Tribal Governments - Treatment as State (TAS) Applications

EPA Office of Science and Technology

June 2016

Draft TAS Application Template for
Water Quality Standards and Water Quality
Certifications
This draft template is intended to assist interested tribes in applying to EPA for eligibility to be treated in
a similar manner as a state (TAS) for the purpose of administering the Clean Water Act (CWA) section
303(c) water quality standards (WQS) and section 401 water quality certification programs. The
template provides a simple explanation and organization of relevant language to address the eligibility
requirements for TAS approval for these two programs.
The draft template describes relevant information needed in TAS applications for these programs in light
of the May 16, 2016, final interpretive rule Revised Interpretation of Clean Water Act Tribal Provision.1
EPA’s issuance of the interpretive rule was a significant streamlining step that eliminated the previous
need for a TAS applicant to demonstrate the tribe’s inherent authority to regulate surface waters of its
reservation. Instead, the revised interpretation described EPA’s conclusion that in CWA section 518,
Congress has delegated civil authority to eligible tribes to regulate waters throughout their reservations
irrespective of who owns the reservation land. This template is principally designed to reflect that
reinterpretation, and includes other streamlining features.
This draft template is a companion to EPA’s 2008 TAS Strategy.2 The 2016 final interpretive rule
supersedes any elements of the Strategy that relied on EPA’s previous interpretation of CWA section
518 that conflict with the revised interpretation. EPA will update the Strategy at an appropriate time to
incorporate the 2016 reinterpretation and appropriate streamlining steps of this template.

Disclaimer
This draft document is designed to assist applicant tribes in complying with EPA regulations at 40 CFR
part 131. It does not impose legally binding requirements on EPA, tribes, or other entities, nor does it
confer legal rights or impose legal obligations or responsibilities upon any entity or member of the
public. The CWA provisions and EPA regulations described in this document contain legally binding
requirements. This document is not itself a regulation, however, nor does it change or substitute for any
CWA provision or EPA regulation.
EPA and tribes may adopt approaches on a case-by-case basis that differ from those in the template as
appropriate. EPA may revise and finalize this draft template in the future as appropriate and/or as
additional information becomes available.

1

See 81 FR 30183 and https://www.epa.gov/wqs-tech/revised-interpretation-clean-water-act-tribal-provision.
Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs, memorandum
from Deputy Administrator Marcus Peacock, January 23, 2008. See https://www.epa.gov/tribal/strategy-reviewingtribal-eligibility-applications-administer-epa-regulatory-programs-1,
2

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Please read the accompanying instructions and coordinate with the
appropriate EPA Regional Office before using this template.

DRAFT TEMPLATE FOR TAS APPLICATION – WQS AND WATER QUALITY
CERTIFICATION PROGRAMS
[Enter Full Name of Tribe or use the Tribe’s letterhead]

APPLICATION FOR CLEAN WATER ACT ELIGIBILITY TO ADMINISTER A WATER
QUALITY STANDARDS PROGRAM AND A WATER QUALITY CERTIFICATION
PROGRAM
The [enter name of Tribe] hereby applies under section 518 of the Clean Water Act (CWA) to
the U.S. Environmental Protection Agency to become eligible to be treated in a similar manner
as a state (TAS) to administer a CWA section 303(c) water quality standards program and CWA
section 401 water quality certification program.
1.

BACKGROUND [Optional section]

[The Tribe may choose to include this section to provide background information, e.g.,
Tribal history, Tribal water resources, why the Tribe is applying for TAS for WQS and
certifications.]
2.

FEDERAL RECOGNITION (40 CFR 131.8(a)(1) and (b)(1))

This Tribe is listed as “[enter name of Tribe as shown on BIA list]” in the Secretary of the
Interior’s list of federally recognized tribes at 81 FR 26826, May 4, 2016 [check with Regional
Office to ensure that this is the most recent citation to use].
3.

AUTHORITY OVER A FEDERAL INDIAN RESERVATION (40 CFR 131.8(a)(1)
and 131.3(l))

This Tribe exercises governmental authority over a federal Indian reservation. [If applicable,
include the following sentence] This includes lands held by the United States in trust for the
tribal government that are not located within the boundaries of a formal reservation. See section
5 of this application for more information about the description of the Tribe’s reservation lands.
4.

TRIBAL GOVERNANCE (40 CFR 131.8(a)(2) and (b)(2))

The [enter name of Tribe] has a governing body carrying out substantial governmental duties
and powers. [If applicable, include the following sentence] See the Tribe’s previous TAS
application for the [enter name of program] program submitted to EPA on [enter date] and
approved by EPA on [enter date].

