Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76733

beef cattle growth and feed efficiency, 

and cattle grazing feed efficiency trials. 

The program is authorized only in the 

States of Alabama, California, Colorado, 

Hawaii, Illinois, Indiana, Iowa, Kansas, 

Kentucky, Maryland, Michigan, 

Minnesota, Mississippi, Missouri, 

Nebraska, New Mexico, New York, 

North Carolina, Ohio, Pennsylvania, 

Puerto Rico, South Dakota, Tennessee, 

Texas, Virginia, and Wisconsin. The 

EUP is effective from April 27, 2004 to 

February 28, 2005. A tolerance has been 

established for residues of the active 

ingredient in or on corn.

Two comments were submitted in 

response to the notice of receipt for this 

permit application, which was 

published in the Federal Register on 

March 3, 2004 (69 FR 10040) (FRL–

7344–5). Comments were received from 

private citizens who objected to EUP 

issuance. They expressed doubt 

regarding Monsanto’s truthfulness, were 

concerned about unspecified 

environmental and human health 

effects, as well as the purity of food. The 

Agency understands the commenter’s 

concerns and recognizes that some 

individuals believe that genetically 

modified crops and food should be 

banned completely. Pursuant to its 

authority under the Federal Food, Drug, 

and Cosmetic Act (FFDCA), EPA has 

conducted a comprehensive assessment 

of the Cry1Ab and Cry3Bb1 delta 

endotoxins and the genetic material 

necessary for their production in corn. 

EPA has concluded that there is a 

reasonable certainty that no harm will 

result from dietary exposure to these 

endotoxins as expressed in genetically 

modified corn. The Cry1Ab and 

Cry3Bb1 corn tested under this permit 

are covered by tolerance exemptions 

under 40 CFR 180.1173 and 40 CFR 

180.1214. No adverse effects are 

anticipated as a result of Cry3Bb1 and/

or Cry1Ab expression in transgenic 

corn.

68467–EUP–7. Extension/

Amendment. Mycogen Seeds c/o Dow 

AgroSciences LLC, 9330 Zionsville 

Road, Indianapolis, IN 46268–1054. 

This EUP allows the use of 0.94 pounds 

of the plant-incorporated protectant 

Bacillus thuringiensis Cry34/35Ab1 

proteins and the genetic material 

necessary for their production (from the 

insert of plasmid PHP17662) in corn on 

1,177 acres of field corn for maize 

breeding and observation nursery, maize 

agronomic observation, herbicide 

tolerance, maize efficacy, insect 

resistance management, and maize 

demonstration trials. The program is 

authorized only in the States of Arizona, 

Colorado, Delaware, Hawaii, Illinois, 

Indiana, Iowa, Kansas, Kentucky, 

Maryland, Michigan, Minnesota, 

Missouri, Nebraska, New Jersey, New 

York, North Dakota, Ohio, 

Pennyslvania, Puerto Rico, South 

Dakota, Tennessee, Texas, Wisconsin, 

and Vermont. The EUP is effective from 

April 29, 2004 to April 30, 2005. A 

tolerance has been established for 

residues of the active ingredient in or on 

corn.

29964–EUP–5. Extension/

Amendment. Pioneer Hi-Bred 

International, P.O. Box 552, Johnston, 

IA 50131–0552. This EUP allows the use 

of 3.97 pounds of the plant-incorporated 

protectant Bacillus thuringiensis Cry34/

35Ab1 proteins and the genetic material 

necessary for their production (from the 

insert of plasmid PHP17662) in corn on 

4,690 acres of field corn for insect 

resistance management, maize 

agronomic observation, maize breeding 

and observation, maize demonstration, 

maize efficacy, maize research seed 

production, maize inbred seed increase, 

maize regulatory studies, non-target 

organism, and herbicide tolerance trials. 

