--- kind: "range" citation: "40 C.F.R. §§ 35.530–35.718" title: "40" from: "35.530" to: "35.718" count: 77 url: "https://uscodex.org/cfr/40/35.530..35.718" --- # §35.530. Purpose of Performance Partnership Grants. - (a) **Purpose of section.** [Sections 35.530 through 35.538](/cfr/40/35.530..35.538.md) govern Performance Partnership Grants to Tribes and Intertribal Consortia authorized in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub. L. 104-134; 110 Stat. 1321, 1321-299 (1996)) and Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1998 (Pub. L. 105-65; 111 Stat. 1344, 1373 (1997)). - (b) **Purpose of program.** Performance Partnership Grants enable Tribes and Intertribal Consortia to combine funds from more than one environmental program grant into a single grant with a single budget. Recipients do not need to account for Performance Partnership Grant funds in accordance with the funds' original environmental program sources; they need only account for total Performance Partnership Grant expenditures. Subject to the requirements of this subpart, the Performance Partnership Grant program is designed to: - (1) Strengthen partnerships between EPA and Tribes and Intertribal Consortia through joint planning and priority setting and better deployment of resources; - (2) Provide Tribes and Intertribal Consortia with flexibility to direct resources where they are most needed to address environmental and public health priorities; - (3) Link program activities more effectively with environmental and public health goals and program outcomes; - (4) Foster development and implementation of innovative approaches, such as pollution prevention, ecosystem management, and community-based environmental protection strategies; and - (5) **Provide savings by streamlining administrative requirements.** # §35.532. Requirements summary. - (a) Applicants and recipients of Performance Partnership Grants must meet: - (1) The requirements in [§§ 35.500 to 35.518](/cfr/40/35.500..35.518.md) of this subpart which apply to all environmental program grants, including Performance Partnership Grants; and - (2) The requirements in [§§ 35.530 to 35.538](/cfr/40/35.530..35.538.md) of this subpart which apply only to Performance Partnership Grants. - (b) In order to include funds from an environmental program grant listed in [§ 35.501(a)](/cfr/40/35.501.md?p=a) of this subpart in a Performance Partnership Grant, applicants must: - (1) Meet the requirements for award of each environmental program from which funds are included in the Performance Partnership Grant, except the requirements at §§ [35.548(c)](/cfr/40/35.548.md?p=c), [35.638(b)](/cfr/40/35.638.md?p=b) and [(c)](/cfr/40/35.638.md?p=c), [35.691](/cfr/40/35.691.md), and [35.708(c)](/cfr/40/35.708.md?p=c), [(d)](/cfr/40/35.708.md?p=d), [(e)](/cfr/40/35.708.md?p=e), and [(g)](/cfr/40/35.708.md?p=g). These requirements can be found in this regulation beginning at [§ 35.540](/cfr/40/35.540.md). If the applicant is an Intertribal Consortium, each Tribe that is a member of the Consortium must meet the requirements. - (2) **Apply for the environmental program grant.** - (3) **Obtain the Regional Administrator's approval of the application for that grant.** - (c) If funds from an environmental program are not included in a Performance Partnership Grant, an applicant is not required to meet the eligibility requirements for that environmental program grant in order to carry out activities eligible under that program as provided in [§ 35.535](/cfr/40/35.535.md). # §35.533. Programs eligible for inclusion. - (a) **Eligible programs.** Except as provided in [paragraph (b)](#b) of this section, the environmental programs eligible for inclusion in a Performance Partnership Grant are listed in [§ 35.501(a)(2) through (10)](/cfr/40/35.501.md?p=a-2..a-10) of this subpart. Funds awarded to tribes under Tribal Response Program Grants ([§ 35.501(a)(10)](/cfr/40/35.501.md?p=a-10)) to capitalize a revolving loan fund for Brownfield remediation or purchase insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for response actions may not be included in Performance Partnership Grants. A current list of environmental programs eligible for inclusion in Performance Partnership Grants is available at www.epa.gov/nepps. - (b) **Changes in eligible programs.** The Administrator may, in guidance or regulation, describe subsequent additions, deletions, or changes to the list of environmental programs eligible for inclusion in Performance Partnership Grants. # §35.534. Eligible recipients. - (a) A Tribe or Intertribal Consortium is eligible for a Performance Partnership Grant if the Tribe or each member of the Intertribal Consortium is eligible for, and the Tribe or Intertribal Consortium receives funding from, more than one of the environmental program grants listed in [§ 35.501(a)](/cfr/40/35.501.md?p=a) in accordance with the requirements for those environmental programs. - (b) For grants to Tribes, a Tribal agency must be designated by a Tribal government or other authorized Tribal process to receive grants under each of the environmental programs to be combined in the Performance Partnership Grant. # §35.535. Activities eligible for funding. - (a) **Delegated, approved, or authorized activities.** A Tribe or Intertribal Consortium may use Performance Partnership Grant funds to carry out EPA-delegated, EPA-approved, or EPA-authorized activities, such as permitting and primary enforcement responsibility only if the Tribe or each member of the Intertribal Consortium receives from the Regional Administrator the delegations, approvals, or authorizations to conduct such activities. - (b) **Other program activities.