--- kind: "range" citation: "40 C.F.R. §§ 123.31–123.34" title: "40" from: "123.31" to: "123.34" count: 4 url: "https://uscodex.org/cfr/40/123.31..123.34" --- # §123.31. Requirements for eligibility of Indian Tribes. - (a) Consistent with [section 518(e)](/cfr/40/518.md?p=e) of the CWA, [33 U.S.C. 1377(e)](/usc/33/1377.md?p=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)](#a) of this section must also satisfy the State program requirements described in this part for assumption of the State program. # §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](/cfr/40/123.31.md). 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 Assistance Act ([25 U.S.C. 450](/usc/25/450.md) et seq.), the Indian Mineral Development Act ([25 U.S.C. 2101](/usc/25/2101.md) et seq.), or the Indian Sanitation Facility Construction Activity Act ([42 U.S.C. 2004a](/usc/42/2004a.md)); - (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. # §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](/cfr/40/123.32.md) 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](/cfr/40/part123.md), [subpart D](/cfr/40/subpartD.md) in processing a Tribe's request to assume the NPDES program. # §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](/cfr/40/123.27.md), 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](/cfr/40/123.27.md). This agreement shall be incorporated into a joint or separate Memorandum of Agreement with the EPA Region, as appropriate.