[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Rules and Regulations]
[Pages 709-717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[EPA-HQ-OW-201; FRL-9247-8]


Guidelines for Awarding Clean Water Act Section 319 Base Grants 
to Indian Tribes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule provides national guidelines for the award of 
base grants under the Clean Water Act (CWA) section 319(h) nonpoint 
source (NPS) grants program to Indian tribes in FY 2011 (and subsequent 
years). In addition, the rule includes a few new administrative changes 
to clarify the guidelines and make them more user-friendly. The new 
administrative changes for base grant submissions are: That each EPA 
Region will now establish its own individual timeframe for tribes to 
submit application materials for section 319 base grants; the inclusion 
of information on how to calculate the cost-share/match; and the 
availability of facsimile submission for section 319 base grant 
application materials when the tribe coordinates with the appropriate 
EPA Regional coordinator in advance of the section 319 base grant 
application deadline.

DATES: This final rule is effective on January 6, 2011.

FOR FURTHER INFORMATION CONTACT: Nancy Arazan, U.S. EPA, Office of 
Wetlands, Oceans, and Watersheds, Assessment and Watershed Protection 
Division, telephone: (202) 566-0815; fax: (202) 566-1333; e-mail: 
[email protected]. Also contact the appropriate EPA Regional Tribal 
NPS Coordinator identified in section XIII and also listed on EPA's Web 
site under ``EPA Tribal NPS Coordinators'' at http://www.epa.gov/nps/tribal.

SUPPLEMENTARY INFORMATION:

[[Page 710]]

Table of Contents

I. General Information
II. Background
III. Overview of Clean Water Act Section 319 Base Grants to Indian 
Tribes
    A. Environmental Results
    B. Allocation Formula
    C. Eligible Activities
IV. Eligibility and Match Requirements
    A. Eligible Applicants
    B. Cost Share/Match
V. Application Requirements for Base Grants
    A. Address to Request Application Package for Base Grants
    B. Content and Form of Application Submission for Base Grants
    1. Proposed Work Plan
    2. Work Plan to Develop a Watershed-Based Plan
    3. Work Plan to Implement a Watershed-Based Plan
VI. Submission Dates and Times for Proposed Work Plans for Base 
Grants
VII. Watershed-Based Plans
    A. Overview of Watershed-Based Plans
    B. Components of a Watershed-Based Plan
    C. Scale and Scope of Watershed-Based Plans
VIII. General Grant Requirements
    A. Grant Requirements
    B. Non-Tribal Lands
    1. Activities That Are Related to Waters Within a Reservation
    2. Activities That Are Unrelated to Waters of a Reservation
    C. Administrative Costs
    D. Satisfactory Progress
    E. Operation and Maintenance
    F. Reporting
IX. Technical Assistance to Tribes
X. Anticipated Deadlines and Milestones for FY 2011 Base Grants
XI. Anticipated Deadlines and Milestones for Base Grants Beyond FY 
2011
XII. Statutory and Executive Order Reviews
XIII. Agency Contacts: EPA Headquarters and Regional Tribal NPS 
Coordinators

I. General Information

    Affected entities: Tribes that are eligible to receive grants under 
Section 319 and 518 of the Clean Water Act (CWA).

II. Background

    In FY 2010 EPA awarded approximately $4.7 million in base grants to 
148 tribes to address high-priority activities aimed at producing 
improved water quality. We look forward to working with tribes again in 
FY 2011 and beyond to implement successful projects addressing the 
extensive nonpoint source (NPS) control needs throughout Indian 
country. There is continuing recognition that Indian tribes need 
financial support to implement NPS programs that address critical water 
quality concerns on tribal lands. EPA will continue to work closely 
with the tribes to assist them in developing and implementing effective 
tribal NPS pollution programs.
    EPA anticipates that Congress will, for the twelfth year in a row, 
authorize EPA to award NPS control grants to Indian tribes in FY 2011 
in an amount that exceeds the statutory cap (in section 518(f) of the 
CWA) of \1/3\ of 1 percent of the total section 319 appropriation. For 
FY 2011, EPA anticipates awarding section 319 base grants to eligible 
tribes in the amount of $30,000 or $50,000 of Federal section 319 
funding (depending on land area; see Section B, Allocation Formula, for 
additional information).
    Section 319 of the CWA authorizes EPA to award grants to eligible 
tribes for the purpose of assisting them in implementing approved NPS 
management programs developed pursuant to section 319(b). The primary 
goal of the NPS management program is to control NPS pollution through 
implementation of management measures and practices to reduce pollutant 
loadings resulting from each category or subcategory of NPSs identified 
in the tribe's NPS assessment report developed pursuant to section 
319(a). Section 319 base funds may be used for a range of activities 
that implement the tribe's approved NPS management program, including, 
but not limited to the following: Hiring a program coordinator; 
conducting NPS education programs; providing training and authorized 
travel to attend training; updating the NPS management program; 
developing watershed-based plans; NPS ordinance development; springs 
protection; low impact development projects/stormwater management; 
livestock exclusion fencing; septic system rehabilitation; public 
outreach; and coordination with other environmental programs (tribal, 
EPA, other federal agency programs, etc.). EPA strongly encourages 
tribes to use section 319 funding for the development and/or 
implementation of watershed-based plans to protect unimpaired waters 
and restore NPS-impaired waters.
    EPA awards section 319 base grants non-competitively, and allocates 
funding using a formula based on land area. Tribes with less than 1,000 
sq. mi. (less than 640,000 acres) of land receive a base amount of 
$30,000, and tribes with over 1,000 sq. mi. (over 640,000 acres) 
receive a base amount of $50,000. EPA awards additional section 319 
funds through a separate competitive process that is aimed at 
implementation of watershed-based projects and watershed plan 
development. EPA posts a separate Request for Proposals (RFP) for its 
competitive grants program under section 319 on an annual basis at 
http://www.grants.gov. Additional information on the competitive grants 
program under section 319 can be found on EPA's Web site at http://www.epa.gov/nps/tribal.