** Except for the limitation in [paragraph (a)](#a) of this section, a Tribe or Intertribal Consortium may use Performance Partnership Grant funds for any activity that is eligible under the environmental programs listed in [§ 35.501(a)](/cfr/40/35.501.md?p=a) of this subpart, as determined by the Regional Administrator. If an applicant proposes a Performance Partnership Grant work plan that differs significantly from any of the proposed work plans approved for funding that the applicant now proposes to move into a Performance Partnership Grant, the Regional Administrator must consult with the appropriate National Program Managers before agreeing to the Performance Partnership Grant work plan. National Program Managers may expressly waive or modify this requirement for consultation in national program guidance. National Program Managers also may define in national program guidance “significant” differences from a work plan submitted with a Tribe's or a Consortium's application for funds. # §35.536. Cost share requirements. - (a) The Performance Partnership Grant cost share shall be the sum of the amounts required for each environmental program grant included in the Performance Partnership Grant, as determined in accordance with paragraphs [(b)](#b) and [(c)](#c) of this section, unless waived under [paragraph (d)](#d) of this section. - (b) For each environmental program grant included in the Performance Partnership Grant that has a cost share of five percent or less under the provisions of [§§ 35.540 through 35.718](/cfr/40/35.540..35.718.md), the required cost share shall be that identified in [§§ 35.540 through 35.718](/cfr/40/35.540..35.718.md) of this subpart. - (c) For each environmental program grant included in the Performance Partnership Grant that has a cost share of greater than five percent under the provisions of [§§ 35.540 through 35.718](/cfr/40/35.540..35.718.md) of this subpart, the required cost share shall be five percent of the allowable cost of the work plan budget for that program. However, after the first two years in which a Tribe or Intertribal Consortium receives a Performance Partnership Grant, the Regional Administrator must determine through objective assessment whether the Tribe or the members of an Intertribal Consortium meet socio-economic indicators that demonstrate the ability of the Tribe or the Intertribal Consortium to provide a cost share greater than five percent. If the Regional Administrator determines that the Tribe or the members of Intertribal Consortium meets such indicators, then the Regional Administrator shall increase the required cost share up to a maximum of 10 percent of the allowable cost of the work plan budget for each program with a cost share greater than five percent. - (d) The Regional Administrator may waive the cost share required under this section upon request of the Tribe or Intertribal Consortium, if, based on an objective assessment of socio-economic indicators, the Regional Administrator determines that meeting the cost share would impose undue hardship. # §35.537. Application requirements. An application for a Performance Partnership Grant must contain: - (a) A list of the environmental programs and the amount of funds from each program to be combined in the Performance Partnership Grant; - (b) A consolidated budget; - (c) A consolidated work plan that addresses each program being combined in the grant and which meets the requirements of [§ 35.507](/cfr/40/35.507.md). # §35.538. Project period. If the projected completion date for a work plan commitment funded under an environmental program grant that is added to a Performance Partnership Grant extends beyond the end of the project period for the Performance Partnership Grant, the Regional Administrator and the recipient will agree in writing as to how and when the work plan commitment will be completed. # §35.540. Purpose. - (a) **Purpose of section.** [Sections 35.540 through 35.547](/cfr/40/35.540..35.547.md) govern grants to Tribes and Intertribal Consortia under the Indian Environmental General Assistance Program Act of 1992 ([42 U.S.C. 4368b](/usc/42/4368b.md).) - (b) **Purpose of program.** Indian Environmental General Assistance Program grants are awarded to build capacity to administer environmental programs for Tribes by providing general assistance to plan, develop, and establish environmental protection programs for Tribes. # §35.542. Definitions. [Reserved] # §35.543. Eligible recipients. The following entities are eligible to receive grants under this program: - (a) Tribes and - (b) Intertribal Consortia as provided in [§ 35.504](/cfr/40/35.504.md). # §35.545. Eligible activities. Tribes and Intertribal Consortia may use General Assistance Program funds for planning, developing, and establishing environmental protection programs and to develop and implement solid and hazardous waste programs for Tribes. # §35.548. Award limitations. - (a) Each grant awarded under the General Assistance Program shall be not less than $75,000. This limitation does not apply to additional funds that may become available for award to the same Tribe or Intertribal Consortium. - (b) The Regional Administrator shall not award a grant to a single Tribe or Intertribal Consortium of more than 10 percent of the total annual funds appropriated under the Act. - (c) The project period of a General Assistance Program award may not exceed four years. - (d) No award under this program shall result in reduction of total EPA grants for environmental programs to the recipient. # §35.570. Purpose. - (a) **Purpose of section.** [Sections 35.570 through 35.578](/cfr/40/35.570..35.578.md) govern air pollution control grants to Tribes (as defined in section 302(r) of the Clean Air Act (CAA)) authorized under sections 105 and 301(d) of the Act and Intertribal Consortia. - (b) **Purpose of program.** Air pollution control grants are awarded to develop and administer programs that prevent and control air pollution or implement national air quality standards for air resources within the exterior boundaries of the reservation or other areas within the Tribe's jurisdiction. - (c) **Associated program regulations.** Refer to 40 CFR parts [49](/cfr/40/part49.md), [50](/cfr/40/part50.md), 51, 52, 58, 60, 61, 62, and 81 for associated program regulations. # §35.572. Definitions. In addition to the definitions in [§ 35.502](/cfr/40/35.502.md), the following definitions apply to the Clean Air Act's [section 105](/cfr/40/105.md) grant program: Nonrecurrent expenditures are those expenditures which are shown by the recipient to be of a nonrepetitive, unusual, or singular nature such as would not reasonably be expected to recur in the foreseeable future. Costs categorized as nonrecurrent must be approved in the grant agreement or an amendment thereto. Recurrent expenditures are those expenses associated with the activities of a continuing environmental program. All expenditures are considered recurrent unless justified by the applicant as nonrecurrent and approved as such in the grant award or an amendment thereto. # §35.573. Eligible Tribe. - (a) A Tribe is eligible to receive [section 105](/cfr/40/105.md) financial assistance under [§§ 35.570 through 35.578](/cfr/40/35.570..35.578.md) if it has demonstrated eligibility to be treated as a State under [40 CFR 49.6](/cfr/40/49.6.md). An Intertribal Consortium consisting of Tribes that have demonstrated eligibility to be treated as States under [40 CFR 49.6](/cfr/40/49.6.md) is also eligible for financial assistance. - (b) Tribes that have not made a demonstration under [40 CFR 49.6](/cfr/40/49.6.md) and