[Federal Register Volume 67, Number 14 (Tuesday, January 22, 2002)]
[Notices]
[Pages 2879-2882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1499]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7130-8]


Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 
2002

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: EPA has developed guidelines for awarding Clean Water Act 
section 319 nonpoint source grants to Indian tribes in FY 2002. As was 
the case in FY 2002 and 2001, Congress has authorized EPA to award 
nonpoint source pollution control grants to Indian tribes under section 
319 of the Clean Water Act in FY 2002 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 2002, including 
submissions of proposed work plans. The guidelines also describe the 
competitive process and schedule to select watershed projects for FY 
2002 funding, including submissions of watershed project summaries and 
the selection criteria for funding watershed projects.

DATES: The guidelines are effective January 22, 2002.

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 (4503F), 
1200 Pennsylvania Avenue, NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Persons requesting additional 
information or complete copy of the document should contact Ed 
Drabkowski at (202) 260-7009; [email protected]; or U.S. 
Environmental Protection Agency (4503F), 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 at http://www.epa.gov/owow/nps.

SUPPLEMENTARY INFORMATION: The full text of the Guidelines on Awarding 
Section 319 Grants to Indian Tribes in FY 2002 is published below.

    Dated: December 27, 2001.
Suzanne E. Schwartz,
Acting Director, Office of Wetlands, Oceans, and Watersheds.

Memorandum

    Subject: Guidelines on Awarding Section 319 Grants to Indian Tribes 
in FY 2002.
    From: Suzanne E. Schwartz (for) Robert H. Wayland III, Director, 
Office of Wetlands, Oceans and Watersheds.
    To: EPA Regional Water Division Directors, Regional Tribal 
Coordinators/Program Managers, Tribal Caucus, EPA Tribal Operations 
Committee.
    I am very pleased to report that Congress has, for the third 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 2002 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'') by 
January 30, 2002, to be eligible to receive Section 319 funding to help 
implement those programs.
    The repeated allowance of increased funding for tribal nonpoint 
source (``NPS'') programs in FY 2002 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 the tribes to assist them in developing 
and implementing effective

[[Page 2880]]

tribal nonpoint source pollution programs. To date, EPA has already 
approved 66 tribal nonpoint source management programs, covering more 
than 35 million acres of land (representing more than 71% of all Indian 
country), and we expect to approve additional programs in FY 2002.
    As was the case last year, the new authorization to exceed \1/3\% 
applies only to the current year (FY 2002). As in the past, 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 2001, 
which included both base grants for all approved tribes as well as 
grants for specific watershed projects awarded to forty-five of these 
tribes through a competitive process. We believe that the tribes and 
EPA succeeded in directing the FY 2001 grants towards high-priority 
activities that will produce on-the-ground results that provide 
improved water quality. We believe that this success warrants continued 
substantial investment of 319 grant dollars in FY 2002 to address the 
extensive NPS control needs throughout Indian country, as discussed 
below. In recognition of this fact, we are once again authorizing a 
total of $6,000,000 to tribes for FY 2002.

Summary of Process for FY 2002 Grants to Tribes

    In FY 2002, we will set aside $6,000,000 for tribal nonpoint source 
grants. This amount is based on three factors:
    1. We will continue to support all eligible tribes with base 
grants.
    2. We will award base funding to eligible tribes as follows:
    a. $30,000 in base funding will be awarded to eligible tribes whose 
land area is less than 1,000 square miles (640,000 acres).
    b. $50,000 in base funding will be awarded to eligible tribes whose 
land area is greater than 1,000 square miles (640,000 acres).
    3. We will award the remaining funds to eligible tribes through a 
competitive process to support the implementation of priority watershed 
projects.

Detailed Discussion of Process for FY 2002 Grants to Tribes

1. Base Funding

    Each tribe that has an approved nonpoint source assessment and 
management program (and TAS status) as of January 30, 2002, will 
receive base funding based on the following land area scale:

------------------------------------------------------------------------
                    Square miles (acres)                     Base amount
------------------------------------------------------------------------
Less than 1,000 sq. mi. (less than 640,000 acres)..........      $30,000
Over 1,000 sq. mi. (over 640,000 acres)....................       50,000
------------------------------------------------------------------------

    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 many tribes have needs that 
significantly exceed available resources).
    The base funding as outlined above 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 to the 
appropriate EPA Regional office a proposed work plan that conforms to 
applicable legal requirements (see 40 CFR 35.505 and 35.507) and is 
consistent with the tribe's approved 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 their appropriate Regional office by March 4, 2002. If a 
tribe does not submit an approvable proposed work plan by that date, 
its allocated amount will be added to the competitive pool, discussed 
immediately below, which will be used to fund tribal NPS program and 
watershed project priorities.
    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 or the 
Region may prefer combining the formal process for submission of the 
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' and Regions' 
needs and preferences.

2. Competitive Funding: Process and Schedule to Select Watershed 
Projects for FY 2002 Funding

    The remaining funds will be awarded to tribes that have approved 
nonpoint source management programs as of January 30, 2002, 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 $150,000, depending on the demonstrated need. The funds will be 
awarded using the process described below.
a. Watershed Project Review Committee
    As we did for the FY 2001 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, 
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 30, 2002, are 
invited to apply for watershed project funding by submitting watershed 
project summaries for proposed projects up to a maximum budget of 
$150,000. (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 March 4, 2002, to 
the appropriate EPA Regional office for initial screening. (Complete 
grant applications should not be submitted until after projects are 
selected, pursuant to review by the Watershed Project Review Committee, 
as described below.) The Regional office will, by March 18, 2002, 
forward the