III. Overview of Clean Water Act Section 319 Base Grants to Indian 
Tribes

A. Environmental Results

    EPA has developed guidelines for awarding CWA Section 319 base 
grants to Indian tribes. These guidelines apply to section 319 base 
grants awarded from funds appropriated by Congress in FY 2011 and in 
subsequent years.
    Grants awarded under these guidelines will advance the protection 
and improvement of the Agency's Strategic Plan (see http://www.epa.gov/ocfo/plan/plan.htm). In support of Goal 2, Objective 2.2 of the 
Strategic Plan, and consistent with EPA Order 5700.7, Environmental 
Results Under EPA Assistance Agreements (see http://www.epa.gov/ogd/grants/award/5700.7.pdf), it is anticipated that grants awarded under 
these guidelines will be expected to accomplish various environmental 
outputs and outcomes as described below. All proposed work plans must 
include specific statements describing the environmental results of the 
proposed project in terms of well-defined outputs, and, to the maximum 
extent practicable, well-defined outcomes that demonstrate how the 
project will contribute to the overall protection and improvement of 
water quality. Eligible tribes should contact their EPA Regional Tribal 
NPS Coordinator for further information about the appropriate Strategic 
Plan references (see section XIII for Agency contact information and 
also EPA's Web site under ``EPA Tribal NPS Coordinators'' at http://www.epa.gov/nps/tribal).
    Environmental outputs (or deliverables) refer to an environmental 
activity, effort, and/or associated work product related to an 
environmental goal or objective, that will be produced or provided over 
a period of time or by a specified date. Outputs may be quantitative or 
qualitative, but must be measurable during an assistance agreement 
funding period. Examples of environmental outputs anticipated as a 
result of section 319 grant awards may include but are not limited to: 
A watershed-based plan, progress reports, or a particular number of on-
the-ground management measures or practices installed or implemented 
during the project period.
    Environmental outcomes mean the result, effect, or consequence that 
will occur from carrying out an environmental program or activity that

[[Page 711]]

is related to an environmental or programmatic goal or objective. 
Outcomes may be environmental, behavioral, health-related or 
programmatic in nature, must be quantitative, and may not necessarily 
be achieved within an assistance agreement funding period. Examples of 
environmental outcomes anticipated as a result of section 319 grants to 
be awarded may include but are not limited to: An increased number of 
NPS-impaired waterbodies that have been partially or fully restored to 
meet water quality standards or other water quality-based goals 
established by the tribes; and/or an increased number of waterbodies 
that have been protected from NPS pollution.

B. Allocation Formula

    Each eligible tribe will receive Federal section 319 base funding 
in accordance with 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
------------------------------------------------------------------------

    The land area scale is the same as used in previous years. EPA 
continues to rely upon land area as the deciding factor for allocation 
of funds because NPS pollution is strongly related to land use; thus 
land area is a reasonable factor that generally is highly relevant to 
identifying tribes with the greatest needs (recognizing that many 
tribes have needs that significantly exceed available resources).

C. Eligible Activities

    Section 319 base funds may be used for a range of activities that 
implement the tribe's approved NPS management program, including: 
Hiring a program coordinator; conducting NPS education programs; 
providing training and authorized travel to attend training; updating 
the NPS management program; developing watershed-based plans; and 
implementing, alone or in conjunction with other agencies or other 
funding sources, watershed-based plans and on-the-ground watershed 
projects. In general, base funding should not be used for general 
assessment activities (e.g., monitoring the general status of 
reservation waters, which may be supported with CWA section 106 
funding). EPA encourages tribes to use section 319 funding, and explore 
the use of other funding such as CWA section 106 funding, to support 
project-specific water quality monitoring, data management, data 
analysis, assessment activities, and the development of watershed-based 
plans.