Intertribal Consortia consisting of Tribes that have not demonstrated eligibility to be treated as States under [40 CFR 49.6](/cfr/40/49.6.md) are eligible for financial assistance under sections [105](/cfr/40/105.md) and [302(b)(5)](/cfr/40/302.md?p=b-5) of the Clean Air Act. # §35.575. Maximum federal share. - (a) For Tribes and Intertribal Consortia eligible under [§ 35.573(a)](/cfr/40/35.573.md?p=a), the Regional Administrator may provide financial assistance in an amount up to 95 percent of the approved costs of planning, developing, establishing, or improving an air pollution control program, and up to 95 percent of the approved costs of maintaining that program. After two years from the date of each Tribe's or Intertribal Consortium's initial grant award, the Regional Administrator will reduce the maximum federal share to 90 percent if the Regional Administrator determines that the Tribe or each member of the Intertribal Consortium meets certain economic indicators that would provide an objective assessment of the Tribe's or each of the Intertribal Consortiums member's ability to increase its share. For a Tribe or Intertribal Consortium eligible under [§ 35.573(a)](/cfr/40/35.573.md?p=a), the Regional Administrator may increase the maximum federal share if the Tribe or Intertribal Consortium can demonstrate in writing to the satisfaction of the Regional Administrator that fiscal circumstances within the Tribe or within the member Tribes of the Intertribal Consortium are constrained to such an extent that fulfilling the match requirement would impose undue hardship. - (b) For Tribes and Intertribal Consortia eligible under [§ 35.573(b)](/cfr/40/35.573.md?p=b), the Regional Administrator may provide financial assistance in an amount up to 60 percent of the approved costs of planning, developing, establishing, or improving an air pollution control program, and up to 60 percent of the approved costs of maintaining that program. - (c) Revenue collected under a Tribal Title V operating permit program may not be used to meet the cost share requirements of this section. # §35.576. Maintenance of effort. - (a) For Tribes and Intertribal Consortia that are eligible for financial assistance under [§ 35.573(b)](/cfr/40/35.573.md?p=b) of this subpart, the Tribe or each of the Intertribal Consortium's members must expend annually, for recurrent [Section 105](/cfr/40/105.md) program expenditures, an amount of non-federal funds at least equal to such expenditures during the preceding fiscal year. - (1) In order to award grants in a timely manner each fiscal year, the Regional Administrator shall compare a Tribe's or each of the Intertribal Consortium's member's proposed expenditure level, as detailed in the grant application, to its expenditure level in the second preceding fiscal year. When expenditure data for the preceding fiscal year is complete, the Regional Administrator shall use this information to determine the Tribe's or Intertribal Consortium's compliance with its maintenance of effort requirement. - (2) If expenditure data for the preceding fiscal year shows that a Tribe or Intertribal Consortium did not meet the requirements of [paragraph (a)](#a) of this section, the Regional Administrator will take action to recover the grant funds for that year. - (3) The Regional Administrator may grant an exception to [§ 35.576(a)](#a) if, after notice and opportunity for a public hearing, the Regional Administrator determines that a reduction in expenditures is attributable to a non-selective reduction of all the Tribe's or each of the Intertribal Consortium's member's programs. - (b) For Tribes and Intertribal Consortia that are eligible under [§ 35.573(b)](/cfr/40/35.573.md?p=b), the Regional Administrator will not award [Section 105](/cfr/40/105.md) funds unless the applicant provides assurance that the grant will not supplant non-federal funds that would otherwise be available for maintaining the [Section 105](/cfr/40/105.md) program. # §35.578. Award limitation. The Regional Administrator will not disapprove an application for, or terminate or annul an award of, financial assistance under [§ 35.573](/cfr/40/35.573.md) without prior notice and opportunity for a public hearing within the appropriate jurisdiction or, where more than one area is affected, within one of the affected areas within the jurisdiction # §35.580. Purpose. - (a) **Purpose of section.** [Sections 35.580 through 35.588](/cfr/40/35.580..35.588.md) govern water pollution control grants to eligible Tribes and Intertribal Consortia (as defined in [§ 35.502](/cfr/40/35.502.md)) authorized under sections [106](/cfr/40/106.md) and [518](/cfr/40/518.md) of the Clean Water Act. - (b) **Purpose of program.** Water pollution control grants are awarded to assist Tribes and Intertribal Consortia in administering programs for the prevention, reduction, and elimination of water pollution, including programs for the development and implementation of ground-water protection strategies. - (c) **Associated program requirements.** Program requirements for water quality planning and management activities are provided in [40 CFR part 130](/cfr/40/part130.md). # §35.582. Definitions. Federal Indian reservation. All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Tribe. Any Indian Tribe, band, group, or community recognized by the Secretary of the Interior, exercising governmental authority over a federal Indian reservation. # §35.583. Eligible recipients. A Tribe, including an Intertribal Consortium, is eligible to receive a [section 106](/cfr/40/106.md) grant if EPA determines that the Indian Tribe or each member of the Intertribal Consortium meets the requirements for treatment in a manner similar to a State under section 518(e) of the Clean Water Act (see [40 CFR 130.6(d)](/cfr/40/130.6.md?p=d)). # §35.585. Maximum federal share. - (a) The Regional Administrator may provide up to 95 percent of the approved work plan costs for Tribes or Intertribal Consortia establishing a [section 106](/cfr/40/106.md) program. Work plan costs include costs of planning, developing, establishing, improving or maintaining a water pollution control program. - (b) The Regional Administrator may increase the maximum federal share if the Tribe or Intertribal Consortium can demonstrate in writing to the satisfaction of the Regional Administrator that fiscal circumstances within the Tribe or within each Tribe that is a member of an Intertribal Consortium are constrained to such an extent that fulfilling the match requirement would impose undue hardship. # §35.588. Award limitations. - (a) The Regional Administrator will only award [section 