtain                 Wetlands, Oceans and Watersheds


                                                 VerDate Sep<11>2014   15:55 Jan 15, 2016   Jkt 238001   PO 00000   Frm 00030   Fmt 4702   Sfmt 4702   E:\FR\FM\19JAP1.SGM   19JAP1


                                                      2792                            Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      (4503T), Environmental Protection                                           V. What are EPA’s proposed procedures for               G. Executive Order 13045: Protection of
                                                      Agency, 1200 Pennsylvania Ave. NW.,                                              a tribe to seek TAS for the CWA Section               Children From Environmental Health
                                                      Washington, DC 20460; telephone                                                  303(d) impaired water listing and TMDL                Risks and Safety Risks
                                                      number: (202) 566–1167; fax number:                                              program?                                           H. Executive Order 13211: Actions
                                                                                                                                  VI. What special circumstances may exist                   Concerning Regulations That
                                                      (202) 566–1331; email address:                                                                                                         Significantly Affect Energy Supply,
                                                                                                                                       regarding qualification for TAS for the
                                                      TASTMDL@epa.gov.                                                                                                                       Distribution, or Use
                                                                                                                                       CWA Section 303(d) impaired water
                                                      SUPPLEMENTARY INFORMATION: This                                                  listing and TMDL program?                          I. National Technology Transfer and
                                                      supplementary information is organized                                      VII. What procedure would EPA follow in                    Advancement Act
                                                      as follows:                                                                      reviewing a tribe’s TAS application?               J. Executive Order 12898: Federal Actions
                                                                                                                                    A. Notice to Appropriate Governmental                    To Address Environmental Justice in
                                                      I. General Information
                                                                                                                                       Entities                                              Minority Populations and Low-Income
                                                         A. Does this action apply to me?
                                                                                                                                    B. Avoidance of Duplicative Notice and                   Populations
                                                         B. Over what area may tribes apply for TAS
                                                            for the CWA Section 303(d) impaired                                        Comment Procedures                               I. General Information
                                                            water listing and TMDL program?                                         C. Treatment of Competing or Conflicting
                                                         C. What should I consider as i prepare my                                     Claims                                           A. Does this action apply to me?
                                                            comments for EPA?                                                       D. EPA’s Decision Process
                                                         1. Resubmitting Relevant Comments From                                                                                           This proposed rule applies to
                                                                                                                                  VIII. What is an example of a stepwise
                                                            Consultations and Listening Sessions                                       approach for tribes applying for TAS for
                                                                                                                                                                                        federally recognized tribal governments
                                                         2. Submitting CBI                                                             CWA programs?                                    with reservations interested in seeking
                                                         3. Tips for Preparing Your Comments                                      IX. What financial and technical support is           TAS eligibility to administer the CWA
                                                      II. What is the statutory and regulatory                                         available from EPA to tribes as they             Section 303(d) Impaired Water Listing
                                                            history of TAS under the CWA?                                              choose to develop and implement a                and TMDL Program. Although this
                                                         A. Statutory History                                                                                                           proposed rule would not apply directly
                                                                                                                                       CWA Section 303(d) impaired water
                                                         B. Regulatory History
                                                      III. Why might a tribe be interested in seeking
                                                                                                                                       listing and TMDL program?                        to any other entity, state and local
                                                            TAS authority for the CWA Section                                     X. Statutory and Executive Order Reviews              governments or other Indian tribes, as
                                                            303(d) impaired water listing and TMDL                                  A. Executive Order 12866: Regulatory                well as other entities, may be interested
                                                            program?                                                                   Planning and Review and Executive                to the extent they are adjacent to the
                                                      IV. What program responsibilities would                                          Order 13563: Improving Regulation and            Indian reservation1 lands of TAS
                                                            tribes have upon obtaining TAS for the                                     Regulatory Review
                                                                                                                                                                                        applicant tribes, share water bodies with
                                                            CWA Section 303(d) impaired water                                       B. Paperwork Reduction Act (PRA)
                                                                                                                                    C. Regulatory Flexibility Act (RFA)
                                                                                                                                                                                        such tribes, and/or discharge pollutants
                                                            listing and TMDL program?
                                                         A. Identification of Impaired Waters and                                   D. Unfunded Mandates Reform Act                     to waters of the United States located
                                                            Submission of Section 303(d) Lists                                         (UMRA)                                           within or adjacent to such reservations.
                                                         B. Establishment and Submission of                                         E. Executive Order 13132: Federalism                The table below provides examples of
                                                            TMDLs                                                                   F. Executive Order 13175: Tribal                    entities that could be affected by this
                                                         C. EPA Review of Lists and TMDLs                                              Consultation and Coordination                    action or have an interest in it.

                                                                                   Category                                                               Examples of potentially affected or interested entities

                                                      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 ad-
                                                                                                                                     jacent to reservations of potential applicant tribes.



                                                         If you have questions regarding the                                      ‘‘federal Indian reservation’’ is defined             12, 1991); Arizona Public Service Co. v.
                                                      effect of this proposed rule on a                                           at CWA section 518(h)(1) to include all               EPA, 211 F.3d 1280, 1292–1294 (D.C.
                                                      particular entity, please consult the                                       land within the limits of any Indian                  Cir. 2000), cert. denied sub nom.,
                                                      person listed in the preceding FOR                                          reservation under the jurisdiction of the             Michigan v. EPA, 532 U.S. 970 (2001).
                                                      FURTHER INFORMATION CONTACT section.                                        United States Government                              Tribes may seek TAS authorization for
                                                                                                                                  notwithstanding the issuance of any                   both formal and informal reservations,
                                                      B. Over what area may tribes apply for
                                                      TAS for the CWA Section 303(d)                                              patent, and including rights-of-way                   and both types of lands are referred to
                                                      impaired water listing and TMDL                                             running through the reservation. See                  herein as ‘‘reservations.’’
                                                      program?                                                                    CWA sections 518(e)(2), (h)(1); see also
                                                                                                                                                                                          Although this proposal would
                                                                                                                                  40 CFR 131.3(k). EPA’s longstanding
                                                                                                                                                                                        facilitate eligible tribes’ administration
                                                        Under section 518(e) of the CWA, 33                                       position is that reservations include
                                                                                                                                  both formal reservations (e.g., named                 of an additional regulatory program,
                                                      U.S.C. 1377(e), Indian tribes may seek
                                                                                                                                  reservations established through federal              nothing in this proposed rule changes,
                                                      TAS authorization to administer certain
                                                                                                                                                                                        expands, or contracts the geographic
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                                                      CWA programs pertaining to water                                            treaties with tribes, federal statutes, or
                                                      resources of their reservations. Tribes                                     Executive Orders of the President) as                 scope of potential tribal TAS eligibility
                                                      are not eligible to administer CWA                                          well as tribal trust lands that may not be            under the CWA.
                                                      programs pertaining to any non-                                             formally designated as reservations, but
                                                      reservation Indian country 2 or any other                                   that qualify as informal reservations.
                                                      type of non-reservation land. The term                                      See, e.g., 56 FR 64876, 64881 (December
                                                        1 See ‘‘Over What Area May Tribes Apply for TAS                             2 The term Indian country is defined at 18 U.S.C.

                                                      for the CWA Section 303(d) Impaired Water Listing                           1151.
                                                      and TMDL Program?’’ below.



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                                                                             Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                                     2793

                                                      C. What should I consider as I prepare                  II. What is the statutory and regulatory               program approval stage (subject to
                                                      my comments for EPA?                                    history of TAS under the CWA?                          notice and comment procedures in the
                                                                                                                                                                     Federal Register). However, the rule
                                                         1. Resubmitting Relevant Comments                    A. Statutory History
                                                                                                                                                                     retained the separate TAS
                                                      from Consultations and Listening                           Congress added section 518 to the                   prequalification requirement (including
                                                      Sessions. EPA held multiple                             CWA as part of amendments made in                      local notice and comment procedures)
                                                      consultations and listening sessions                    1987. Section 518(e) authorizes EPA to                 for section 303(c) water quality
                                                      with tribes and states concerning TAS                   treat eligible Indian tribes in the same               standards and section 401 water quality
                                                      for CWA section 303(d) lists and                        manner as it treats states for a variety of            certifications. Id.; see also, 40 CFR
                                                      TMDLs, and considered views and                         purposes, including administering each                 131.8(c)(2), (3).3 The TAS regulations
                                                      comments received from these sessions                   of the principal CWA regulatory                        for CWA regulatory programs have
                                                      in developing this proposal. This                       programs and receiving grants under                    remained intact since promulgation of
                                                      proposed rule has evolved from the                      several CWA funding authorities.                       the Simplification Rule. EPA is now
                                                      materials EPA shared at the time.                       Section 518(e) is commonly known as                    proposing to address a gap in its current
                                                      Therefore, if you submitted comments                    the ‘‘TAS’’ provision. Section 303 is                  TAS regulations, by proposing
                                                      based on these sessions and want EPA                    expressly identified in section 518(e) as              regulations that would specify how
                                                      to consider them as part of the public                  one of the provisions available for TAS.               tribes may seek TAS for the Section
                                                      comment opportunity for this proposed                      Section 518(e) also requires EPA to                 303(d) Impaired Water Listing and
                                                      action, you must resubmit your                          promulgate regulations specifying the                  TMDL Program.
                                                      comments to EPA in accordance with                      TAS process for applicant tribes.
                                                      the instructions outlined in this                       Section 518(h) defines ‘‘Indian tribe’’ to             III. Why might a tribe be interested in
                                                      document.                                               mean any Indian tribe, band, group, or                 seeking TAS authority for the CWA
                                                                                                              community recognized by the Secretary                  Section 303(d) Impaired Water Listing
                                                         2. Submitting CBI. Do not submit CBI
                                                                                                              of the Interior and exercising                         and TMDL Program?
                                                      to EPA through http://
                                                      www.regulations.gov or email. Clearly                   governmental authority over a federal                     TAS for the CWA Section 303(d)
                                                      mark the part or all of the information                 Indian reservation.                                    Impaired Water Listing and TMDL
                                                      that you claim to be CBI. For CBI                                                                              Program would provide a tribe with the
                                                                                                              B. Regulatory History
                                                      information in a disc that you mail to                                                                         opportunity to participate directly in
                                                      EPA, mark the outside of the disc as CBI                   Pursuant to section 518(e), EPA                     restoring and protecting its reservation
                                                      and then identify electronically within                 promulgated several final regulations                  waters through implementing the
                                                      the disc the specific information that is               establishing TAS criteria and                          Program, as Congress authorized under
                                                      claimed as CBI. In addition to one                      procedures for Indian tribes interested                CWA section 518(e). In the rest of this
                                                      complete version of the comment that                    in administering programs under the                    document, EPA refers to the functions
                                                      includes information claimed as CBI, a                  Act. The relevant regulations addressing               identified in CWA section 303(d)
                                                      copy of the comment that does not                       TAS requirements for the principal                     regarding listing of impaired waters and
                                                      contain the information claimed as CBI                  CWA regulatory programs are:                           establishment of TMDLs as the ‘‘Section
                                                                                                                 • 40 CFR 131.8 for section 303(c)                   303(d) Impaired Water Listing and
                                                      must be submitted for inclusion in the
                                                                                                              water quality standards, published at 56               TMDL Program’’ or ‘‘303(d) Program.’’
                                                      public docket. EPA will not disclose
                                                                                                              FR 64876 (December 12, 1991) (final                    Section 303(d) provides for states and
                                                      information so marked except in
                                                                                                              rule);                                                 authorized tribes to: (1) Develop lists of
                                                      accordance with procedures set forth in
                                                                                                                 • 40 CFR 131.4(c) for CWA section                   impaired waters (and establish priority
                                                      40 Code of Federal Regulations (CFR)
                                                                                                              401 water quality certification,                       rankings for waters on the lists) and (2)
                                                      part 2.
                                                                                                              published at 56 FR 64876 (December 12,                 establish TMDLs for these waters. By
                                                         3. Tips for Preparing Your Comments.                 1991);                                                 listing impaired waters, a state or
                                                      When submitting comments, remember                         • 40 CFR 123.31–34 for CWA section                  authorized tribe identifies those waters
                                                      to:                                                     402 National Pollutant Discharge                       in its territory that are not currently
                                                         • Identify the proposed action by                    Elimination System (NPDES) permits                     meeting EPA-approved or EPA-
                                                      docket number and other identifying                     and other provisions, and 40 CFR                       promulgated WQS (collectively referred
                                                      information (subject heading, Federal                   501.22–25 for the sewage sludge                        to as ‘‘applicable WQS’’). A TMDL is a
                                                      Register date and page number).                         management program. Final rule                         planning document intended to address
                                                                                                              published December 22, 1993 (58 FR
                                                         • Explain why you agree or disagree,                                                                        impairment of waters, including the
                                                                                                              67966); and                                            calculation and allocation to point and
                                                      suggest alternatives, substitute language
                                                                                                                 • 40 CFR 233.60–62 for CWA section
                                                      for your requested changes.                                                                                    nonpoint sources of the maximum
                                                                                                              404 dredge or fill permits. Final rule
                                                         • Describe any assumptions and                                                                              amount of a pollutant that a water body
                                                                                                              published February 11, 1993 (58 FR
                                                      provide any technical information and/                                                                         can receive and still meet applicable
                                                                                                              8172).
                                                      or data that you used.                                                                                         WQS, with a margin of safety.
                                                                                                                 In 1994, EPA amended the above
                                                                                                                                                                        By obtaining TAS for section 303(d),
                                                         • If you estimate potential costs or                 regulations to simplify the TAS process
                                                                                                                                                                     tribes can take the lead role in
                                                      burdens, explain how you arrived at                     and eliminate unnecessary and
                                                                                                                                                                     identifying and establishing a priority
                                                      your estimate in sufficient detail to                   duplicative procedural requirements.
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                                                                                                                                                                     ranking for impaired water bodies on
                                                      allow for it to be reproduced.                          See 59 FR 64339 (December 14, 1994)
                                                                                                                                                                     their reservations and in establishing
                                                         • Provide specific examples that help                (the ‘‘Simplification Rule’’). For
                                                      to illustrate your concerns.                            example, the Simplification Rule                          3 Under the CWA and EPA’s regulations, tribes
                                                                                                              eliminated the need for a tribe to                     may simultaneously (1) apply for TAS under CWA
                                                         • Explain your views as clearly as                   prequalify for TAS before applying to                  section 518 for the purpose of administering water
                                                      possible.                                               administer the section 402 and section                 quality standards and (2) submit actual standards
                                                                                                                                                                     for EPA review under section 303(c). Although they
                                                         • Submit your comments consistent                    404 permit programs. Instead, the rule                 may proceed together, a determination of TAS
                                                      with the DATES section of this                          provided that a tribe would seek to                    eligibility and an approval of actual water quality
                                                      document.                                               establish its TAS eligibility at the                   standards are two distinct actions.



