[Federal Register Volume 65, Number 245 (Wednesday, December 20, 2000)]
[Notices]
[Pages 79855-79859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32397]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6919-8]


Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 
2001

AGENCY: Environmental Protection Agency.

ACTION: Notice of availability.

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SUMMARY: EPA has developed guidelines on awarding Section 319 nonpoint 
source grants to Indian Tribes in FY 2001. As was the case in FY 2000, 
Congress has authorized EPA to award nonpoint source pollution control 
grants to Indian Tribes under section 319 of the Clean Water Act in FY 
2001 in an amount that exceeds the statutory cap (in section 518(f) of 
the Clean Water Act) of \1/3\% of the total 319 appropriation. The 
guidelines are intended to assist all Tribes that have approved 
nonpoint source assessments and management programs and also have 
``treatment-as-a-State'' status to receive Section 319 funding to help 
implement those programs. The guidelines describe the process for 
awarding base funding in FY 2001, including submissions of proposed 
work plans. The guidelines also describe the competitive process and 
schedule to select watershed projects for FY 2001 funding, including 
submissions of watershed project summaries and the selection criteria 
for funding watershed projects. The guidelines clarify issues relating 
to the eligibility of intertribal consortia to receive Section 319 
grants, and questions relating to the extent to which Section 319(h) 
grants may be awarded to Tribes for use outside the reservation.

DATES: The guidelines are effective December 20, 2000.

ADDRESSES: Persons requesting additional information or a complete copy 
of the document should contact Ed Drabkowski at (202) 260-7009; 
[email protected]; or U.S. Environmental Protection Agency (4503-
F), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Persons requesting additional 
information or a complete copy of the document should contact Ed 
Drabkowski at (202) 260-7009; [email protected]; or U.S. 
Environmental Protection Agency (4503-F), 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460. The complete text of today's guidelines is 
also available on EPA's Internet site on the Nonpoint Source Control 
Branch homepage http://www.epa.gov/owow/nps.

SUPPLEMENTARY INFORMATION: The full text of the Guidelines on Awarding 
Section 319 Nonpoint Source Grants to Indian Tribes in FY 2001 is 
published below.

    Dated: December 13, 2000.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans, and Watersheds.

Memorandum

Subject: Guidelines on Awarding Section 319 Grants to Indian Tribes in 
FY 2001
From: Robert H. Wayland III, Director, Office of Wetlands, Oceans and 
Watersheds
To: EPA Regional Water Division Directors, Regional Tribal 
Coordinators/Program Managers,

[[Page 79856]]

Tribal Caucus, EPA Tribal Operations Committee

    I am very pleased to report that Congress has, for the second year 
in a row, authorized EPA to award nonpoint source pollution control 
grants to Indian Tribes under Section 319 of the Clean Water Act 
(``CWA'') in FY 2001 in an amount that exceeds the statutory cap (in 
Section 518(f) of the CWA) of \1/3\% of the total 319 appropriation. 
This will enable all of the Tribes that have approved nonpoint source 
assessments and management programs and ``treatment-as-a-State'' 
(``TAS'') status (hereinafter referred to as ``approved Tribes'') to 
receive Section 319 funding to help implement those programs.
    The allowance of an increased funding for Tribal nonpoint source 
(``NPS'') programs in FY 2001 reflects Congress' continuing recognition 
that Indian Tribes need and deserve increased financial support to 
implement nonpoint source programs that address critical water quality 
concerns on Tribal lands. EPA shares this view and will continue to 
work closely with Tribes to assist them in implementing effective 
Tribal nonpoint source pollution programs.
    As was the case last year, the new authorization to exceed \1/3\% 
applies only to the current year (FY 2001). EPA's long-term goal is 
that the \1/3\% cap on Tribal nonpoint source grants should be 
permanently eliminated. To date, EPA has already approved over 50 
Tribal nonpoint source management programs, covering more than 30 
million acres of land (representing more than 65% of all Indian 
country), and we expect to approve additional programs in FY 2001. 
Clearly, there needs to be a permanent increase in the amount of 
Section 319 funds available to Tribes to help them implement approved 
programs that address nonpoint source pollution across their extensive 
Tribal lands.
    To help achieve this goal, EPA will work with the Tribes to 
continue to demonstrate that increased 319 funds for Tribes can be used 
effectively to achieve water quality improvement. We were pleased by 
the high quality of the Tribes' work plans that formed the basis of the 
grants awarded to Tribes in FY 2000, which included both base grants 
for all approved Tribes as well as grants for specific watershed 
projects awarded to nine of these Tribes through a competitive process. 
We believe that the Tribes and EPA succeeded in directing the FY 2000 
grants towards high-priority activities that will produce on-the-ground 
results that provide improved water quality. We believe that this 
success warrants an increase in Tribal 319 grant dollars in FY 2001 to 
address the extensive NPS control needs throughout Indian country, as 
discussed below.
    As in FY 2000, the grants issuance process for FY 2001 is designed 
to balance the needs to (1) provide at least some minimum ``base'' 
funding to all approved Tribes to help them implement their NPS 
programs, and (2) provide sufficient funding to support a significant 
number of watershed projects that can make a substantial additional 
improvement to water quality.