The program is authorized only in the 

States of Alabama, Arkansas, California, 

Colorado, Delaware, Georgia, Hawaii, 

Illinois, Indiana, Iowa, Kansas, 

Kentucky, Maryland, Michigan, 

Minnesota, Mississippi, Missouri, 

Nebraska, North Carolina, North Dakota, 

Ohio, Pennsylvania, Puerto Rico, South 

Dakota, Tennessee, Texas, Washington, 

and Wisconsin. The EUP is effective 

from April 29, 2004 to April 30, 2005. 

A tolerance has been established for 

residues of the active ingredient in or on 

corn.

One comment was submitted in 

response to the notice of receipt for this 

permit application, which was 

published in the Federal Register on 

March 10, 2004 (69 FR 11431) (FRL–

7346–6). The commenter objected to 

EUP issuance. The commenter indicated 

denial should be based on their view of 

chemical companies’ record, 

unspecified environmental and human 

health effects, and food purity. The 

Agency understands the commenter’s 

concerns and recognizes that some 

individuals believe that genetically 

modified crops and food should be 

banned completely. Pursuant to its 

authority under the FFDCA, EPA has 

conducted a comprehensive assessment 

of the Cry34Ab1/Cry35Ab1 delta 

endotoxins and the genetic material 

necessary for their production in corn. 

EPA has concluded that there is a 

reasonable certainty that no harm will 

result from dietary exposure to these 

endotoxins as expressed in genetically 

modified corn. The Cry34Ab1/

Cry35Ab1 tested under these permits 

are covered by the tolerance exemption 

under 40 CFR 180.1242. No adverse 

effects are anticipated as a result of 

Cry34Ab1/Cry35Ab1 expression in 

transgenic corn.

Authority: 7 U.S.C. 136c.

List of Subjects

Environmental protection, 

Experimental use permits.

Dated: December 8, 2004.

Janet L. Andersen,

Director, Biopesticides and Pollution 

Prevention Division, Office of Pesticide 

Programs.

[FR Doc. 04–27773 Filed 12–21–04; 8:45 am]

BILLING CODE 6560–50–S

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7849–3] 

Guidelines on Awarding Section 319 

Grants to Indian Tribes in FY 2005; 

Request for Grant Proposals for 

Watershed Projects

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice of availability.

SUMMARY: EPA is publishing, in this 

notice, guidelines for awarding Clean 

Water Act section 319 nonpoint source 

grants to Indian Tribes in FY 2005. Once 

again Congress has authorized EPA to 

award nonpoint source pollution 

control grants to Indian Tribes under 

section 319 of the Clean Water Act in 

FY 2005 in an amount that exceeds the 

statutory cap (in section 518(f) of the 

Clean Water Act) of 1⁄3 of 1% of the total 

319 appropriation. These guidelines are 

intended to assist all Tribes that have 

approved nonpoint source assessments 

and management programs and 

‘‘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 2005, including 

submissions of proposed work plans. 

The guidelines also describe the process 

and schedule to award additional FY 

2005 funds for selected watershed 

projects, including submissions of 

watershed project proposals and the 

selection criteria for funding watershedbased projects.

DATES: The guidelines are effective 

December 22, 2004.

ADDRESSES: Persons requesting 

additional information or a complete 

copy of the document should contact 

Stacie Craddock (202) 566–1204; by email at craddock.stacie@epa.gov; or by 

mail at U.S. Environmental Protection 

76734 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

Agency (4503T), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

The full text of the Guidelines on 

Awarding Section 319 Grants to Indian 

Tribes in FY 2005 is also available on 

the Internet at: http://www.epa.gov/

owow/nps/tribal.html.

FOR FURTHER INFORMATION CONTACT:

Stacie Craddock at (202) 566–1204.

Dated: November 19, 2004. 

Diane C. Regas, 

Director, Office of Wetlands, Oceans, and 

Watersheds.

SUPPLEMENTARY INFORMATION: Once 

again Congress has, for the sixth 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 2005 

in an amount that exceeds the statutory 

cap (in section 518(f) of the CWA) of 1⁄3

of 1% of the total 319 appropriation. 