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                                                      2794                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      TMDLs and submitting them to EPA for                    and biological integrity of the Nation’s                development of TMDLs for waters on its
                                                      approval. These are important                           waters.’’ CWA section 101(a).                           section 303(d) list based on the severity
                                                      informational and planning steps that                   Identification of impaired waters and                   of the pollution and the uses to be made
                                                      tribes can take to restore and maintain                 TMDLs are important tools for achieving                 of the waters. 40 CFR 130.7(b)(4). The
                                                      the quality of reservation waters.                      that goal. After a tribe receives EPA                   tribe would then submit its list of
                                                         TMDLs must allocate the total                        approval of its eligibility to implement                impaired waters to EPA for review and
                                                      pollutant load among contributing point                 a CWA Section 303(d) Impaired Water                     approval.
                                                      sources (‘‘waste load allocations’’ or                  Listing and TMDL Program, it is treated
                                                      ‘‘WLAs’’) and nonpoint sources (‘‘load                  in a manner similar to a state and, for                    Like states, authorized tribes would
                                                      allocations’’ or ‘‘LAs’’) (40 CFR 130.2).               purposes of list and TMDL                               be required to submit their ‘‘303(d)
                                                      Point source WLAs are addressed                         development, it would become an                         lists’’ to EPA for approval every two
                                                      through the inclusion of water quality-                 ‘‘authorized tribe.’’ Generally, the                    years on April 1 (lists are due April 1
                                                      based effluent limits in national                       federal statutory and regulatory                        of even-numbered years). As indicated
                                                      pollutant discharge elimination system                  requirements for state 303(d) programs                  in § 130.16(c)(5) of the proposed rule, a
                                                      (NPDES) permits issued to such sources.                 would be applicable to authorized tribes                tribe gaining TAS status would be
                                                      Under EPA’s regulations, NPDES                          (see proposed § 130.16(c)(5)). The                      provided at least 24 months to submit
                                                      permitting authorities shall ensure that                following paragraphs identify important                 its first impaired waters list to EPA. The
                                                      ‘‘[e]ffluent limits developed to protect a              303(d) Program responsibilities that                    tribe’s first impaired waters list would
                                                      narrative water quality criterion, a                    tribes with TAS would assume and                        be due to EPA the next listing cycle due
                                                      numeric water quality criterion, or both,               implement.                                              date that is at least 24-months from the
                                                      are consistent with the assumptions and                                                                         later of (1) the date the tribe’s TAS
                                                      requirements of any available wasteload                 A. Identification of Impaired Waters and
                                                                                                              Submission of Section 303(d) Lists                      application for 303(d) is approved, or (2)
                                                      allocation for the discharge prepared by                                                                        the date EPA-approved/promulgated
                                                      the State and approved by EPA pursuant                     Under section 303(d) of the CWA,
                                                                                                              every two years authorized tribes would                 WQS for the tribe’s waters are effective.
                                                      to 40 CFR 130.7.’’ 40 CFR
                                                                                                              be required to develop lists of waters                  (See section VII for the procedure EPA
                                                      122.44(d)(1)(vii)(B). WLAs under 40
                                                      CFR 122.44(d)(1)(vii)(B) would include                  not meeting, or not expected to meet,                   would follow in reviewing a tribe’s TAS
                                                      WLAs developed by a tribe with TAS                      applicable water quality standards. 40                  application.). Thus, for example, if EPA
                                                      authorization and approved by EPA                       CFR 130.7(d). These lists are commonly                  approves a tribe’s TAS application on
                                                      pursuant to 40 CFR 130.7. For water                     called ‘‘impaired waters lists’’ or                     March 15, 2016, and the tribe’s WQS on
                                                      bodies impaired by pollutants from                      ‘‘303(d) lists.’’ Impaired waters are                   June 30, 2016, the tribe’s first list would
                                                      nonpoint sources, authorized tribes                     waters for which technology-based                       be due on April 1, 2020. The tribe could
                                                      would not acquire new or additional                     limitations and other required controls                 submit its list to EPA prior to that date,
                                                      implementation authorities when listing                 are not stringent enough to meet                        if it chooses.
                                                      such impaired water bodies and                          applicable CWA water quality                               Most tribes that would be eligible for
                                                      establishing TMDLs. Instead, the                        standards. Threatened waters are waters                 TAS authorization under today’s
                                                      mechanisms for implementing the                         that currently attain applicable WQS,
                                                                                                                                                                      proposed rule are likely to be recipients
                                                      nonpoint source pollutant reductions                    but for which existing and readily
                                                                                                                                                                      of CWA section 106 grants and would
                                                      (LAs) identified in any tribal TMDLs                    available data and information indicate
                                                                                                              that applicable WQS will likely not be                  thus be required to submit section 106
                                                      would include existing tribal
                                                                                                              met by the time the next list of impaired               grant work plans annually. If a tribe’s
                                                      authorities, other federal agencies’
                                                      policies and procedures, as well as                     or threatened waters is due to EPA.5 The                CWA section 106 grant work plan
                                                      voluntary and incentive-based                           authorized tribe’s section 303(d) list                  includes ambient water quality
                                                      programs.                                               would include all impaired and                          monitoring activities, the tribe is also
                                                         This proposed rule would not require                 threatened waters. In this document,                    required to develop an assessment
                                                      anything of tribes that are not interested              EPA uses the term ‘‘impaired waters’’ to                report pursuant to the CWA section 106
                                                      in TAS for the 303(d) Program. Based on                 refer to both impaired and threatened                   grant reporting requirements.7 EPA
                                                      pre-proposal input, not all tribes will be              waters.6 The authorized tribe would be                  encourages tribes that obtain TAS for
                                                      interested in obtaining TAS for 303(d),                 required to ‘‘assemble and evaluate all                 the CWA Section 303(d) Program and
                                                      and some may consider other                             existing and readily available                          also develop CWA section 106
                                                      approaches that might benefit their                     information’’ in developing its section                 assessment reports to combine their
                                                      reservation waters. Clean Water Act                     303(d) list. 40 CFR 130.7(b)(5). EPA’s                  CWA section 303(d) impaired waters list
                                                      section 319 watershed-based plans, for                  regulations include a non-exhaustive                    with their CWA section 106 assessment
                                                      example, may help tribes protect and                    list of water quality-related data and                  report, and submit the combined report
                                                      restore water resources threatened or                   information to be considered. Id. The                   electronically through the Assessment
                                                      impaired by nonpoint source pollution.4                 tribe would establish priorities for                    TMDL Tracking and Implementation
                                                      IV. What program responsibilities                         5 Guidance for 2006 Assessment, Listing and
                                                                                                                                                                      System (ATTAINS).8 In this way such
                                                      would tribes have upon obtaining TAS                    Reporting Requirements Pursuant to Sections             tribes could create a combined CWA
                                                      for the CWA Section 303(d) impaired                     303(d), 305(b) and 314 of the Clean Water Act, July     303(d)/106 report that is similar to a
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                                                                                                              29, 2005, available at http://water.epa.gov/lawsregs/
                                                      water listing and TMDL program?                         lawsguidance/cwa/tmdl/upload/2006irg-report.pdf.
                                                        The goal of the CWA is ‘‘to restore                     6 Under EPA’s regulations, ‘‘water quality limited

                                                                                                              segments’’ include both impaired waters and               7 See Final Guidance on Awards of Grants to
                                                      and maintain the chemical, physical,
                                                                                                              threatened waters, and are defined as ‘‘any segment     Indian Tribes under Section 106 of the Clean Water
                                                                                                              where it is known that water quality does not meet      Act (http://www2.epa.gov/sites/production/files/
                                                         4 See Handbook for Developing and Managing
                                                                                                              applicable water quality standards, and/or is not       2014-09/documents/final-tribal-guidance.pdf) at
                                                      Tribal Nonpoint Source Pollution Programs under         expected to meet applicable water quality
                                                      Section 319 of the Clean Water Act, February 2010,                                                              page 8–1.
                                                                                                              standards, even after the application of the
                                                                                                                                                                        8 See ‘‘Water Quality Assessment and TMDL
                                                      available at http://www2.epa.gov/sites/production/      technology-based effluent limitations required by
                                                      files/2015-09/documents/2010_02_19_nps_tribal_          sections 301(b) and 306 of the Act.’’ 40 CFR            Information,’’ available at http://ofmpub.epa.gov/
                                                      pdf_tribal_handbook2010.pdf.                            130.2(j).                                               waters10/attains_index.home.