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[If applicable, include the following] There have been the following significant changes since
that previous application, including [enter a brief list of any significant changes relating to
the form of the tribal government and/or the functions carried out by the tribal
government].
5.

MANAGEMENT AND PROTECTION OF WATER RESOURCES OF THE
RESERVATION (40 CFR 131.8(a)(3) and (b)(3))

The water quality standards and water quality certification programs to be administered by the
Tribe will assist in managing and protecting water resources within the borders of the Tribe’s
reservation.
The boundaries of the Indian reservation areas for which the Tribe is seeking authority to
administer the water quality standards and water quality certification programs are identified in
the attached {map(s), legal description}. [If applicable and if there have been no relevant
changes, the Tribe may refer to a map/legal description submitted to EPA as part of a prior
TAS application.]
[Please consult with the EPA Regional Office about the appropriate level of detail to
provide in maps and legal descriptions. Please also see the attached instructions concerning
appropriate information to provide concerning tribal trust lands not located within formal
reservation boundaries.]
The surface waters for which the Tribe proposes to establish water quality standards are those
surface waters that occur on the reservation areas described in the {map(s), legal description}
provided above. [The Tribe may choose to add the following.] These include the following
named waters {and their tributaries} that occur within those areas: [Enter list of waters.]
[Alternatively, the Tribe may refer to an identification of reservation surface waters
submitted to EPA as part of a prior TAS application.]
6.

TRIBAL LEGAL COUNSEL STATEMENT (40 CFR 131.8(b)(3)(ii))

[Note: The Legal Counsel’s statement should include any information needed to describe
the basis for the Tribe’s assertion of authority, pursuant to 40 CFR 131.8(b)(3)(ii). The
following are recommended elements to be included.]
[Insert the following if the Tribe chooses to provide the statement in a separate document.]
A statement by the Tribe’s {legal counsel, or title of equivalent official} providing references to
the documents that established the Tribe’s reservation lands, and describing the basis of the
Tribe’s assertion of authority, is provided separately.
The Tribe’s reservation areas described in section 5 of the application were established in the
following document{s}: [Insert a list or brief description of the documents – e.g., treaties,
federal statutes, Executive Orders, trust deeds, etc. – that established the reservation areas
identified in the map(s) and/or legal description.] [Alternatively, the Tribe may cite this
information submitted as part of a prior TAS application.]

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The Tribe’s {constitution, chartering documents, other} demonstrate the Tribe’s exercise of
authority in general over the reservation. See [insert citation/link to appropriate
documents/sections in previous TAS application].
The basis for the Tribe’s assertion of authority under this application is the express congressional
delegation of authority to eligible Indian tribes to administer regulatory programs over their
reservation contained in section 518 of the Clean Water Act. This authority is described in the
U.S. Environmental Protection Agency’s final interpretive rule, Revised Interpretation of Clean
Water Act Tribal Provision, 81 FR 30183, May 16, 2016.
[Insert either Option 6A or Option 6B here – see Instructions]
[Option 6A] There are no limitations or impediments to the Tribe’s authority or ability to
effectuate the delegation of authority from Congress as described in this application.
[Option 6B] The Tribe is aware of the following issues that {have been, potentially could be}
raised concerning the Tribe’s authority or ability to effectuate the delegation of authority
requested in this application. [Provide detailed description including relevant citations. As
examples, issues might include potential disputes regarding the asserted boundaries of the
Tribe’s reservation areas and/or other issues that might be asserted to limit or affect the
Tribe’s ability to effectuate the delegation of authority.] However, none of these issues will
impede the Tribe’s authority or ability to effectuate the delegation of authority for the following
reasons. [Provide complete legal analysis]
7.

TRIBAL CAPABILITY

The Tribe is capable of administering effective water quality standards and water quality
certification programs, as described below.
The overall organization of the Tribe’s government and experience in managing programs, such
as environmental or public health programs, is described in [enter citation/link to previous
TAS application or other document(s)].
The responsibilities to establish, review, implement and revise water quality standards will be
assigned to [enter name of office, organizational location and brief description of its duties].
[See instructions for possible additional information to include.]
The Tribal entity that will be responsible for conducting water quality certifications under CWA
section 401 is [enter name of office, organizational location and brief description of its
duties].
[Insert either Option 7A or Option 7B here]
[Option 7A] Experienced staff members are already on board in [name of office] and trained to
administer the water quality standards and certification programs. This includes [brief list of

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position title(s) of staff member(s) who will administer the WQS program]. [Provide any
brief additional information about the office’s or staff members’ accomplishments that
EPA could use to evaluate the Tribe’s capacity for a WQS program.]
[Option 7B] The Tribe plans to hire and train [describe staff position(s)] within the next
[number of months] to administer the water quality standards and certification programs, using
funds from [identify source]. [Provide any brief additional information that EPA could use
to evaluate this plan.]