IV. Eligibility and Match Requirements

A. Eligible Applicants

    To be eligible for NPS base grants, a tribe or intertribal 
consortium must: (1) Be Federally recognized; (2) have an approved NPS 
assessment report in accordance with CWA section 319(a); (3) have an 
approved NPS management program in accordance with CWA section 319(b); 
and (4) have treatment in a similar manner as a state (TAS) status in 
accordance with CWA section 518(e). To be eligible for base and 
competitive NPS grants tribes must meet these eligibility requirements 
as of the second Friday in October for the applicable fiscal year 
unless otherwise notified, as announced in the FY 2007 guidelines on 
October 25, 2006, at 71 FR 62441. Tribes should contact their EPA 
Regional Tribal NPS Coordinator for further information about the 
eligibility process (see section XIII for Agency contact information 
and also EPA's website under ``EPA Tribal NPS Coordinators'' at http://www.epa.gov/nps/tribal).
    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.) Individual tribes who are a part of intertribal consortia 
that is awarded a section 319 base grant may not also be awarded an 
individual section 319 base grant. (Note that individual tribes may 
still be eligible to apply for competitive funds if they do not also 
submit a proposal for competitive funds as part of an intertribal 
consortium.)
    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 with their proposed work plan 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.) In making grant awards to tribes who are part of 
intertribal consortia, Regions must include a brief finding in the 
funding package that the tribes have demonstrated the existence of the 
partnership and the authorization of the consortium by its members to 
apply for and receive the grant.

B. Cost Share/Match

    Section 319(h)(3) of the CWA requires that the cost share/match for 
NPS grants is 40 percent of the total project cost. In general, as 
required in 40 CFR 31.24, the cost share/match requirement can be 
satisfied by any of the following: allowable costs incurred by the 
grantee, subgrantee, or a cost-type contractor, including those 
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 must include a brief finding in the funding package that the 
tribe has demonstrated that it does not have adequate funds to meet the 
required match.
    Performance Partnership Grants (PPG) enable tribes to combine funds 
from more than one environmental program grant into a single grant 
award. Tribes seeking to incorporate their section 319 base grant funds 
into a PPG must first apply for section 319 base funding following the 
program's specific requirements (separate work plan and complete 
budget) in order to qualify to put grants into a PPG. If the tribe 
includes the section 319 grant as a part of an approved PPG, the cost 
share/match requirement may be reduced to 5 percent of the total cost 
of the work plan budget for the first 2 years in which the tribe 
receives a PPG; after 2 years, the cost share/match may be increased up 
to 10 percent of the work plan budget (as determined by the Regional 
Administrator). (See 40 CFR 35.536.)
    Where the stated purpose is to include the section 319 base grant 
in a PPG, a tribe may prepare a budget and proposed work plan based 
upon the assumption that EPA will approve the waiver amount for PPGs 
under 40 CFR 35.536. If a proposed PPG work plan differs significantly 
from the section 319 work plan approved for funding, the Regional 
Administrator must consult with the National Program Manager. (See 40 
CFR 35.535.) The purpose of this consultation requirement is to address 
the issue of ensuring that a project which is awarded section 319

[[Page 712]]

base funding is implemented once included with other grant programs in 
a PPG.
    If the tribe does not or cannot include the section 319 base grant 
as part of an approved PPG, or chooses to withdraw the section 319 
grant from their PPG, the tribe must then meet the match requirements 
identified in section IV.B above and, as applicable, negotiate a 
revised work plan with the EPA Regional Tribal NPS Coordinator.
    The following table demonstrates a 40% (section 319 required cost 
share/match), 10% (if undue hardship requested), or 5% (if work plan 
combined in a PPG) cost share/match on a section 319 base grant Federal 
request of either $30,000 or $50,000. If applicants have additional 
questions regarding cost share/match calculations, please contact the 
EPA Regional Contact identified in section XIII.

             Match Calculation Table for Tribes Eligible for $50,000 of Base Funding (> 1,000 mi\2\)
----------------------------------------------------------------------------------------------------------------
                                          Nonfederal match    Federal share
           Total project cost                 (percent)         (percent)     Nonfederal match    Federal share
----------------------------------------------------------------------------------------------------------------
$83,333.................................                40                60           $33,333           $50,000
55,556..................................                10                90             5,556            50,000
52,632..................................                 5                95             2,632            50,000
----------------------------------------------------------------------------------------------------------------


             Match Calculation Table for Tribes Eligible for $30,000 of Base Funding (< 1,000 mi\2\)
----------------------------------------------------------------------------------------------------------------
                                          Nonfederal match    Federal share
           Total project cost                 (percent)         (percent)     Nonfederal match    Federal share
----------------------------------------------------------------------------------------------------------------
$50,000.................................                40                60           $20,000           $30,000
33,333..................................                10                90             3,333            30,000
31,579..................................                 5                95             1,579            30,000
----------------------------------------------------------------------------------------------------------------

    Example Calculation:
    a. If you know the total project costs:
    (1) Multiply the total project costs by the cost-share/match 
percentage needed.
    (2) The total is your cost-share/match amount.