Summary of Process for FY 2001 Grants to Tribes

    In FY 2001, we will increase the total Tribal nonpoint source 
grants amount (from $2,500,000 in FY 2000) to $6,000,000. This increase 
reflects three factors:
    1. The number of Tribes eligible to receive nonpoint source grants 
has increased since the time that EPA awarded grants to 47 Tribes in FY 
2000.
    2. We have increased the amount of base funding for Tribes whose 
land area exceeds 5,000 square kilometers (1,930 square miles) from 
$30,000 to $50,000.
    3. We wish to ensure that there is sufficient funding available to 
support a significantly larger number of additional nonpoint source 
watershed projects than the nine that were funded in FY 2000.
    EPA will divide the $6,000,000 into two portions: base funding for 
all approved Tribes, and additional watershed project funding for 
Tribes selected through a competitive process.

Detailed Discussion of Process for FY 2001 Grants to Tribes

1. Base Funding

    Each Tribe that has an approved nonpoint source assessment and 
management program (and TAS status) as of January 28, 2001, will 
receive base funding as follows:
    a. For approved Tribes whose land area exceeds 5,000 square 
kilometers (approximately 1,930 square miles, or about 1,235,000 
acres), EPA will provide $50,000 of base funding.
    b. For all other approved Tribes, EPA will provide $30,000 of base 
funding.
    EPA considered whether other factors such as population and water 
resources should be used, in addition to or instead of land area, to 
distinguish Tribes with the greatest needs from other Tribes. EPA 
recognizes that each of these factors is relevant and in some 
circumstances significant. EPA ultimately chose land area as the 
deciding factor for a cutoff because nonpoint source pollution is 
strongly related to land use; thus land area is a reasonable criterion 
that generally is highly relevant to identifying Tribes with the 
greatest needs (recognizing that Tribes have needs that significantly 
exceed available resources).
    The base funding of $30,000 per Tribe (or $50,000 for the Tribes 
with the largest land areas) may be used for a range of activities that 
implement the Tribe's approved NPS management program, including hiring 
a program coordinator; conducting nonpoint source education programs; 
providing training; and implementing, alone or in conjunction with 
other agencies or other funding sources, on-the-ground watershed 
projects. In general, this base funding should not be used for 
assessment activities.
    Each Tribe that requests base funding must submit a proposed work 
plan to the appropriate EPA Regional office that conforms to applicable 
legal requirements and guidelines and is consistent with the Tribe's 
nonpoint source management program. This proposed work plan should 
clearly describe each significant category of activity to be funded; 
the roles of any Federal, local, or other partners in completing each 
activity; the schedule and budget for implementing funded activities; 
and the outputs to be produced by performance of the activity. Outputs 
of activities should be quantified; results of projects should be 
measurable and indicators to do so clearly stated. Tribes should submit 
their proposed work plans to the appropriate Regional office by 
February 16, 2001. If a Tribe does not submit an approvable proposed 
work plan by that date, its allocated $30,000 (or $50,000) will be 
added to the competitive pool, discussed immediately below, which will 
be used to fund Tribal watershed projects.
    Regions should work with the Tribes to expeditiously award the base 
grants. However, if the Tribe will be awarded additional funds to 
implement a watershed project, as discussed below, the Tribe may prefer 
combining the formal process for submitting its final application for 
both the base and competitive funds. Regions should confer with their 
Tribes and endeavor to proceed in a manner and on a schedule that is 
most compatible with the Tribes' preferences.