[[Page 2881]]

proposals that meet the required criteria to EPA Headquarters for 
distribution to the Watershed Project Review Committee. (E-mail 
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 nonpoint source 
pollution problem and the on-the-ground improvement to be addressed; 
the project's goals and objectives and the expected water quality 
benefit to the receiving waterbody; 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 best management practices or 
measures that will be implemented; the projected implementation 
schedule; the project's budget items including construction costs; and 
the environmental performance measures that will be used to evaluate 
the success of the project. Each watershed plan summary should be 
clearly written with enough detail to show why the proposed project 
should be selected for competitive 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 on-the-ground improvement project and the water 
quality problem to be addressed, including the pollutants of concern 
and their sources (including critical areas to be treated, if known), 
and clearly describes the project to be constructed or installed.
    2. Where relevant, the watershed project consists of implementation 
actions or load calculations that are intended to help restore an 
impaired waterbody for which an approved nonpoint source total maximum 
daily load (NPS TMDL) has been developed or the NPS components of 
mixed-source TMDL's. [Note: EPA recognizes that most tribes have not 
yet developed NPS TMDLs. However, Section 319 funding may be used to 
develop and implement approved NPS TMDLs for any 303(d) listed 
waterbody. Where a tribe has developed a relevant water quality 
standard and NPS TMDL and seeks Section 319 funding to assist in the 
implementation of the NPS TMDL, that should be considered by reviewers 
to be a relevant factor supporting the funding request.]
    3. The proposed project is listed as a priority implementation 
project in the tribal NPS management program.
    4. The proposed 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 nonpoint sources and/or of improving/protecting water 
quality.
    6. The summary identifies the best management practices or measures 
to be implemented and the location where these measures and practices 
will be implemented.
    7. The summary outlines the construction cost of the project and 
the amount of Section 319 grant dollars that are requested, not to 
exceed $150,000. Please note that a 40% non-federal match is also 
required. However, pursuant to section 35.635(b), EPA's Regional 
Administrator may increase the maximum Federal share if the tribe or 
intertribal consortium can demonstrate in writing to the satisfaction 
of the Regional Administrator that fiscal circumstances within the 
tribe or within each tribe that is a member of the intertribal 
consortium are constrained to such an extent that fulfilling the match 
requirement would impose undue hardship. In no case, will the Federal 
share be greater than 90 percent.
    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 by April 8, 2002, 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.
    By April 19, 2002, the Committee will compile the ranking of 
proposed watershed projects based on the selection criteria and then 
forward their rankings to the Nonpoint Source Control Branch at EPA 
Headquarters. Headquarters will tally the Committee's rankings and then 
hold a conference call to provide a final opportunity for members of 
the Review Committee to discuss the rankings among themselves. By April 
29, 2002, EPA will select the highest ranked proposals and announce to 
the Regions which tribes' watershed projects have been selected for 
funding. These tribes will be notified immediately by phone or e-mail, 
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 negotiate a final work plan consistent with 40 CFR 
35.507. After making appropriate changes, the tribe must submit a final 
work plan to the Region by June 10, 2002. If a tribe fails to or is 
unable to submit an approvable work plan by June 10, 2002, 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 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 regulations also provide that EPA may decrease the match 
requirement to as low as 10% if the tribe can demonstrate in writing to 
the Regional Administrator that fiscal circumstances within the tribe 
or within each tribe that is a member of the intertribal consortium are 
constrained to such an extent that fulfilling the match requirement 
would impose undue hardship. (See 40 CFR 35.635.)
    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. An intertribal consortium is a partnership between 
two or more tribes that is authorized by the governing bodies of those 
tribes to apply for and receive assistance under this program. (See 40 
CFR 35.502.) The intertribal consortium is eligible only if the

[[Page 2882]]

consortium demonstrates that all its members meet the eligibility 
requirements for the Section 319 program and authorize the consortium 
to apply for and receive assistance in accordance with 40 CFR 35.504. 
An intertribal consortium must submit to EPA adequate documentation of 
the existence of the partnership and the authorization of the 
consortium by its members to apply for and receive the grant. (See 40 
CFR 35.504.)

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 many workshops to 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 
intends to continue providing nonpoint source workshops to interested 
tribes around the United States in FY 2002 and to provide other 
appropriate technical assistance as needed.

Non-Tribal Lands

    The following discussion explains the extent to which Section 
319(h) grants may be awarded to tribes for use outside the reservation. 
We discuss 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. 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.

Milestones Summary

Date Tribes to be Eligible for 319 Grants: January 30, 2002
Tribes Submit Base Grant Work Plans to Region: March 4, 2002
Tribes Submit Competitive Grant Proposals to Region: March 4, 2002
Region Forwards Proposals to Headquarters: March 18, 2002
Review Committee Discusses Proposals: April 8, 2002
Review Committee Forwards Ranking Scores to HQ: April 19, 2002
Headquarters Notifies Regions/Tribes of Selections: April 29, 2002
Tribes Submit Final Grant Application to Region: June 10, 2002

Statutory and Regulatory Requirements

    All section 319(h) grants will be awarded and administered 
consistent with the statutory requirements in section 319(h) and 518(e) 
of the Clean Water Act and applicable regulations in 40 CFR parts 31 
and 35.

Conclusion

    By once again lifting the \1/3\% statutory cap in FY 2002, Congress 
has continued to provide 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 2002 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 or 
have your staff contact Ed Drabkowski at (202) 260-7009 (or e-mail at 
[email protected]).

cc: Director, American Indian Environmental Office, EPA; Jeff 
Besougloff, 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 Program; Regional Water Quality 
Branch Chiefs; Regional Nonpoint Source Coordinators

[FR Doc. 02-1499 Filed 1-18-02; 8:45 am]
BILLING CODE 6560-50-P