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                                                                             Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                             2795

                                                      state’s CWA 303(d)/305(b) 9 ‘‘Integrated                identify (1) the criteria an applicant                 exercising governmental authority over
                                                      Report.’’ 10                                            tribe would be required to meet to be                  a Federal Indian reservation. ‘‘Federal
                                                                                                              treated in a similar manner as states, (2)             Indian reservation’’ is defined in
                                                      B. Establishment and Submission of
                                                                                                              the information the tribe would be                     § 131.3(k) as ‘‘all land within the limits
                                                      TMDLs
                                                                                                              required to provide in its application to              of any Indian reservation under the
                                                         Under the CWA, each state and                        EPA, and (3) the procedure EPA would                   jurisdiction of the United States
                                                      authorized tribe must, ‘‘from time to                   use to review the tribal application.                  Government, notwithstanding the
                                                      time,’’ establish and submit TMDLs for                  Proposed section 130.16 is intended to                 issuance of any patent, and including
                                                      pollutants causing impairments in all                   ensure that tribes treated in a similar                rights-of-way running through the
                                                      the waters on its 303(d) list. CWA                      manner as states for the purposes of the               reservation.’’ (See further discussion of
                                                      sections 303(d)(1)(C) and 303(d)(2).                    CWA Section 303(d) Impaired Water                      the term ‘‘reservation’’ in section I B. of
                                                      States and authorized tribes set                        Listing and TMDL Program are                           this preamble.). The governmental
                                                      priorities for developing TMDLs for                     qualified, consistent with CWA                         authority and reservation aspects of
                                                      their impaired and listed waters.                       requirements, to conduct a Listing and                 these definitions would be addressed in
                                                         TMDLs must be established ‘‘at a level               TMDL Program. The procedures are                       the tribe’s application, including as part
                                                      necessary to implement the applicable                   meant to provide more opportunities for                of its descriptive statements that it
                                                      water quality standards with seasonal                   tribes to engage fully in the Program and              currently carries out substantial
                                                      variations and a margin of safety which                 are not intended to act as a barrier to                governmental duties and powers over a
                                                      takes into account any lack of                          tribal assumption of the 303(d) Program.               defined area, and that it has authority to
                                                      knowledge concerning the relationship                      The TAS procedures in this proposed                 regulate water quality over a
                                                      between effluent limitations and water                  rule are closely based on the existing                 reservation.
                                                      quality.’’ CWA section 303(d)(1)(C).                    TAS regulation at 40 CFR 131.8, which                     The second criterion would require
                                                      Where a TMDL makes allocation                           establishes the TAS process for the                    the tribe to have a governing body
                                                      tradeoffs between point and nonpoint                    CWA Section 303(c) WQS Program. EPA                    ‘‘carrying out substantial governmental
                                                      sources, the TMDL record must also                      established the TAS process for WQS in                 duties and powers.’’ The Agency
                                                      demonstrate ‘‘reasonable assurance’’                    1991, and that program has been the                    considers ‘‘substantial governmental
                                                      that the nonpoint source allocations will               focus of the great majority of TAS                     duties and powers’’ to mean that the
                                                      be achieved. 40 CFR 130.2(i).                           activity for regulatory programs under                 tribe is currently performing
                                                      Calculations to establish TMDLs must                    the CWA as well as all of the other                    governmental functions to promote the
                                                      be subject to public review. 40 CFR                     environmental statutes administered by                 health, safety, and welfare of the
                                                      130.7(c)(1)(ii). Once established, the                  the Agency. The WQS TAS rule has                       affected population within a defined
                                                      state or authorized tribe submits the                   proven very effective in ensuring that                 geographical area. See 54 FR at 39101.
                                                      TMDL to EPA for review.                                 applicant tribes satisfy statutory TAS                 Examples of such functions may
                                                                                                              criteria and are prepared to administer                include, but are not limited to, the
                                                      C. EPA Review of Lists and TMDLs                        WQS programs under the Act. It thus                    power to tax, the power of eminent
                                                         Once EPA receives a list or TMDL, it                 served as a useful model for this                      domain, and police power. Federal
                                                      must either approve or disapprove that                  proposed TAS rule.                                     recognition by DOI would not, in and of
                                                      list or TMDL within 30 days. CWA                           The TAS criteria tribes would be                    itself, satisfy this criterion. EPA expects
                                                      section 303(d)(2). If EPA disapproves                   required to meet for purposes of the                   that most tribes should be able to meet
                                                      the list or TMDL, EPA must establish a                  CWA Section 303(d) Impaired Water                      this criterion without much difficulty.
                                                      replacement list or TMDL within 30                      Listing and TMDL Program originate in                  Id.
                                                      days of disapproval. 40 CFR 130.7(d)(2).                CWA section 518. As reflected in the                      To address the second criterion, the
                                                                                                              proposed regulatory language, the tribe                tribe would be required to submit a
                                                      V. What are EPA’s proposed procedures                   must: (1) Be federally recognized and                  descriptive statement demonstrating
                                                      for a tribe to seek TAS for the CWA                     meet the definitions in § 131.3(k) and                 that the tribal governing body is
                                                      Section 303(d) Impaired Water Listing                   (l); (2) carry out substantial                         currently carrying out substantial
                                                      and TMDL Program?                                       governmental duties and powers; (3)                    governmental duties and powers over a
                                                        Consistent with the statutory                         have appropriate authority to regulate                 defined area. The descriptive statement
                                                      requirement in section 518 of the CWA,                  the quality of reservation waters; and (4)             should: (1) Describe the form of tribal
                                                      the proposed rule would establish the                   be reasonably expected to be capable of                government; (2) describe the types of
                                                      procedures by which an Indian tribe                     administering the Impaired Water                       essential governmental functions
                                                      may apply and qualify for TAS for                       Listing and TMDL Program. These                        currently performed, such as those
                                                      purposes of the CWA Section 303(d)                      criteria are discussed below.                          listed above; and (3) identify the sources
                                                      Impaired Water Listing and TMDL                            The first criterion for TAS would                   of authorities to perform these functions
                                                      Program. Such procedures would be                       require the tribe to be federally                      (e.g., tribal constitutions and codes).
                                                      codified in a new section 130.16 of the                 recognized by the U.S. Department of                      The third criterion, concerning tribal
                                                      water quality planning and management                   the Interior (DOI) and meet the                        authority, means that a tribe seeking
                                                      regulation. Section 130.16 would                        definitions in § 131.3(k) and (l). The                 TAS for purposes of the CWA Section
                                                                                                              tribe may address the recognition                      303(d) Impaired Water Listing and
                                                                                                              requirement either by stating that it is               TMDL Program must adequately
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                                                        9 CWA section 305(b) requires states to provide

                                                      every two years an assessment of the quality of all     included on the list of federally                      demonstrate authority to manage and
                                                      their waters. EPA explicitly exempted tribes from       recognized tribes published periodically               protect water resources within the
                                                      the section 305(b) reporting requirement. See 40
                                                      CFR 130.4(a); 54 FR 14354, 14357 (April 11, 1989).      by DOI, or by submitting other                         borders of the tribe’s reservation. To
                                                        10 See Guidance for 2006 Assessment, Listing and      appropriate documentation (e.g., if the                verify authority and satisfy the third
                                                      Reporting Requirements Pursuant to Sections             tribe is federally recognized but is not               criterion of the proposed rule, a tribe
                                                      303(d), 305(b) and 314 of the Clean Water Act, July     yet included on the DOI list). The                     would be required to include a
                                                      29, 2005, (available at http://water.epa.gov/
                                                      lawsregs/lawsguidance/cwa/tmdl/upload/2006irg-
                                                                                                              definition of ‘‘tribe’’ in § 131.3(l), along           statement signed by the tribal legal
                                                      report.pdf) for more information on the Integrated      with requiring federal recognition,                    counsel, or an equivalent official,
                                                      Report.                                                 additionally requires that the tribe is                explaining the legal basis for the tribe’s