2. Competitive Funding: Process and Schedule To Select Watershed 
Projects for FY 2001 Funding

    The remaining funds will be awarded to Tribes that have approved 
nonpoint

[[Page 79857]]

source management programs as of January 28, 2001, on a competitive 
basis to provide funding for on-the-ground nonpoint source watershed 
projects that are designed to achieve additional water quality 
improvement. Each selected project will be eligible to receive up to 
$100,000, depending on the demonstrated need. These funds will be 
awarded using the process described below.
a. Watershed Project Review Committee
    As we did for the FY 2000 grants, EPA will establish a watershed 
project review committee comprised of nine EPA staff, including three 
EPA Regional Nonpoint Source Coordinators, three EPA Regional Tribal 
Coordinators, two staff members of the Nonpoint Source Control Branch 
staff, and one staff member of the American Indian Environmental 
Office. The committee will then make funding decisions in accordance 
with the process described below.
b. Watershed Project Summaries
    Tribes that have approved nonpoint source assessments and 
management programs as well as TAS status as of January 28, 2001, are 
invited to apply for watershed project funding by submitting watershed 
project summaries for proposed projects ranging between $50,000 and 
$100,000. (This funding is in addition to the base funding that each 
approved Tribe will receive, as described above.) Tribes that apply for 
funding for watershed projects should submit a brief (e.g., 3-5 pages) 
summary of a watershed project implementation plan by February 5, 2001. 
(Complete grant applications should not be submitted until after 
projects are selected, pursuant to EPA's review of watershed project 
summaries as described below.)
    Tribes seeking watershed project funding should submit their 
watershed project summaries by mailing them, by February 5, 2001, to Ed 
Drabkowski of the Nonpoint Source Control Branch, Mail Code 4503F, U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Avenue, N.W., Washington, D.C. 20460; faxing them to Ed at 202-260-
7024; or emailing them to [email protected]. We will immediately 
provide copies of the submitted summaries to the Review Committee. 
(Email versions would be appreciated where possible because they can be 
shared among the reviewers most rapidly and easily.)
    The watershed project summary should outline the problem to be 
addressed; the project's goals and objectives; the lead implementing 
agency (either the Tribe or another organization authorized by the 
Tribe to be the project leader) and other agencies that will be 
authorized to expend project funds; the types of measures or practices 
that will be implemented; the projected implementation schedule; the 
project's budget; and the environmental indicators and/or other 
performance measures that will be used to evaluate the success of the 
project. (The Appendix to this memorandum contains more information on 
these elements of well-designed watershed implementation plans.)
    Perhaps most important, each watershed plan summary should be 
clearly written with enough detail to indicate to the reviewing 
committee why the proposed project should be selected for funding. This 
is critical to help ensure that the best projects are funded.
c. Selection Criteria for Funding Watershed Projects
    In ranking the projects, each reviewer on EPA's watershed project 
review committee will consider the extent to which the following 
factors are present in each project.
    1. The watershed plan summary includes a clear and specific 
identification of the water quality problem to be addressed, including 
the pollutants of concern and their sources (including critical areas 
to be treated, if known).
    2. The watershed project consists of implementation actions that 
are intended to help restore an impaired waterbody for which a total 
maximum daily load (TMDL) has been developed or a similar process has 
been used to establish restoration needs (for surface or ground water 
protection)

    Note: EPA recognizes that most Tribes have not yet developed 
TMDLs. However, where a Tribe has developed a relevant water quality 
standard and TMDL and seeks Section 319 funding to assist in the 
implementation of the TMDL, that should be considered by reviewers 
to be a relevant factor.


