### 1 of 8 

# CFR	Ex cerpts

The following pages are excerpts from the Code of Federal Regulations, taken from http://www.ecfr.gov/ as of February 24, 2015.

**TI TLE 40** 

**— Protection of Environment** 

**PA RT 123** 

**— ST**  **AT E PROGRA**  **M REQUIREMENTS Subpart B** 

**— State Program Submissions** 

*** * * * *** **§123.31 Requirements for eligibility of Indian Tribes.**  (a) Consistent with section 518(e) of the CW A, 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 Secretar y 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 carry ing out the function s 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 In dian 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 gove rning 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 regulator y 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 perm it program. The statement should include: (1) A description of the Indian Tribe's previous management experience which may include the

adm inistration of programs and service authorized by the Indian Self

- Determination and Education

### 2 of 8

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, ag enc y 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 mu st 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 Admini strator 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 W ater Act, the Clean W ater Act, or the Clean A ir 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 sh all 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 auth**  **ority.** 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 incapabl e 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]

### 3 of 8

**Title 40: Protection of Environment**

**PA RT 131** 

**— WA** 

**TE R QUALITY ST**  **AND ARDS**  **Subpart A**

**— General Provisions** 

* * * * * **§131.4 State authority.**  (a) States (as defined in §131.3) are responsible for reviewing, establishing, and revising water qualit y standards. As recognized by section 510 o f the Clean W ater 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 W ater Act, water quality standards shall not be construed to supersede or abrogate rig hts to quantities of water. (b) States (as defined in §131.3) may issue certifications pursuant to the requirements of Clean

Wa ter 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) Wh ere 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 C lean Wa ter 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 base d on OMB Circular A

- 105, may accept and approve a tribal application for purposes of administering a water quality standards program if the Tribe

me ets the following criteria: (1) The Indian Tribe is recognized by the Secretar y of the Interior and meets th e 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

ma nagem ent 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 Administrat or's judgment, of carry ing 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 stand ards 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 descript ion 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, by

laws, 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 e stablish water quality

standards.

### 4 of 8

(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 m anagement experience which may include the

adm inistration 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, revi ewing, implementing and revising water quality standards; (v) A description of the technical and administrative capabilities of the staff to administer and

ma nage an effective water quality standards program or a plan which proposes how the Tribe will acqu ire 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 judgme nt of the Regional Administrator, is necessary to support a Tribal application. (6) Wh ere the Tribe has previously qualified for eligibility or “treatment as a state” under a Clean

Wa ter Act or Safe Drinking W ater Act program, the Tribe need only provide t he 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) Wi thin 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 qualit y 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 o n 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

Adm inistrator, after due consideration, and in consideration of othe r comments received, shall determine whether the Tribe has adequately demonstrated that it meets the requirements of §131.8(a)(3). (5) Wh ere the Regional Administrator determines that a Tribe meets the requirements of this section, he shall promptly provid e written notification to the Indian Tribe that the Tribe is authorized to

adm inister the Wa ter Quality Standards program. [56 FR 64895, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]

### 5 of 8

**Title 40: Protection of Environment**

**PA RT 233** 

**— 404 ST**  **AT E PROGRA**  **M REGULA TIONS**  **Subpart G**

**— Eligible Indian Tribes** 

* * * * * **§233.60 Requirements for eligibility.**  Section 518(e) of the CW A, 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 Secretar y 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 int erest 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

carry ing 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 elig**  **ibility.** 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 po wer 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 regulator y authorit y pursuant to section 518(e)(2) of the CW A 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 as serted regulator y 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 describi ng 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

adm inistration 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 pu blic 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 gove rnment. (4) A description of the existing, or proposed, agenc y 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 ad ditional administrative and technical expertise. The plan

mu st 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 ma nage an effective, environmentally sound 404 dredge and fill permit program.

### 6 of 8

(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 W ater Act or the Clean

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

pro gram 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]

### 7 of 8

**Title 40: Protection of Environment**

**PA RT 501** 

**— ST**  **AT E SLUDGE M**  **AN AG**  **EM ENT PROGRA**  **M REGULA TIONS**  **Subpart B**

**— Development and Submission of State Programs** 

* * * * * **§501.22 Requirements for eligibility of Indian Tribes.**  (a) Consistent with section 518(e) of the CW A, 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 Secretar y of the Interior. (2) The Indian Tribe has a governing bod y 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 India ns, 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 Administ rator's judgment, of carry ing 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 deter mi nes m eets 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 sec tion 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 a ssertion (including the nature or subject matter of the asserted regulator y 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 t he Indian Tribe's previous management experience which may include the

adm inistration 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. 21 01 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 polici es; (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, agenc y of the Indian Tribe which will assume primary responsibilit y for establishing and administering a sludge management program (including a description of the relationship between the existing or proposed agency and its regulated entities);

### 8 of 8

(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 acqui re 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 W ater Act, the Clean W ater Act, or the Clean Air Act, then that Tribe need provide only that information unique to t he sludge management program which is requested by the Regional

Adm inistrator. [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 p art 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

Tri bal 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 enforcem ent 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]