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                                                      2796                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      regulatory authority, and appropriate                   CWA Section 303(d) Program. As                         interpretation of tribal authority under
                                                      additional documentation (e.g., maps,                   discussed below, EPA has also                          the CWA and provide appropriate
                                                      tribal codes and ordinances).                           separately proposed to revise its                      application procedures to ensure that
                                                         In promulgating prior CWA TAS                        interpretation of the CWA tribal                       relevant jurisdictional information is
                                                      regulations, EPA took an initial cautious               provision by conclusively determining                  provided to EPA and made available for
                                                      approach that required tribes applying                  that Congress intended to delegate                     comment. 80 FR 47430. EPA thus
                                                      for eligibility to administer regulatory                authority to eligible tribes to regulate               proposes to establish the basic TAS
                                                      programs under the statute to                           their entire reservations under the CWA                application and review procedures
                                                      demonstrate their inherent tribal                       irrespective of land ownership. If and                 proposed today notwithstanding that
                                                      authority over the relevant regulated                   when this revised interpretation is                    the proposed reinterpretation remains
                                                      activities on their reservations. See, e.g.,            finalized, it will be applied in reviewing             pending. Once these rules are finalized,
                                                      56 FR at 64877–81. This included a                      any TAS application submitted under                    EPA will review any TAS applications
                                                      demonstration of inherent regulatory                    the regulations proposed today. Unless                 for the CWA Section 303(d) Program in
                                                      authority over the activities of non-tribal             and until that revised interpretation is               accordance with the interpretation of
                                                      members on lands they own in fee                        finalized, however, EPA will continue                  CWA tribal jurisdiction that applies at
                                                      within a reservation under the                          to evaluate TAS applications consistent                the time.
                                                      principles of Montana v. United States,                 with the Agency’s current approach and                    The fourth criterion would require
                                                      450 U.S. 544 (1981), and its progeny.                   will continue to apply the generalized                 that the tribe, in the Regional
                                                      Montana held that, absent a federal                     findings set forth in prior CWA TAS                    Administrator’s judgment, be reasonably
                                                      grant of authority, tribes generally lack               rulemakings in making case-by-case                     expected to be capable of administering
                                                      inherent jurisdiction over nonmember                    determinations regarding tribes’                       an effective CWA Section 303(d)
                                                      activities on nonmember fee land, but                   inherent regulatory authority.                         Impaired Water Listing and TMDL
                                                      retain inherent civil jurisdiction over                    In prior CWA TAS promulgations,                     Program. To meet this requirement,
                                                      nonmember activities within the                         EPA recognized that there was                          tribes would either: (1) show that they
                                                      reservation where (i) nonmembers enter                  significant support for the view that                  have the necessary management and
                                                      into ‘‘consensual relationships with the                Congress had intended to delegate                      technical skills, or (2) submit a plan
                                                      tribe or its members, through                           authority to eligible Indian tribes to                 detailing steps for acquiring the
                                                      commercial dealing, contracts, leases, or               administer CWA regulatory programs                     necessary management and technical
                                                      other arrangements’’ or (ii) ‘‘. . .                    over their entire reservations,                        skills. When considering tribal
                                                      [nonmember] conduct threatens or has                    irrespective of land ownership, and EPA                capability, EPA would also consider
                                                      some direct effect on the political                     expressly stated that the issue of tribal              whether the tribe can demonstrate the
                                                      integrity, the economic security, or the                authority under the CWA remained                       existence of institutions that exercise
                                                      health or welfare of the tribe.’’ Montana,              open for further consideration in light of
                                                                                                                                                                     executive, legislative, and judicial
                                                      450 U.S. at 565–66.                                     additional congressional or judicial
                                                                                                                                                                     functions, and whether the tribe has a
                                                         In addressing the second exception of                guidance. See, e.g., 56 FR at 64878–81.
                                                      Montana regarding the effects of                                                                               history of successful managerial
                                                                                                              On August 7, 2015, EPA published in
                                                      nonmember conduct, EPA has                                                                                     performance of public health or
                                                                                                              the Federal Register a proposed rule to
                                                      previously described the Agency’s                                                                              environmental programs.
                                                                                                              reinterpret the CWA tribal provision as
                                                      operating approach to require a showing                 including such an express delegation of                   The specific information required for
                                                      that the potential impacts of regulated                 authority by Congress. 80 FR 47430. If                 tribal applications to EPA is described
                                                      activities on the tribe are serious and                 EPA finalizes that reinterpretation,                   in proposed § 130.16 (a) and (b). The
                                                      substantial. 56 FR at 64878. EPA also                   applicant Indian tribes would no longer                application would be required, in
                                                      explained that the activities regulated                 be required to demonstrate inherent                    general, to include a statement regarding
                                                      under the various environmental                         authority to regulate their reservation                federal recognition by DOI,
                                                      statutes, including the CWA, generally                  waters under the CWA. Among other                      documentation that the tribal governing
                                                      have serious and substantial potential                  things, tribes would thus no longer be                 body is exercising substantial duties and
                                                      impacts on human health and welfare.                    required to meet the test established in               powers, documentation of tribal
                                                      Id. EPA described the Agency’s expert                   Montana v. United States, 450 U.S. 544                 authority to regulate water quality on
                                                      assessment regarding the critical                       (1981), and its progeny with regard to                 the reservation, a narrative statement of
                                                      importance of water quality                             exercises of inherent tribal regulatory                tribal capability to administer the CWA
                                                      management to self-government and                       authority over nonmember activity. Id.                 Section 303(d) Impaired Water Listing
                                                      also explained that because of the                      Instead, a tribe would be able to rely on              and TMDL Program, and any other
                                                      mobile nature of pollutants in surface                  the congressional delegation of                        information requested by the Regional
                                                      waters and the relatively small size of                 authority included in section 518 of the               Administrator.
                                                      water bodies on reservations, it would                  statute as the source of authority to                     Consistent with EPA’s other TAS
                                                      be very likely that any water quality                   administer CWA regulatory programs                     regulations, the proposed rule also
                                                      impairment on non-Indian fee land                       over its entire reservation as part of its             provides that where a tribe has
                                                      within a reservation would also impair                  legal statement.                                       previously qualified for TAS for
                                                      water quality on tribal lands. Id. at                      The proposed TAS rule for the CWA                   purposes of a different EPA program,
                                                      64878–79. EPA stated that its                           Section 303(d) Impaired Water Listing                  the tribe is only required to provide
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                                                      generalized findings regarding the                      and TMDL Program is intended to                        information that has not been submitted
                                                      relationship of water quality to tribal                 provide appropriate TAS application                    as part of a prior TAS application. To
                                                      health and welfare would supplement                     and review procedures irrespective of                  facilitate review of tribal applications,
                                                      the factual showing tribes would make                   which interpretation of tribal authority               EPA would request that a tribal
                                                      in applying for TAS. Id. EPA reiterates                 under the Act applies. As explained in                 application inform EPA whether the
                                                      the generalized statutory and factual                   EPA’s proposed reinterpretation, EPA’s                 tribe has been approved for TAS or
                                                      findings set forth in those prior TAS                   existing TAS regulations—including 40                  deemed eligible to receive authorization
                                                      rulemakings and believes they apply                     CFR 131.8, upon which this proposed                    for any other EPA program. See 59 FR
                                                      equally to TAS applications for the                     rule is modeled—accommodate either                     at 64340.


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                                                                              Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                                  2797

                                                        The TAS application procedures and                    appropriate opportunity for                            notice (e.g., through local newspapers,
                                                      criteria for the CWA Sections 303(c)                    ‘‘appropriate governmental entities’’                  electronic media, or other appropriate
                                                      WQS and 303(d) Impaired Water Listing                   (i.e., states, tribes and other federal                media) to inform other potentially
                                                      and TMDL Programs are similar in                        entities located contiguous to the                     interested entities of the applicant
                                                      many respects, and a tribe interested in                reservation of the applicant tribe) to                 tribe’s complete application and of the
                                                      both programs may wish to streamline                    comment on an applicant tribe’s                        opportunity to provide relevant
                                                      the application process by combining a                  assertion of authority and, among other                information regarding the tribe’s
                                                      request for TAS eligibility for 303(c) and              things, inform EPA of any special                      assertion of authority. As described
                                                      303(d) into a single application.                       circumstances that they believe could                  below, this aspect of EPA’s review
                                                      Although a tribe would not be required                  affect a tribe’s ability to administer the             procedure would apply unless such
                                                      to do so, EPA’s proposed approach                       303(d) Program.                                        process would be duplicative of a notice
                                                      would allow a tribe to submit a                            EPA is also aware that section                      and comment process already
                                                      combined application, which addresses                   10211(b) of the Safe, Accountable,                     performed in connection with the same
                                                      the criteria and application                            Flexible, Efficient Transportation Equity              tribe’s prior application for TAS for
                                                      requirements of § 131.8 and proposed                    Act of 2005 (‘‘SAFETEA’’), Public Law                  another CWA regulatory program.
                                                      § 130.16, to EPA if the tribe is interested             109–59, 119 Stat. 1144 (August 10,
                                                                                                              2005) established a unique TAS                         B. Avoidance of Duplicative Notice and
                                                      in applying for TAS for both the CWA
                                                                                                              requirement with respect to Indian                     Comment Procedures
                                                      Section 303(c) and 303(d) Programs.
                                                                                                              tribes located in the State of Oklahoma.                  EPA is proposing to include
                                                      VI. What special circumstances may                      Under section 10211(b) of SAFETEA,                     provisions intended to help avoid
                                                      exist regarding qualification for TAS                   tribes in Oklahoma seeking TAS under                   unnecessary and wasteful duplication of
                                                      for the CWA Section 303(d) impaired                     a statute administered by EPA for the                  the notice and comment procedures
                                                      water listing and TMDL program?                         purpose of administering an                            described in VII A. Specifically, EPA
                                                        There could be rare instances where                   environmental regulatory program must,                 proposes that, where a tribe has
                                                      special circumstances limit or preclude                 in addition to meeting applicable TAS                  previously qualified for TAS for a CWA
                                                      a particular tribe’s ability to be                      requirements under the relevant EPA-                   regulatory program12 and EPA has
                                                      authorized to administer the 303(d)                     administered environmental statute,                    provided notice and an opportunity to
                                                      Program over its reservation. For                       enter into a cooperative agreement with                comment on the tribe’s assertion of
                                                      example, there could be a separate                      the state that is subject to EPA approval              authority as part of its review of the
                                                      federal statute establishing unique                     and that provides for the tribe and state              prior application, no further notice
                                                      jurisdictional arrangements for a                       to jointly plan and administer program                 would be provided with regard to the
                                                      specific state or a specific reservation                requirements. This requirement of                      same tribe’s application for the 303(d)
                                                      that could affect a tribe’s ability to                  SAFETEA applies apart from, and in                     Program, unless the section 303(d) TAS
                                                      exercise authority under the CWA. It is                 addition to, existing TAS criteria,                    application presents different
                                                      also possible that provisions in                        including the TAS criteria set forth in                jurisdictional issues or significant new
                                                      particular treaties or tribal constitutions             section 518 of the CWA. EPA’s proposal                 factual or legal information relevant to
                                                      could limit a tribe’s ability to exercise               relates solely to the CWA TAS                          jurisdiction to the Regional
                                                      relevant authority.11                                   requirement; it would thus have no                     Administrator. Proposed § 130.16(c)(4).
                                                        The application requirements of                       effect on the separate requirement of                  This proposed approach would apply to
                                                      § 130.16 (a) and (b) would require tribes               section 10211(b) of SAFETEA.                           all tribes that have previously obtained
                                                      to submit a statement of their legal                                                                           TAS for the CWA Section 303(c) WQS
                                                                                                              VII. What procedure would EPA follow
                                                      counsel (or equivalent official)                                                                               Program, CWA Section 402 NPDES
                                                                                                              in reviewing a tribe’s TAS application?
                                                      describing the basis for their assertion of                                                                    Program or Sewage Sludge Management
                                                      authority. The statement can include                    A. Notice to Appropriate Governmental                  Program, or CWA Section 404 Dredge
                                                      copies of documents such as tribal                      Entities                                               and Fill Permit Program.
                                                      constitutions, by-laws, charters,                          The proposed EPA review procedure,                     Where different jurisdictional issues
                                                      executive orders, codes, ordinances, and                included in § 130.16(c), specifies that                or information are not present,
                                                      resolutions. If EPA finalizes this                      the Regional Administrator, following                  additional notice and comment are
                                                      proposed action, the requirement for a                  receipt of tribal applications, would                  likely to be duplicative of the process
                                                      legal counsel’s statement would ensure                  process such applications in a timely                  already undertaken during EPA’s review
                                                      that applicant tribes appropriately                     manner. EPA would promptly notify the                  of the prior TAS application. Under
                                                      describe the bases of their authority and               tribe that the complete application has                these circumstances, the proposed rule
                                                      address any special circumstances                       been received. Within 30 days after                    would avoid such duplication of efforts
                                                      regarding their assertion of authority to               receipt of a tribe’s complete TAS                      by authorizing the relevant EPA
                                                      administer the 303(d) Program. The                      application for 303(d), EPA would                      Regional Administrator to process a
                                                      proposed rule would provide an                          provide notice to appropriate                          TAS application for the 303(d) Program
                                                                                                              governmental entities (i.e., states, tribes,           without a second notice and comment
                                                         11 EPA takes no position in this proposal
                                                                                                              and other federal entities located                     process.
                                                      regarding whether any particular tribe or Indian                                                                  Where different jurisdictional issues
                                                                                                              contiguous to the reservation of the
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                                                      reservation is subject to any potential impediment
                                                      relating to authority to take on the 303(d) Program.    applicant tribe) of the complete                       or new or changed information is
                                                      Any such issue would need to be addressed on a          application and the substance of and                   present, the notice and comment
                                                      case-by-case basis and with the benefit of a full
                                                                                                              basis for the tribe’s assertion of                     process described in § 130.16(c)(2)
                                                      record of relevant information that would be                                                                   would apply. For example, if the
                                                      developed during the processing of a particular         authority over reservation waters, and
                                                      TAS application. To the extent EPA is ever called       would provide a 30 day opportunity to                  geographic reservation area over which
                                                      upon to make a decision regarding this type of          comment to EPA on the tribe’s assertion
                                                      issue, such a decision would be rendered in the                                                                  12 Specifically, the CWA Section 303(c) WQS

                                                      context of EPA’s final action on a specific TAS
                                                                                                              of authority. See, e.g., 56 FR at 64844.               Program, CWA Section 402 NPDES Program or
                                                      application, and any judicial review of that decision   EPA would also provide, consistent                     Sewage Sludge Management Program, or CWA
                                                      would occur in that context.                            with prior practice, sufficiently broad                Section 404 Dredge and Fill Permit Program.