    3. The tribe has conducted a Unified Watershed Assessment, and the 
proposed project is planned to be implemented in a Category I 
watershed.
    4. The project is designed to include cooperation and/or 
combination of resources with other agencies and other parties to 
provide additional technical and/or financial assistance to the 
project.
    5. The watershed plan summary includes a clear and objective 
statement of the project's goals and objectives, in terms of 
controlling the resources and/or of improving/protecting water quality.
    6. The summary identifies the management measures or practices to 
be implemented and the location where these measures and practices will 
be implemented.
    7. The summary identifies the cost of the project and the amount of 
Section 319 grant dollars that are requested. (This must be within the 
$50,000-100,000 range.) Please note that a 40% non-Federal match is 
also required. However, if a Tribe demonstrates that it does not have 
adequate funds to meet the required match, EPA may approve a 10% non-
Federal match.
    8. The summary includes an implementation schedule.
    9. The summary includes a statement of how the project will be 
evaluated to determine its success and to derive lessons that will 
assist the Tribe (and other Tribes) in future projects.
d. Award of Grants for Tribal Watershed Projects
    (i) Award Decisions. The Watershed Project Review Committee will 
hold a conference call prior to reviewing the proposed watershed 
projects to ensure that all Committee members fully understand and 
agree on how to objectively apply the criteria discussed above. 
Rankings will be developed by considering all of the factors as a 
whole, in accordance with a weighting system to be decided upon by the 
Committee.
    They will then review the proposed watershed projects and hold a 
second conference call by March 1 to discuss the projects. Following 
the second conference call, each Committee member will separately rank 
the projects and forward their suggested rankings to Ed Drabkowski in 
the Nonpoint Source Control Branch in EPA Headquarters by March 15, 
2001. Headquarters will tally the members' rankings and then hold a 
final conference call with the Review Committee to provide a final 
opportunity for members of the Review Committee to discuss the rankings 
among themselves. By March 30, 2001, EPA will announce which projects 
have been selected for funding. The Tribes whose watershed projects 
have been selected for funding will be notified immediately by phone or 
email, with a written letter to follow.
    (ii) Final Work Plans/Full Grant Applications. Once a Region and 
Tribe have been notified of the amount that will be awarded to the 
Tribe, they will discuss any changes that need to be made in the 
Tribe's proposed workplan. After making appropriate changes, the Tribe 
will submit a complete grant

[[Page 79858]]

application to the Region by May 28, 2001. If a Tribe fails to or is 
unable to submit an approvable work plan by May 28, 2001, the 319(h) 
grant will instead be awarded to the next highest ranking unfunded 
application. Regions should endeavor to finalize the grant awards no 
later than 60 days after receipt of a complete grant application with 
an approvable work plan.
    (iii) Match Requirements. The match requirement for Section 319 
grants is 40 percent of the approved work plan costs, which include 
both the base funding and competitive funding components discussed 
above. In general, consistent with 40 CFR Sec. 31.24, the match 
requirement may be satisfied by allowable costs borne by non-Federal 
grants, by cash donations from non-Federal third parties, or by the 
value of third party in-kind contributions.
    EPA's current regulations also provide that EPA may decrease the 
Tribal match requirement to as low as 10% ``upon application and 
demonstration by the Tribe that it does not have adequate funds 
(including Federal funds authorized by statute to be used for matching 
purposes, tribal funds or in-kind contributions) to meet the required 
match.'' See 40 CFR 35.760 (2000).
    In making grant awards to Tribes that provide for a reduced match 
requirement, Regions should include a brief finding that the Tribe has 
demonstrated that it does not have adequate funds to meet the required 
match.