    For example:
    If you are requesting $30,000 of base funding, and your total 
project cost = $50,000, and you need 40 percent cost-share/match, so 
$50,000 x .40 = $20,000 (cost-share/match).
    or
    b. If you know the total federal funds requested ($30,000 for 
this example):
    (1) Divide the total federal funds requested by the maximum 
federal share allowed.
    (2) Subtract the federal funds requested from the amount derived 
in step 1.
    (3) The amount derived from step 2 is the nonfederal match.
    For example:
    (1) If the federal funds requested = $30,000 and the recipient 
cost-share/match is 10 percent, the federal share = 90% or 0.90. 
$30,000 / 0.90 = $33,333 (total project cost).
    (2) $33,333 - $30,000 = $3,333
    (3) The nonfederal match = $3,333

V. Application Requirements for Base Grants

A. Address To Request Application Package for Base Grants

    Grant application forms, including Standard Form (SF) 424, are 
available at http://www.epa.gov/ogd/grants/how_to_apply.htm and by 
mail upon request by calling the EPA Grants and Interagency Agreement 
Management Division (GIAMD) at (202) 564-5320. Tribes may also contact 
their EPA Regional Tribal NPS Coordinator for further information about 
the application process (see section XIII for Agency contact 
information and also EPA's Web site under ``EPA Tribal NPS 
Coordinators'' at http://www.epa.gov/nps/tribal).

B. Content and Form of Application Submission for Base Grants

    Please note that only the proposed work plan and budget, including 
all of the components outlined in the section immediately below, need 
to be included in the initial application for base grants (see section 
VI for submission dates and times).
    To apply for section 319 base grants, you must submit a proposed 
work plan and budget to the appropriate EPA Regional Tribal NPS 
Coordinator (see section XIII for Agency contact information and also 
EPA's Web site under ``EPA Tribal NPS Coordinators'' at http://www.epa.gov/nps/tribal). You may submit the proposed work plan and 
budget as either a hard copy or an electronic submission. If you submit 
a hard copy proposed work plan and budget, you have the option to 
submit it by U.S. Postal Mail, express delivery service, hand delivery, 
or courier service only. If you choose to submit the work plan and 
budget via fax, you must coordinate this with your EPA Regional Tribal 
NPS coordinator one week in advance of the section 319 base grant 
application deadline. The EPA Regional Tribal NPS coordinator must 
acknowledge the tribe's intention to submit via fax. If you submit a 
hard copy proposed work plan and budget, you are encouraged (not 
required) to include a compact disc (CD) with the electronic version of 
the proposed work plan. If you submit your proposed work plan 
electronically, it should be sent to the appropriate EPA Regional 
Tribal NPS Coordinator at the e-mail address listed in section XIII of 
this announcement and also on EPA's Web site under ``EPA Tribal NPS 
Coordinators'' at http://www.epa.gov/nps/tribal.
    The specific content and form of the proposed work plan for the 
award of section 319 base grants is as follows:
1. Proposed Work Plan
    Tribes must submit a work plan to receive base funding. All work 
plans must be consistent with the tribe's approved NPS management 
program and conform to legal requirements that are applicable to all 
environmental program grants awarded to tribes (see 40 CFR 35.507 and 
35.515) as well as the grant requirements which specifically apply to 
NPS management grants (see 40 CFR 35.638). As provided in those 
regulations, and in accordance with EPA Order 5700.7, Environmental 
Results under EPA Assistance Agreements, all work plans must include:
    a. Description of each significant category of NPS activity to be 
addressed;
    b. Work plan components including cost estimate for each work plan 
component;

[[Page 713]]

    c. Work plan commitments for each work plan component, including 
anticipated environmental outputs and outcomes (as required by EPA 
Order 5700.7) and the applicant's plan for tracking and measuring its 
progress towards achieving the expected outputs and outcomes;
    d. Total grant budget breakdown;
    e. Estimated work years for each work plan component;
    f. Roles and responsibilities of the recipient and EPA in carrying 
out the work plan commitments; and
    g. Reporting schedule and a description of the performance 
evaluation process that will be used that accounts for: (a) A 
discussion of accomplishments as measured against work plan commitments 
and anticipated environmental outputs and outcomes; (b) a discussion of 
the cumulative effectiveness of the work performed under all work plan 
components; (c) a discussion of existing and potential problem areas; 
and (d) suggestions for improvement, including, where feasible, 
schedules for making improvements.
2. Work Plan To Develop a Watershed-Based Plan
    If a tribe submits a work plan to develop a watershed-based plan, 
it must include a commitment to incorporate the nine components of a 
watershed-based plan identified in section VII.B below.
3. Work Plan To Implement a Watershed-Based Plan
    If a tribe submits a work plan to implement a watershed-based plan, 
it must be accompanied by a statement that the Region finds that the 
watershed-based plan to be implemented includes the nine components of 
a watershed-based plan identified in section VII.B below.

VI. Submission Dates and Times for Proposed Work Plans for Base Grants

    Beginning in FY 2011, eligible tribes must submit to the 
appropriate EPA Regional Tribal NPS Coordinator proposed work plans for 
base funding by a date established by the Regional office (see section 
XIII for Agency contact information; Agency contact information is also 
posted on EPA's Web site under ``EPA Tribal NPS Coordinators'' at 
http://www.epa.gov/nps/tribal). Application submission due dates and 
times for each of the Regions will be posted on the tribal NPS Web 
site: http://www.epa.gov/nps/tribal. The EPA Regional Tribal NPS 
Program Coordinator or the assigned CWA Section 319 Grants Project 
Officer will review the proposed work plan and budget for base funding 
and, where appropriate, recommend improvements to the plan by a 
specified date determined by the Region. The tribe must submit a final 
work plan and budget by a specified date determined by the Region. The 
Regions will determine the due date for final grant applications. 
Regions must set their base grant proposed work plan submission 
deadlines no later than March 1st, and need to notify EPA Headquarters 
of base grant award recipients by March 31st.
    Submission dates and times for proposed work plans for NPS base 
grant funding for years beyond FY 2011 are described in section XI 
below.