This will enable all of the Tribes that 

have approved nonpoint source 

assessments and management programs 

and ‘‘treatment-as-a-state’’ (TAS) status 

(hereinafter referred to as ‘‘approved 

Tribes’’) by January 7, 2005, 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 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 ninety-four (94) 

Tribal nonpoint source management 

programs, covering more than 40 

million acres of land (representing 

approximately 75% of all Indian 

country), and we expect to approve 

additional programs in FY 2005. 

As was the case last year, any new 

authorization to exceed 1/3 of 1% 

applies only to the current year (FY 

2005). 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 quality of the 

Tribes’ work plans that formed the basis 

of the grants awarded to Tribes in FY 

2004, which included base grants 

awarded to seventy-eight (78) Tribes as 

well as grants for specific watershed 

projects awarded to thirty-two (32) 

Tribes through a competitive process. 

We believe that the Tribes and EPA 

succeeded in directing the FY 2004 

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 2005 to address the 

extensive NPS control needs throughout 

Indian country, as discussed below. In 

recognition of this fact, we intend to 

award (pending Congressional 

authorization) a total of $7,000,000 to 

Tribes for FY 2005. 

Summary of Process for FY 2005 Grants 

to Tribes 

In FY 2005, we will set aside 

$7,000,000 for Tribal nonpoint source 

grants. This amount is based on the 

same three factors as were used last 

year: 

1. We will continue to support all 

eligible Tribes with base grants. 

2. We will award base funding to 

eligible Tribes as follows: 

a. $30,000 in base funding will be 

awarded to eligible Tribes whose land 

area is less than 1,000 square miles 

(640,000 acres). 

b. $50,000 in base funding will be 

awarded to eligible Tribes whose land 

area is equal to or 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 on-the-ground NPS watershed 

projects. 

Detailed Discussion of Process for FY 

2005 Grants to Tribes 

1. Base Funding 

Each Tribe that has an approved 

nonpoint source assessment and 

management program (and TAS status) 

as of January 7, 2005, 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 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 authorized travel to attend 

training; updating the nonpoint source 

management program; and 

implementing, alone or in conjunction 

with other agencies or other funding 

sources, watershed-based plans and onthe-ground watershed projects. In 

general, this base funding should not be 

used for general assessment activities. 

Each Tribe that requests base funding 

must submit to the appropriate EPA 

Regional office by February 18, 2005, a 

proposed work plan that is consistent 

with the Tribe’s approved nonpoint 

source management program and 

conforms to applicable legal 

requirements (see immediately below 

for contents of work plans for base 

funding). The Region should review the 

proposed work plan and, where 

appropriate, recommend improvements 

to the plan. If a Tribe has not submitted 

an approvable work plan by February 

25, 2005, its allocated amount will be 

added to the competitive pool, 

discussed below, which will be used to 

fund Tribal NPS program and on-theground watershed projects. 

Regions should work with the Tribes 

to expeditiously award the base grants. 

However, if a Tribe will be awarded 

additional funds to implement a 

watershed project, as discussed below, 

the Tribe 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’

needs and preferences. 

2. Work Plans for Base Funding 

A work plan for base funding must be 

consistent with the Tribe’s approved 

nonpoint source management program 

and conform to legal requirements that 

are applicable to all environmental 

program grants awarded to Tribes (see

40 CFR 35.505 and 35.507) as well as 

the legal requirements that specifically 

apply to nonpoint source management 

grants (see 40 CFR 35.638). These 

guidelines summarize particularly 

applicable components of these legal 

requirements. However, EPA 

recommends that Tribes review the 

applicable regulations as well. 

An approvable work plan must 

specify: 

a. The work plan components that 

will be funded under the grant, briefly 

describing each significant category of 

nonpoint source activity; 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76735

b. The work plan commitments for 

each work plan component, and a time 

frame for their accomplishment; 

c. The estimated work years and 

estimated funding amounts for each 

work plan component; 

d. A performance evaluation process 

and reporting schedule in accordance 

with 40 CFR 35.515 (see discussion 

below on the evaluation process under 

the ‘‘Management and Oversight’’

heading); 

e. The roles and responsibilities of the 

recipient and any project partners in 

carrying out the work plan 

commitments. 

