December 27, 1999

MEMORANDUM

I am very pleased to report that Congress has authorized EPA to award nonpoint source pollution control grants to Indian Tribes under Section 319 of the Clean Water Act in an amount that exceeds 1/3% of the total 319 appropriation in FY 2000. This will enable all of the Tribes that have approved nonpoint source assessments and management programs and "treatment-as- a-State" ("TAS") status to receive Section 319 funding to implement those programs.

The authorizing language states:

"[N]otwithstanding section 518(f) of the Federal Water Pollution Control Act, the Administrator is authorized to use the amounts appropriated for any fiscal year under section 319 of that Act to make grants to Indian Tribes pursuant to section 319(h) and 518(e) of that Act."

The accompanying Conference Report explains that this authorization is intended to apply only to FY 2000:

"The conferees have included language which, for fiscal year 2000 only, authorizes the Administrator of the EPA to use funds appropriated under section 319 of the Federal Water Pollution Control Act (FWPCA) to make grants to Indian Tribes pursuant to section 319 and 518(e) of FWPCA."

This language indicates that Congress wishes to retain the opportunity to reconsider next year whether to continue the elimination of the 1/3% limitation.

As you know, 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 32 Tribal nonpoint source programs, covering over 27 million acres of land (representing more than 61% of all Indian country), and we expect to approve additional programs in FY 2000. 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.¹

To help achieve this goal, EPA and the Tribes need to demonstrate that increased 319 funds for Tribes can be used effectively to achieve water quality improvement. It is therefore essential that the FY 2000 grants be directed towards high-priority activities that can produce real, on-the-ground results that result in improved water quality. EPA is committed to working with the Tribes to help them develop and implement grant activities that will meet this need. A track record of success in developing and implementing sound water quality protection and improvement projects will strengthen our ability to demonstrate in future years that there is a continued need for, and a capacity to effectively use, increased 319 grants to Tribes.

Therefore, our short-term goal in FY 2000 is two-fold: (1) to provide at least some base funding to each Tribe that has an approved Tribal nonpoint source program, and (2) demonstrate through effective use of these funds that the permanent elimination of the 1/3% cap in FY 2001 and beyond would result in high-quality projects to restore and protect water quality.

To develop a sound approach to achieve this goal, on November 4, 1999, we solicited comment on a range of issues and options from the Regions, the national Tribal Caucus of the Tribal Operations Committee, several Tribal organizations, and the 32 Tribes that currently have approved nonpoint source management programs. We then circulated a November 29, 1999, draft of this memorandum to the same set of reviewers, as well as close to 200 Tribes that have attended nonpoint source management workshops in the past several years, to solicit their comments on the first draft of this memorandum. We have modified the draft process in accordance with these comments and are now finalizing the process as set forth below.

This guidance outlines the process that EPA will use to award Section 319 nonpoint source grants to Tribes in FY 2000. The process is designed to balance the needs to (1) provide at least some minimum funding to all Tribes with approved nonpoint source programs to help them implement those programs, and (2) provide sufficient funding to support a significant number of watershed projects that can make a real improvement to water quality.

Process for FY 2000 Grants

1. Base Funding

   In FY 2000, EPA will divide the $2,500,000 into two portions. First, each Tribe that has an approved nonpoint source assessment and management program (and TAS status) as of March 1, 2000, will receive base funding of $30,000 each. This base funding of $30,000 per Tribe may be used for a range of activities, 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 demonstration projects.

   Each Tribe that requests base funding must submit a work plan that conforms to applicable legal requirements and is consistent with the Tribe's nonpoint source management program. This 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; and the outputs to be produced by performance of the activity. Outputs of activities should be quantified. Tribes should submit their work plans to the appropriate Regional office by March 1, 2000. If a Tribe does not submit an approvable work plan by that date, its allocated $30,000 will be added to the competitive pool, discussed immediately below, which will be used to fund Tribal watershed projects.

2. Competitive Funding: Process and Schedule to Select Watershed Projects for FY 2000 Funding

   The remaining funds will be awarded to Tribes that have approved nonpoint source management programs as of March 1, 2000, on a competitive basis to provide funding for on- the-ground watershed projects that are designed to achieve water quality improvement. Each project will receive between $50,000 and $150,000, depending on the demonstrated need. These funds will be awarded using the process described below.