VII. Watershed-Based Plans

A. Overview of Watershed-Based Plans

    EPA strongly encourages tribes to use section 319 funding for the 
development and/or implementation of watershed-based plans to protect 
unimpaired waters and restore NPS-impaired waters. EPA also encourages 
tribes to explore the use of other funding such as CWA section 106 
funding to support the development of watershed-based plans. EPA 
believes that watershed-based plans provide the best means for 
preventing and resolving NPS problems and threats. Watershed-based 
plans provide a coordinating framework for solving water quality 
problems by providing a specific geographic focus, integrating strong 
partnerships, integrating strong science and data, and coordinating 
priority setting and integrated solutions. This section outlines the 
specific information that should be included in all watershed-based 
plans that are developed or implemented using section 319 funding. This 
information correlates with the elements of a watershed-based plan 
outlined in the NPS grants guidelines for States (see FY 2004 Nonpoint 
Source Program and Grants Guidelines for States and Territories, 
available at http://www.epa.gov/owow/nps/cwact.html). One significant 
difference from the State guidelines is that a watershed-based plan for 
tribes provides for the integration of ``water quality-based goals'' 
(see element (3) below), whereas the State guidelines call for specific 
estimates of load reductions that are expected to be achieved by 
implementing the plan. EPA has incorporated this flexibility for tribes 
in recognition that not all tribes have yet developed water quality 
standards and many tribes may need additional time and/or technical 
assistance in order to develop more sophisticated estimates of the NPS 
pollutants that need to be addressed. Where such information does 
exist, or is later developed, EPA expects that it will be incorporated 
as appropriate into the watershed-based plan.
    To the extent that information already exists in other documents 
(e.g., NPS assessment reports or NPS management programs), the 
information may be incorporated by reference into the watershed-based 
plan. Thus, the tribe need not duplicate any existing process or 
document that already provides needed information.

B. Components of a Watershed-Based Plan

    1. An identification of the causes and sources or groups of similar 
sources that will need to be controlled to achieve the goal identified 
in element (3) below. Sources that need to be controlled should be 
identified at the significant subcategory level with estimates of the 
extent to which they are present in the watershed (e.g., X number of 
dairy cattle feedlots needing upgrading, including a rough estimate of 
the number of cattle per facility; Y acres of row crops needing 
improved nutrient management or sediment control; or Z linear miles of 
eroded streambank needing remediation).
    2. A description of the NPS management measures that will need to 
be implemented to achieve a water quality-based goal described in 
element (3) below, as well as to achieve other watershed goals 
identified in the watershed-based plan, and an identification (using a 
map or a description) of the critical areas for which those measures 
will be needed to implement the plan.
    3. An estimate of the water quality-based goals expected to be 
achieved by implementing the measures described in element (2) above. 
To the extent possible, estimates should identify specific water 
quality-based goals, which may incorporate, for example: Load 
reductions; water quality standards for one or more pollutants/uses; 
NPS total maximum daily load allocations; measurable, in-stream 
reductions in a pollutant; or improvements in a parameter that 
indicates stream health (e.g., increases in fish or macroinvertebrate 
counts). If information is not available to make specific estimates, 
water quality-based goals may include narrative descriptions and best 
professional judgment based on existing information.
    4. An estimate of the amounts of technical and financial assistance 
needed, associated costs, and/or the sources and authorities that will 
be relied upon to implement the plan. As sources of funding, tribes 
should

[[Page 714]]

consider other relevant Federal, State, local and private funds that 
may be available to assist in implementing the plan.
    5. An information and education component that will be used to 
enhance public understanding and encourage early and continued 
participation in selecting, designing, and implementing the NPS 
management measures that will be implemented.
    6. A schedule for implementing the NPS management measures 
identified in the plan that is reasonably expeditious.
    7. A description of interim, measurable milestones for determining 
whether NPS management measures or other control actions are being 
implemented.
    8. A set of criteria that can be used to determine whether the 
water quality-based goals are being achieved over time and substantial 
progress is being made towards attaining water quality-based goals and, 
if not, the criteria for determining whether the watershed-based plan 
needs to be revised.
    9. A monitoring component to evaluate the effectiveness of the 
implementation efforts over time, measured against the criteria 
established under element (8) above. EPA recognizes the difficulty of 
developing the information described above with precision and, as these 
guidelines reflect, believes that there must be a balanced approach to 
address this concern. On one hand, it is absolutely critical that 
tribes make, at the subcategory level, a reasonable effort to identify 
the significant sources; identify the management measures that will 
most effectively address those sources; and broadly estimate the 
expected water quality-based goals that will be achieved. Without such 
information to provide focus and direction, it is much less likely that 
a project that implements the plan can efficiently and effectively 
address the NPSs of water quality impairments. On the other hand, EPA 
recognizes that even with reasonable steps to obtain and analyze 
relevant data, the available information at the planning stage (within 
reasonable time and cost constraints) may be limited; preliminary 
information and estimates may need to be modified over time, 
accompanied by mid-course corrections in the watershed plan; and it 
often will require a number of years of effective implementation to 
achieve the goals. EPA fully intends that the watershed planning 
process described above should be implemented in a dynamic and 
iterative manner to assure that projects implementing the plan may 
proceed even though some of the information in the watershed plan is 
imperfect and may need to be modified over time as information 
improves.