3. Competitive Funding: Request for 

Proposals to Select Watershed Projects 

for FY 2005 Funding (Process and 

Schedule) 

The remaining funds will be awarded 

to Tribes that have approved nonpoint 

source management programs as of 

January 7, 2005, 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. An individual Tribe 

(or intertribal consortium) may not be 

awarded competitive funding for more 

than one watershed project in a given 

year. The funds will be awarded using 

the process described below. 

a. Watershed Project Review Committee

As we did for the FY 2004 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 Proposals 

Tribes that have approved nonpoint 

source assessments and management 

programs as well as TAS status as of 

January 7, 2005, may apply for 

competitive funding by submitting a 

proposed work plan for the watershed 

project 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. 

Whereas base funding may be used to 

implement the full range of activities in 

approved nonpoint source management 

programs (e.g., protection activities, 

education and training, etc.), 

competitive funding will be awarded to 

implement on-the-ground water quality 

improvement projects that are expected 

to achieve actual water quality benefits 

in waters impaired by nonpoint source 

pollution. Tribes are encouraged to 

submit on-the-ground projects that 

implement watershed-based plans. 

Competitive funds can be used for more 

detailed development of the watershedbased plan, such as additional 

monitoring or modeling that will assist 

Tribes in targeting implementation 

activities and enable Tribes to develop 

more detailed information or improved 

assessments relating to the specific 

components of the watershed-based 

plan to be implemented. Competitive 

funding should generally be limited to 

20% for development of the watershedbased plans to assure that these funds 

are primarily focused on 

implementation of the plan. Tribes 

should refer to EPA’s FY 2004 Nonpoint 

Source Program and Grants Guidelines 

for States and Territories (available at 

EPA’s Nonpoint Source Web site at: 

http://www.epa.gov/owow/nps/

cwact.html) which outline the specific 

information to be included in 

watershed-based plans to restore waters 

impaired by nonpoint source pollution. 

In such cases, the watershed project can 

be designed to reduce nonpoint source 

pollutant loadings that are contributing 

to non-attainment of water quality 

standards. 

Where relevant, the watershed project 

may be designed to implement measures 

and practices that are intended to 

achieve load reductions or 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 TMDLs). 

NPS TMDLs, together with watershedbased plans designed to implement the 

NPS TMDLs, provide the necessary 

analytic link between actions on the 

ground and the water quality results to 

be achieved. Where an NPS TMDL has 

not yet been developed and approved or 

is not yet being developed for the 

waters, the Tribe may use these funds to 

implement a watershed-based plan in 

the absence of a TMDL. 

Tribes that apply for competitive 

funding for watershed projects should 

submit a proposed work plan for the 

watershed project by February 18, 2005, 

to the appropriate EPA Regional office 

for initial screening for compliance with 

criteria in this notice. The Regional 

office will, by February 25, 2005, 

forward the work plans that meet the 

required criteria to EPA Headquarters 

for distribution to the Watershed Project 

Review Committee. (E-mail versions 

sent as an attachment to the e-mail are 

appreciated where possible because 

they can be shared among the reviewers 

most rapidly and easily.)

Watershed projects that are awarded 

competitive funding must be consistent 

with the Tribe’s approved nonpoint 

source management program and 

conform to legal requirements that are 

applicable to all environmental program 

grants awarded to Tribes (see 40 CFR 

35.505 and 35.507) and the legal 

requirements applicable to nonpoint 

source management grants (see 40 CFR 

35.638). These guidelines summarize 

particularly applicable components of 

these legal requirements, also 

incorporating the specific objectives for 

which watershed project grants are 

awarded. 

c. Work Plan Elements for a Watershed 

Project Proposal 

The following five elements must be 

included in the work plan for a 

proposed watershed project. These 

elements reflect specific regulatory 

requirements, as mentioned above, 

without which a work plan cannot be 

approved. Tribes may refer to the 

‘‘Competitive Proposal Review Sheet’’

in Appendix A for a model of the 

checklist that EPA’s Watershed Project 

Review Committee will use to rank 

proposed work plans for watershed 

projects. 

