[Federal Register Volume 68, Number 85 (Friday, May 2, 2003)]
[Notices]
[Pages 23458-23461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8828]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7479-8]


Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 
2003

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 2003. As has 
been the case for the past three fiscal years, Congress has authorized 
EPA to award nonpoint source pollution control grants to Indian tribes 
under section 319 of the Clean Water Act in FY 2003 in an amount that 
exceeds the statutory cap (in section 518(f) of the Clean Water Act) of 
\1/3\ percent of the total section 319 appropriation. These 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 
to tribes in FY 2003, including submissions of proposed work plans. The 
guidelines also describe the process and schedule to award additional 
funds for selected watershed projects for FY 2003 funding, including 
submissions of watershed

[[Page 23459]]

project summaries and the selection criteria for funding watershed 
projects.

DATES: The guidelines are effective May 2, 2003.

ADDRESSES: Persons requesting additional information or a complete copy 
of the document should contact Ed Drabkowski at (202) 566-1198; 
[email protected]; or U.S. Environmental Protection Agency (4503T), 
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) 566-1198; [email protected]; or U.S. 
Environmental Protection Agency (4503T), 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 2003 is published below.

    Dated: April 3, 2003.
Diane C. Regas,
Director, Office of Wetlands, Oceans, and Watersheds.

Memorandum

Subject: Guidelines on Awarding Section 319 Grants to Indian Tribes 
in FY 2003.
From: Diane C. Regas, 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 fourth 
year in a row, authorized EPA to award nonpoint source (NPS) 
pollution control grants to Indian tribes under Section 319 of the 
Clean Water Act (``CWA'') in FY 2003 in an amount that exceeds the 
statutory cap (in Section 518(f) of the CWA) of 1/3 percent of the 
total 319 appropriation. This will enable all of the tribes that 
have approved NPS assessments and management programs and 
``treatment-as-a-State'' (``TAS'') status (hereinafter referred to 
as ``approved tribes'') by January 8, 2003, to be eligible to 
receive Section 319 funding to help implement those programs.
    The repeated allowance of increased funding for tribal NPS 
programs in FY 2003 reflects Congress' continuing recognition that 
Indian tribes need and deserve increased financial support to 
implement NPS 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 tribal NPS pollution programs. To date, EPA 
has already approved 70 tribal NPS management programs, covering 
more than 35 million acres of land (representing more than 71 
percent of all Indian country), and we expect to approve additional 
programs in FY 2003.
    As was the case last year, the new authorization to exceed \1/3\ 
percent applies only to the current year (FY 2003). As in the past, 
EPA will work with the tribes to continue to demonstrate that 
increased Section 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 2002, which included base grants 
awarded to sixty-one (61) tribes as well as grants for specific 
watershed projects awarded to thirty (30) tribes through a 
competitive process. We believe that the tribes and EPA succeeded in 
directing the FY 2002 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 Section 319 grant dollars in FY 2003 to address the 
extensive NPS control needs throughout Indian country, as discussed 
below. In recognition of this fact, we are once again awarding a 
total of $6,000,000 to tribes for FY 2003.

Summary of Process for FY 2003 Grants to Tribes

    In FY 2003, we will set aside $6,000,000 for tribal nonpoint 
source grants. This amount is based on the same three factors as 
were used last year:
    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 2003 Grants to Tribes

1. Base Funding

    Each tribe that has an approved nonpoint source assessment and 
management program (and TAS status) as of January 8, 2003, will 
receive base funding based on the following land area scale:

------------------------------------------------------------------------
                                                                  Base
                     Square miles (acres)                        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
------------------------------------------------------------------------

    The land area scale is the same as used last year. EPA is 
continuing to rely upon land area as the deciding factor for a 
cutoff because NPS 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 January 15, 2003. 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 2003 Funding

    The remaining funds will be awarded to tribes that have approved 
nonpoint source management programs as of January 8, 2003, 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 2002 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

[[Page 23460]]

then make funding decisions in accordance with the process described 
below.

b. Watershed Project Summaries

    Tribes that have approved NPS assessments and management 
programs as well as TAS status as of January 8, 2003, 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 January 
15, 2003, 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 January 29, 2003, forward the 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 TMDLs. [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-percent 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 February 12, 2003, 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 March 12, 2003, 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 March 19, 2003, 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 March 31, 2003. 
If a tribe fails to or is unable to submit an approvable work plan 
by March 31, 2003, the Section 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 competitive grants is 40 
percent of the approved work plan costs. The match requirement for 
Section 319 base grants is also 40 percent unless included as part 
of an approved Performance Partnership Grant which sets the match 
requirement at 5 percent of the allowable cost of the work plan 
budget for base funding only. Both the base funding and competitive 
funding components are 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 percent 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 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.)

[[Page 23461]]

Technical Assistance to Tribes

    In addition to providing NPS 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 NPS workshops to 
interested tribes around the United States in FY 2003 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 for Tribes to be Eligible for 319 Grants--January 8, 2003
Tribes Submit Base Grant Work Plans to Region--January 15, 2003
Tribes Submit Competitive Grant Proposals to Region--January 15, 
2003
Region Forwards Proposals to Headquarters--January 29, 2003
Review Committee Discusses Proposals--February 12, 2003
Review Committee Forwards Ranking Scores to HQ--March 12, 2003
Headquarters Notifies Regions/Tribes of Selections--March 19, 2003
Tribes Submit Final Grant Application to Region--March 31, 2003

Statutory and Regulatory Requirements

    All Section 319(h) grants will be awarded and administered 
consistent with the statutory requirements in Sections 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\ percent statutory cap in FY 
2003, 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 2003 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) 566-1198 (or by e-
mail at [email protected]).

cc: Carol Jorgensen, 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. 03-8828 Filed 5-1-03; 8:45 am]
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