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                                                      2798                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      an applicant tribe asserts authority is                 necessarily delay EPA’s decision to treat              VIII. What is an example of a stepwise
                                                      different from the area covered by a                    the tribe in a similar manner as a state               approach for tribes applying for TAS
                                                      prior TAS application or EPA approval,                  for non-disputed areas.                                authority for CWA programs?
                                                      the process proposed in § 130.16(c)(2)                    This proposed procedure does not
                                                      would apply and would provide an                        imply that states, tribes, other federal                  EPA expects that the tribes most
                                                      appropriate opportunity for comment on                  agencies, or any other entity have veto                likely to be interested in applying for
                                                      the tribe’s assertion of authority over the             power over tribal TAS applications.                    TAS for the 303(d) Program will be
                                                      new area. In such circumstances, a tribe                Rather, it is intended to assist EPA in                those that also have TAS for CWA
                                                      may find it appropriate and useful to                   gathering information that may be                      section 303(c) and have applicable WQS
                                                      update its prior TAS application at the                 relevant to the Agency’s determination                 for their reservation waters. EPA has
                                                      same time it applies for TAS for 303(d).                whether the applicant tribe has the                    taken final action approving TAS for
                                                      This would help ensure that the tribe’s                 necessary authority to administer the                  WQS for 50 tribes. Forty-two of those
                                                      TAS eligibility for the various CWA                     CWA Section 303(d) Impaired Water                      tribes have EPA-approved WQS, and
                                                      programs covers the same geographic                     Listing and TMDL Program. EPA would                    one tribe without TAS for WQS has
                                                      area. Such a combined TAS application                   not rely solely on the assertions of a                 federally promulgated WQS.13 By virtue
                                                      would be subject to the § 130.16(c)(2)                  commenter who challenges a tribe’s                     of their involvement in the WQS
                                                      notice and comment process.                             assertion of authority, but rather make                Program, these tribes will already have
                                                         EPA requests comment on its                          an independent evaluation of the tribal                demonstrated an interest in directly
                                                      proposed approach or alternative                        showing.                                               administering certain fundamental
                                                      approaches. In addition, we request                                                                            elements of the CWA as well as the
                                                      comment on whether the § 130.16(c)(4)                   D. EPA’s Decision Process
                                                                                                                                                                     resources and capacity to do so. Since
                                                      notice and comment exemption should                        The proposed rule requires EPA to                   applicable WQS are a foundation of the
                                                      instead be available only                               process a tribe’s TAS application in a                 approach to protecting water quality
                                                      prospectively—i.e., only where the                      timely manner, but does not specify a                  under the CWA, establishing EPA-
                                                      applicant tribe obtains TAS for the CWA                 precise time frame for review of tribal                approved/EPA-promulgated WQS for
                                                      Section 303(c) WQS Program, CWA                         TAS applications. Each TAS application                 reservation water bodies will be an
                                                      Section 402 NPDES Program or Sewage                     will present its own set of legal and                  important first step for tribes interested
                                                      Sludge Management Program, or CWA                       factual issues, and EPA anticipates that               in protecting and restoring their
                                                      section 404 Dredge and Fill Permit                      in some cases it may be necessary to                   reservation waters. As tribes gain
                                                      Program after this proposed rule is                     request additional information when                    experience developing and
                                                      finalized (and, again, only if different                examining tribal TAS applications.                     administering applicable WQS on their
                                                      jurisdictional issues or significant new                Similarly, the Agency’s experience with                reservations, they may become
                                                      factual or legal information relevant to                states applying for various EPA                        interested in greater involvement in
                                                      jurisdiction are not present in the tribe’s             programs and with tribes applying for                  additional programs—such as the 303(d)
                                                      303(d) TAS application). One practical                  TAS for the WQS Program indicates that                 Program—designed to ensure that
                                                      result of this alternative approach                     additional engagement between EPA                      applicable WQS are achieved. Obtaining
                                                      would be that if one of the 50 tribes that              and the applicant may be necessary                     TAS to implement a CWA Section
                                                      has previously obtained TAS for the                     before final decisions are made. EPA                   303(d) Impaired Water Listing and
                                                      CWA Section 303(c) WQS Program were                     expects that similar exchanges with                    TMDL Program for its reservation waters
                                                      to apply for TAS for the 303(d) Program                 tribes will often be helpful and enhance               is one potential next step for interested
                                                      after this proposed rule is finalized, the              EPA’s processing of tribal TAS                         tribes. Under section 303(d), a tribe
                                                      notice and comment process would be                     applications for the CWA Section 303(d)                would use applicable WQS as the basis
                                                      required.                                               Impaired Water Listing and TMDL                        for identifying impaired waters and
                                                                                                              Program.                                               calculating TMDLs, which quantify the
                                                      C. Treatment of Competing or                               Where the Regional Administrator
                                                      Conflicting Claims                                                                                             maximum amount of a pollutant that a
                                                                                                              determines that a tribal TAS application               water body can receive and still meet
                                                         Where a tribe’s assertion of authority               satisfies the requirements of proposed                 the WQS.
                                                      is subject to a competing or conflicting                § 130.16(a) and (b), the Regional
                                                      claim, the proposed procedures provide                  Administrator would promptly notify                       Table 1, below, is an example of one
                                                      that the Regional Administrator, after                  the tribe that the tribe has qualified for             step-wise approach that tribes may
                                                      due consideration and in consideration                  TAS for the CWA Section 303(d)                         follow in developing their water quality
                                                      of any other comments received, would                   Impaired Water Listing and TMDL                        programs under the CWA and
                                                      determine whether the tribe has                         Program. A decision by the Regional                    ultimately seeking TAS for the CWA
                                                      adequately demonstrated authority to                    Administrator that a tribe does not meet               Section 303(d) Impaired Water Listing
                                                      regulate water quality on the reservation               the requirements for TAS for purposes                  and TMDL Program. This is only one
                                                      for purposes of the 303(d) Program.                     of the CWA Section 303(d) Impaired                     possible approach, and, under this
                                                      Where the Regional Administrator                        Water Listing and TMDL Program                         approach, not all the identified steps
                                                      concludes that a tribe has not                          would not preclude the tribe from                      would need to be taken sequentially
                                                      adequately demonstrated its authority                   resubmitting the application at a future               (e.g., some could be completed in
                                                                                                                                                                     parallel).
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                                                      with respect to an area in dispute, then                date. If the Regional Administrator
                                                      tribal assumption of the CWA Section                    determines that a tribal application is
                                                                                                                                                                        13 A chart listing EPA approvals for tribes to
                                                      303(d) Impaired Water Listing and                       deficient or incomplete, EPA will
                                                                                                                                                                     administer a WQS program, and EPA’s approvals of
                                                      TMDL Program may be restricted                          identify such deficiencies and gaps so                 tribes’ WQS is available at http://water.epa.gov/
                                                      accordingly. If a dispute is focused on                 the tribe can make changes as                          scitech/swguidance/standards/wqslibrary/
                                                      a limited area, this would not                          appropriate or necessary.                              approvtable.cfm.




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                                                                               Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                               2799

                                                       TABLE 1—EXAMPLE OF A STEP-WISE APPROACH TO REGULATORY ACTIVITIES FOR TRIBES INTERESTED IN APPLYING FOR
                                                            TAS AUTHORITY TO IMPLEMENT THE CWA SECTION 303(d) IMPAIRED WATER LISTING AND TMDL PROGRAM
                                                      Step 1: Tribe seeks TAS for CWA 303(c): WQS                   • Tribe decides to 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.
                                                      Step 2: Tribe Adopts WQS .................................    • Tribe develops its water quality goals.
                                                                                                                    • Tribe drafts WQS for EPA approval.
                                                                                                                    • EPA approves tribal WQS.
                                                      Step 3: Tribe seeks TAS for CWA Section                       • Tribe decides to assess water quality conditions (i.e., comparing water quality monitoring
                                                        303(d): Impaired Water Listing and TMDL                       data and information against applicable WQS), identify impaired waters, and develop
                                                        Program.                                                      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 Section                      Tribe conducts activities required by 40 CFR 130.7, including but not limited to:
                                                        303(d) Impaired Water Listing and TMDL Pro-                 • Assembles and evaluates all existing and readily available water quality-related data and in-
                                                        gram.                                                         formation on reservation water bodies (data may have been gathered by an established,
                                                                                                                      comprehensive monitoring program).
                                                                                                                    • Develops section 303(d) list of impaired waters (that is, reservation water bodies that do not
                                                                                                                      meet or are not likely to meet applicable WQS).
                                                                                                                    • Prioritizes list of impaired water bodies for TMDL development.
                                                                                                                    • Submits section 303(d) list to EPA for approval.
                                                                                                                    • Develops TMDLs for listed waters.
                                                                                                                    • Submits TMDLs to EPA for approval.
                                                      Step 5: Tribe implements TMDLs (not required                  • Carry out watershed-specific plans to implement TMDLs.
                                                        by 40 CFR 130.7).                                           • Monitors TMDL implementation and effectiveness.
                                                      Step 6: Tribe seeks other CWA regulatory pro-                 Possibilities include:
                                                        grams.                                                      • CWA Section 402 NPDES Program.
                                                                                                                    • CWA Section 405 Sewage Sludge Management Program.
                                                                                                                    • CWA Section 404 Dredge and Fill Permit Program.



