905R87112 5572 »* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D C. 20460 7 SEP OFFICE OF WATER AND WASTE MANAGEMENT FROM: THOMAS C. JORLING, ASSISTANT ADMINISTRATOR PROPOSED WATER QUALITY MANAGEMENT REGULATIONS / X The proposed regulations cover the Water Quality Management Program as authorized by Sections 106, 208, and 303(e) of the Clean Water Act. Requirements which now appear in four separate parts of the Code of Federal Regulation (40 CFR 130, 131, and various grant sections in Part 35) are consolidated in this proposal. The Environmental Protection Agency values the views and suggestions of members of the public regarding these important regulations. I urge you to read the attached document carefully and provide us with your reactions, comments and recommendations for changes. As indicated in the introduction to the proposed regulations, comments may be submitted to the Agency for 60 days. Written comments should be addressed to Lin Eichmiller, Environmental Protection Agency, WH/554, 401 M Street, S.W., Washington, D.C. 20460. A public hearing on the regulations will be held in Washington, D.C. on October 24, 1978. I encourage your participation in the hearing. ------- ENVIRONMENTAL PROTECTION AGENCY (40 CFR PART 35) GRANTS AND OTHER FEDERAL ASSISTANCE AGENCY: Environmental Protection Agency. ACTION: Proposed Rule. SUMMARY: This proposed regulation is intended to carry out amendments to section 208 of the Federal Water Pollution Control Act contained in the Clean Water Act of 1977 (P.L. 95-217), and to consolidate and revise regulations implementing sections 106, 208, and 303(e) of the Act set forth in Parts 130 and 131, and portions of Part 35 of this chapter. DATES: Comments must be received on or before [60 days from date of publication]. PUBLIC HEARING: October 24, 1978 from 1:30 p.m. to 5:30 p.m.; 7:30 p.m. to 10:30 p.m. ADDRESSES: Public Hearing: Interdepartmental Auditorium, Constitution Avenue, M.W. (between 12th and 14th Streets), Washington, D. C. Send requests to speak to: Patti Morris, Environmental Protection Agency (WH-554), 401 M Street, S.W., Washington, D. C. 20460. (For additional information regarding requests to speak and the agenda for the hearing see Public Hearing below). Send written comments to: Lin Eichmiller, Environmental Protection Agency (WH-554), 401 M Street, S.W., Washington, D. C. 20460. Comments submitted may be inspected at the Public Information Reference Unit, EPA Headquarters, Room 2922, Waterside Mall, 401 M Street, S.W., Washington, D. C. 20460. FOR FURTHER INFORMATION CONTACT: Lin Eichmiller, Environmental Protection Agency (WH-554), 401 M Street, S.W., Washington, D. C. 20460, 202 (755-6965). Public Hearing A hearing to receive comments on the proposed regulation will be held at the Interdepartmental Auditorium, Constitution Avenue, N.W. (between 12th and 14th Streets), Washington, D. C., from 1:30 p.m. to 5:30 p.m. and 7:30 p.m. to 10:30 p.m., on October 24, 1978. Individuals wishing to comment at the hearing are requested to submit their names, addresses, and telephone numbers to Patti Morris, Environmental Protection Agency (WH-554), 401 M Street, S.W., Washington, D. C. 20460. ------- Requests should indicate the length of time each individual wishes to comment and any preference to time. Statements will be limited to a maximum of 10 minutes. Individuals who request to comment will be notified in advance of the time scheduled for their statement. Time will be reserved for unscheduled comments. Each individual who plans to comment is requested to submit one legible copy of his or her statement at the hearing. The hearing record will be closed at the end of the hearing; however, as indicated above, written comments on the proposed regulations will be accepted by EPA if they are received no later than [60 days from date of publication]. The agenda for the hearing is as follows: Afternoon Session: Introductory Presentation -- 1:30 - 1:50; Question and Answer Session -- 1:50 - 2:10; Scheduled Presentations — 2:10 - 4:45; Unscheduled Testimony — 4:45 - 5:30; Recess — 5:30. Evening Session: If there is adequate public interest, an evening session will be scheduled. The afternoon agenda would be followed. SUPPLEMENTARY INFORMATION: This proposed regulation governs the water quality management (WQM) program authorized by sections 106, 208, and 303(e) of the Clean Water Act of 1977. Until this consolidation, program requirements were set forth in four places in Title 40: Part 130; Part 131; §35.200 through §35.236; and §35.551 through §35.570. This revision responds to the President's initiative on consolidation of Federal requirements for State and local planning and the President's urban policy, and does not represent a change in basic program goals or