[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Notices]
[Pages 6662-6665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2958]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7620-1]


Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 
2004; Request for Grant Proposals for Watershed Projects

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 2004. As has 
been the case for the past four fiscal years, EPA anticipates Congress 
will authorized EPA to award nonpoint source pollution control grants 
to Indian Tribes under section 319 of the Clean Water Act in FY2004 in 
an amount that exceeds the statutory cap (in section 518(f) of the 
Clean Water Act) of \1/3\ of 1% of the total 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 2004, including submissions of 
proposed work plans. The guidelines also describe the process and 
schedule to award, through a grants competition, additional funds for 
selected watershed implementation projects for FY 2004 funding, 
including the schedule for submissions of watershed project summaries 
and the selection criteria for funding watershed projects.

DATES: The guidelines are effective February 11, 2004.

ADDRESSES: Persons requesting additional information or a complete copy 
of the document should contact Ed Drabkowski at (202) 566-1198; e-mail 
at [email protected]; or by mail at 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; or by e-mail at [email protected]; or 
by mail at U.S. Environmental Protection Agency (4503T), 1200 
Pennsylvania Avenue, NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION: The full text of the Guidelines on Awarding 
Section 319 Grants to Indian Tribes in FY 2004 is also available on the 
Nonpoint Source Control Branch homepage at http://www.epa.gov/owow/nps.

    Dated: January 30, 2004.
Diane C. Regas,
Director, Office of Wetlands, Oceans, and Watersheds.

Memorandum

Subject: Guidelines on Awarding Section 319 Grants to Indian Tribes 
in FY 2004; Request for Grant Proposals for Watershed Projects
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.
    EPA anticipates that Congress will, for the fifth year in a row, 
authorize EPA to award nonpoint source pollution control grants to 
Indian Tribes under Section 319 of the Clean Water Act (``CWA'') in 
FY 2004 in an amount that exceeds the statutory cap (in Section 
518(f) of the CWA) of \1/3\ of 1% 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 7, 2004, 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 2004 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 Tribal nonpoint source 
pollution programs. To date, EPA has already approved eighty-four 
(84) Tribal nonpoint source management programs, covering more than 
40 million acres of land (representing approximately 74% of all 
Indian country), and we expect to approve additional programs in FY 
2004.
    As was the case last year, the new authorization to exceed \1/3\ 
of 1% applies only to the current year (FY 2004). 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 2003, which included base grants awarded to seventy-
one (71) Tribes as well as grants for specific watershed projects 
awarded to twenty-seven (27) Tribes through a competitive process. 
We believe that the Tribes and EPA succeeded in directing the FY 
2003 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 2004 to address the extensive NPS control needs 
throughout Indian country, as discussed below. In recognition of 
this fact, we are awarding a total of $7,000,000 to Tribes for FY 
2004.

Summary of Process for FY 2004 Grants to Tribes

    In FY 2004, we will set aside $7,000,000 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:

[[Page 6663]]

    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 2004 Grants to Tribes

1. Base Funding

    Each Tribe that has an approved nonpoint source assessment and 
management program (and TAS status) as of January 7, 2004, 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 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; developing and 
implementing, alone or in conjunction with other agencies or other 
funding sources, watershed-based plans and on-the-ground watershed 
projects. In general, this base funding should not be used for 
general 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 Sections 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 plan to the appropriate Regional office 
by February 18, 2004. Regions should review the proposed work plan 
and, where appropriate, recommend improvements to the plan. If a 
Tribe has not submitted an approvable work plan February 25, 2004, 
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: Request for Proposals to Select Watershed 
Projects for FY 2004 Funding (Process and Schedule)

    The remaining funds will be awarded to Tribes that have approved 
nonpoint source management programs as of January 7, 2004, 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 2003 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 7, 2004, 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., 5 pages) summary of a watershed project implementation plan 
by February 18, 2004, 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 February 27, 2004, 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 proposed project is listed as a priority implementation 
project or is located in a priority watershed identified in the 
Tribal NPS management program.
    2. The watershed plan summary includes a clear and specific 
identification of the on-the-ground improvement project to be 
constructed or installed and the water quality problem to be 
addressed, including the pollutants of concern and their sources 
(including critical areas to be treated, if known).
    3. 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.
    4. The summary identifies the best management practices or 
measures to be implemented and the location where these measures and 
practices will be implemented.
    5. Where relevant, the watershed project is designed to 
implement measures and practices that 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.]
    6. The proposed project is designed to include cooperation and/
or combination of resources with other programs, parties, and 
agencies to provide additional technical and/or financial assistance 
to the project (e.g. leveraging CWA Section 106 funding for water 
quality monitoring; utilizing Farm Bill Environmental Quality 
Incentives Program funds).
    7. The summary outlines the construction cost of the project and 
the amount of Section 319 grant dollars that are requested, not to

[[Page 6664]]

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 with 
appropriate milestones.
    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. This 
evaluation will be developed into an annual report to the Region and 
a final report on completion of the project.

d. Award of Grants for Tribal Watershed Projects

(i) Award Decisions

    The Watershed Project Review Committee will hold a conference 
call by March 12, 2004, 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 7, 2004, 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 14, 2004, 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 May 7, 2004. If 
a Tribe fails to or is unable to submit an approvable work plan by 
May 7, 2004, 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 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% 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.)

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. Other areas of technical 
assistance include watershed-based planning, water quality 
monitoring, Section 305(b) reports on water quality, and Section 
303(d) lists of impaired waters. EPA intends to continue providing 
nonpoint source workshops to interested Tribes around the United 
States in FY 2004 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 (on 
condition that the Tribe obtains any necessary access agreements and 
coordinates with the State, as appropriate) 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      January 7, 2004
 Grants.
Tribes Submit Base Grant Work Plans to      February 18, 2004
 Region.
Tribes Submit Competitive Grant Proposals   February 18, 2004
 to Region.
Region Comments on Tribe's Base Grant Work  February 25, 2004
 Plan.

[[Page 6665]]

 
Region Forwards Competitive Proposals to    February 27, 2004
 Headquarters.
Review Committee Discusses Proposals......  March 12, 2004
Review Committee Forwards Ranking Scores    April 7, 2004
 to HQ.
Headquarters Notifies Regions/Tribes of     April 14, 2004
 Selections.
Tribes Submit Final Grant Application to    May 7, 2004
 Region.
------------------------------------------------------------------------

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\ of 1% statutory cap in FY 2004, 
Congress continues 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 2004 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 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. 04-2958 Filed 2-10-04; 8:45 am]
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