106](/cfr/40/106.md) funds to a Tribe or Intertribal Consortium if: - (1) All monitoring and analysis activities performed by the Tribe or Intertribal Consortium meets the applicable quality assurance and quality control requirements in [2 CFR 1500.12](/cfr/2/1500.12.md). - (2) The Tribe or each member of the Intertribal Consortium has emergency power authority comparable to that in section 504 of the Clean Water Act and adequate contingency plans to implement such authority. - (3) EPA has not assumed enforcement as defined in section 309(a)(2) of the Clean Water Act in the Tribe's or any Intertribal Consortium member's jurisdiction. - (4) The Tribe or Intertribal Consortium agrees to include a discussion of how the work performed under [section 106](/cfr/40/106.md) addressed water quality problems on Tribal lands in the annual report required under [§ 35.515(d)](/cfr/40/35.515.md?p=d). - (5) After an initial award of [section 106](/cfr/40/106.md) funds, the Tribe or Intertribal Consortium shows satisfactory progress in meeting its negotiated work plan commitments. - (b) A Tribe or Intertribal Consortium is eligible to receive a [section 106](/cfr/40/106.md) grant or [section 106](/cfr/40/106.md) grant funds even if the Tribe or each of the members of an Intertribal Consortium does not meet the requirements of section [106(e)(1)](/cfr/40/106.md?p=e-1) and [106(f)(1)](/cfr/40/106.md?p=f-1) of the Clean Water Act. # §35.600. Purpose. - (a) **Purpose of section.** [Sections 35.600 through 35.604](/cfr/40/35.600..35.604.md) govern Water Quality Cooperative Agreements to Tribes and Intertribal Consortia authorized under [section 104(b)(3)](/cfr/40/104.md?p=b-3) of the Clean Water Act. These sections do not govern Water Quality Cooperative Agreements under [section 104(b)(3)](/cfr/40/104.md?p=b-3) to organizations that do not meet the definitions of Tribe or Intertribal Consortium in [§ 35.502](/cfr/40/35.502.md). - (b) **Purpose of program.** EPA awards Water Quality Cooperative Agreements for investigations, experiments, training, demonstrations, surveys, and studies relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution. EPA issues guidance each year advising EPA regions and headquarters regarding appropriate priorities for funding for this program. This guidance may include such focus areas as National Pollutant Discharge Elimination System watershed permitting, urban wet weather programs, or innovative pretreatment programs and biosolids projects. # §35.603. Competitive process. EPA will award water quality cooperative agreement funds through a competitive process in accordance with national program guidance. After the competitive process is complete, the recipient can, at its discretion, accept the award as a separate cooperative agreement or add the funds to a Performance Partnership Grant. If the recipient chooses to add the funds to a Performance Partnership Grant, the water quality work plan commitments must be included in the Performance Partnership Grant work plan. # §35.604. Maximum federal share. The Regional Administrator may provide up to 100 percent of approved work plan costs. # §35.610. Purpose. - (a) **Purpose of section.** [Sections 35.610 through 35.615](/cfr/40/35.610..35.615.md) govern wetlands development grants to Tribes and Intertribal Consortia under [section 104(b)(3)](/cfr/40/104.md?p=b-3) of the Clean Water Act. These sections do not govern wetlands development grants under [section 104(b)(3)](/cfr/40/104.md?p=b-3) to organizations that do not meet the definitions of Tribe or Intertribal Consortium in [§ 35.502](/cfr/40/35.502.md). - (b) **Purpose of program.** EPA awards wetlands development grants to assist in the development of new, or the refinement of existing, wetlands protection and management programs. # §35.613. Competitive process. Wetlands development grants are awarded on a competitive basis. EPA annually establishes a deadline for receipt of grant applications. EPA reviews applications and decides which grant projects to fund based on criteria established by EPA. After the competitive process is complete, the recipient can, at its discretion, accept the award as a wetlands development program grant or add the funds to a Performance Partnership Grant. If the recipient chooses to add the funds to a Performance Partnership Grant, the wetlands development program work plan commitments must be included in the Performance Partnership Grant work plan. # §35.615. Maximum federal share. EPA may provide up to 75 percent of the approved work plan costs for the development or refinement of a wetlands protection and management program. # §35.630. Purpose. - (a) **Purpose of section.** [Sections 35.630 through 35.638](/cfr/40/35.630..35.638.md) govern nonpoint source management grants to eligible Tribes and Intertribal Consortia under sections [319(h)](/cfr/40/319.md?p=h) and [518(f)](/cfr/40/518.md?p=f) of the Clean Water Act. - (b) **Purpose of program.** Nonpoint source management grants may be awarded for the implementation of EPA-approved nonpoint source management programs, including ground-water quality protection activities that will advance the approved nonpoint source management program. # §35.632. Definition. Tribe. Any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation. # §35.633. Eligibility requirements. A Tribe or Intertribal Consortium is eligible to receive a Nonpoint Source Management grant if EPA has determined that the Tribe or each member of the Intertribal Consortium meets the requirements for treatment in a manner similar to a State under section 518(e) of the Clean Water Act (see [40 CFR 130.6(d)](/cfr/40/130.6.md?p=d)). # §35.635. Maximum federal share. - (a) The Regional Administrator may provide up to 60 percent of the approved work plan costs in any fiscal year. The non-federal share of costs must be provided from non-federal sources. - (b) The Regional Administrator may increase the maximum federal share if the Tribe or Intertribal Consortium can demonstrate in writing to the satisfaction of 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. In no case shall the federal share be greater than 90 percent. # §35.636. Maintenance of effort. To receive funds under [section 319](/cfr/40/319.md) in any fiscal year, a Tribe or each member of an Intertribal Consortium must agree that the Tribe or each member of the Intertribal Consortium will maintain its aggregate expenditures from all other sources for programs for controlling nonpoint source pollution and improving the quality of the Tribe's or the Intertribal Consortium's members' waters at or above the average level of such expenditures in Fiscal Years 1985 and 1986. # §35.638. Award limitations. - (a) **Available funds.