C. Scale and Scope of Watershed-Based Plans

    The watershed-based plan should address a large enough geographic 
area so that its' implementation addresses all of the significant 
sources and causes of impairments and threats to the waterbody in 
question. EPA recognizes that many tribes may face jurisdictional 
limitations outside reservation boundaries. To the extent possible, EPA 
encourages tribes to engage other partners and include mixed ownership 
watersheds when appropriate to solve the water quality problems (e.g., 
tribal, Federal, State, local and private lands). While there is no 
rigorous definition or delineation for this concept, the general intent 
is to avoid single segments or other narrowly defined areas that do not 
provide an opportunity for addressing a watershed's stressors in a 
rational and economical manner. At the same time, the scale should not 
be so large as to minimize the probability of successful 
implementation.
    Once a watershed-based plan that contains the information 
identified above has been established, it can be used as the foundation 
for preparing annual work plans. Like the NPS management program 
approved under section 319(b), a watershed-based plan may be a multi-
year planning document. Whereas the NPS management program provides 
overall program guidance to address NPS pollution on tribal lands, a 
watershed-based plan focuses NPS planning on a particular watershed 
identified as a priority in the NPS management program. Due to the 
greater specificity of a watershed-based plan, it will generally have 
considerably more detail than a NPS management program, and identified 
portions may be implemented through highly specific annual work plans. 
While the watershed-based plan can be considered a subset of the NPS 
management program, the annual work plan can be considered a subset of 
the watershed-based plan.
    A tribe may choose to implement the watershed-based plan in 
prioritized portions (e.g., based on particular segments, other 
geographic subdivisions, NPS categories in the watershed, or specific 
pollutants or impairments), consistent with the schedule established 
pursuant to item (f) above. In doing so, tribes may submit annual work 
plans for section 319 grant funding that implement specific portions of 
the watershed-based plan. A watershed-based plan is a strategic plan 
for long-term success; annual work plans are the specific ``to-do 
lists'' to achieve that long-term success.

VIII. General Grant Requirements

A. Grant Requirements

    A listing and description of general EPA regulations applicable to 
the award of assistance agreements may be viewed at http://www.epa.gov/ogd/AppKit/appplicable_epa_regulations_and_description.htm.
    All applicable legal requirements including, but not limited to, 
EPA's regulations on environmental program grants for tribes (see 40 
CFR 35.500 to 35.735) and regulations specific to NPS grants for tribes 
(see 40 CFR 35.630 to 35.638), apply to all section 319 grants.

B. Non-Tribal Lands

    The following discussion explains the extent to which section 319 
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'' (see 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 may similarly 
be used to perform eligible section 319 activities outside of a 
reservation if: (1) The activity pertains to the management and 
protection of waters within a reservation; and (2) just as for on-
reservation activities, the tribe meets all other applicable 
requirements.

[[Page 715]]

2. Activities That Are Unrelated to Waters of a Reservation
    As discussed above, EPA is authorized to award section 319 grants 
to tribes to perform eligible section 319 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 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.

C. Administrative Costs

    Pursuant to CWA section 319(h)(12), administrative costs in the 
form of salaries, overhead, or indirect costs for services provided and 
charged against activities and programs carried out with the grant 
shall not exceed 10 percent of the grant award. The costs of 
implementing enforcement and regulatory activities, education, 
training, technical assistance, demonstration projects, and technology 
transfer are not subject to this limitation. It is common for work 
plans to include many of the above-stated exceptions to administrative 
costs. For example, most BMPs implemented by tribes are considered 
demonstration projects and would fall under the administrative cost 
exemption. Note that indirect cost rates are set by Department of 
Interior for the tribe and are independent of indirect costs mentioned 
in CWA.

D. Satisfactory Progress

    For a tribe that received section 319 funds in the preceding fiscal 
year, section 319(h)(8) of the CWA requires that the Region determine 
whether the tribe made ``satisfactory progress'' during the previous 
fiscal year in meeting the schedule of activities specified in its 
approved NPS management program. The Region will base this 
determination on an examination of tribal activities, reports, reviews, 
and other documents and discussions with the tribe in the previous 
year. Regions must include in each section 319 base grant award package 
(or in a separate document, such as the grant-issuance cover letter, 
that is signed by the same EPA official who signs the grant), a written 
determination that the tribe has made satisfactory progress during the 
previous fiscal year in meeting the schedule of milestones specified in 
its NPS management program. The Regions must include brief explanations 
that support their determinations.