The work plan for competitive 

funding must include all five of the 

following elements in order to be 

considered for ranking and potential 

funding: 

1. The work plan components to be 

funded under the grant, briefly 

describing each significant category and 

subcategory of nonpoint source 

pollution that will be addressed and the 

causes and sources of that pollution, 

targeting the on-the-ground 

improvements to be addressed; 

2. The work plan commitments for 

each work plan component, focusing on 

the types of best management practices 

or measures that will be implemented to 

address the identified causes and 

sources of nonpoint source pollution for 

each significant source of nonpoint 

source pollution, the expected pollutant 

load reduction and/or water quality 

benefits to the receiving waterbody, and 

a time frame for their accomplishment; 

3. The estimated work years and 

estimated funding amounts for each 

work plan component; 

4. A performance evaluation process 

and reporting schedule in accordance 

with 40 CFR 35.515 (see discussion 

below on the evaluation process under 

the ‘‘Management and Oversight’’

heading); and 

76736 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

5. The roles and responsibilities of the 

recipient and any project partners in 

carrying out the work plan 

commitments. 

d. Selection Criteria for Funding 

Watershed Projects 

As discussed above, watershed project 

proposals must include all of the work 

plan elements listed above in section 3.c 

in order to be considered for approval. 

After a determination is made that the 

project includes these minimum 

elements, EPA’s Watershed Project 

Review Committee will consider the 

extent to which other criteria, listed 

below, are represented in each project. 

The extent to which each criteria is 

present will increase the total score for 

which the project receives. Tribes may 

refer to the ‘‘Competitive Proposal 

Review Sheet’’ in Appendix A for a 

model of the checklist that EPA’s 

Watershed Project Review Committee 

will use to rank proposed work plans for 

watershed projects. 

1. The project is listed as a priority 

implementation project or is located in 

a priority watershed identified in the 

Tribal NPS management program. 

2. The project includes cooperation 

and/or a combination of resources with 

other programs, parties, and agencies to 

provide additional technical and/or 

financial assistance to the project (e.g., 

using section 106 funding for water 

quality monitoring, Farm Bill 

Environmental Quality Incentives 

Program funds, or funds from state 

agency sources). 

3. The project is designed to achieve 

load allocations for which an approved 

NPS TMDL has been developed (or the 

NPS components of mixed-source 

TMDLs). 

4. The project is designed to 

implement a watershed-based plan that 

is designed to restore nonpoint sourceimpaired waters (including components 

identified in EPA’s FY 2004 Nonpoint 

Source Program and Grants Guidelines 

for States and Territories, available at 

EPA’s Nonpoint Source Web site at: 

http://www.epa.gov/owow/nps/

cwact.html). 

e. Award of Grants for Tribal Watershed 

Projects 

(1) Award Decisions 

The Watershed Project Review 

Committee will hold a conference call 

by March 10, 2005, 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 as indicated in 

the ‘‘Competitive Proposal Review 

Sheet’’ in Appendix A. 

By April 7, 2005, the Committee will 

compile the rankings of the 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 

by April 12, 2005, to provide a final 

opportunity for members of the Review 

Committee to discuss the rankings. By 

April 14, 2005, 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.

(2) 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. Final work plans may 

include minor changes or clarifications 

agreed upon by the Region and Tribe, 

but shall not vary significantly in 

substance from the initial watershed 

project proposal. After making 

appropriate changes, the Tribe must 

submit a final work plan to the Region 

by May 6, 2005. If a Tribe fails to or is 

unable to submit an approvable work 

plan by May 6, 2005, the 319 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. 

(3) Match Requirements 

The match requirement for section 

319 base grants is 40 percent unless 

included as part of an approved 

Performance Partnership Grant (PPG) 

which sets the match requirement at 5 

percent of the allowable cost of the work 

plan budget for base funding only. The 

match requirement for section 319 

competitive grants is 40 percent of the 

approved work plan costs. Any 

competitive grant awarded under this 

solicitation will not be included in a 

PPG. 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. 

