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CFR	Excerpts

The following pages are excerpts from the Code of Federal Regulations, taken from http://www.ecfr.gov/

as of February 24, 2015. 

TITLE 40—Protection of Environment

PART 123—STATE PROGRAM REQUIREMENTS

Subpart B—State Program Submissions

* * * * *

§123.31 Requirements for eligibility of Indian Tribes.

(a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e), the Regional Administrator will 

treat an Indian Tribe as eligible to apply for NPDES program authority if it meets the following criteria:

(1) The Indian Tribe is recognized by the Secretary of the Interior. 

(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.

(3) The functions to be exercised by the Indian Tribe pertain to the management and protection of 

water resources which are held by an Indian Tribe, held by the United States in trust for the Indians, held 

by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or 

otherwise within the borders of an Indian reservation. 

(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, 

of carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the 

Act and applicable regulations, of an effective NPDES permit program. 

(b) An Indian Tribe which the Regional Administrator determines meets the criteria described in 

paragraph (a) of this section must also satisfy the State program requirements described in this part for 

assumption of the State program.

[58 FR 67981, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]

§123.32 Request by an Indian Tribe for a determination of eligibility.

An Indian Tribe may apply to the Regional Administrator for a determination that it qualifies pursuant 

to section 518 of the Act for purposes of seeking NPDES permit program approval. The application shall 

be concise and describe how the Indian Tribe will meet each of the requirements of §123.31. The 

application shall include the following information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior;

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out 

substantial governmental duties and powers over a defined area. This statement should:

(1) Describe the form of the Tribal government;

(2) Describe the types of governmental functions currently performed by the Tribal governing body, 

such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and 

welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the source of the Tribal government's authority to carry out the governmental functions 

currently being performed.

(c) A map or legal description of the area over which the Indian Tribe asserts authority under section 

518(e)(2) of the Act; a statement by the Tribal Attorney General (or equivalent official authorized to 

represent the Tribe in all legal matters in court pertaining to the program for which it seeks approval) 

which describes the basis for the Tribe's assertion (including the nature or subject matter of the asserted 

regulatory authority); copies of those documents such as Tribal constitutions, by-laws, charters, executive 

orders, codes, ordinances, and/or resolutions which support the Tribe believes are relevant to its 

assertion under section 518(e)(2) of the Act; and a description of the location of the surface waters for 

which the Tribe proposes to establish an NPDES permit program.

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective, 

environmentally sound NPDES permit program. The statement should include:

(1) A description of the Indian Tribe's previous management experience which may include the 

administration of programs and service authorized by the Indian Self-Determination and Education 
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Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or 

the Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(2) A list of existing environmental or public health programs administered by the Tribal governing 

body, and a copy of related Tribal laws, regulations, and policies;

(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial 

functions of the Tribal government;

(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary

responsibility for establishing and administering an NPDES permit program (including a description of the 

relationship between the existing or proposed agency and its regulated entities);

(5) A description of the technical and administrative abilities of the staff to administer and manage 

an effective, environmentally sound NPDES permit program or a plan which proposes how the Tribe will 

acquire additional administrative and technical expertise. The plan must address how the Tribe will obtain 

the funds to acquire the administrative and technical expertise.

(e) The Regional Administrator may, at his or her discretion, request further documentation 

necessary to support a Tribe's eligibility. 

(f) If the Administrator or his or her delegatee has previously determined that a Tribe has met the 

prerequisites that make it eligible to assume a role similar to that of a state as provided by statute under 

the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only 

that information unique to the NPDES program which is requested by the Regional Administrator. 

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]

§123.33 Procedures for processing an Indian Tribe's application.

(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to 

§123.32 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) The Regional Administrator shall follow the procedures described in 40 CFR part 123, subpart D 

in processing a Tribe's request to assume the NPDES program.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]

§123.34 Provisions for Tribal criminal enforcement authority.

To the extent that an Indian Tribe is precluded from asserting criminal enforcement authority as 

required under §123.27, the Federal Government will exercise primary criminal enforcement 

responsibility. The Tribe, with the EPA Region, shall develop a procedure by which the Tribal agency will 

refer potential criminal violations to the Regional Administrator, as agreed to by the parties, in an 

appropriate and timely manner. This procedure shall encompass all circumstances in which the Tribe is 

incapable of exercising the enforcement requirements of §123.27. This agreement shall be incorporated 

into a joint or separate Memorandum of Agreement with the EPA Region, as appropriate.