** EPA may use no more than the amount authorized under the Clean Water Act section [319](/cfr/40/319.md) and [518(f)](/cfr/40/518.md?p=f) for making grants to Tribes or Intertribal Consortia. - (b) **Financial assistance to persons.** Tribes or Intertribal Consortia may use funds for financial assistance to persons only to the extent that such assistance is related to the cost of demonstration projects. - (c) **Administrative costs.** Administrative costs in the form of salaries, overhead, or indirect costs for services provided and charged against activities and programs carried out with these funds shall not exceed 10 percent of the funds the Tribe or Intertribal Consortium receives in any fiscal year. The cost of implementing enforcement and regulatory activities, education, training, technical assistance, demonstration projects, and technology transfer programs are not subject to this limitation. - (d) The Regional Administrator will not award [section 319(h)](/cfr/40/319.md?p=h) funds to any Tribe or Intertribal Consortium unless: - (1) **Approved assessment report.** EPA has approved the Tribe's or each member of the Intertribal Consortium's Assessment Report on nonpoint sources, prepared in accordance with section 319(a) of the Act; - (2) **Approved Tribe or Intertribal Consortium management program.** EPA has approved the Tribes's or each member of the Intertribal Consortium's management program for nonpoint sources, prepared in accordance with section 319(b) of the Act; - (3) **Progress on reducing pollutant loadings.** The Regional Administrator determines, for a Tribe or Intertribal Consortium that received a [section 319](/cfr/40/319.md) funds in the preceding fiscal year, that the Tribe or each member of the Intertribal Consortium made satisfactory progress in meeting its schedule for achieving implementation of best management practices to reduce pollutant loadings from categories of nonpoint sources, or particular nonpoint sources, designated in the Tribe's or each Consortium member's management program. The Tribe or each member of the Intertribal Consortium must develop this schedule in accordance with section 319(b)(2) of the Act; - (4) **Activity and output descriptions.** The work plan briefly describes each significant category of nonpoint source activity and the work plan commitments to be produced for each category; and - (5) **Significant watershed projects.** For watershed projects whose costs exceed $50,000, the work plan contains: - (i) A brief synopsis of the watershed implementation plan outlining the problems to be addressed; - (ii) The project's goals and objectives; and - (iii) The performance measures and environmental indicators that will be used to evaluate the results of the project. # §35.640. Purpose. - (a) **Purpose of section.** [Sections 35.640 through 35.645](/cfr/40/35.640..35.645.md) govern cooperative agreements to Tribes and Intertribal Consortia authorized under [section 23(a)(1)](/cfr/40/23.md?p=a-1) of the Federal Insecticide, Fungicide, and Rodenticide Act for pesticide enforcement. - (b) **Purpose of program.** Cooperative agreements are awarded to assist Tribes and Intertribal Consortia in implementing pesticide enforcement programs. - (c) **Associated program regulations.** Refer to 19 CFR part [12](/cfr/19/part12.md) and [40](/cfr/19/part40.md) CFR parts [150](/cfr/40/part150.md) through [189](/cfr/40/part189.md) for associated regulations. # §35.641. Eligible recipients. Eligible recipients of pesticide enforcement cooperative agreements are Tribes and Intertribal Consortia. # §35.642. Maximum federal share. The Regional Administrator may provide up to 100 percent of the approved work plan costs. # §35.645. Basis for allotment. The Administrator allots pesticide enforcement cooperative agreement funds to each regional office. Regional offices award funds to Tribes and Intertribal Consortia based on their programmatic needs and applicable EPA guidance. # §35.646. Purpose. - (a) **Purpose of section.** [Sections 35.646 through 35.649](/cfr/40/35.646..35.649.md) govern pesticide applicator certification and training grants to Tribes and Intertribal Consortia under [section 23(a)(2)](/cfr/40/23.md?p=a-2) of the Federal Insecticide, Fungicide, and Rodenticide Act. - (b) **Purpose of program.** Pesticide applicator certification and training grants are awarded to train and certify restricted use pesticide applicators. - (c) **Associated program regulations.** Associated program regulations are found in 40 CFR parts [162](/cfr/40/part162.md), [170](/cfr/40/part170.md), and 171. # §35.649. Maximum federal share. The Regional Administrator may provide up to 50 percent of the approved work plan costs. # §35.650. Purpose. - (a) **Purpose of section.** [Sections 35.650 through 35.659](/cfr/40/35.650..35.659.md) govern Pesticide Program Implementation cooperative agreements to Tribes and Intertribal Consortia under [section 23(a)(1)](/cfr/40/23.md?p=a-1) of the Federal Insecticide, Fungicide, and Rodenticide Act. - (b) **Purpose of program.** Cooperative agreements are awarded to assist Tribes and Intertribal Consortia to develop and implement pesticide programs, including programs that protect workers, ground water, and endangered species from pesticide risks and other pesticide management programs designated by the Administrator. - (c) **Program regulations.** Refer to 40 CFR parts [150](/cfr/40/part150.md) through [189](/cfr/40/part189.md) and [19 CFR part 12](/cfr/19/part12.md) for associated regulations. # §35.653. Eligible recipients. Eligible recipients of pesticide program implementation cooperative agreements are Tribes and Intertribal Consortia. # §35.655. Basis for allotment. The Administrator allots pesticide program implementation cooperative agreement funds to each Regional Office. Regional Offices award funds to Tribes and Intertribal Consortia based on their programmatic needs and applicable EPA guidance. # §35.659. Maximum federal share. The Regional Administrator may provide up to 100 percent of the approved work plan costs. # §35.660. Purpose. - (a) **Purpose of section.** [Sections 35.660 through 35.669](/cfr/40/35.660..35.669.md) govern grants to Tribes and Intertribal Consortia under [section 6605](/cfr/40/6605.md) of the Pollution Prevention Act. - (b) **Purpose of program.