00-32397. Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 2001

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of availability.

SUMMARY:

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

DATES:

The guidelines are effective December 20, 2000.

ADDRESSES:

Persons requesting additional information or a complete copy of the document should contact Ed Drabkowski at [phone]; [e-mail]; or U.S. Environmental Protection Agency (4503-F), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

Dated: December 13, 2000.

Robert H. Wayland III,

Director, Office of Wetlands, Oceans, and Watersheds.

Memorandum

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

From: Robert H. Wayland III, Director, Office of Wetlands, Oceans and Watersheds

To: EPA Regional Water Division Directors, Regional Tribal Coordinators/Program Managers, Tribal Caucus, EPA Tribal Operations Committee

I am very pleased to report that Congress has, for the second year in a row, authorized EPA to award nonpoint source pollution control grants to Indian Tribes under Section 319 of the Clean Water Act (“CWA”) in FY 2001 in an amount that exceeds the statutory cap (in Section 518(f) of the CWA) of 1/3% of the total 319 appropriation. This will enable all of the Tribes that have approved nonpoint source assessments and management programs and “treatment-as-a-State” (“TAS”) status (hereinafter referred to as “approved Tribes”) to receive Section 319 funding to help implement those programs.

The allowance of an increased funding for Tribal nonpoint source (“NPS”) programs in FY 2001 reflects Congress’ continuing recognition that Indian Tribes need and deserve increased financial support to implement nonpoint source programs that address critical water quality concerns on Tribal lands. EPA shares this view and will continue to work closely with Tribes to assist them in implementing effective Tribal nonpoint source pollution programs.

As was the case last year, the new authorization to exceed 1/3% applies only to the current year (FY 2001). EPA's long-term goal is that the 1/3% cap on Tribal nonpoint source grants should be permanently eliminated. To date, EPA has already approved over 50 Tribal nonpoint source management programs, covering more than 30 million acres of land (representing more than 65% of all Indian country), and we expect to approve additional programs in FY 2001. Clearly, there needs to be a permanent increase in the amount of Section 319 funds available to Tribes to help them implement approved programs that address nonpoint source pollution across their extensive Tribal lands.

To help achieve this goal, EPA will work with the Tribes to continue to demonstrate that increased 319 funds for Tribes can be used effectively to achieve water quality improvement. We were pleased by the high quality of the Tribes' work plans that formed the basis of the grants awarded to Tribes in FY 2000, which included both base grants for all approved Tribes as well as grants for specific watershed projects awarded to nine of these Tribes through a competitive process. We believe that the Tribes and EPA succeeded in directing the FY 2000 grants towards high-priority activities that will produce on-the-ground results that provide improved water quality. We believe that this success warrants an increase in Tribal 319 grant dollars in FY 2001 to address the extensive NPS control needs throughout Indian country, as discussed below.

As in FY 2000, the grants issuance process for FY 2001 is designed to balance the needs to (1) provide at least some minimum “base” funding to all approved Tribes to help them implement their NPS programs, and (2) provide sufficient funding to support a significant number of watershed projects that can make a substantial additional improvement to water quality.

Summary of Process for FY 2001 Grants to Tribes

In FY 2001, we will increase the total Tribal nonpoint source grants amount (from $2,500,000 in FY 2000) to $6,000,000. This increase reflects three factors:

1. The number of Tribes eligible to receive nonpoint source grants has increased since the time that EPA awarded grants to 47 Tribes in FY 2000.

2. We have increased the amount of base funding for Tribes whose land area exceeds 5,000 square kilometers (1,930 square miles) from $30,000 to $50,000.

3. We wish to ensure that there is sufficient funding available to support a significantly larger number of additional nonpoint source watershed projects than the nine that were funded in FY 2000.

EPA will divide the $6,000,000 into two portions: base funding for all approved Tribes, and additional watershed project funding for Tribes selected through a competitive process.

Detailed Discussion of Process for FY 2001 Grants to Tribes

1. Base Funding

Each Tribe that has an approved nonpoint source assessment and management program (and TAS status) as of January 28, 2001, will receive base funding as follows:

a. For approved Tribes whose land area exceeds 5,000 square kilometers (approximately 1,930 square miles, or about 1,235,000 acres), EPA will provide $50,000 of base funding.

b. For all other approved Tribes, EPA will provide $30,000 of base funding.

EPA considered whether other factors such as population and water resources should be used, in addition to or instead of land area, to distinguish Tribes with the greatest needs from other Tribes. EPA recognizes that each of these factors is relevant and in some circumstances significant. EPA ultimately chose land area as the deciding factor for a cutoff because nonpoint source pollution is strongly related to land use; thus land area is a reasonable criterion that generally is highly relevant to identifying Tribes with the greatest needs (recognizing that Tribes have needs that significantly exceed available resources).

