1. Applying for Treatment in a similar manner as a State (TAS) under CWA §§303&401 (Water Quality Standards & Water Quality Certification Programs)
Good morning all. This sessions’s topic is Applyijng for Treatment as a state under the CWA 303 & 401 programs.
Every year for the past several years our Office has presented this topic (at the Annual Tribal Meeting. Each year Wendell Smith has provided this presentation and has made it an interesting if not entertaining session. This year he is unable to make it and it will take 2 of us to provide this information to you. Since we can’t hope to fill his shoes, s we ask that you bear with us as we play it straight. Youl’ll notice there are few if any photos in these slides. We apologize again as we ran out of time to add any. Wendell didn’t need them, since everyone was looking at him instead. So we ask you to just relax (don’t fall asleep) and hopefully we can provided you with information that will help you decide on applying for TAS for the Water Quality Standards and Certification Programs.

2. What is Treatment in a similar manner as a state (TAS) for the Clean Water Act’s (CWA’s) Section 303 – Water Quality Standards Program?
CWA Sec. 518 (e)(2) authorizes EPA to treat a tribe as a state for functions that manage and protect water resources “within the borders of an Indian reservation.”
The CWA 303 (water quality standards) program protects “surface waters” or “Waters of the US.”
Tribes may apply to EPA for Water Quality Standards (WQS) TAS
TAS for WQS approval process is similar to that of CWA 106 & CWA 319.
So what is treatment in the same manner as a state ? And what has it to do with the Water Quality Standards Program and Certification Programs?
First of all : Section 518 of the Act authorizes EPA to treat……this means that EPA may approve a tribe to manage various CWA programs such as the WQS and Certification programs., the NPDES program and the Impaired waters and TMDL programs.
This session is about applying for TAS for the WQS & Cert program because developing and adopting standards is usually the first step in managing water resources. WQS standards serve as benchmarks for a tribe to use in assessing the health of reservation waters over time so that impacts can be quantified and addressed if needed.

3. Basic Requirements for TAS approval
The Tribe must be:
Federally Recognized;
Have a governing body carrying out substantial governmental duties and powers over a Federal Indian Reservation;
Have appropriate authority to regulate the quality of reservation waters; and,
Be capable of carrying out the functions of an effective water quality standards program.
These requirements may be familiar to those who have had a role in the tribe’s applying for CWA 106 grant. These are the same requirements.
First, a tribe must be federally recognized…..,.Wendell did hand signs!!!

4. What does it Mean to receive TAS for WQS (Sec. 303) ?
Administer the WQS Program (but not other CWA programs)
Eligible to apply for federal approval of tribal water quality standards
A TAS application is generally limited to the program covered by EPA’s TAS decision, so individual TAS applications are needed for each CWA program.
Applying for TAS is a separate process from applying for approval of the standards themselves. TAS must be approved first, followed by a separate submittal and approval of water quality standards.

5. What DOES it mean to receive TAS for Sec 401?
Prepare Water quality certifications for federal permits and licenses for activities that discharge to reservation waters.
federal permits & licenses: NPDES; Sec. 404 permit
evaluate whether discharge is consistent with Tribe’s WQS and decide to grant, deny, or condition a water quality certification under Sec 401 of the CWA.
Thus, an NPDES permit issued by EPA or Section 404 permit issued by the Corp of Engineers for an activity discharging into reservation waters covered by the TAS could not be issued without a tribal CWA Sec. 401 certification.

6. Does TAS for Sec. 303 & 401 give a Tribe enforcement authority?
No. EPA’s approval would not impose any direct enforceable requirements on any party.
Once approved, WQS can serve as a basis for actions such as effluent limits in permits, which are enforceable.
The tribe’s TAS approval to establish WQS does not provide the tribe with any authority to enforce the standards.
However, they can serve as the basis for specific control actions, such as effluent limits in NPDES, permits, which are enforceable.

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

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

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

10. What are Water Quality Standards?
Water Quality Standards are a tribe’s statement of its water quality goals for its surface waters.
Three Parts to Standards
Designated Uses
Criteria to protect those uses (numeric or narrative)
General Implementation Policies (e.g., Antidegradation)
Tribes typically adopt both numeric and narrative criteria.
At this point, I will go over what are water quality standards and how they are applied for separately. This usually follows the TAS application.
________________________
So what are water quality standards?
Designated uses – sometimes referred to as “Beneficial Uses”

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

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

13. Water Quality Criteria
Numeric Criteria
Parameter
Water Quality Criteria
Beneficial Uses
Dissolved Oxygen –water (mg/L)
Single Value:
Nov-Jun: ≥ 6.0
Jul-Oct: ≥ 5.0
Aquatic Life, Water of Special Ecological Significance
Fecal Bacteria
E.Coli
(No./100ml)
Annual Geo. Mean ≤126
Single Value: ≤ 410
Primary Contact Ceremonial Use, Water Contact Recreation
Pyramid Lake Paiute Tribe Numeric Example

14. Narrative Criteria Develop Example: or to supplement numeric criteria
Where numeric criteria cannot be established
or to supplement numeric criteria
Example:
 Surface waters shall be free from toxic substances in toxic amounts.
General statement designed to protect a specific designated use of set of uses. Especially important for control of NPS, chemical with no numeric criteria.