E. Operation and Maintenance

    Each section 319 grant must contain a condition requiring that the 
tribe assure that any management practices implemented for the project 
be properly operated and maintained for the intended purposes during 
its life span. Operation includes the administration, management, and 
performance of non-maintenance actions needed to keep the completed 
practice safe and functioning as intended. Maintenance includes work to 
prevent deterioration of the practice, repairing damage, or replacement 
of the practice to its original condition if one or more components 
fail. Management practices and projects that are damaged or destroyed 
due to a natural disaster (e.g., earthquakes, storm events, floods, 
etc.) or events beyond the control of the grantee are exempt from this 
condition.
    The condition must require the tribe to assure that any 
subrecipient of section 319 funds similarly include the same condition 
in the subaward. Additionally, such condition must reserve the right of 
EPA and the tribe, respectively, to conduct periodic inspections during 
the life span of the project to ensure that operation and maintenance 
are occurring, and shall state that, if it is determined that 
participants are not operating and maintaining practices in an 
appropriate manner, EPA or the tribe, respectively, will request a 
refund for the project supported by the grant.
    The life span of a project will be determined on a case-by-case 
basis, tailored to the types of practices expected to be funded in a 
particular project, and should be specified in the grant condition. For 
assistance in determining the appropriate life span of the project, 
tribes may wish to examine other programs implementing similar 
practices, such as the U.S. Department of Agriculture's conservation 
programs. For example, for conservation practices, it may be 
appropriate to construct the life span consistent with the life span 
for similar conservation practices as determined by the Commodity 
Credit Corporation (pursuant to the implementation of the Environmental 
Quality Incentives Program). Following the approach used in many 
Federal funding programs, practices will generally be operated and 
maintained for a period of at least 5 to 10 years.

F. Reporting

    As provided in 40 CFR 31.40, 31.41, 35.507, 35.515, and 35.638, all 
section 319 grants must include a set of reporting requirements and a 
process for evaluating performance. Some of these requirements have 
been explicitly incorporated into the required work plan components 
that all tribes must include in order to receive section 319 grant 
funding.
    The work plan components required for section 319 funding, 
specifically those relating to work plan commitments and timeframes for 
their accomplishment, facilitate the management and oversight of tribal 
grants by providing specific activities and outputs by which progress 
can be monitored. The performance evaluation process and reporting 
schedule (both work plan components) also establish a formal process by 
which accomplishments can be measured. Additionally, the satisfactory 
progress determination (for tribes that received section 319 funding in 
the preceding fiscal year) helps ensure that tribes are making progress 
in achieving the goals in their NPS management programs.
    Regions will ensure that the required evaluations are performed 
according to the negotiated schedule (at least annually) and that 
copies of the performance evaluation reports are placed in the official 
files and provided to the recipient.

IX. Technical Assistance to Tribes

    In addition to providing NPS grant funding to tribes, EPA remains 
committed to providing continued technical assistance to tribes in 
their efforts to control NPS pollution. During the past fifteen years, 
EPA has presented many workshops to tribes nationwide to assist them in 
developing: (1) NPS assessments to further their understanding of NPS 
pollution and its impact on water quality; (2) NPS management programs 
to apply solutions to address their NPS problems; and (3) specific 
projects with effective on-the-ground solutions. The workshops have 
provided information on related EPA and other programs that can help 
tribes address NPS 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 NPS Webcasts and workshops to 
interested tribes in FY 2011 (and beyond) and to provide other 
appropriate technical assistance as needed. EPA also intends to include 
special emphasis in the trainings on the development and implementation 
of watershed-based plans that are designed to address on-the-ground 
water quality improvements. The National

[[Page 716]]

Partnership for Environmental Technology Education (PETE) has entered 
into a multi-year contract with the U.S. Environmental Protection 
Agency (EPA) to develop a nationwide tribal training program for the 
Office of Grants and Debarment (OGD) and the Office of Small Business 
Programs (OSBP). This cutting-edge program will involve a multi-faceted 
approach to provide tribes, U.S. Territories and Insular Areas with 
training in the proper management of EPA funds through assistance 
awards, and OSBP's Disadvantaged Business Enterprise Rule (DBE) rule. 
The online training can be found at: http://www.petetribal.org.

X. Anticipated Deadlines and Milestones for FY 2011 Base Grants

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Deadline for tribes to be eligible for   October 8, 2010.
 319 grants..
Tribes submit base grant proposed work   Determined by Region (no later
 plan to Region.                          than March 1, 2011).
Region comments on tribe's base grant    Determined by Region.
 proposed work plan.
Tribes submit final base grant work      Determined by Region.
 plan to Region.
------------------------------------------------------------------------

    Other than the date EPA will use to determine eligibility to 
receive 319 grants, the dates above are the anticipated dates for those 
actions.

XI. Anticipated Deadlines and Milestones for Base Grants Beyond FY 2011

    Listed below are the anticipated deadlines and milestones for NPS 
base grants for years beyond FY 2011 unless otherwise announced. Beyond 
FY11, Regions must set their base grant proposed work plan submission 
deadlines no later than the first Friday in March, and need to notify 
EPA Headquarters of base grant award recipients no later than the last 
Friday in March.
    The deadlines and milestones below refer to the dates within the 
particular fiscal year for which the tribe is applying for NPS base 
grants. Each year, the specific dates will be posted on EPA's Web site 
at http://www.epa.gov/nps/tribal. Tribes should also contact their EPA 
Regional Tribal NPS Coordinator for further information about deadlines 
and milestones for years beyond FY 2011 (see EPA's Web site under ``EPA 
Tribal NPS Coordinators'' at http://www.epa.gov/nps/tribal for Agency 
contact information).