objectives. There are, however, significant changes in the way EPA will manage this program in the future, and the new regulation reflects those changes. EPA has assessed the need to modify the management of the program through a study required by the Office of Management and Budget entitled "Program Strategy for Water Quality Management, FY 1979-1983". This strategy identified the following areas which the regulation addresses: 1) The need for a more defined role for the States with more specific delineation of the partnership between the States, areawide agencies, and EPA; 2) The need for specific outputs to be identified in the grant agreement based on national/State/areawide priorities and for these outputs to be tied to funding; 3) The need, in order to promote implementation, to establish a policy that beginning in fiscal year 1980, no planning funds be awarded to an agency unless at least a significant portion of its plan is being implemented; 4) The need to ensure greater integration and consolidation of water quality management environmental programs through State/EPA Agreements, thereby developing the most cost-effective and environmentally sound decisions; and 5) The need to focus attention on the difficult decisions that are required, through a greater use by EPA of incentives, sanctions, and technical assistance. -2- ------- The proposed regulation also makes other adjustments in the structure of the water quality management program. These modifications emphasize continuing planning and implementation, implement applicable provisions of the 1977 Clean Water Act and other new executive orders and directives, and resolve problems with portions of the existing regulations based on the experience of the last several years. The proposed regulation significantly reduces the number of specific requirements placed on State and local governments by the WQM program. Approximately 150 individual requirements have been eliminated from the existing regulations; numerous others have been simplified or consolidated. This reduction is consistent with EPA's commitment to the President as part of the effort to substantially lessen the burden of requirements on State and substate agencies. The State/EPA Agreement: The State/EPA Agreement required by existing regulations (§130.11 of this chapter) was designed to establish the level of detail and timing of State water quality management plan preparation and assure the orderly integration of planning efforts and control activities. The original emphasis was on initial plan preparation; the proposed regulation now stresses the integrative and coordinative aspects of the Agreement, and implementation. Beginning with the publication of this regulation, the State/EPA Agreement becomes the primary means to integrate the planning, management, implementa- tion, and evaluation of programs under the Clean Water Act; the Resource Conservation and Recovery Act; and the Safe Drinking Water Act. EPA is considering consolidation of State work program submissions for various other environmental programs into the State/EPA Agreement. While this subpart governs only that portion of the State/EPA Agreement relating to the 106, 208, and 303(e) programs, other programs may be included in a State/EPA Agreement but will be governed by the applicable provisions of regulations found elsewhere in this chapter. The responsibilities of affected programs regarding the Agreement will be discussed in their regulations and EPA guidance on State/EPA Agreements. Every State/EPA Agreement should perform four basic functions: serve as a decision document which reflects important decisions on environmental and programmatic problems at the State and local level and the process by which these problems will be solved; establish State and EPA program priorities, timing of efforts, State and substate responsibilities, and the allocation of funds; be a management tool which focuses top State and EPA decision maker attention on evaluation and accomplishment of major pollution control objectives; and be a communication and information document useful to EPA, the States, areawide agencies, local governments, and interested or affected publics. These general objectives apply regardless of the specific programs and outputs covered by the Agreement. -3- ------- One of the keys to a successful Agreement is work program development. To provide tangible environmental improvements, work programs must focus on problem solutions rather than individual program activities. The State/EPA Agreement will encourage the use of information or results produced in one program by other programs. At a minimum, the Agreement will contain the work programs of the various EPA programs that are included (although, to avoid a voluminous package, portions