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

16. Water Quality Criteria
States and authorized Tribes adopt water quality criteria that include parameters stringent enough to protect designated uses.
Adopt criteria that EPA publishes under §304(a) of the Clean Water Act;
Modify the §304(a) criteria to reflect site-specific conditions; or
Adopt criteria based on other scientifically- defensible methods.
Authorized tribes may also adopt a neighboring jurisdiction’s criteria and uses.
Some tribes adopt standards (both designated uses & criteria) of a neighboring state or take those and tweek them to fit their specific needs; e.g., add cultural use designations and criteria to protect that use.

17. What is an Antidegradation Policy?
Antidegradation implementation
A set of procedures to be followed when evaluating activities that may impact the quality of waters
TIER 1: Protecting “existing uses”
TIER 2: Higher quality waters
TIER 3: Outstanding National Resource Waters
Basically, authorized tribes must develop a reservation-wide policy to protect
1- existing in-stream uses for all waters of the U.S. on the Reservation
2- all high quality waters (waters that are a better quality than that needed to support fishable/swimmable goals (CWA 101(a), and;
3- all outstanding Nat’l waters or Outstanding Tribal Waters as designated by the Tribe.
There also needs to be an implementation policy on how this will be done….

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

19. Process for Development of Tribal WQS
Develop proposed standards
Review State Standards
Draft Tribal Standards
Must hold a public hearing on the proposed standards
Minimum 45-day advance notice
Documents available at least 30 days in advance
Submit standards within 30 days of adopting standards to EPA for approval
So, now that the TAS application is approved, a tribe can develop and submit standards for federal approval.
After your Tribe has approve your WQS, you must formally submit the tribally adopted WQS to EPA for review.
We review for:
Use designations consistent with CWA 101(a) (2) “fishable/swimmable
Methods used and analyses conducted to support WQS
Criteria sufficient to protect designated uses
An antidegradation policy
Certification by appropriate legal authority within Tribe that WQS were duly adopted according to Tribal law
General info to help EPA determine adequacy of the WQS’ scientific bases for uses not in 101(a)(2)
Info on general policies that may affect implementation of WQS
UAA for all waters not classified as fishable/swimmable
Record of public participation including comments and responses to comments.

20. Process for EPA review of tribal WQS
EPA reviews:
Designated uses consistent with CWA 101(a)(2) “fishable/swimmable”
Methods used and analyses to support WQS
Criteria sufficient to protect designated uses
Includes antidegradation policy
Tribal legal authority certifies that WQS were duly adopted according to Tribal law
General info supporting scientific bases for non-101(a)(2) uses
Info on implementation policies of WQS (e.g., mixing zones)
Use Attainability Analysis (UAA) for lowering water quality
Record of public participation (notice, hearing, response to comments)
EPA initiates ESA consultation on aquatic life or wildlife related WQS
So, now that the TAS application is approved, a tribe can develop and submit standards for federal approval.
After your Tribe has approve your WQS, you must formally submit the tribally adopted WQS to EPA for review.
We review for:
Use designations consistent with CWA 101(a) (2) “fishable/swimmable
Methods used and analyses conducted to support WQS
Criteria sufficient to protect designated uses
An antidegradation policy
Certification by appropriate legal authority within Tribe that WQS were duly adopted according to Tribal law
General info to help EPA determine adequacy of the WQS’ scientific bases for uses not in 101(a)(2)
Info on general policies that may affect implementation of WQS
UAA for all waters not classified as fishable/swimmable
Record of public participation including comments and responses to comments.

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

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

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

24. Tribes in R9 with approved Water Quality Standards
Big Pine Paiute Tribe
Bishop Paiute Tribe
Hoopa Valley Tribe
Hopi Tribe
Hualapai Tribe
Navajo Nation
Pyramid Lake Paiute Tribe
White Mountain Apache
Twenty-Nine Palms Band
Havasupai also has approved WQS (but doesn’t have 401).

25. QUESTIONS??