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Water: Tribal

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

May 2, 2003

ENVIRONMENTAL PROTECTION AGENCY

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

AGENCY: Environmental Protection Agency (EPA)

ACTION: Notice of Availability

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

DATES: The guidelines are effective May 2, 2003.

ADDRESSES: Persons requesting additional information or a complete copy of the document should contact Ed Drabkowski at (202) 566-1198; drabkowski.ed@epa.gov; or U.S. Environmental Protection Agency (4503T), 1200 Pennsylvania Avenue, NW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Persons requesting additional information or complete copy of the document should contact Ed Drabkowski at (202) 566-1198; drabkowski.ed@epa.gov; or U.S. Environmental Protection Agency (4503T), 1200 Pennsylvania Avenue, NW, Washington, DC 20460. The complete text of today's guidelines is also available on EPA's Internet site on the Nonpoint Source Control Branch homepage at http://www.epa.gov/owow/nps/

SUPPLEMENTARY INFORMATION: The full text of the Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 2003 is published below.

Dated:

Diane C. Regas, Director
Office of Wetlands, Oceans, and Watersheds

MEMORANDUM

SUBJECT: Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 2003
FROM: Diane C. Regas, Director
Office of Wetlands, Oceans and Watersheds
TO: EPA Regional Water Division Directors
Regional Tribal Coordinators/Program Managers
Tribal Caucus, EPA Tribal Operations Committee

I am very pleased to report that Congress has, for the fourth year in a row, authorized EPA to award nonpoint source pollution control grants to Indian tribes under Section 319 of the Clean Water Act ("CWA") in FY 2003 in an amount that exceeds the statutory cap (in Section 518(f) of the CWA) of 1/3% 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 8, 2003, 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 2003 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 70 tribal nonpoint source management programs, covering more than 35 million acres of land (representing more than 71 % of all Indian country), and we expect to approve additional programs in FY 2003.

As was the case last year, the new authorization to exceed 1/3% applies only to the current year (FY 2003). 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 2002, which included base grants awarded to sixty-one (61) tribes as well as grants for specific watershed projects awarded to thirty (30) tribes through a competitive process. We believe that the tribes and EPA succeeded in directing the FY 2002 grants towards high-priority activities that will produce on-the-ground results that provide improved water quality. We believe that this success warrants continued substantial investment of 319 grant dollars in FY 2003 to address the extensive NPS control needs throughout Indian country, as discussed below. In recognition of this fact, we are once again awarding a total of $6,000,000 to tribes for FY 2003.

Summary of Process for FY 2003 Grants to Tribes

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

1. We will continue to support all eligible tribes with base grants.

2. We will award base funding to eligible tribes as follows:

a. $30,000 in base funding will be awarded to eligible tribes whose land area is less than1,000 square miles (640,000 acres).

b. $50,000 in base funding will be awarded to eligible tribes whose land area is greater than 1,000 square miles (640,000 acres).

3. We will award the remaining funds to eligible tribes through a competitive process to support the implementation of priority watershed projects.

Detailed Discussion of Process for FY 2003 Grants to Tribes

1. Base Funding

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

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 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; and implementing, alone or in conjunction with other agencies or other funding sources, on-the-ground watershed projects. In general, this base funding should not be used for assessment activities.

Each tribe that requests base funding must submit to the appropriate EPA Regional office a proposed work plan that conforms to applicable legal requirements (see 40 CFR 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 plans to their appropriate Regional office by January 15, 2003. If a tribe does not submit an approvable proposed work plan by that date, its allocated amount will be added to the competitive pool, discussed immediately below, which will be used to fund tribal NPS program and watershed project priorities.

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

2. Competitive Funding: Process and Schedule to Select Watershed Projects for FY 2003 Funding

The remaining funds will be awarded to tribes that have approved nonpoint source management programs as of January 8, 2003, on a competitive basis to provide funding for on-the-ground nonpoint source watershed projects that are designed to achieve additional water quality improvement. Each selected project will be eligible to receive up to $150,000, depending on the demonstrated need. The funds will be awarded using the process described below.

a. Watershed Project Review Committee

As we did for the FY 2002 grants, EPA will establish a Watershed Project Review Committee comprised of nine EPA staff, including three EPA Regional Nonpoint Source

Coordinators, three EPA Regional Tribal Coordinators, two staff members of the Nonpoint Source Control Branch, and one staff member of the American Indian Environmental Office. The committee will 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 8, 2003, are invited to apply for watershed project funding by submitting watershed project summaries for proposed projects up to a maximum budget of $150,000. (This funding is in addition to the base funding that each approved tribe will receive, as described above.) Tribes that apply for funding for watershed projects should submit a brief (e.g., 3-5 pages) summary of a watershed project implementation plan by January 15, 2003, to the appropriate EPA Regional office for initial screening. (Complete grant applications should not be submitted until after projects are selected, pursuant to review by the Watershed Project Review Committee, as described below.) The Regional office will, by January 29, 2003, forward the proposals that meet the required criteria to EPA Headquarters for distribution to the Watershed Project Review Committee. (E-mail versions would be appreciated where possible because they can be shared among the reviewers most rapidly and easily.)