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Instructions for Use of Draft Template
COORDINATION WITH EPA

because the tribe will need to provide the full
information specified in section 131.8.

EPA recommends that the applicant tribe
coordinate with the appropriate EPA Regional
Office in using this template.

HOW WILL EPA REVIEW THE TRIBE’S TAS
APPLICATION

Depending on circumstances, more information may
be needed than is shown explicitly in this draft
template. EPA’s regulation at 40 CFR 131.8(b)(5)
provides that the Regional Administrator may require
additional documentation to support the tribal
application. EPA will be judicious in requesting
additional information to avoid unnecessarily
delaying the tribal application process.

EPA will review and process a tribe’s TAS application
in accordance with the regulation at 40 CFR 131.8(c).
EPA will consider the information that the tribe
provides in its application, which may be based on
the structure and information described in the
template, and any information in previous TAS
applications to which the application refers, in
determining whether the tribe qualifies for TAS.

The Regional Office can assist by verifying in its files
the previous application information to which the
tribe refers.

Before making its decision, EPA’s regulations require
the Regional Office to provide notice of a tribe’s
assertion of authority over waters included in its TAS
application to appropriate governmental entities
(states, tribes, and other federal entities located
contiguous to the reservation of the tribe applying for
TAS) for comment. Consistent with established
Agency practice, EPA Regions also provide sufficiently
wide notice of an applicant tribe’s assertion of
authority so as to notify local governments and the
local public. See 56 FR 64876, 64884 (December 12,
1991). When requested, the Office of Science and
Technology in EPA headquarters can assist the
Regional Office by establishing a website on which to
post the tribe’s application and supporting material
to assist with these notification procedures.

HOW TRIBES CAN USE THIS DRAFT TEMPLATE
Any tribe can use this template to develop a TAS
application to administer a CWA section 303(c) water
quality standards program and/or a section 401
water quality certification program.1
The draft template will be of most use to tribes that
have previously qualified for one or more other EPA
programs and that wish to refer to information
contained in those previous TAS applications in this
new application.2 The template generally assumes
that such prior TAS applications and approvals exist
and that certain information from the prior
application(s) will be relevant and transferable to the
current TAS application for WQS and certifications. If
there have been no such prior TAS applications/
approvals, this template may be of limited value

Through the above notices, EPA makes available the
tribe’s complete application and any supporting
information previously provided to EPA.

1

This template is designed for tribes that apply for TAS for both WQS and section 401 programs at the same time,
which is usually the case. Section 131.4(c) of EPA’s regulations provides that tribes found eligible for TAS for
WQS are automatically eligible for the section 401 water quality certification program. Tribes applying for only one
of the two programs should consult with the Regional Office, which can assist in adapting use of the template for
that purpose.
2
Section 131.8(b)(6) provides that, in this situation, the tribe that has previously qualified for TAS need only
provide the required information which has not been submitted in a previous application. Examples of information
that may be transferable from a prior application include descriptions of the tribe’s governmental functions, and
information demonstrating the boundaries of a reservation and the relevant waters of the reservation.

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SPECIFIC INSTRUCTIONS FOR USING THE TEMPLATE
The text in the template that appears in regular
font and black ink like this may be inserted into the
tribal application document without significant
changes. Specific instructions on what to insert
appear within the template as [bolded blue text in
square brackets like this]. Black text that appears
within blue brackets {like this} is either optional or
provides a choice of text to include.
Once you insert the appropriate text, please
remove the brackets, instructions and color.