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Deadline for tribes to be eligible for   Second Friday in October.
 319 grants..
Tribes submit base grant proposed work   Determined by Region (but no
 plan to Region.                          later than the first Friday in
                                          March).
Region comments on tribe's base grant    Determined by Region.
 proposed work plan.
Tribes submit final base grant work      Determined by Region.
 plan to Region.
------------------------------------------------------------------------

XII. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to OMB review. Because this grant action is not subject to 
notice and comment requirements under the Administrative Procedures Act 
or any other statute, it is not subject to the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) or Sections 202 and 205 of the Unfunded 
Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this 
action does not significantly or uniquely affect small governments. 
Although this action does not generally create new binding legal 
requirements, where it does, such requirements do not substantially and 
directly affect tribes under Executive Order 13175 (63 FR 67249, 
November 9, 2000). This action will not have federalism implications, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) 
because it does not generally create new binding legal requirements, 
where it does, such requirements do not substantially and directly 
affect state, local or tribal governments. These revisions clarify the 
current requirements and provide flexibility. This action is not 
subject to Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. This action does not involve technical 
standards; thus, the requirements of Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
Section 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et 
seq., generally provides that before certain actions may take effect, 
the Agency promulgating the action must submit a report, which includes 
a copy of the action, to each House of the Congress and to the 
Comptroller General of the United States. Since this grant action 
contains legally binding requirements, it is subject to the 
Congressional Review Act, and EPA will submit its final action in its 
report to Congress under the Act.

XIII. Agency Contacts: EPA Headquarters and Regional Tribal NPS 
Coordinators

    EPA Headquarters--Nancy Arazan, Office of Wetlands, Oceans, and 
Watersheds, Assessment and Watershed Protection Division, telephone: 
202-566-0815; e-mail: [email protected].
    Region I--Connecticut, Maine, Massachusetts, New Hampshire, Rhode 
Island, Vermont--Beth Edwards; mailing address: U.S. EPA Region I, 5 
Post Office Square, Suite 100, Boston, MA 02109; telephone: 617-918-
1840; e-mail: [email protected].
    Region II--New Jersey, New York, Puerto Rico, U.S. Virgin Islands--
Rick Balla; mailing address: U.S. EPA Region II, 290 Broadway-24th 
Floor (MC DEPP:WPB), New York, New York 10007; telephone: 212-637-3788; 
e-mail: [email protected].
    Region III--Delaware, Maryland, Pennsylvania, Virginia, West 
Virginia, Washington, DC--Fred Suffian; mailing address: U.S. EPA 
Region III, 1650 Arch Street, Philadelphia, PA 19103; telephone: 215-
814-5753; e-mail: [email protected].
    Region IV--Alabama, Florida, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina, Tennessee--Yolanda Brown; mailing address: 
U.S. EPA Region IV, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303; telephone: 404-562-9451; e-mail: 
[email protected].
    Region V--Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin--
Daniel Cozza; mailing address: U.S. EPA Region V, 77 West Jackson Blvd. 
(MC: WS-15J), Chicago, IL 60604; telephone:

[[Page 717]]

312-886-7252; e-mail: [email protected].
    Region VI--Arkansas, Louisiana, New Mexico, Oklahoma, TexasGeorge 
Craft; mailing address: U.S. EPA Region VI, 1445 Ross Avenue, Dallas, 
TX 75202; telephone: 214-665-6684; e-mail: [email protected].
    Region VII--Iowa, Kansas, Missouri, Nebraska--Jennifer Ousley; 
mailing address: U.S. EPA Region VII, 901 N 5th Street, (MC:WWPDWWSP) 
Kansas City, KS 66101; telephone: 913-551-7498; e-mail: 
[email protected].
    Region VIII--Colorado, Montana, North Dakota, South Dakota, Utah, 
Wyoming--Mitra Jha; mailing address: U.S. EPA Region VIII, 1595 Wynkoop 
St. (MC: 8EPR-EP), Denver, CO 80202; telephone: 303-312-6895; e-mail: 
[email protected].
    Region IX--Arizona, California, Hawaii, Nevada, American Samoa, 
Mariana Islands, Guam--Tiffany Eastman; mailing address: U.S. EPA 
Region IX, 75 Hawthorne Street (MC: WTR-10), San Francisco, CA 94105; 
telephone: 415-972-3404; e-mail: [email protected].
    Region X--Alaska, Idaho, Oregon, Washington--Krista Mendelman; 
mailing address: U.S. EPA Region X, 1200 6th Avenue, Suite 900 (MC: 
OWW-137), Seattle, WA 98101; telephone: 206-553-1571; e-mail: 
[email protected].

    Dated: December 29, 2010.
Michael H. Shapiro,
Acting Assistant Administrator, Office of Water.
[FR Doc. 2011-16 Filed 1-5-11; 8:45 am]
BILLING CODE 6560-50-P