[58 FR 67983, Dec. 22, 1993]
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Title 40: Protection of Environment 

PART 131—WATER QUALITY STANDARDS

Subpart A—General Provisions

* * * * *

§131.4 State authority.

(a) States (as defined in §131.3) are responsible for reviewing, establishing, and revising water 

quality standards. As recognized by section 510 of the Clean Water Act, States may develop water quality 

standards more stringent than required by this regulation. Consistent with section 101(g) and 518(a) of 

the Clean Water Act, water quality standards shall not be construed to supersede or abrogate rights to 

quantities of water.

(b) States (as defined in §131.3) may issue certifications pursuant to the requirements of Clean 

Water Act section 401. Revisions adopted by States shall be applicable for use in issuing State 

certifications consistent with the provisions of §131.21(c).

(c) Where EPA determines that a Tribe is eligible to the same extent as a State for purposes of 

water quality standards, the Tribe likewise is eligible to the same extent as a State for purposes of 

certifications conducted under Clean Water Act section 401.

[56 FR 64893, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]

* * * * *

§131.8 Requirements for Indian Tribes to administer a water quality standards program.

(a) The Regional Administrator, as determined based on OMB Circular A-105, may accept and 

approve a tribal application for purposes of administering a water quality standards program if the Tribe 

meets the following criteria:

(1) The Indian Tribe is recognized by the Secretary of the Interior and meets the definitions in 

§131.3 (k) and (l),

(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers,

(3) The water quality standards program to be administered by the Indian Tribe pertains to the 

management and protection of water resources which are within the borders of the Indian reservation and 

held by the Indian Tribe, within the borders of the Indian reservation and held by the United States in trust 

for Indians, within the borders of the Indian reservation and held by a member of the Indian Tribe if such 

property interest is subject to a trust restriction on alienation, or otherwise within the borders of the Indian 

reservation, and

(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, 

of carrying out the functions of an effective water quality standards program in a manner consistent with 

the terms and purposes of the Act and applicable regulations.

(b) Requests by Indian Tribes for administration of a water quality standards program should be 

submitted to the lead EPA Regional Administrator. The application shall include the following information:

(1) A statement that the Tribe is recognized by the Secretary of the Interior.

(2) A descriptive statement demonstrating that the Tribal governing body is currently carrying out 

substantial governmental duties and powers over a defined area. The statement should:

(i) Describe the form of the Tribal government;

(ii) Describe the types of governmental functions currently performed by the Tribal governing body 

such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and 

welfare of the affected population, taxation, and the exercise of the power of eminent domain; and

(iii) Identify the source of the Tribal government's authority to carry out the governmental functions 

currently being performed.

(3) A descriptive statement of the Indian Tribe's authority to regulate water quality. The statement 

should include:

(i) A map or legal description of the area over which the Indian Tribe asserts authority to regulate 

surface water quality;

(ii) A statement by the Tribe's legal counsel (or equivalent official) which describes the basis for the 

Tribes assertion of authority and which may include a copy of documents such as Tribal constitutions, bylaws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's 

assertion of authority; and

(iii) An identification of the surface waters for which the Tribe proposes to establish water quality 

standards.
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(4) A narrative statement describing the capability of the Indian Tribe to administer an effective 

water quality standards program. The narrative statement should include:

(i) A description of the Indian Tribe's previous management experience which may include the 

administration of programs and services authorized by the Indian Self-Determination and Education 

Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or 

the Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(ii) A list of existing environmental or public health programs administered by the Tribal governing 

body and copies of related Tribal laws, policies, and regulations;

(iii) A description of the entity (or entities) which exercise the executive, legislative, and judicial 

functions of the Tribal government;

(iv) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary

responsibility for establishing, reviewing, implementing and revising water quality standards;

(v) A description of the technical and administrative capabilities of the staff to administer and 

manage an effective water quality standards program or a plan which proposes how the Tribe will acquire 

additional administrative and technical expertise. The plan must address how the Tribe will obtain the 

funds to acquire the administrative and technical expertise.

(5) Additional documentation required by the Regional Administrator which, in the judgment of the 

Regional Administrator, is necessary to support a Tribal application.

(6) Where the Tribe has previously qualified for eligibility or “treatment as a state” under a Clean 

Water Act or Safe Drinking Water Act program, the Tribe need only provide the required information 

which has not been submitted in a previous application.

(c) Procedure for processing an Indian Tribe's application. (1) The Regional Administrator shall 

process an application of an Indian Tribe submitted pursuant to §131.8(b) in a timely manner. He shall 

promptly notify the Indian Tribe of receipt of the application.