4. Grant Eligibility and Criteria 

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.) Individual Tribes 

who are a part of an intertribal consortia 

that is awarded a section 319 grant may 

not also be awarded a section 319 grant 

to the individual Tribe. 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 eight years, 

EPA has presented many workshops to 

Tribes throughout the United States to 

assist them in developing: (1) nonpoint 

source assessments to further their 

understanding of nonpoint source 

pollution and its impact on water 

quality; (2) nonpoint source 

management programs to apply 

solutions to address their nonpoint 

source problems; and (3) specific 

projects to effect on-the-ground 

solutions. The workshops also have 

provided information on related EPA 

and other programs that can help Tribes 

address nonpoint source pollution, 

including the provision of technical and 

funding assistance. Other areas of 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76737

technical assistance include watershedbased planning, water quality 

monitoring, section 305(b) reports on 

water quality, and section 303(d) lists of 

impaired waters. EPA intends to 

continue providing nonpoint source 

workshops to interested Tribes around 

the United States in FY 2005 and to 

provide other appropriate technical 

assistance as needed.

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 offreservation 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 onreservation 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 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. 

Milestones Summary for FY 2005

Date for Tribes to be Eligible for 319 Grants. ....................................................................................................................... January 7, 2005. 

Tribes Submit Base Grant Work Plans to Region. ................................................................................................................ February 18, 2005. 

Tribes Submit Competitive Grant Work Plans to Region. ................................................................................................... February 18, 2005. 

Region Comments on Tribe’s Base Grant Work Plan. .......................................................................................................... February 25, 2005. 

Region Forwards Competitive Work Plans to Headquarters. ............................................................................................... February 25, 2005. 

Review Committee Discusses Competitive Work Plans ....................................................................................................... March 10, 2005. 

Review Committee Forwards Ranking Scores to HQ. .......................................................................................................... April 7, 2005. 

Review Committee Discusses Rankings. ............................................................................................................................... April 12, 2005. 

Headquarters Notifies Regions/Tribes of Selections. ........................................................................................................... April 14, 2005. 

Tribes Submit Final Grant Application to Region. .............................................................................................................. May 6, 2005. 

Management and Oversight 

The Clean Water Act and EPA 

regulations require that all section 319 

grants to States, Territories, and Tribes 

include a set of reporting requirements 

for all section 319 grants. In addition, 

the Clean Water Act includes a special 

provision for section 319 grants that 

specifically requires that ‘‘no grant may 

be made’’ under section 319 unless 

EPA’s Administrator determines that the 

grant recipient (in this case the Tribe) 

made ‘‘satisfactory progress’’ during the 

preceding year in meeting the schedule 

of activities specified in its approved 

nonpoint source management program. 

In previous Tribal 319 guidelines, EPA 

has not included any discussion to 

supplement the law and regulations 

regarding Tribal reporting and EPA 

review of Tribal progress. Given the fact 

that Tribes have now been receiving 

significant section 319 funds for several 

years, and have had some time to 

develop more mature programs, EPA 

believes that it is important to take note 

of the significant mechanisms in the 

Clean Water Act and regulations that are 

designed to assure that the funds are 

used wisely and effectively. 

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 nonpoint source management 

programs. 

1. Evaluation Process 

A description of the evaluation 

process and reporting schedule must be 

included in the work plan that is 

required for Tribes receiving section 319 

funding. (See 40 CFR 35.507). To fulfill 

this requirement, the Tribe and the 

Region will develop a process for jointly 

evaluating and reporting progress and 

accomplishments under the work plan. 

(See 40 CFR 35.515). 

The evaluation process must provide 

for: 

a. A discussion of accomplishments 

as measured against work plan 

commitments; 

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. 

Regions will ensure that the required 

evaluations are performed according to 

the negotiated schedule (at least 

annually) and that copies of evaluation 

reports are placed in the official files 

and provided to the recipient. 