Intertribal Consortia

    Some Tribes have formed intertribal consortia to promote 
cooperative work. Currently, intertribal consortia are not eligible to 
receive Section 319 grants. In the preamble to the proposed Tribal rule 
published on July 23, 1999, EPA discussed (at 64 FR 40085) a proposal 
to treat a group of individually eligible Tribes as eligible for 
grants. EPA anticipates that when the final rule is promulgated, 
intertribal consortia will be eligible for Section 319 grants. However, 
since the rule is not yet finalized, and since Tribes must submit their 
FY 2001 grant proposals soon, as discussed earlier in these guidelines, 
we expect that intertribal consortia will not be eligible to apply for 
and receive Section 319 grants in FY 2001.

Technical Assistance to Tribes

    In addition to providing nonpoint source funding to Tribes, EPA 
remains committed to providing continued technical assistance to Tribes 
in their efforts to control nonpoint source pollution. During the past 
several years, EPA has presented fourteen workshops to approximately 
250 Tribes throughout the United States to assist them in developing: 
(1) Nonpoint source assessments to further their understanding of 
nonpoint source pollution and its impact on water quality; (2) nonpoint 
source management programs to apply solutions to address their nonpoint 
source problems; and (3) specific projects to effect on-the-ground 
solutions. The workshops also have provided information on related EPA 
and other programs that can help Tribes address nonpoint source 
pollution, including the provision of technical and funding assistance. 
(EPA has also held related workshops that have focused on helping 
Tribes develop Unified Watershed Assessments that address both point 
and nonpoint source issues that affect their watersheds.) EPA intends 
to continue providing nonpoint source workshops to interested Tribes 
around the United States in FY 2001 and to provide other appropriate 
technical assistance as needed.

Non-Tribal Lands

    During the past year, questions have arisen as to the extent to 
which Section 319(h) grants may be awarded to Tribes for use outside 
the reservation. To clarify this issue, we discuss below two types of 
off-reservation activities: (1) Activities that are related to waters 
within a reservation, such as those relating to sources upstream of a 
waterway entering the reservation, and (2) activities that are 
unrelated to waters of a reservation. As discussed below, the first 
type of these activities may be eligible; the second is not.

1. Activities That Are Related to Waters Within a Reservation

    Section 518 (e) of the CWA provides that EPA may treat an Indian 
Tribe as a State for purposes of Section 319 of the CWA if, among other 
things, ``the functions to be exercised by the Indian tribe pertain to 
the management and protection of water resources which are * * * within 
the borders of an Indian reservation.'' 33 U.S.C. Sec. 1377 (e)(2). EPA 
already awards grants to Tribes under Section 106 of the CWA for 
activities performed outside of a reservation that pertain to 
reservation waters, such as evaluating impacts of upstream waters on 
water resources within a reservation. Similarly, EPA has awarded 
section 106 grants to States to conduct monitoring outside of state 
borders. EPA has concluded that grants awarded to an Indian Tribe 
pursuant to Section 319(h) may similarly be used to perform eligible 
Section 319(h) activities outside of a reservation if: (1) The activity 
pertains to the management and protection of waters within the 
reservation, and (2) just as for on-reservation activities, the Tribe 
meets all other applicable requirements.

2. Activities That Are Unrelated to Waters of a Reservation

    As discussed above, EPA is authorized to award Section 319(h) 
grants to Tribes to perform eligible Section 319(h) activities if the 
activities pertain to the management and protection of waters within a 
reservation and the Tribe meets all other applicable requirements. In 
contrast, EPA is not authorized to award Section 319(h) grants for 
activities that do not pertain to waters of a reservation. For off-
reservation areas, including ``usual and accustomed'' hunting, fishing, 
and gathering places, EPA must determine whether the activities pertain 
to waters of a reservation prior to awarding a grant.