The watershed project summary should outline the nonpoint source pollution problem and the on-the-ground improvement to be addressed; the project's goals and objectives and the expected water quality benefit to the receiving waterbody; the lead implementing agency (either the tribe or another organization authorized by the tribe to be the project leader) and other agencies that will be authorized to expend project funds; the types of best management practices or measures that will be implemented; the projected implementation schedule; the project's budget items including construction costs; and the environmental performance measures that will be used to evaluate the success of the project. Each watershed plan summary should be clearly written with enough detail to show why the proposed project should be selected for competitive funding. This is critical to help ensure that the best projects are funded.

c. Selection Criteria for Funding Watershed Projects

In ranking the projects, each reviewer on EPA's Watershed Project Review Committee will consider the extent to which the following factors are present in each project.

1. The watershed plan summary includes a clear and specific identification of the on-the-ground improvement project and the water quality problem to be addressed, including the pollutants of concern and their sources (including critical areas to be treated, if known), and clearly describes the project to be constructed or installed.

2. Where relevant, the watershed project consists of implementation actions or load calculations that are intended to help restore an impaired waterbody for which an approved

nonpoint source total maximum daily load (NPS TMDL) has been developed or the NPS components of mixed-source TMDL's. [Note: EPA recognizes that most tribes have not yet developed NPS TMDLs. However, Section 319 funding may be used to develop and implement approved NPS TMDLs for any 303(d) listed waterbody. Where a tribe has developed a relevant water quality standard and NPS TMDL and seeks Section 319 funding to assist in the implementation of the NPS TMDL, that should be considered by reviewers to be a relevant factor supporting the funding request.]

3. The proposed project is listed as a priority implementation project in the tribal NPS management program.

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

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

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

7. The summary outlines the construction cost of the project and the amount of Section 319 grant dollars that are requested, not to exceed $150,000. Please note that a 40% non-federal match is also required. However, pursuant to Section 35.635(b), EPA's Regional Administrator may increase the maximum Federal share if the tribe or intertribal consortium can demonstrate in writing to the satisfaction of the Regional Administrator that fiscal circumstances within the tribe or within each tribe that is a member of the intertribal consortium are constrained to such an extent that fulfilling the match requirement would impose undue hardship. In no case will the federal share be greater than 90 percent.

8. The summary includes an implementation schedule.

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

d. Award of Grants for Tribal Watershed Projects
(i) Award Decisions

The Watershed Project Review Committee will hold a conference call by February 12, 2003, to ensure that all Committee members fully understand and agree on how to objectively apply the criteria discussed above. Rankings will be developed by considering all of the factors as a whole, in accordance with a weighting system to be decided upon by the Committee.

By March 12, 2003, the Committee will compile the ranking of proposed watershed

projects based on the selection criteria and then forward their rankings to the Nonpoint Source Control Branch at EPA Headquarters. Headquarters will tally the Committee's rankings and then

hold a conference call to provide a final opportunity for members of the Review Committee to discuss the rankings among themselves. By March 19, 2003, EPA will select the highest ranked proposals and announce to the Regions which tribes' watershed projects have been selected for funding. These tribes will be notified immediately by phone or e-mail, with a written letter to follow.

(ii) Final Work Plans/Full Grant Applications

Once a Region and tribe have been notified of the amount that will be awarded to the tribe, they will negotiate a final work plan consistent with 40 CFR 35.507. After making appropriate changes, the tribe must submit a final work plan to the Region by March 31, 2003. If a tribe fails to or is unable to submit an approvable work plan by March 31, 2003, the 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. EPA intends to continue providing nonpoint source workshops to interested tribes around the United States in FY 2003 and to provide other appropriate technical assistance as needed.

Non-Tribal Lands

The following discussion explains the extent to which Section 319(h) grants may be awarded to tribes for use outside the reservation. We discuss two types of off-reservation activities: (1) activities that are related to waters within a reservation, such as those relating to sources upstream of a waterway entering the reservation, and (2) activities that are unrelated to waters of a reservation. As discussed below, the first type of these activities may be eligible; the second is not.

1. Activities that are Related to Waters within a Reservation

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

2. Activities that are Unrelated to Waters of a Reservation

As discussed above, EPA is authorized to award Section 319(h) grants to tribes to perform eligible Section 319(h) activities if the activities pertain to the management and protection of waters within a reservation and the tribe meets all other applicable requirements. In contrast, EPA is not authorized to award Section 319(h) grants for activities that do not pertain to

waters of a reservation. For off-reservation areas, including "usual and accustomed" hunting, fishing, and gathering places, EPA must determine whether the activities pertain to waters of a reservation prior to awarding a grant.

Milestones Summary

Date for Tribes to be Eligible for 319 Grants January 8, 2003
Tribes Submit Base Grant Work Plans to Region January 15, 2003
Tribes Submit Competitive Grant Proposals to Region January 15, 2003
Region Forwards Proposals to Headquarters January 29, 2003
Review Committee Discusses Proposals February 12, 2003
Review Committee Forwards Ranking Scores to HQ March 12, 2003
Headquarters Notifies Regions/Tribes of Selections March 19, 2003
Tribes Submit Final Grant Application to Region March 31, 2003


Statutory and Regulatory Requirements

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

Conclusion

By once again lifting the 1/3% statutory cap in FY 2003, Congress has continued to provide the tribes and EPA with an excellent opportunity to further tribal efforts to reduce nonpoint pollution and enhance water quality on tribal lands. EPA looks forward to working closely with the tribes to assist them in implementing effective nonpoint source programs in FY 2003 and creating a sound basis to assure that adequate funds will continue to be provided in the future.

If you have any questions, please do not hesitate to call me or have your staff contact Ed Drabkowski at (202) 566-1198 (or e-mail at drabkowski.ed@epa.gov).

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

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