** Pollution Prevention Grants are awarded to promote the use of source reduction techniques by businesses. # §35.661. Competitive process. EPA Regions award Pollution Prevention Grant funds to Tribes and Intertribal Consortia through a competitive process in accordance with EPA guidance. When evaluating a Tribe's or Intertribal Consortium's application, EPA must consider, among other criteria, whether the proposed program would: - (a) Make specific technical assistance available to businesses seeking information about source reduction opportunities, including funding for experts to provide onsite technical advice to businesses seeking assistance in the development of source reduction plans; - (b) Target assistance to businesses for whom lack of information is an impediment to source reduction; and - (c) **Provide training in source reduction techniques.** Such training may be provided through local engineering schools or other appropriate means. # §35.662. Definitions. The following definition applies to the Pollution Prevention Grant program and to [§§ 35.660 through 35.669](/cfr/40/35.660..35.669.md): - (a) **Pollution prevention/source reduction is any practice that—** - (1) Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; - (2) Reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants; or - (3) **Reduces or eliminates the creation of pollutants through—** - (i) Increased efficiency in the use of raw materials, energy, water, or other resources; or - (ii) **Protection of national resources by conservation.** - (b) Pollution prevention/source reduction does not include any practice which alters the physical, chemical, or biological characteristics or the volume of a hazardous substance, pollutant, or contaminant through a process or activity which itself is not integral to and necessary for the production of a product or the providing of a service. # §35.663. Eligible recipients. - (a) The Regional Administrator will treat a Tribe or Intertribal Consortium as eligible to apply for a Pollution Prevention Grant if the Tribe or each member of the Intertribal Consortium: - (1) Is recognized by the Secretary of the Interior; - (2) Has an existing government exercising substantial governmental duties and powers; - (3) Has adequate authority to carry out the grant activities; and - (4) Is reasonably expected to be capable, in the Regional Administrator's judgment, of administering the grant program. - (b) If the Administrator has previously determined that an Indian Tribe has met the prerequisites in paragraphs [(a)(1)](#a-1) and [(2)](#a-2) of this section for another EPA program, the Tribe need provide only that information unique to the Pollution Prevention Grants program required by paragraphs (b)(3) and (4) of this section. # §35.668. Award limitation. If the Pollution Prevention Grant funds are included in a Performance Partnership Grant, the Pollution Prevention work plan commitments must be included in the Performance Partnership Grant work plan. # §35.669. Maximum federal share. The federal share for Pollution Prevention Grants will not exceed 50 percent of the allowable Tribe and Intertribal Consortium Pollution Prevention project cost. # §35.670. Purpose. - (a) **Purpose of section.** [Sections 35](/cfr/40/35.md). 670 through 35.678 govern public water system supervision grants to Tribes and Intertribal Consortia authorized under sections [1443(a)](/cfr/40/1443.md?p=a) and [1451](/cfr/40/1451.md) of the Safe Drinking Water Act. - (b) **Purpose of program.** Public water system supervision grants are awarded to carry out public water system supervision programs including implementation and enforcement of the requirements of the Act that apply to public water systems. - (c) **Associated program regulations.** Associated program regulations are found in 40 CFR parts [141](/cfr/40/part141.md), [142](/cfr/40/part142.md), and 143. # §35.672. Definition. Tribe. Any Indian Tribe having a federally recognized governing body carrying out substantial governmental duties and powers over any area. # §35.673. Annual amount reserved by EPA. Each year, EPA shall reserve up to seven percent of the public water system supervision funds for grants to Tribes and Intertribal Consortia under [section 1443(a)](/cfr/40/1443.md?p=a). # §35.675. Maximum federal share. - (a) The Regional Administrator may provide up to 75 percent of the approved work plan costs. - (b) The Regional Administrator may increase the maximum federal share if the Tribe or Intertribal Consortium can demonstrate in writing to the satisfaction of the Regional Administrator that fiscal circumstances within the Tribe or Consortium are constrained to such an extent that fulfilling the match requirement would impose undue hardship, except that the federal share shall not be greater than 90 percent. # §35.676. Eligible recipients. A Tribe or Intertribal Consortium is eligible to apply for a public water system supervision grant if the Tribe or each member of the Intertribal Consortium meets the following criteria: - (a) The Tribe or each member of the Intertribal Consortium is recognized by the Secretary of the Interior; - (b) The Tribe or each member of the Intertribal Consortium has a governing body carrying out substantial governmental duties and powers over any area; - (c) The functions to be exercised under the grant are within the area of the Tribal government's jurisdiction; and - (d) The Tribe or each member of the Intertribal Consortium is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions to be exercised under the grant. # §35.678. Award limitations. - (a) **Initial grant.** The Regional Administrator will not make an initial award unless the Tribe or each member of the Intertribal Consortium has: - (1) Met the requirements of [§ 35.676](/cfr/40/35.676.md) (Eligible recipients); - (2) Established an approved public water system supervision program or agrees to establish an approvable program within three years of the initial award and assumed primary enforcement responsibility within this period; and - (3) Agreed to use at least one year of the grant funding to demonstrate program capability to implement the requirements found in [40 CFR 142.10](/cfr/40/142.10.md). - (b) **Subsequent grants.** The Regional Administrator will not make a subsequent grant, after the initial award, unless the Tribe or each member of the Intertribal Consortia can demonstrate reasonable progress towards assuming primary enforcement responsibility within the three-year period after initial award. After the three-year period expires, the Regional Administrator will not award [section 1443(a)](/cfr/40/1443.md?p=a) funds to an Indian Tribe or Intertribal Consortium unless the Tribe or each member of the Intertribal Consortia has assumed primary enforcement responsibility for the public water system supervision program. # §35.680. Purpose. - (a) **Purpose of section.