Conclusion

    We believe that the lifting of the 1/3% statutory cap once again in 
FY 2001 provides the Tribes and EPA with an excellent opportunity to 
further Tribal efforts to reduce nonpoint pollution and enhance water 
quality on Tribal lands. EPA looks forward to working closely with the 
Tribes to assist them in implementing effective nonpoint source 
programs in FY 2001 and creating a sound basis to assure that adequate 
funds will continue to be provided in the future.
    If you have any questions, please do not hesitate to call me at 
(202) 260-7166 (or email at [email protected]), or have your staff 
contact Ed Drabkowski at (202) 260-7009 (or email at 
[email protected]).

cc: Kathy Gorospe, Director, American Indian Environmental Office, EPA
Ben Smith, AIEO
Jerry Pardilla, National Tribal Environmental Council
Billy Frank, Northwest Indian Fisheries Council
Don Sampson, Columbia River Intertribal Fish Commission
James Schlender, Great Lakes Indian Fish and Wildlife Commission
All Tribes that have an approved Nonpoint Source Management Programs 
and/or Unified Watershed Assessment or have attended a Nonpoint Source 
Tribal Workshop
Regional Water Quality Branch Chiefs
Regional Nonpoint Source Coordinators


AppendixAppendix

    [This Appendix is a copy of Appendix C of the Nonpoint Source 
Program and Grants

[[Page 79859]]

Guidance for Fiscal Year 1997 and Future Years (May 1996), modified 
slightly to apply to Tribal programs rather than State programs. The 
entire guidance may be viewed at www.epa.gov/owow/nps/guide.html].

Elements of a Well-Designed Watershed Implementation Plan

    A well-designed plan for a successful watershed implementation 
project typically includes the following:

1. Define the Problem

     Identification of water quality threat or problem--
Information is provided on whether the water resource is threatened 
or its use is impaired from the Tribe's nonpoint source assessment 
report, 303(d) list, or other Tribal water quality assessment 
reports.
     Critical areas--The approximate size and location of 
the critical areas to be treated is identified on a map and 
quantified. The critical areas are of an appropriate size to ensure 
that the measures implemented will have a significant impact on 
restoring or protecting designated beneficial uses within the 
watershed.

2. Build a Project Team and Public Support

     Institutional roles and responsibilities--Roles and 
responsibilities of agencies and organizations active within the 
watershed are identified, regardless of funding source. All Tribal, 
Federal, and State agencies and other organizations that have 
potential roles to play in assisting in the design and 
implementation of the project are identified and included as 
appropriate in the project development and implementation process. 
Where possible, one agency at the local level is identified as the 
lead agency for the watershed project.
     Information/education and public participation 
component--The nonpoint source watershed plan documents how 
interested and affected public are or will be involved in the 
selection, design and implementation of the watershed project. 
Additionally, the educational activities to be conducted in the 
watershed project are identified, including a schedule. The project 
also includes a plan for communicating lessons learned to other 
areas of the Tribe through the Tribe's nonpoint source information 
and education program.

3. Set Goals and Identify Solutions

     Nonpoint source control objectives--The nonpoint source 
watershed plan describes what is expected to be accomplished in a 
two to five year period. Objectives relate to all the identified 
water quality problems, are quantitative, and make progress towards 
achieving implementation of technology-based measures or achieving 
Tribal water quality goals. For example, where water goals are not 
met and a 75 percent reduction of a particular pollutant is needed 
to achieve them, an objective might be to reduce the pollutant 
loadings to the waterbody by 75 percent.

4. Implement Controls

     Implementation schedule--A schedule describing the 
location and type of BMPs and programs to be implemented within the 
watershed and the projected time of implementation are provided 
within the plan. The plan also includes an estimate of the costs of 
the planned activities.

5. Measure Success

     Monitoring and evaluation--Utilizing the project goals 
identified in the work plan, the plan should also provide an 
appropriate monitoring component to evaluate effectiveness, 
including ambient effects monitoring, beneficial use assessments, 
and environmental indicators (see Section II-A and Appendix B of the 
May 1996 nonpoint source guidance).

[FR Doc. 00-32397 Filed 12-19-00; 8:45 am]
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