In the unusual event that the applicant tribe is not
identical to the federally recognized tribal entity
included on the BIA list (e.g., the applicant is only one
band of several bands comprising the tribe included
in the list), the application should describe and
explain the distinction and how the applicant meets
the TAS eligibility criterion that it be a federally
recognized tribe.
3. AUTHORITY OVER A FEDERAL INDIAN
RESERVATION
(No additional instructions)
4. TRIBAL GOVERNANCE

TRIBAL NAME
The template throughout uses “this Tribe” to refer to
the tribal applicant. The tribe may substitute its full
name or descriptor (e.g., “Nation,” “Band,”
“Community”) in place of “Tribe.”
1. BACKGROUND
This section may be included at the tribe’s discretion
and can be limited to a few paragraphs. The tribe
may decide that a longer description is appropriate.
This section is not necessary to the application, since
all of the information EPA needs to act on the
application is contained in sections 2-7. However, the
tribe may see value in providing this background
information to non-EPA readers who will see the
application – for example, states, other tribes, and
the local public who will be given an opportunity to
comment upon the applicant tribe’s assertion of
authority.
2. FEDERAL RECOGNITION
The tribe need only cite the current BIA list of
federally recognized tribes (or a prior TAS application
and EPA decision finding that the tribe is federally
recognized). The tribe need not submit a copy of the
BIA list, nor any other documents supporting the
listing.
The current BIA list, 81 FR 26826, May 4, 2016, is
available at
https://www.federalregister.gov/articles/2016/05/04
/2016-10408/indian-entities-recognized-and-eligibleto-receive-services-from-the-united-states-bureauof-indian.
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Typically, tribes applying for TAS for WQS and
certifications will have obtained TAS already for a
CWA grant program, such as section 106 or section
319. Tribes may cite such prior applications and EPA
TAS approvals, or any other prior TAS application and
EPA approval under the CWA, Safe Drinking Water
Act, or Clean Air Act, to establish that they are
carrying out substantial governmental duties and
powers.
Where a tribe cites a prior TAS application and EPA
decision, the tribe should also describe any significant
changes in tribal governance that have occurred.
When considering “significant changes,” the
application should focus on changes that could
potentially affect whether the tribe meets this
statutory and regulatory eligibility criterion.
Descriptions of minor changes are not needed.
5. MANAGEMENT AND PROTECTION OF WATER
RESOURCES
EPA’s regulations require a descriptive statement of
the applicant tribe’s authority to regulate water
quality, which should include a map or legal
description of the reservation area covered by the
application. 40 CFR 131.8(b)(3)(i). The map of the
reservation area should be sufficiently detailed and
annotated to identify the geographic area of the
reservation area(s) over which the tribe asserts
authority in the application. Some tribes provide
maps based on an official survey by the U.S.
Department of the Interior or an official reservation
map prepared by the Bureau of Indian Affairs.
Where a written legal description is available, it can
be very useful in confirming the legal boundaries of
the reservation area(s) covered by the application. If

included, the legal description should specify the
locations of the boundaries of the reservation area(s)
over which the tribe asserts authority in its
application. Where a water body is located at or
forms a reservation boundary, the map and/or legal
description should clearly express the extent of the
water body that is included in the reservation area(s)
covered by the application (e.g., the entire water
body, the water body to its mid-channel, etc.).
The map and legal description should also identify
which lands are formal reservation areas, and which
lands located outside formal reservation boundaries
are held in trust by the United States for the tribal
government (informal reservation areas). Many
named Indian reservations were established through
federal treaties with tribes, federal statutes, or
Executive Orders of the President. Such reservations
are often referred to as formal Indian reservations.
Many tribes also have lands that the United States
holds in trust for the tribes that are located outside of
any formal reservation and that have not been
formally designated as a reservation. Such tribal trust
lands are informal reservations and may properly be
included in a TAS application for the WQS and
certification programs.
TAS applications for WQS and water quality
certifications can only cover reservation lands. Tribes
can seek TAS with respect to water resources
pertaining to any type of on-reservation land,
including, for example, reservation land held in trust
by the United States for a tribe, reservation land
owned by or held in trust for a member of the tribe,
and reservation land owned by a non-tribal member.
Because CWA section 518 delegates civil regulatory
authority to eligible tribes over their entire
reservations, the map and/or legal description need
not distinguish between reservation lands based on
land ownership status unless such information would
assist in locating referenced landmarks or otherwise
might be relevant to a potential issue regarding the
tribe’s effectuation of the congressional delegation of
authority.
Tribes cannot obtain TAS under the CWA for water
resources pertaining to any non-reservation land. In
some cases, non-reservation land may be entirely
surrounded by reservation land. Any such lands that
may be physically surrounded by reservation lands,
but which themselves are not reservation lands,
should be clearly identified and expressly excluded
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from the application. In addition, lands within
reservation areas that are subject to existing
jurisdictional disputes should be identified in the map
and/or legal description if the tribe is including such
lands in its application. To the extent a tribe includes
such disputed lands in a TAS application, the
application (e.g., the legal counsel statement) should
address the dispute and explain why the area is part
of the reservation and properly included in the
application. EPA recommends discussing such areas
with the appropriate EPA Regional office.
EPA’s regulations also state that the tribe’s
descriptive statement of authority should include an
identification of the surface waters for which the
tribe proposes to establish WQS. 40 CFR
131.8(b)(3)(iii). If the tribe is developing water quality
standards, the application may use information from
that effort to list the waters.
Please consult with the EPA Regional Office about the
appropriate level of detail to provide in maps, legal
descriptions, and other relevant information
identifying the boundaries of the geographic
reservation area(s) and/or waters covered by a TAS
application. Because EPA interprets section 518 of
the CWA as including a congressional delegation of
civil regulatory authority to eligible tribes to regulate
water quality on their reservations, the boundaries of
the reservation area(s) covered by a TAS application
will be a principal jurisdictional issue associated with
the tribe’s assertion of authority. Providing a
sufficiently detailed map and legal description can
greatly assist in streamlining the processing of a TAS
application and limiting or eliminating potential
confusion or requests for additional information by
appropriate governmental entities or other
commenters. In some situations the level of detail
provided may be particularly important in
documenting boundaries to address a competing or
conflicting claim.
6. TRIBAL LEGAL COUNSEL STATEMENT
General. The statement by the tribe’s legal counsel or
equivalent official should include any information
needed to describe the basis for the Tribe’s assertion
of authority, pursuant to 40 CFR 131.8(b)(3)(ii). The
template suggests specific elements to include. The
legal counsel may choose to include any additional
information identified in 131.8(b)(3)(ii) that might be