(2) Within 30 days after receipt of the Indian Tribe's application the Regional Administrator shall 

provide appropriate notice. Notice shall:

(i) Include information on the substance and basis of the Tribe's assertion of authority to regulate the 

quality of reservation waters; and

(ii) Be provided to all appropriate governmental entities.

(3) The Regional Administrator shall provide 30 days for comments to be submitted on the Tribal 

application. Comments shall be limited to the Tribe's assertion of authority.

(4) If a Tribe's asserted authority is subject to a competing or conflicting claim, the Regional 

Administrator, after due consideration, and in consideration of other comments received, shall determine 

whether the Tribe has adequately demonstrated that it meets the requirements of §131.8(a)(3).

(5) Where the Regional Administrator determines that a Tribe meets the requirements of this 

section, he shall promptly provide written notification to the Indian Tribe that the Tribe is authorized to 

administer the Water Quality Standards program.

[56 FR 64895, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994] 
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Title 40: Protection of Environment 

PART 233—404 STATE PROGRAM REGULATIONS

Subpart G—Eligible Indian Tribes

* * * * *

§233.60 Requirements for eligibility.

Section 518(e) of the CWA, 33 U.S.C. 1378(e), authorizes the Administrator to treat an Indian Tribe 

as eligible to apply for the 404 permit program under section 404(g)(1) if it meets the following criteria:

(a) The Indian Tribe is recognized by the Secretary of the Interior.

(b) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.

(c) The functions to be exercised by the Indian Tribe pertain to the management and protection of 

water resources which are held by an Indian Tribe, held by the Untied States in trust for the Indians, held 

by a member of an Indian Tribe if such property interest is subject to a trust restriction an alienation, or 

otherwise within the borders of the Indian reservation.

(d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of 

carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the Act 

and applicable regulations, of an effective section 404 dredge and fill permit program.

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994]

§233.61 Determination of Tribal eligibility.

An Indian Tribe may apply to the Regional Administrator for a determination that it meets the 

statutory criteria which authorize EPA to treat the Tribe in a manner similar to that in which it treats a 

State, for purposes of the section 404 program. The application shall be concise and describe how the 

Indian Tribe will meet each of the requirements of §233.60. The application should include the following 

information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior.

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out 

substantial governmental duties and powers over a defined area. This Statement should:

(1) Describe the form of the Tribal government.

(2) Describe the types of governmental functions currently performed by the Tribal governing body, 

such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and 

welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the source of the Tribal government's authority to carry out the governmental functions 

currently being performed.

(c)(1) A map or legal description of the area over which the Indian Tribe asserts regulatory authority 

pursuant to section 518(e)(2) of the CWA and §233.60(c);

(2) A statement by the Tribal Attorney General (or equivalent official) which describes the basis for 

the Tribe's assertion under section 518(e)(2) (including the nature or subject matter of the asserted 

regulatory authority) which may include a copy of documents such as Tribal constitutions, by-laws, 

charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's assertion of 

authority;

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective 404 

permit program. The Statement may include:

(1) A description of the Indian Tribe's previous management experience which may include the 

administration of programs and services authorized by the Indian Self Determination & Education Act (25 

U.S.C. 450 et seq.), The Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the Indian 

Sanitation Facility Construction Activity Act (42 U.S.C. 2004a).

(2) A list of existing environmental or public health programs administered by the Tribal governing 

body, and a copy of related Tribal laws, regulations, and policies;

(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial 

functions of the Tribal government.

(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary

responsibility for establishing and administering a section 404 dredge and fill permit program or plan 

which proposes how the Tribe will acquire additional administrative and technical expertise. The plan 

must address how the Tribe will obtain the funds to acquire the administrative and technical expertise.

(5) A description of the technical and administrative abilities of the staff to administer and manage 

an effective, environmentally sound 404 dredge and fill permit program.
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(e) The Administrator may, at his discretion, request further documentation necessary to support a 

Tribal application.

(f) If the Administrator has previously determined that a Tribe has met the requirements for eligibility 

or for “treatment as a State” for programs authorized under the Safe Drinking Water Act or the Clean 

Water Act, then that Tribe need only provide additional information unique to the particular statute or 

program for which the Tribe is seeking additional authorization.

(Approved by the Office of Management and Budget under control number 2040-0140)

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994]

§233.62 Procedures for processing an Indian Tribe's application.