                                                         The proposed rule does not require                        obtained EPA approval for TAS for the                sources of tribal funding such as CWA
                                                      tribes to have applicable WQS in place                       WQS Program. EPA specifically invites                section 319 grants and section 106
                                                      on their reservations prior to applying                      public comment on whether a tribe                    grants are already tightly constrained
                                                      for TAS eligibility for the 303(d)                           applying for TAS for the 303(d) Program              and may not be available to support
                                                      Program. Under section 303(d),                               should instead be required to have                   additional work under section 303(d).
                                                      however, states and authorized tribes                        already received EPA approval—or at                  Some tribes that receive CWA funding
                                                      must develop lists of impaired waters                        least simultaneously apply—for TAS for               may be able to identify program
                                                      and TMDLs based on applicable WQS.                           CWA Section 303(c) WQS Program.                      activities that could also support 303(d)
                                                      CWA sections 303(d)(1) and (2).                                                                                   activities (e.g., assessing water quality to
                                                      Although EPA expects that the tribes                         IX. What financial and technical
                                                                                                                   support is available from EPA to tribes              develop impaired water lists,
                                                      most likely to be interested in                                                                                   developing a nonpoint source watershed
                                                      administering the 303(d) Program are                         as they choose to develop and
                                                                                                                   implement a CWA Section 303(d)                       plan that would also implement the
                                                      those that do have such WQS, the                                                                                  nonpoint source portions of a TMDL),
                                                      proposed rule would not preclude other                       impaired water listing and TMDL
                                                                                                                   program?                                             but the availability of such
                                                      tribes from obtaining TAS status for
                                                                                                                                                                        opportunities is uncertain.
                                                      section 303(d) purposes and thus                                Pre-proposal input from tribes
                                                      ensuring that TAS eligibility                                                                                        As resources allow, EPA may be able
                                                                                                                   indicates that resources and funding
                                                      requirements are satisfactorily                                                                                   to work cooperatively with tribes, as
                                                                                                                   available for TMDL development will be
                                                      addressed prior to expending resources                                                                            appropriate, on impaired water listing
                                                                                                                   important considerations for tribes in
                                                      on developing WQS. This approach                             deciding whether to apply for TAS for                and TMDL issues in Indian country. For
                                                      would also allow tribes, at their                            CWA section 303(d) purposes. The                     example, EPA may develop training
                                                      discretion, to streamline and minimize                       Impaired Water Listing and TMDL                      and/or provide other technical support
                                                      expenditures on TAS procedures by                            Program is not a grant program, and no               to tribes interested in obtaining TAS for
                                                      combining TAS requests for sections                          federal grant funds are available directly           303(d) and implementing a CWA
                                                      303(c) and 303(d) into a single                              from the Impaired Water Listing and                  Section 303(d) Impaired Water Listing
                                                      application. Since authorized tribes                         TMDL Program. A tribe may be able to                 and TMDL Program if EPA staff and
                                                      must list waters and develop TMDLs                           use its General Assistance Program                   other resources are available to do so.
                                                      based on applicable WQS, however,                            (GAP) Grant under the Indian                         As a general matter, however, EPA
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                                                      EPA also specifically invites public                         Environmental General Assistance                     cannot assure that funding will be
                                                      comment on whether applicable WQS                            Program Act to support development of                available for a tribe developing or
                                                      should instead be a prerequisite for                         a section 303(d) program and capacity to             implementing the 303(d) Program, and a
                                                      obtaining TAS for the CWA Section                            implement such a program, but GAP                    tribe considering whether to apply to
                                                      303(d) Impaired Water Listing and                            funds are not available for ongoing                  administer the Program will need to
                                                      TMDL Program.                                                program implementation. Tribes                       carefully assess its priorities and the
                                                         The proposed rule also does not                           interested in this approach would need               availability of EPA assistance or other
                                                      require tribes seeking TAS eligibility for                   to contact their Regional GAP Program                resources.
                                                      the 303(d) Program to have previously                        coordinator. In addition, existing


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                                                      2800                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      X. Statutory and Executive Order                        must submit information to EPA                           Total estimated cost: $4,185,269,
                                                      Reviews                                                 demonstrating that the tribe meets the                 including staff salaries and the cost of
                                                        Additional information about these                    statutory criteria described in section V.             support contractors for an annual
                                                      statutes and Executive Orders can be                    EPA requires this information in order                 average of 12 tribes to apply for TAS
                                                      found at http://www2.epa.gov/laws-                      to determine that the tribe is eligible to             and implement the 303(d) Program. This
                                                                                                              administer the program. Similarly, EPA                 action does not entail capital or
                                                      regulations/laws-and-executive-orders.
                                                                                                              requires the information—in this case,                 operation and maintenance costs.
                                                      A. Executive Order 12866: Regulatory                    the lists of impaired waters and the                     An agency may not conduct or
                                                      Planning and Review and Executive                       TMDLs—from the authorized tribes                       sponsor, and a person is not required to
                                                      Order 13563: Improving Regulation and                   once they begin implementing the                       respond to, a collection of information
                                                      Regulatory Review                                       program.                                               unless it displays a currently valid OMB
                                                                                                                 Respondents/affected entities: Any                  control number. The OMB control
                                                        This action is not a significant
                                                                                                              federally recognized tribe with a                      numbers for EPA’s regulations in 40
                                                      regulatory action and was, therefore, not
                                                                                                              reservation can potentially apply to                   CFR are listed in 40 CFR part 9.
                                                      submitted to the Office of Management
                                                                                                              administer a regulatory program under                    Submit your comments on the
                                                      and Budget for review.
                                                                                                              the CWA. Tribes with TAS for the                       Agency’s need for this information, the
                                                      B. Paperwork Reduction Act (PRA)                        303(d) Program would then implement                    accuracy of the provided burden
                                                         EPA has submitted the information                    the Program, as described in section IV.               estimates and any suggested methods
                                                                                                                 Respondent’s obligation to respond:                 for minimizing respondent burden to
                                                      collection requirements in this proposed
                                                                                                              The information discussed in this                      EPA using the docket identified in the
                                                      legislative rule to OMB for approval
                                                                                                              proposed rule is required from a tribe                 ADDRESSES section at the beginning of
                                                      under the PRA. The Information                          only if the tribe seeks and is found
                                                      Collection Request (ICR) document that                                                                         this proposed rule. You may also send
                                                                                                              eligible to administer a CWA Section                   your ICR-related comments to OMB’s
                                                      EPA prepared has been assigned EPA                      303(d) Impaired Water Listing and
                                                      ICR number 2515.01. You can find a                                                                             Office of Information and Regulatory
                                                                                                              TMDL Program. See EPA’s proposed                       Affairs via email to
                                                      copy of the ICR in the docket for this                  regulations cited in section V of this
                                                      proposed rule, and it is briefly                                                                               oira_submissions@omb.eop.gov,
                                                                                                              document.                                              Attention: Desk Officer for EPA. Since
                                                      summarized here. If EPA finalizes the                      Estimated number of respondents:
                                                      proposed rule, this ICR would                                                                                  OMB is required to make a decision
                                                                                                              The total potential pool of respondents                concerning the ICR between 30 and 60
                                                      supplement the current information                      is the over 300 tribes with reservations.
                                                      collection requirements in EPA ICR                                                                             days after receipt, OMB must receive
                                                                                                              Although there are 566 federally                       comments no later than February 18,
                                                      number 1560.10 (National Water                          recognized Indian tribes in the United
                                                      Quality Inventory Reports (Renewal))                                                                           2016. EPA will respond to any ICR-
                                                                                                              States, the CWA allows only those tribes               related comments in the final rule.
                                                      and address the tribes’ CWA Section                     with reservations to apply for authority
                                                      303(d) Impaired Water Listing and                       to administer programs. EPA estimates                  C. Regulatory Flexibility Act (RFA)
                                                      TMDL TAS application and 303(d)                         that an average of 12 tribes per year                     I certify that this action will not have
                                                      Program implementation burden, as                       would apply under this proposed rule,                  a significant economic impact on a
                                                      well as EPA’s burden for reviewing the                  and an average of 12 tribes per year                   substantial number of small entities
                                                      tribes’ applications and 303(d) Program                 would implement the 303(d) Program                     under the RFA. This action will not
                                                      submittals. OMB approved the existing                   over the three year period of the ICR.                 impose any requirements on small
                                                      ICR number 1560.10 in December 2012.                       Frequency of response: Application                  entities. This action affects only Indian
                                                         This proposed legislative rule would                 by a tribe to be eligible to administer the            tribes that seek TAS for the CWA
                                                      establish a process for tribes to obtain                303(d) Program is a one-time collection                Section 303(d) Impaired Water Listing
                                                      TAS for the 303(d) Program. As                          of information. Tribes submit impaired                 and TMDL Program.
                                                      described in the ICR, EPA estimates the                 water lists to EPA every two years, and
                                                      total burden on tribes to apply for TAS                 submit TMDLs to EPA from time to time                  D. Unfunded Mandates Reform Act
                                                      for the 303(d) Program would be 3,240                   as described in section IV of this                     (UMRA)
                                                      staff hours annually for an estimated 12                document.                                                 This action does not contain any
                                                      tribes that would apply for and receive                    Total estimated burden: 89,904 tribal               unfunded mandate as described in
                                                      TAS approval per year.                                  staff hours per year for TAS for 303(d)                UMRA, 2 U.S.C. 1531–1538, and does
                                                         Tribes that receive TAS approval                     Program application activities and                     not significantly or uniquely affect small
                                                      would then need to implement the                        303(d) Program implementation                          governments. The action imposes no
                                                      requirements of section 303(d) to list                  activities. Burden is defined at 5 CFR                 enforceable duty on any state, local or
                                                      impaired waters, set TMDL priorities,                   1320.3(b).                                             tribal governments or the private sector.
                                                      and develop TMDLs. EPA estimates that                      This estimate may overstate actual
                                                      such 303(d) Program implementation                      burden because EPA used a                              E. Executive Order 13132: Federalism
                                                      burden would entail 86,664 staff hours                  conservatively high estimate of the                       This action does not have federalism
                                                      for the estimated 12 tribes. ICR 1560.10                annual rate of tribal applications. This               implications. It will not have substantial
                                                      already includes the estimated burden                   estimate was used to ensure that the ICR               direct effects on the states, on the
                                                      for states to implement section 303(d),                 does not underestimate tribal burden,                  relationship between the national
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                                                      but does not include estimates for tribes.              given that EPA used a simplifying                      government and the states, or on the
                                                      Therefore, the ICR for this proposed rule               steady-state assumption in estimating                  distribution of power and
                                                      includes tribal section 303(d)                          annualized tribal application costs.                   responsibilities among the various
                                                      implementation burden as well as the                    Also, EPA used conservatively high                     levels of government.
                                                      TAS application burden described in                     estimates of 303(d) implementation                        This proposed action would only
                                                      the previous paragraph.                                 burden (i.e., 303(d) listing and number                apply to tribal governments that seek
                                                         As discussed in section V, EPA’s                     of TMDLs that tribes would submit to                   eligibility to administer the 303(d)
                                                      regulations require that a tribe seeking                EPA annually), as further described in                 Program. Although it could be of
                                                      to administer a CWA regulatory program                  the draft ICR number 2515.01.                          interest to some state governments, it


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                                                                             Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                            2801