The base funding of $30,000 per Tribe (or $50,000 for the Tribes with the largest land areas) may be used for a range of activities that implement the Tribe's approved NPS management program, including hiring a program coordinator; conducting nonpoint source education programs; providing training; and implementing, alone or in conjunction with other agencies or other funding sources, on-the-ground watershed projects. In general, this base funding should not be used for assessment activities.

Each Tribe that requests base funding must submit a proposed work plan to the appropriate EPA Regional office that conforms to applicable legal requirements and guidelines and is consistent with the Tribe's nonpoint source management program. This proposed work plan should clearly describe each significant category of activity to be funded; the roles of any Federal, local, or other partners in completing each activity; the schedule and budget for implementing funded activities; and the outputs to be produced by performance of the activity. Outputs of activities should be quantified; results of projects should be measurable and indicators to do so clearly stated. Tribes should submit their proposed work plans to the appropriate Regional office by February 16, 2001. If a Tribe does not submit an approvable proposed work plan by that date, its allocated $30,000 (or $50,000) will be added to the competitive pool, discussed immediately below, which will be used to fund Tribal watershed projects.

Regions should work with the Tribes to expeditiously award the base grants. However, if the Tribe will be awarded additional funds to implement a watershed project, as discussed below, the Tribe may prefer combining the formal process for submitting its final application for both the base and competitive funds. Regions should confer with their Tribes and endeavor to proceed in a manner and on a schedule that is most compatible with the Tribes' preferences.

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

The remaining funds will be awarded to Tribes that have approved nonpoint source management programs as of January 28, 2001, on a competitive basis to provide funding for on-the-ground nonpoint source watershed projects that are designed to achieve additional water quality improvement. Each selected project will be eligible to receive up to $100,000, depending on the demonstrated need. These funds will be awarded using the process described below.

a. Watershed Project Review Committee

As we did for the FY 2000 grants, EPA will establish a watershed project review committee comprised of nine EPA staff, including three EPA Regional Nonpoint Source Coordinators, three EPA Regional Tribal Coordinators, two staff members of the Nonpoint Source Control Branch staff, and one staff member of the American Indian Environmental Office. The committee will then make funding decisions in accordance with the process described below.

b. Watershed Project Summaries

Tribes that have approved nonpoint source assessments and management programs as well as TAS status as of January 28, 2001, are invited to apply for watershed project funding by submitting watershed project summaries for proposed projects ranging between $50,000 and $100,000. (This funding is in addition to the base funding that each approved Tribe will receive, as described above.) Tribes that apply for funding for watershed projects should submit a brief (e.g., 3-5 pages) summary of a watershed project implementation plan by February 5, 2001. (Complete grant applications should not be submitted until after projects are selected, pursuant to EPA's review of watershed project summaries as described below.)

Tribes seeking watershed project funding should submit their watershed project summaries by mailing them, by February 5, 2001, to Ed Drabkowski of the Nonpoint Source Control Branch, Mail Code 4503F, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460; faxing them to Ed at 202-260-7024; or emailing them to [e-mail]. We will immediately provide copies of the submitted summaries to the Review Committee. (Email versions would be appreciated where possible because they can be shared among the reviewers most rapidly and easily.)

The watershed project summary should outline the problem to be addressed; the project's goals and objectives; the lead implementing agency (either the Tribe or another organization authorized by the Tribe to be the project leader) and other agencies that will be authorized to expend project funds; the types of measures or practices that will be implemented; the projected implementation schedule; the project's budget; and the environmental indicators and/or other performance measures that will be used to evaluate the success of the project. (The Appendix to this memorandum contains more information on these elements of well-designed watershed implementation plans.)

Perhaps most important, each watershed plan summary should be clearly written with enough detail to indicate to the reviewing committee why the proposed project should be selected for funding. This is critical to help ensure that the best projects are funded.

c. Selection Criteria for Funding Watershed Projects

In ranking the projects, each reviewer on EPA's watershed project review committee will consider the extent to which the following factors are present in each project.

1. The watershed plan summary includes a clear and specific identification of the water quality problem to be addressed, including the pollutants of concern and their sources (including critical areas to be treated, if known).

2. The watershed project consists of implementation actions that are intended to help restore an impaired waterbody for which a total maximum daily load (TMDL) has been developed or a similar process has been used to establish restoration needs (for surface or ground water protection)

Note:

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

3. The tribe has conducted a Unified Watershed Assessment, and the proposed project is planned to be implemented in a Category I watershed.

4. The project is designed to include cooperation and/or combination of resources with other agencies and other parties to provide additional technical and/or financial assistance to the project.

5. The watershed plan summary includes a clear and objective statement of the project's goals and objectives, in terms of controlling the resources and/or of improving/protecting water quality.