** [Sections 35.680 through 35.688](/cfr/40/35.680..35.688.md) govern underground water source protection grants to Tribes and Intertribal Consortia under [section 1443(b)](/cfr/40/1443.md?p=b) of the Safe Drinking Water Act. - (b) **Purpose of program.** The Underground Water Source Protection grants are awarded to carry out underground water source protection programs. - (c) **Associated program regulations.** Associated program regulations are found in 40 CFR parts [124](/cfr/40/part124.md), [144](/cfr/40/part144.md), 145, 146, and 147. # §35.682. Definition. Tribe. Any Indian Tribe having a federally recognized governing body carrying out substantial governmental duties and powers over any area. # §35.683. Annual amount reserved by EPA. EPA shall reserve up to five percent of the underground water source protection funds each year for underground water source protection grants to Tribes under [section 1443(b)](/cfr/40/1443.md?p=b) of the Safe Drinking Water Act. # §35.685. Maximum federal share. - (a) The Regional Administrator may provide up to 75 percent of the approved work plan costs. - (b) The Regional Administrator may increase the maximum federal share if the Tribe or Intertribal Consortium can demonstrate in writing to the satisfaction of the Regional Administrator that fiscal circumstances within the Tribe or Consortium are constrained to such an extent that fulfilling the match requirement would impose undue hardship, except that the federal share shall not be greater than 90 percent. # §35.686. Eligible recipients. A Tribe or Intertribal Consortium is eligible to apply for an underground water source protection grant if the Tribe or each member of the Intertribal Consortium meets the following criteria: - (a) The Tribe or each member of the Intertribal Consortium is recognized by the Secretary of the Interior; - (b) The Tribe or each member of the Intertribal Consortium has a governing body carrying out substantial governmental duties and powers over any area; - (c) The functions to be exercised under the grant are within the area of the Tribal government's jurisdiction; and - (d) The Tribe or each member of the Intertribal Consortium is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions to be exercised under the grant. # §35.688. Award limitations. - (a) **Initial grants.** The Regional Administrator will not make an initial award unless the Tribe or each member of the Intertribal Consortium has: - (1) Met the requirements of [§ 35.676](/cfr/40/35.676.md) (Eligible recipients); and - (2) Established an approved underground water source protection program or agrees to establish an approvable program within four years of the initial award. - (b) **Subsequent grants.** The Regional Administrator will not make a subsequent grant, after the initial award, unless the Tribe can demonstrate reasonable progress towards assuming primary enforcement responsibility within the four-year period after initial award. After the four-year period expires, the Regional Administrator shall not award [section 1443(b)](/cfr/40/1443.md?p=b) funds to an Indian Tribe unless the Tribe has assumed primary enforcement responsibility for the underground water source protection program. # §35.690. Purpose. - (a) **Purpose of section.** [Sections 35.690 through 35.693](/cfr/40/35.690..35.693.md) govern grants to Tribes and Intertribal Consortia under [section 404(g)](/cfr/40/404.md?p=g) for the Toxic Substances Control Act . - (b) **Purpose of program.** Lead-Based Paint Program grants are awarded to develop and carry out authorized programs to ensure that individuals employed in lead-based paint activities are properly trained; that training programs are accredited; and that contractors employed in such activities are certified. - (c) **Associated program regulations.** Associated program regulations are found in [40 CFR part 745](/cfr/40/part745.md). # §35.691. Funding coordination. Recipients must use the Lead-Based Paint program funding in a way that complements any related assistance they receive from other federal sources for lead-based paint activities. # §35.693. Eligible recipients. - (a) The Regional Administrator will treat a Tribe or Intertribal Consortium as eligible to apply for a Lead-Based Paint Program grant if the Tribe or each member of the Intertribal Consortium: - (1) Is recognized by the Secretary of the Interior; - (2) Has an existing government exercising substantial governmental duties and powers; - (3) Has adequate authority to carry out the grant activities; and - (4) Is reasonably expected to be capable, in the Regional Administrator's judgment, of administering the grant program. - (b) If the Administrator has previously determined that an Indian Tribe has met the prerequisites in paragraphs [(a)(1)](#a-1) and [(2)](#a-2) of this section for another EPA program, the Tribe need provide only that information unique to the Lead-Based Paint Program required by paragraphs (b)(3) and (4) of this section. # §35.700. Purpose. - (a) **Purpose of section.** [Sections 35.700 through 35.708](/cfr/40/35.700..35.708.md) govern Indoor Radon Grants to Tribes and Intertribal Consortia under [section 306](/cfr/40/306.md) of the Toxic Substances Control Act. - (b) **Purpose of program.** - (1) Indoor Radon Grants are awarded to assist Tribes and Intertribal Consortia with the development and implementation of programs that assess and mitigate radon and that aim at reducing radon health risks. Indoor Radon Grant funds may be used for the following eligible activities. - (i) Survey of radon levels, including special surveys of geographic areas or classes of buildings (such as public buildings, school buildings, high-risk residential construction types); - (ii) Development of public information and education materials concerning radon assessment, mitigation, and control programs; - (iii) Implementation of programs to control radon on existing and new structures; - (iv) Purchase, by the Tribe or Intertribal Consortium of radon measurement equipment and devices; - (v) Purchase and maintenance of analytical equipment connected to radon measurement and analysis, including costs of calibration of such equipment; - (vi) Payment of costs of Environmental Protection Agency-approved training programs related to radon for permanent Tribal employees; - (vii) Payment of general overhead and program administration costs; - (viii) Development of a data storage and management system for information concerning radon occurrence, levels, and programs; - (ix) Payment of costs of demonstration of radon mitigation methods and technologies as approved by EPA, including Tribal and Intertribal Consortia participation in the Environmental Protection Agency Home Evaluation Program; and - (x) **A toll-free radon hotline to provide information and technical assistance.