2. Satisfactory Progress

For a Tribe (or intertribal consortium) 

that received section 319 funds in the 

preceding fiscal year, section 319(h)(8) 

of the Clean Water Act requires that the 

76738 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 

Region determine whether the Tribe’s 

progress for the previous fiscal year in 

meeting the schedule set forth in its 

nonpoint source management program 

was satisfactory. (See Clean Water Act 

section 319(h)(8) and 40 CFR 

35.638(d)(3)). 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 grant (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 nonpoint 

source management program. The 

Regions must include brief explanations 

that support their determinations. 

Statutory and Regulatory Requirements 

All section 319 grants will be awarded 

and administered consistent with the 

statutory requirements in sections 

319(h) and 518(e) of the Clean Water 

Act and applicable regulations in 40 

CFR parts 31 and 35. 

Revised Schedule for FY 2006 

Beginning in FY 2006, the schedule 

for submitting work plans and awarding 

section 319 grants to Tribes will be 

modified to expedite the grant awards 

process. The revised schedule also 

impacts the date for determining 

eligibility for Tribes’ participation in the 

section 319 grants process. These 

modifications are necessary to ensure 

that award decisions are made earlier in 

the fiscal year to provide adequate time 

for Tribes to implement projects within 

the applicable fiscal year. 

Milestones Summary for FY 2006

Date for Tribes to be Eligible for 319 Grants. ....................................................................................................................... October 14, 2005 

Tribes Submit Base Grant Work Plans to Region. ................................................................................................................ December 2, 2005 

Tribes Submit Competitive Grant Work Plans to Region. ................................................................................................... December 2, 2005 

Region Comments on Tribe’s Base Grant Work Plan. .......................................................................................................... December 9, 2005 

Region Forwards Competitive Work Plans to Headquarters. ............................................................................................... December 9, 2005 

Review Committee Discusses Competitive Work Plans ....................................................................................................... January 11, 2006 

Review Committee Forwards Ranking Scores to HQ. .......................................................................................................... February 8, 2006 

Review Committee Discusses Rankings. ............................................................................................................................... February 14, 2006 

Headquarters Notifies Regions/Tribes of Selections. ........................................................................................................... February 16, 2006 

Tribes Submit Final Grant Application to Region. .............................................................................................................. March 9, 2006 

Conclusion 

By once again lifting the 1/3 of 1% 

statutory cap in FY 2005, Congress 

continues to provide the Tribes and EPA 

with an excellent opportunity to further 

Tribal efforts to reduce nonpoint source 

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 2005 

and creating a sound basis to assure that 

adequate funds will continue to be 

provided in the future.

Appendix A

Tribal 319 Competitive Proposal Review Sheet 

The following review sheet will be used by EPA’s Watershed Project Review Committee to rank proposed work plans for watershed 

projects. 

Tribe Name llllllReviewerllllll

(Weight × Value = Score) (Value: 1 is Lowest; 5 is Highest) (Maximum Score is 700)

Weight Elements 1–5 (Maximum Score for Elements 1–5 = 500) Value Score 

25 (1) Provides work plan components to be funded under the grant.

FACTORS: 

—Identifies goals and objectives of the project, targeting on-the-ground improvements. 

—Identifies each significant category and subcategory of NPS pollution and water quality problem to be addressed. 

—Identifies causes and sources of NPS pollution. 

—Identifies where the NPS project will take place and the waterbody affected by the NPS pollutants—provides 

map. 

COMMENTS: ...........................................................................................................................................................

25 (2) Describes work plan commitments for each work plan component.

FACTORS: 

—Describes the on-the-ground project to be constructed or installed. 

—Identifies BMPs to be implemented. 

—Identifies expected water quality benefits to receiving water. 

COMMENTS: ...........................................................................................................................................................

20 (3) Provides estimated work years and estimated funding amounts for each work plan component.

FACTORS: 

—Identifies a specific ‘‘Start’’ and ‘‘End’’ date for each work plan component. 

—Provides interim milestone dates for achieving each work plan component. 

—Identifies specific budget for each work plan component—outlines total operational and construction cost of 

the project (including match). 

—Indicates readiness to proceed. 

COMMENTS: ...........................................................................................................................................................