(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to 

§233.61 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) The Regional Administrator shall follow the procedures described in §233.15 in processing a 

Tribe's request to assume the 404 dredge and fill permit program.

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64346, Dec. 14, 1994]
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Title 40: Protection of Environment 

PART 501—STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS 

Subpart B—Development and Submission of State Programs

* * * * *

§501.22 Requirements for eligibility of Indian Tribes.

(a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e), the Regional Administrator will 

treat an Indian Tribe as eligible to apply for sludge management program authority if it meets the following 

criteria:

(1) The Indian Tribe is recognized by the Secretary of the Interior.

(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.

(3) The functions to be exercised by the Indian Tribe pertain to the management and protection of 

water resources which are held by an Indian Tribe, held by the United States in trust for the Indians, held 

by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or 

otherwise within the borders of an Indian reservation.

(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, 

of carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the 

Act and applicable regulations, of an effective sludge management program.

(b) An Indian Tribe which the Regional Administrator determines meets the criteria described in 

paragraph (a) of this section must also satisfy the State program requirements described in this part for 

assumption of the State program.

[58 FR 67984, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§501.23 Request by an Indian Tribe for a determination of eligibility.

An Indian Tribe may apply to the Regional Administrator for a determination that it qualifies pursuant 

to section 518 of the Act for purposes of seeking sludge management program approval. The application 

shall be concise and describe how the Indian Tribe will meet each of the requirements of §501.22. The 

application shall include the following information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior;

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out 

substantial governmental duties and powers over a defined area. This statement should:

(1) Describe the form of the Tribal government;

(2) Describe the types of governmental functions currently performed by the Tribal governing body, 

such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and 

welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the source of the Tribal government's authority to carry out the governmental functions 

currently being performed.

(c) A map or legal description of the area over which the Indian Tribe asserts authority under section 

518(e)(2) of the Act; a statement by the Tribal Attorney General (or equivalent official authorized to 

represent the Tribe in all legal matters in court pertaining to the program for which it seeks approval) 

which describes the basis for the Tribe's assertion (including the nature or subject matter of the asserted 

regulatory authority); copies of those documents such as Tribal constitutions, by-laws, charters, executive 

orders, codes, ordinances, and/or resolutions which the Tribe believes are relevant to its assertion under 

section 518(e)(2) of the Act. 

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective, 

environmentally sound sludge management program. The statement should include:

(1) A description of the Indian Tribe's previous management experience which may include the 

administration of programs and service authorized by the Indian Self-Determination and Education 

Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or 

the Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(2) A list of existing environmental or public health programs administered by the Tribal governing 

body, and a copy of related Tribal laws, regulations, and policies;

(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial 

functions of the Tribal government;

(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary

responsibility for establishing and administering a sludge management program (including a description of 

the relationship between the existing or proposed agency and its regulated entities);
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(5) A description of the technical and administrative abilities of the staff to administer and manage 

an effective, environmentally sound sludge management program or a plan which proposes how the Tribe 

will acquire additional administrative and technical expertise. The plan must address how the Tribe will 

obtain the funds to acquire the administrative and technical expertise.

(e) The Regional Administrator may, at his discretion, request further documentation necessary to 

support a Tribe's eligibility.

(f) If the Administrator or her delegatee has previously determined that a Tribe has met the 

prerequisites that make it eligible to assume a role similar to that of a state as provided by statute under 

the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only 

that information unique to the sludge management program which is requested by the Regional 

Administrator. 

[58 FR 67984, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§501.24 Procedures for processing an Indian Tribe's application.

(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to 

§501.23 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) The Regional Administrator shall follow the procedures described in subpart C of this part in 

processing a Tribe's request to assume the sludge management program.

[58 FR 67985, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§501.25 Provisions for Tribal criminal enforcement authority.

To the extent that an Indian Tribe is precluded from asserting criminal enforcement authority as 

required under §§501.1(c)(5) and 501.17, the Federal Government will exercise primary criminal 

enforcement responsibility. The Tribe, with the EPA Region, shall develop a procedure by which the 

Tribal agency will refer potential criminal violations to the Regional Administrator, as agreed to by the 

parties, in an appropriate and timely manner. This procedure shall encompass all circumstances in which 

the Tribe is incapable of exercising the enforcement requirements of §§501.1(c)(5) and 501.17. This 

agreement shall be incorporated into a joint or separate Memorandum of Agreement with the EPA 

Region, as appropriate. 

[58 FR 67985, Dec. 22, 1993]