** - (2) In implementing paragraphs [(b)(1)(iv)](#b-1-iv) and [(ix)](#b-1-ix) of this section, a Tribe or Intertribal Consortia should make every effort, consistent with the goals and successful operation of the Tribal Indoor Radon program, to give preference to low-income persons. # §35.702. Basis for allotment. - (a) The Regional Administrator will allot Indoor Radon Grant funds based on the criteria in EPA guidance in accordance with section [306(d)](/cfr/40/306.md?p=d) and [(e)](/cfr/40/306.md?p=e) of the Toxic Substances Control Act. - (b) No Tribe or Intertribal Consortium may receive an Indoor Radon Grant in excess of 10 percent of the total appropriated amount made available each fiscal year. # §35.703. Eligible recipients. - (a) The Regional Administrator will treat a Tribe or Intertribal Consortium as eligible to apply for an Indoor Radon Grant if the Tribe or each member of the Intertribal Consortium: - (1) Is recognized by the Secretary of the Interior; - (2) Has an existing government exercising substantial governmental duties and powers; - (3) Has adequate authority to carry out the grant activities; and, - (4) Is reasonably expected to be capable, in the Regional Administrator's judgment, of administering the grant program. - (b) If the Administrator has previously determined that a Tribe has met the prerequisites in paragraphs [(a)(1)](#a-1) and [(2)](#a-2) of this section for another EPA program, the Tribe need provide only that information unique to the radon grant program required by paragraphs [(a)(3)](#a-3) and [(4)](#a-4) of this section. # §35.705. Maximum federal share. The Regional Administrator may provide Tribes and Intertribal Consortia up to 75 percent of the approved costs for the development and implementation of radon program activities incurred by the Tribe in the first year of a grant to the Tribe or Consortium; 60 percent in the second year; and 50 percent in the third and each year thereafter. # §35.708. Award limitations. - (a) The Regional Administrator shall consult with the Tribal agency which has the primary responsibility for radon programs as designated by the affected Tribe before including Indoor Radon Grant funds in a Performance Partnership Grant with another Tribal agency. - (b) No grant may be made in any fiscal year to a Tribe or Intertribal Consortium which did not satisfactorily implement the activities funded by the most recent grant awarded to the Tribe or Intertribal Consortium for an Indoor Radon program. - (c) The costs of radon measurement equipment or devices (see [§ 35.820(b)(1)(iv)](/cfr/40/35.820.md?p=b-1-iv)) and demonstration of radon mitigation, methods, and technologies (see [§ 35.820(b)(1)(ix)](/cfr/40/35.820.md?p=b-1-ix)) shall not, in aggregate, exceed 50 percent of a Tribe's or Intertribal Consortium's radon grant award in a fiscal year. - (d) The costs of general overhead and program administration (see [§ 35.820(b)(1)(vii)](/cfr/40/35.820.md?p=b-1-vii)) of an indoor radon grant shall not exceed 25 percent of the amount of a Tribe's or Intertribal Consortium's Indoor Radon Grant in a fiscal year. - (e) A Tribe or Intertribal Consortium may use funds for financial assistance to persons only to the extent such assistance is related to demonstration projects or the purchase and analysis of radon measurement devices. - (f) Recipients must provide the Regional Administrator all radon-related information generated in its grant supported activities, including the results of radon surveys, mitigation demonstration projects, and risk communication studies. - (g) Recipients must maintain and make available to the public, a list of firms and individuals that have received a passing rating under the EPA proficiency rating program under [section 305(a)(2)](/cfr/40/305.md?p=a-2) of the Act. - (h) Funds appropriated for [section 306](/cfr/40/306.md) may not be used to cover the costs of federal proficiency rating programs under [section 305(a)(2)](/cfr/40/305.md?p=a-2) of the Act. Funds appropriated for [section 306](/cfr/40/306.md) and grants awarded under [section 306](/cfr/40/306.md) may be used to cover the costs of the Tribal proficiency rating programs. # §35.710. Purpose. - (a) **Purpose of section.** [Sections 35.710 through 35.715](/cfr/40/35.710..35.715.md) govern Toxic Substances Compliance Monitoring grants to Tribes and Intertribal Consortia under [section 28](/cfr/40/28.md) of the Toxic Substances Control Act. - (b) **Purpose of program.** Toxic Substances Compliance Monitoring grants are awarded to establish and operate compliance monitoring programs to prevent or eliminate unreasonable risks to health or the environment associated with chemical substances or mixtures on Tribal lands with respect to which the Administrator is unable or not likely to take action for their prevention or elimination. - (c) **Associated program regulations.** Refer to 40 CFR parts [700](/cfr/40/part700.md) through [799](/cfr/40/part799.md) for associated program regulations. # §35.712. Competitive process. EPA will award Toxic Substances Control Act Compliance Monitoring grants to Tribes or Intertribal Consortia through a competitive process in accordance with national program guidance. # §35.713. Eligible recipients. - (a) The Regional Administrator will treat a Tribe or Intertribal Consortium as eligible to apply for a Toxic Substances Compliance Monitoring grant if the Tribe or each member of the Intertribal Consortium: - (1) Is recognized by the Secretary of the Interior; - (2) Has an existing government exercising substantial governmental duties and powers; - (3) Has adequate authority to carry out the grant activities; and, - (4) Is reasonably expected to be capable, in the Regional Administrator's judgment, of administering the grant program. - (b) If the Administrator has previously determined that an Indian Tribe has met the prerequisites in paragraphs [(a)(1)](#a-1) and [(2)](#a-2) of this section for another EPA program, the Tribe need provide only that information unique to the Toxic Substances Compliance Monitoring grant program required by paragraphs [(a)(3)](#a-3) and [(4)](#a-4) of this section. # §35.715. Maximum federal share. The Regional Administrator may provide up to 75 percent of the approved work plan costs. # §35.718. Award limitation. If the Toxic Substances Compliance Monitoring grant funds are included in a Performance Partnership Grant, the toxic substances compliance monitoring work plan commitments must be included in the Performance Partnership Grant work plan.