useful to EPA in reviewing the tribe’s assertion of
authority.
Reliance on congressional delegation of authority.
Any EPA approval of a TAS application for WQS and
certifications after May 16, 2016, must include a
determination that the tribe is exercising the
authority delegated from Congress in CWA section
518 as part of EPA’s finding that the tribe meets the
applicable TAS eligibility criteria. Therefore, all TAS
applications will need to include the tribe’s assertion
that it is relying on such delegated authority – as
shown in the template.
Selection of Option 6A or 6B. Applications must
provide any information about any known or
potential legal issues relevant to the exercise of such
delegated authority.


If the tribe is not aware of any issues that
could limit or preclude the tribe’s ability to
accept or effectuate the delegated authority
over its reservation, it should use Option 6A.



If there are any such issues, those issues
should be described and addressed in the
template under Option 6B. 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, charters, or similar
documents could limit a tribe’s ability to
exercise relevant authority.

Applications submitted prior to May 16, 2016. The
tribe should coordinate with the appropriate EPA
Regional Office if it already submitted its TAS
application to EPA before May 16, 2016. In such
cases, the application may need to be supplemented
with an assertion of congressionally delegated
authority. Language in the template is suggested for
this purpose and may be included in a letter from the
tribe supplementing its TAS application. To the extent
the application already includes a sufficient assertion
of congressionally delegated authority, including a
description of any issues affecting the tribe’s ability
or authority to effectuate the delegated authority, a
supplement may not be needed.

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In cases where EPA already conducted the
appropriate governmental agency (AGE) notice and
comment process prior to May 16, 2016, and the
tribe subsequently supplements its TAS application to
assert congressionally-delegated authority, EPA will
need to conduct an additional AGE process to provide
notice and an opportunity to comment on the tribe’s
supplemented assertion of authority.
7. TRIBAL CAPABILITY
Position descriptions for key personnel in the
environmental office can be included (or referenced)
as additional documentation, but are not required.
Although resumes of individuals currently filling such
positions can also be included, the tribe may want to
consider the possibility that these could be viewed
publicly – e.g., during the appropriate governmental
entity notice process or otherwise. The tribe may also
cite any contractual assistance that it uses or plans to
use as a source of technical assistance in
administering the program.
With regard to the WQS program, the tribe may add
(or include a reference to) some history and
background of the office or organizational location
with the WQS responsibilities to help EPA make the
tribal capability determination (e.g. date of creation,
experience working with water systems and water
quality issues, size and resources of the office).
With regard to CWA section 401 certifications, EPA’s
regulation at 40 CFR 121.1(e) requires that the
“Governor of a State” (or tribal leader, in this case)
designate the person or agency responsible for
issuing water quality certifications under CWA section
401. For example, some tribes designate the tribal
leader as the certifying authority after the
environmental office reviews it, while other tribes
designate the director of the environmental office as
the certifying authority.