6. The summary identifies the management measures or practices to be implemented and the location where these measures and practices will be implemented.

7. The summary identifies the cost of the project and the amount of Section 319 grant dollars that are requested. (This must be within the $50,000-100,000 range.) Please note that a 40% non-Federal match is also required. However, if a Tribe demonstrates that it does not have adequate funds to meet the required match, EPA may approve a 10% non-Federal match.

8. The summary includes an implementation schedule.

9. The summary includes a statement of how the project will be evaluated to determine its success and to derive lessons that will assist the Tribe (and other Tribes) in future projects.

d. Award of Grants for Tribal Watershed Projects

(i) Award Decisions. The Watershed Project Review Committee will hold a conference call prior to reviewing the proposed watershed projects to ensure that all Committee members fully understand and agree on how to objectively apply the criteria discussed above. Rankings will be developed by considering all of the factors as a whole, in accordance with a weighting system to be decided upon by the Committee.

They will then review the proposed watershed projects and hold a second conference call by March 1 to discuss the projects. Following the second conference call, each Committee member will separately rank the projects and forward their suggested rankings to Ed Drabkowski in the Nonpoint Source Control Branch in EPA Headquarters by March 15, 2001. Headquarters will tally the members' rankings and then hold a final conference call with the Review Committee to provide a final opportunity for members of the Review Committee to discuss the rankings among themselves. By March 30, 2001, EPA will announce which projects have been selected for funding. The Tribes whose watershed projects have been selected for funding will be notified immediately by phone or email, with a written letter to follow.

(ii) Final Work Plans/Full Grant Applications. Once a Region and Tribe have been notified of the amount that will be awarded to the Tribe, they will discuss any changes that need to be made in the Tribe's proposed workplan. After making appropriate changes, the Tribe will submit a complete grant application to the Region by May 28, 2001. If a Tribe fails to or is unable to submit an approvable work plan by May 28, 2001, the 319(h) grant will instead be awarded to the next highest ranking unfunded application. Regions should endeavor to finalize the grant awards no later than 60 days after receipt of a complete grant application with an approvable work plan.

(iii) Match Requirements. The match requirement for Section 319 grants is 40 percent of the approved work plan costs, which include both the base funding and competitive funding components discussed above. In general, consistent with 40 CFR § 31.24, the match requirement may be satisfied by allowable costs borne by non-Federal grants, by cash donations from non-Federal third parties, or by the value of third party in-kind contributions.

EPA's current regulations also provide that EPA may decrease the Tribal match requirement to as low as 10% “upon application and demonstration by the Tribe that it does not have adequate funds (including Federal funds authorized by statute to be used for matching purposes, tribal funds or in-kind contributions) to meet the required match.” See 40 CFR 35.760 (2000).

In making grant awards to Tribes that provide for a reduced match requirement, Regions should include a brief finding that the Tribe has demonstrated that it does not have adequate funds to meet the required match.

Intertribal Consortia

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

Technical Assistance to Tribes

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

Non-Tribal Lands

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

1. Activities That Are Related to Waters Within a Reservation

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

2. Activities That Are Unrelated to Waters of a Reservation

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

Conclusion

We believe that the lifting of the 1/3% statutory cap once again in FY 2001 provides the Tribes and EPA with an excellent opportunity to further Tribal efforts to reduce nonpoint pollution and enhance water quality on Tribal lands. EPA looks forward to working closely with the Tribes to assist them in implementing effective nonpoint source programs in FY 2001 and creating a sound basis to assure that adequate funds will continue to be provided in the future.

If you have any questions, please do not hesitate to call me at [phone] (or email at [e-mail]), or have your staff contact Ed Drabkowski at [phone] (or email at [e-mail]).

cc: Kathy Gorospe, Director, American Indian Environmental Office, EPA

Ben Smith, AIEO

Jerry Pardilla, National Tribal Environmental Council

Billy Frank, Northwest Indian Fisheries Council

Don Sampson, Columbia River Intertribal Fish Commission

James Schlender, Great Lakes Indian Fish and Wildlife Commission

All Tribes that have an approved Nonpoint Source Management Programs and/or Unified Watershed Assessment or have attended a Nonpoint Source Tribal Workshop

Regional Water Quality Branch Chiefs

Regional Nonpoint Source Coordinators

Appendix

Appendix

[This Appendix is a copy of Appendix C of the Nonpoint Source Program and Grants Guidance for Fiscal Year 1997 and Future Years (May 1996), modified slightly to apply to Tribal programs rather than State programs. The entire guidance may be viewed at www.epa.gov/​owow/​nps/​guide.html].

Elements of a Well-Designed Watershed Implementation Plan

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

1. Define the Problem

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

2. Build a Project Team and Public Support

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

3. Set Goals and Identify Solutions

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

4. Implement Controls

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

5. Measure Success

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