                                                      would not apply directly to any state                   proposed rule will provide a regulatory                13045 because it does not concern an
                                                      government or to any other entity.                      process for the tribe to apply and for                 environmental health or safety risk.
                                                         In the spirit of Executive Order 13132,              EPA to act on the tribe’s application.
                                                      and consistent with EPA policy to                                                                              H. Executive Order 13211: Actions
                                                                                                                 EPA consulted and coordinated with                  Concerning Regulations That
                                                      promote communications between EPA                      tribal officials under the EPA Policy on
                                                      and state and local governments, EPA                                                                           Significantly Affect Energy Supply,
                                                                                                              Consultation and Coordination with                     Distribution, or Use
                                                      consulted with state associations and                   Indian Tribes early in the process of
                                                      representatives of state governments to                 developing this proposed regulation to                   This action is not subject to Executive
                                                      obtain meaningful and timely input for                  permit them to have meaningful and                     Order 13211 because it is not a
                                                      consideration in this proposal. By letter               timely input into its development. A                   significant regulatory action under
                                                      dated September 19, 2014, EPA invited                   summary of that consultation and                       Executive Order 12866.
                                                      10 national and regional state                          coordination follows.                                  I. National Technology Transfer and
                                                      associations to an October 1, 2014,                        EPA initiated a tribal consultation and             Advancement Act
                                                      informational meeting at EPA in                         coordination process for this action by
                                                      Washington, DC.14 As a result of this                                                                             This rulemaking does not involve
                                                                                                              sending a ‘‘Notification of Consultation               technical standards.
                                                      meeting and other outreach, EPA                         and Coordination’’ letter on March 28,
                                                      participated in two follow-on meetings                  2014, to all 566 federally-recognized                  J. Executive Order 12898: Federal
                                                      with a subset of these associations and                 tribes. The letter invited tribal leaders              Actions to Address Environmental
                                                      their members as well as certain                        and designated consultation                            Justice in Minority Populations and
                                                      individual states during the month of                   representative(s) to participate in the                Low-Income Populations
                                                      October 2014. Records of these meetings                 tribal consultation and coordination
                                                      and copies of written comments and                                                                                The proposed rule would not have
                                                                                                              process. EPA held a webinar concerning                 potential to cause disproportionately
                                                      questions submitted by states and state                 this matter for tribal representatives on
                                                      associations are included in the docket                                                                        high and adverse human health or
                                                                                                              April 29, 2014. A total of 46 tribal                   environmental effects on minority, low-
                                                      for this proposed rule.                                 representatives participated.
                                                         Some participants expressed interest                                                                        income, or indigenous populations. This
                                                                                                              Additionally, tribes and tribal                        proposed rule would have no direct
                                                      in: (1) the nature of comments received
                                                                                                              organizations sent five comment letters                impacts on human health or the
                                                      from tribes during the pre-proposal
                                                                                                              to EPA. Records of this webinar and                    environment. The proposed rule would
                                                      tribal consultation and coordination
                                                                                                              copies of written comments and                         affect processes and information
                                                      (April 8–June 6, 2014); (2) where they
                                                      could find the list of tribes having TAS                questions submitted by tribes and                      collection only. The proposed rule
                                                      for the WQS Program; (3) whether the                    intertribal consortia are included in the              would put in place the procedures
                                                      TAS process for CWA Section 303(d)                      docket for this proposed rule.                         interested tribes would follow to seek
                                                      Impaired Water Listing and TMDL                            Tribal comments generally supported                 TAS for the CWA Section 303(d)
                                                      Program would be consistent with other                  EPA’s plan to propose a TAS rule for the               Impaired Water Listing and TMDL
                                                      TAS processes; and (4) whether there is                 303(d) Program. Some comments                          Program. The action is likely to result in
                                                      a process in place to consult with states               expressed the need for additional                      the collection of information or data that
                                                      where a tribe applies for TAS for 303(d).               financial and technical support as tribes              could be used to assess potential
                                                      Some states also had questions about                    obtain TAS for the CWA Section 303(d)                  impacts on the health or environmental
                                                      issues unique to their situations. EPA                  Impaired Water Listing and TMDL                        conditions in Indian country (see
                                                      considered this input in developing the                 Program. EPA considered the tribal                     sections III and IV). As described in
                                                      proposed rule, particularly in                          comments in developing this proposal,                  sections III and IV, above, under CWA
                                                      developing sections V to IX. EPA                        and intends to remain sensitive to tribal              section 303(d), authorized tribes would
                                                      specifically solicits additional comment                resource issues in its budgeting and                   be required to develop lists of impaired
                                                      on this proposed action from state                      planning process. However, EPA cannot                  waters, submit these lists to EPA, and
                                                      officials.                                              assure or assume that additional                       develop TMDLs for pollutants causing
                                                                                                              funding will be available for a tribe                  impairments in the waters on the 303(d)
                                                      F. Executive Order 13175: Tribal                        developing or implementing the 303(d)                  lists. TAS for 303(d) would provide
                                                      Consultation and Coordination                           Program. A tribe choosing to administer                authorized tribes the opportunity to
                                                        This action has tribal implications                   such programs will need to carefully                   participate directly in protecting their
                                                      because it will directly affect tribes                  weigh its priorities and any available                 reservation waters through the Section
                                                      interested in administering the CWA                     EPA assistance as described in section                 303(d) Impaired Water Listing and
                                                      Section 303(d) Impaired Water Listing                   IX above.                                              TMDL Program, as Congress intended
                                                      and TMDL Program. However, it would                        EPA specifically solicits additional                through CWA section 518(e). EPA also
                                                      neither impose substantial direct                       comment on this proposed action From                   expects this proposed rule would
                                                      compliance costs on federally                           tribal officials.                                      advance the goals of the CWA as
                                                      recognized tribal governments, nor                                                                             interested tribes apply for TAS to
                                                      preempt tribal law. Tribes are not                      G. Executive Order 13045: Protection of
                                                                                                                                                                     administer the CWA Section 303(d)
                                                      required to administer a 303(d) program.                Children From Environmental Health
                                                                                                                                                                     Impaired Water Listing and TMDL
                                                      Where a tribe chooses to do so, the                     Risks and Safety Risks
                                                                                                                                                                     Program for reservation water bodies.
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                                                                                                                 EPA interprets Executive Order 13045                   The action is likely to increase the
                                                        14 The  ten associations were: the National           as applying only to those regulatory                   availability of information to indigenous
                                                      Governors Association, the National Conference of
                                                      State Legislatures, the Council of State
                                                                                                              actions that concern environmental                     populations as interested tribes obtain
                                                      Governments, the Western Governors’ Association,        health or safety risks that EPA has                    TAS for the CWA Section 303(d)
                                                      the Southern Governors’ Association, the                reason to think could disproportionately               Impaired Water Listing and TMDL
                                                      Midwestern Governors Association, the Coalition of      affect children, per the definition of                 Program and begin implementing the
                                                      Northeastern Governors, the Environmental Council
                                                      of the States, the Association of Clean Water
                                                                                                              ‘‘covered regulatory action’’ in section               Program. In short, tribes with TAS
                                                      Administrators, and the Western States Water            2–202 of the Executive Order. This                     assume the primary role in deciding (1)
                                                      Council.                                                action is not subject to Executive Order               what waters on their reservations are


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                                                      2802                   Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules

                                                      impaired and in need of restoration, (2)                   (4) The Indian tribe is reasonably                  303(d) Impaired Water Listing and
                                                      the priority ranking for TMDL                           expected to be capable, in the Regional                TMDL Program. The narrative statement
                                                      development, and (3) what the TMDLs                     Administrator’s judgment, of carrying                  should include:
                                                      and pollutant source allocations for                    out the functions of an effective CWA                     (i) A description of the Indian tribe’s
                                                      those waters should look like.                          Section 303(d) Impaired Water Listing                  previous management experience that
                                                        EPA provided meaningful                               and TMDL Program in a manner                           may include the administration of
                                                      participation opportunities for tribes in               consistent with the terms and purposes                 programs and services authorized by the
                                                      the development of this proposed rule,                  of the Act and applicable regulations.                 Indian Self-Determination and
                                                      as described in ‘‘F. Executive Order                       (b) Requests by Indian tribes for                   Education Assistance Act (25 U.S.C.
                                                      13175: Tribal Consultation and                          administration of the CWA Section                      450, et seq.), the Indian Mineral
                                                      Coordination,’’ above.                                  303(d) Impaired Waters Listing and                     Development Act (25 U.S.C. 2101, et
                                                                                                              TMDL Program should be submitted to                    seq.), or the Indian Sanitation Facility
                                                      List of Subjects in 40 CFR Part 130                     the appropriate EPA Regional                           Construction Activity Act (42 U.S.C.
                                                        Environmental protection, Grant                       Administrator. The application shall                   2004a);
                                                      programs-environmental protection,                      include the following information,                        (ii) A list of existing environmental or
                                                      Indians-lands, Intergovernmental                        provided that where the tribe has                      public health programs administered by
                                                      relations, Reporting and recordkeeping                  previously qualified for eligibility or                the tribal governing body and copies of
                                                      requirements, Water pollution control,                  ‘‘treatment as a state’’ (TAS) under                   related tribal laws, policies, and
                                                      Water supply.                                           another EPA-administered program, the                  regulations;
                                                                                                              tribe need only provide the required                      (iii) A description of the entity (or
                                                        Dated: January 6, 2016.
                                                                                                              information that has not been submitted                entities) that exercise the executive,
                                                      Gina McCarthy,
                                                                                                              in a previous application:                             legislative, and judicial functions of the
                                                      Administrator.                                                                                                 tribal government;
                                                                                                                 (1) A statement that the tribe is
                                                        For the reasons stated in the                         recognized by the Secretary of the                        (iv) A description of the existing, or
                                                      preamble, the U.S. Environmental                        Interior.                                              proposed, agency of the Indian tribe that
                                                      Protection Agency proposes to amend                        (2) A descriptive statement                         will assume primary responsibility for
                                                      40 CFR part 130 as follows:                             demonstrating that the tribal governing                establishing, reviewing, implementing
                                                                                                              body is currently carrying out                         and revising impaired water lists and
                                                      PART 130—WATER QUALITY                                                                                         TMDLs;
                                                                                                              substantial governmental duties and
                                                      PLANNING AND MANAGEMENT                                                                                           (v) A description of the technical and
                                                                                                              powers over a defined area. The
                                                                                                              statement should:                                      administrative capabilities of the staff to
                                                      ■ 1. The authority citation for part 130
                                                                                                                 (i) Describe the form of the tribal                 administer and manage an effective
                                                      continues to read as follows:
                                                                                                              government;                                            CWA Section 303(d) Impaired Water
                                                          Authority: 33 U.S.C. 1251 et seq.                      (ii) Describe the types of                          Listing and TMDL Program or a plan
                                                      ■   2. Add § 130.16 to read as follows:                 governmental functions currently                       that proposes how the tribe will acquire
                                                                                                              performed by the tribal governing body                 the needed administrative and technical
                                                      § 130.16 Treatment of Indian Tribes in a
                                                                                                              such as, but not limited to, the exercise              expertise. The plan must address how
                                                      similar manner as States for purposes of
                                                      section 303(d) of the Clean Water Act.                  of police powers affecting (or relating to)            the tribe will obtain the funds to acquire
                                                                                                              the health, safety, and welfare of the                 the administrative and technical
                                                         (a) The Regional Administrator may                   affected population, taxation, and the                 expertise.
                                                      accept and approve a tribal application                 exercise of the power of eminent                          (5) Additional documentation
                                                      for purposes of administering the Clean                 domain; and                                            required by the Regional Administrator
                                                      Water Act (CWA) Section 303(d)                             (iii) Identify the source of the tribal             that, in the judgment of the Regional
                                                      Impaired Water Listing and Total                        government’s authority to carry out the                Administrator, is necessary to support a
                                                      Maximum Daily Load (TMDL) Program                       governmental functions currently being                 tribal application.
                                                      if the tribe meets the following criteria:              performed.                                                (c) Procedure for processing a tribe’s
                                                         (1) The Indian tribe is recognized by                   (3) A descriptive statement of the                  application. (1) The Regional
                                                      the Secretary of the Interior and meets                 tribe’s authority to regulate water                    Administrator shall process an
                                                      the definitions in § 131.3 (k) and (l) of               quality. The statement should include:                 application of a tribe submitted
                                                      this chapter;                                              (i) A map or legal description of the               pursuant to paragraph (b) of this section
                                                         (2) The Indian tribe has a governing                 area over which the tribe asserts                      in a timely manner. The Regional
                                                      body carrying out substantial                           authority to regulate surface water                    Administrator shall promptly notify the
                                                      governmental duties and powers;                         quality;                                               tribe of receipt of the application.
                                                         (3) The CWA Section 303(d) Impaired                     (ii) A statement by the tribe’s legal                  (2) Except as provided below in
                                                      Water Listing and TMDL Program to be                    counsel (or equivalent official) that                  paragraph (c)(4) of this section, within
                                                      administered by the Indian tribe                        describes the basis for the tribe’s                    30 days after receipt of the tribe’s
                                                      pertains to the management and                          assertion of authority and may include                 application the Regional Administrator
                                                      protection of water resources that are                  a copy of documents such as tribal                     shall provide appropriate notice. Notice
                                                      within the borders of the Indian                        constitutions, by-laws, charters,                      shall:
                                                      reservation and held by the Indian tribe,               executive orders, codes, ordinances,                      (i) Include information on the
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                                                      within the borders of the Indian                        and/or resolutions that support the                    substance and basis of the tribe’s
                                                      reservation and held by the United                      tribe’s assertion of authority; and                    assertion of authority to regulate the
                                                      States in trust for Indians, within the                    (iii) An identification of the surface              quality of reservation waters; and
                                                      borders of the Indian reservation and                   waters that the tribe proposes to assess                  (ii) Be provided to all appropriate
                                                      held by a member of the Indian tribe if                 for potential impaired water listing and               governmental entities.
                                                      such property interest is subject to a                  TMDL development.                                         (iii) Provide 30 days for comments to
                                                      trust restriction on alienation, or                        (4) A narrative statement describing                be submitted on the tribal application.
                                                      otherwise within the borders of the                     the capability of the Indian tribe to                  Comments shall be limited to the tribe’s
                                                      Indian reservation; and                                 administer an effective CWA Section                    assertion of authority.