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Notices 76739

Weight Elements 1–5 (Maximum Score for Elements 1–5 = 500) Value Score 

15 (4) Describes a performance evaluation process and reporting schedule.

FACTORS: 

—Includes specific factors by which performance can be evaluated. 

—Includes submission of a final report. 

COMMENTS: ...........................................................................................................................................................

15 (5) Identifies roles and responsibilities of the recipient and any project partners in carrying out work plan commitments.

FACTORS: 

—Identifies specific level of effort for responsible parties for each work plan component. 

—Identifies parties who will take the lead in carrying out the work plan commitments for each work plan component. 

COMMENTS: ...........................................................................................................................................................

Criteria 6–9 (Maximum Score for Criteria 6–9 = 200) 

20 (6) The project is listed as a priority implementation project or is located in a priority watershed identified in the 

Tribal NPS management program. 

If Yes, Value = 5 If No, Value = 0 

10 (7) The project includes cooperation and/or a combination of resources with other programs, parties, and 

agencies to provide additional technical and/or financial assistance. 

If Yes, Value = 5 If No, Value = 0 

5 (8) The project is designed to achieve load allocations for which an approved NPS TMDL has been developed 

(or the NPS components of mixed-source TMDLs). 

If Yes, Value = 5 If No, Value = 0 

5 (9) The project is designed to implement a watershed-based plan that is designed to restore NPS-impaired 

waters. 

FACTORS: 

—The extent to which the plan includes each component of a watershed-based plan as identified in EPA’s FY 

2004 Nonpoint Source Program and Grants Guidelines for States and Territories. 

COMMENTS: ...........................................................................................................................................................

TOTAL SCORE 

Any Additional Comments:

[FR Doc. 04–27986 Filed 12–21–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7851–7] 

Revised Guidance on Procedures for 

Submission and Review of CERCLA 

Section 106(b) Reimbursement 

Petitions

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Notice of availability of revised 

guidance document. 

SUMMARY: Section 106(b)(2) of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980 (CERCLA), 42 U.S.C. 

9606(b)(2), as amended by the 

Superfund Amendments and 

Reauthorization Act of 1986 (SARA), 

allows any person who has complied 

with an administrative order issued 

under section 106(a) of CERCLA to 

petition for reimbursement of the 

reasonable costs incurred in complying 

with the order, plus interest. To 

establish a claim for reimbursement, a 

petitioner must demonstrate that it was 

not liable for response costs under 

CERCLA section 107(a), or that EPA’s 

selection of the ordered response action 

was arbitrary and capricious or was 

otherwise not in accordance with law. 

The authority to decide whether to grant 

such petitions has been delegated by the 

President to the EPA Administrator, and 

redelegated to EPA’s Environmental 

Appeals Board (EAB) under EPA 

Delegation of Authority CERCLA 14–27 

(June 1994). 

The EAB issued procedural guidance 

(CERCLA Guidance) regarding the 

procedures for submission and review 

of petitions for reimbursement in June 

1994. Based on its experience with 

reimbursement petitions after June 

1994, the EAB issued revised CERCLA 

Guidance on October 9, 1996. The EAB 

issued a further revised version of its 

CERCLA Guidance on November 10, 

2004. This Notice informs the general 

public of the availability of the 

November 10, 2004 revised CERCLA 

Guidance. The full text of the revised 

CERCLA Guidance is available on the 

EAB’s Web site, http://www.epa.gov/

eab, by clicking on ‘‘EAB Guidance 

Documents.’’ Copies of the document 

can also be obtained by calling Eurika 

Durr, Clerk of the Board, at the 

telephone number and e-mail address 

noted below.

FOR FURTHER INFORMATION CONTACT: For 

further information or for copies of the 

November 10, 2004 revised CERCLA 

Guidance, contact Eurika Durr, Clerk of 

the Board. Telephone number: (202) 

233–0122. E-mail: Durr.Eurika@epa.gov.

Dated: December 14, 2004. 

Kathie A. Stein, 

Environmental Appeals Judge.

[FR Doc. 04–27996 Filed 12–21–04; 8:45 am] 

BILLING CODE 6560–50–P