   1. Watershed Project Review Committee

      EPA is establishing a watershed project review committee comprised of nine EPA staff, including three EPA Regional Nonpoint Source Coordinators, three EPA Regional Tribal Coordinators, two Nonpoint Source Control Branch staff, and one American Indian Environmental Office Staff. The committee will then make funding decisions in accordance with the process discussed below.

   2. Watershed Project Summaries

      Tribes that have (or will have by March 1, 2000) approved nonpoint source assessments and management programs as well as TAS status are invited to apply for watershed project funding by submitting watershed project summaries for proposed projects ranging between $50,000 and $150,000. (This funding is in addition to the $30,000 base funding that each Tribe with an approved nonpoint source management program will receive, as described above.) Tribes that apply for funding for watershed projects should submit a brief (e.g., 3 pages) summary of a watershed project implementation plan by March 1, 2000. (Complete grant applications should not be submitted until after grant award decisions are made, based upon the review of watershed project summaries as described below.)

      Tribes seeking watershed project funding should submit their watershed project summaries by mailing them to Ed Drabkowski of the Nonpoint Source Control Branch, Mail Code 4503F, U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20460; faxing them to Ed (202) at 202-260-7024; or emailing them to drabkowski.ed@epa.gov. 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 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; 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.

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

      3. The project is designed to leverage other agencies and other parties to provide additional technical and/or financial assistance to the project.

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

      5. The summary identifies the management measures or practices to be implemented and, if known, the location where these measures and practices will be implemented.

      6. The summary identifies the cost of the project and the amount of Section 319 grant dollars that are requested. (This must be within the $50,000-150,000 range.)

      7. The summary includes an implementation schedule.

      8. 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.

   4. Award of Grants for Tribal Watershed Projects

      1. Award Decisions

         The Watershed Project Review Committee will review the proposed watershed projects. Each Committee member will separately rank the projects (beginning with "1" for the highest- ranked project) by March 24, 2000, and forward their suggested rankings to Ed Drabkowski in the Nonpoint Source Control Branch in EPA Headquarters. Headquarters will tally the members' rankings and, by March 31, 2000, 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.

      2. Final Work Plans/Full Grant Applications

         Once a Region and Tribe have been notified of the grant awards, they will discuss any changes that need to be made in the Tribe's workplan. After making appropriate changes, the Tribe will submit a complete grant application to the Region. If a Tribe fails to or is unable to submit an approvable work plan by April 28, the 319(h) grant will instead be awarded to the next highest ranking unfunded application.

      3. Match Requirements Federal regulations (40 CFR 35.760) provide that each grant awarded under Section 319(h) must require a 40 percent non-Federal match for the entire grant. Consistent with these regulations, the 40-percent match requirements apply to all 319-funded Tribal activities, including both the base funding and competitive funding components discussed above. Match can be provided both through dollars and through the provision of in-kind services.

         Section 35.760 also provides 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."

         To date, EPA has not yet developed national guidance on criteria to be used to determine whether a Tribe has demonstrated a special financial need that warrants a reduction of match requirements from 40% to 10%. However, EPA has been considering potential criteria for reducing Tribal match requirements and has briefly discussed them in the context of developing a proposed rule, entitled "Environmental Program Grants for Indian Tribes", that revises and updates several EPA regulations for Tribes and combines them in a new Tribal-specific subpart of Part 35. The proposed rule discusses the potential use of objective socioeconomic indicators to determine undue hardship in evaluating whether a Tribe has demonstrated a special financial need that would warrant a reduced match requirement. See the preamble to that rule at 64 Fed. Reg. 40087 (July 23, 1999) for a discussion of this issue.

Intertribal Consortia

Technical Assistance to Tribes

Conclusion

If you have any questions, please do not hesitate to call me at (202) 260-7166 (or email at wayland.robert@epa.gov), or have your staff contact Ed Drabkowski at (202) 260-7009 (or email at drabkowski.ed@epa.gov).

cc:

Kathy Gorospe, Director, American Indian Environmental Office, EPA Tom Wall, AIEO Richard Regan, 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

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APPENDIX

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).

   
   

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