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                                                                             Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Proposed Rules                                           2803

                                                         (3) If a tribe’s asserted authority is               ENVIRONMENTAL PROTECTION                               NW., Washington, DC 20460–0001. The
                                                      subject to a competing or conflicting                   AGENCY                                                 Public Reading Room is open from 8:30
                                                      claim, the Regional Administrator, after                                                                       a.m. to 4:30 p.m., Monday through
                                                      due consideration, and in consideration                 40 CFR Part 180                                        Friday, excluding legal holidays. The
                                                      of other comments received, shall                       [EPA–HQ–OPP–2015–0032; FRL–9939–32]                    telephone number for the Public
                                                      determine whether the tribe has                                                                                Reading Room is (202) 566–1744, and
                                                      adequately demonstrated that it meets                   Withdrawal of Pesticide Petitions for                  the telephone number for the OPP
                                                      the requirements of paragraph (a)(3) of                 Establishment or Modification of                       Docket is (703) 305–5805. Please review
                                                      this section.                                           Pesticide Chemical Tolerances or                       the visitor instructions and additional
                                                                                                              Tolerance Exemptions                                   information about the docket available
                                                         (4) Where EPA has previously                                                                                at http://www.epa.gov/dockets.
                                                      determined that a tribe qualifies for TAS               AGENCY:  Environmental Protection
                                                      for the CWA Section 303(c) Water                        Agency (EPA).                                          II. What action is the agency taking?
                                                      Quality Standards Program, CWA                          ACTION: Notice of withdrawal of                           EPA is announcing the withdrawal of
                                                      Section 402 National Pollutant                          pesticide petitions.                                   pesticide petitions received under
                                                      Discharge Elimination System Program,                                                                          section 408 of the Federal Food, Drug,
                                                      or CWA Section 404 Dredge and Fill                      SUMMARY:   This document announces the                 and Cosmetic Act (FFDCA), 21 U.S.C.
                                                      Permit Program, and EPA has provided                    withdrawal of pesticide petitions                      346a, requesting the establishment or
                                                      notice and an opportunity to comment                    requesting the establishment or                        modification of tolerances or tolerance
                                                                                                              modification of tolerances or tolerance                exemptions in 40 CFR part 180 for
                                                      on the tribe’s assertion of authority to
                                                                                                              exemptions for residues of pesticide                   residues of pesticide chemicals in or on
                                                      appropriate governmental entities as
                                                                                                              chemicals in or on various commodities.                various food commodities.
                                                      part of its review of the prior                         The petitions were either withdrawn                       Pursuant to 40 CFR 180.7(f), a
                                                      application, no further notice to                       voluntarily by the petitioners or by the               summary of each of the petitions
                                                      governmental entities, as described in                  Agency.                                                covered by this document, prepared by
                                                      paragraph (c)(2) of this section, shall be                                                                     the petitioner, was included in a docket
                                                                                                              DATES: The pesticide petitions in this
                                                      provided with regard to the same tribe’s                document are withdrawn as of January                   EPA created for each rulemaking. The
                                                      application for the CWA Section 303(d)                  19, 2016.                                              docket for each of the petitions is
                                                      Impaired Water Listing and TMDL                                                                                available online at http://
                                                                                                              FOR FURTHER INFORMATION CONTACT:
                                                      Program, unless the application presents                                                                       www.regulations.gov.
                                                                                                              Susan Lewis, Registration Division (RD)
                                                      to the EPA Regional Administrator                       (7505P), Office of Pesticide Programs,      Withdrawals by Petitioners
                                                      different jurisdictional issues or                      Environmental Protection Agency, 1200
                                                      significant new factual or legal                                                                       1. PP 0E7820 (spirodiclofen). EPA
                                                                                                              Pennsylvania Ave. NW., Washington,
                                                      information relevant to jurisdiction.                                                               issued a notice in the Federal Register
                                                                                                              DC 20460–0001; main telephone
                                                                                                                                                          of February 4, 2010 (76 FR 17374)
                                                         (5) Where the Regional Administrator                 number: (703) 305–7090; email address:
                                                                                                                                                          (EPA–HQ–OPP–2011–0087), which
                                                      determines that a tribe meets the                       RDFRNotices@epa.gov. The mailing
                                                                                                                                                          announced the filing of a pesticide
                                                      requirements of this section, he or she                 address for each contact person is:
                                                                                                                                                          petition (PP 0E7820) by Interregional
                                                      shall promptly provide written                          Office of Pesticide Programs,
                                                                                                                                                          Research Project Number 4 (IR–4), 500
                                                      notification to the tribe that the tribe is             Environmental Protection Agency, 1200
                                                                                                                                                          College Road East, Suite 201 W,
                                                      authorized to administer the CWA                        Pennsylvania Ave. NW., Washington,
                                                                                                                                                          Princeton, NJ 08540. The petition
                                                      Section 303(d) Impaired Water Listing                   DC 20460–0001.
                                                                                                                                                          proposed to establish tolerances in 40
                                                      and TMDL Program. Such tribe shall be                   SUPPLEMENTARY INFORMATION:                  CFR part 180 for residues of the
                                                      considered a ‘‘State’’ for purposes of                  I. General Information                      insecticide spirodiclofen, 3-(2,4-
                                                      CWA section 303(d) and its                                                                          dichlorophenyl)-2-oxo-1-
                                                      implementing regulations. With respect                  A. Does this action apply to me?            oxaspiro[4,5]dec-3-en-4-yl 2,2-
                                                      to the timing requirement for submittal                    Although this action only applies to     dimethylbutanoate, in or on sugar apple,
                                                      of an authorized tribe’s first list of                  the petitioners in question, it is directed cherimoya, atemoya, custard apple,
                                                      impaired waters pursuant to                             to the public in general. Since various     ilama, soursop, biriba, guava, feijoa,
                                                      § 130.7(d)(1), the tribe’s first list is due            individuals or entities may be              jaboticaba, wax jambu, starfruit,
                                                      on the next listing cycle due date that                 interested, the Agency has not              passionfruit, persimmon and acerola at
                                                      is 24 months after the later of either:                 attempted to describe all the specific      0.45 ppm; and lychee, longan, Spanish
                                                                                                              entities that may be interested in this     lime, rambutan and pulasan at 3.5 ppm.
                                                         (i) The date EPA approves the tribe’s
                                                                                                              action. If you have any questions           On April 17, 2014, IR–4 notified EPA
                                                      TAS application pursuant to this section
                                                                                                              regarding this action, please consult the that it was withdrawing this petition.
                                                      or                                                                                                     2. PP 9E7632 (spirodiclofen). EPA
                                                                                                              person listed at the end of the
                                                         (ii) The date EPA-approved or EPA-                   withdrawal summary for the pesticide        issued a notice in the Federal Register
                                                      promulgated water quality standards                     petition of interest.                       of February 4, 2010 (75 FR 5790) (EPA–
                                                      become effective for the tribe’s                                                                    HQ–OPP–2009–0861), which
                                                                                                              B. How can I get copies of this document announced the filing of a pesticide
                                                      reservation waters.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS




                                                                                                              and other related information?              petition (PP 9E7632) by Interregional
                                                      [FR Doc. 2016–00736 Filed 1–15–16; 8:45 am]
                                                                                                                 The docket for this action, identified   Research Project No. 4 (IR–4), 500
                                                      BILLING CODE 6560–50–P
                                                                                                              by docket identification (ID) number        College Road East, Suite 201 W,
                                                                                                              EPA–HQ–OPP–2014–0008, is available          Princeton, NJ 08540. The petition
                                                                                                              at http://www.regulations.gov or at the     proposed to amend the tolerances in 40
                                                                                                              OPP Docket in the Environmental             CFR 180.608 by revising the tolerance
                                                                                                              Protection Agency Docket Center (EPA/       expression under paragraphs (a)(1) and
                                                                                                              DC), West William Jefferson Clinton         (a)(2) to read as follows: (a)(1).
                                                                                                              Bldg., Rm. 3334, 1301 Constitution Ave. Tolerances are established for residues


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Document Created: 2016-01-16 01:12:07
Document Modified: 2016-01-16 01:12:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesEPA must receive comments on or before March 21, 2016. EPA will discuss this proposed rule and answer questions about it in one or more webinars during the above comment period. If you are interested, see EPA's Web site at http://www2.epa.gov/tmdl/tribal-consultation- rulemaking-provide-more-opportunities-tribes-engage-clean-water-act for the date and time of the webinar(s) and instructions on how to register and participate. Additionally, under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before February 18, 2016.
ContactSarah Furtak, 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) 566-1167; fax number:
FR Citation81 FR 2791 
RIN Number2040-AF52
CFR AssociatedEnvironmental Protection; Grant Programs-Environmental Protection; Indians-Lands; Intergovernmental Relations; Reporting and Recordkeeping Requirements; Water Pollution Control and Water Supply

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