Treatment in a Similar Manner as a State (TAS) for Clean Water Act Section 401(a)(2)
Under the Clean Water Act Section 401 Water Quality Certification Improvement Rule (2023 Rule), Tribes may obtain treatment in a similar manner as a state (TAS) solely for section 401 or obtain TAS for the limited purpose of participating as a neighboring jurisdiction under section 401(a)(2). Tribes have the opportunity to participate directly in the certification process without applying for water quality standards by applying for TAS for the section 401 program. Tribes should consider TAS for the section 401 program if they are interested in issuing certification decisions for their reservation (CWA Section 401(a)(1)) or participating in the neighboring jurisdiction process (CWA Section 401(a)(2)).
Application Template for Section 401(a)(2)
The Agency developed an application template to provide explanations and instructions for documenting how the Tribe meets the eligibility requirements to obtain TAS for section 401(a)(2) alone. There is a separate application template for Tribes interested in obtaining TAS for section 401 in its entirety.
Upon receiving TAS for section 401, Tribes have two roles. First, Tribes that receive section 401 TAS are responsible for acting as a certifying authority for projects that may result in a discharge into waters of the United States on their Indian reservations. As certifying authorities, Tribes with TAS may grant, grant with conditions, deny, or waive certification based on whether a federally licensed or permitted project will comply with sections 301, 302, 303, 306, and 307 of the CWA and any other appropriate requirements of Tribal law. Second, Tribes that receive section 401 TAS are accorded the status of “neighboring jurisdiction” for purposes of section 401(a)(2). 88 FR 66652.