may be incorporated by reference). In developing the Agreement, program linkages will be defined and duplication between programs will be minimized, obtaining the greatest benefit from available resources. At the maximum, the Agreement will produce a completely integrated and coordinated work program for each State. Most EPA programs which may be included in the State/EPA Agreement have distinct elements which require fiscal accountability. Therefore, all grant agreements will link outputs with statutory funding sources. However, EPA will not allow this requirement to hamper the development of maximum feasible consolidation, so that States and EPA can minimize submissions and other paperwork. Continuing Planning and Implementation: For water quality management under section 208 of the Act, the proposed regulation emphasizes planning and implementation activities that follow development of the initial plans. This change in emphasis occurs because the initial planning phase (generally three years) is approaching completion. To avoid confusion, the old regulations will continue to govern the initial planning phase of existing grantees, except in instances specified in these regulations. WQM planning conducted after the initial phase, including plan update and revision, will be governed by these regulations. This phase of planning is commonly referred to as "continuing planning", and is distinguished from the "continuing planning process" required of States by section 303(e) of the Act, which is also covered by these regulations. EPA intends to manage the grant funds in all programs covered under this subpart in a manner designed to assure that the grantees are accountable for meeting grant commitments. Eligibility for continuing 208 or 106 funding will depend upon EPA's assessment of the past performance of the applicant agency, be it State or areawide. Success will be determined, in part, based on the adequacy of output achievement, the funds saved by developing more cost-effective solutions, and, in the case of 208, the degree to which an agency can become self-sufficient. The proposed regulation places new emphasis on use of sanctions during the continuing planning period (including the possibility of withholding construction grant funds after WQM plan approval; see S35.1531-4(b)). -4- ------- EPA will use these sanctions to ensure that WQM plans capable of meeting the goals of the Act are developed, approved, and implemented. Continuing planning grant funds may be withheld or terminated if a grantee fails to abide by a grant agreement or meet other planning responsibilities under this subpart. Funding from the various statutory sources covered by these regulations may be withheld for any of a number of failures specified in the regulations. For example, a WQM agency must implement a significant portion of a WQM plan to be eligible for continuing 208 grants beginning in FY 1980. EPA's funding strategy for the 208 program, if approved by the Office of Management and Budget, does not contemplate Federal 208 grants after FY 1983. Therefore, all State and areawide agencies conducting planning with 208 funds should take steps to become self-supporting by that time. With the approval of the initial plans, the WQM planning program is entering the implementation phase. EPA intends the planning supported under the Act to be implemented. The regulation emphasizes this phase because it is critical to the achievement of water quality goals. WQM plans must provide assurances that management agencies will implement the plans. Work programs will provide for evaluating the implementation of approved plans. Incorporation of New Requirements: Section 208(j) of the Act establishes a cost-sharing program for financing the installation of Best Management Practices to control agricultural nonpoint source pollution. While these proposed regulations outline the role of WQM plans and management agencies in implementing section 208(j), regulations prepared by the Secretary of Agriculture shall set forth the details of the program. Section 208(b)(2)(A) of the Act requires identification during plan develop- ment of open space and recreational opportunities expected to result from implementation of WQM plans. The proposed regulations incorporate this requirement. Section 208(b)(4) of the Act, added by the amendments, authorizes the development by States of programs for controlling the discharge of dredged and fill material. EPA presently anticipates that a regulation governing the 208(b)(4) program will be incorporated as §35.1580 of this subpart. However, the 208(b)(4) provisions are still in the drafting stage, and will be published separately as a proposed regulation in the near future. The definition of Best Management Practices (BMPs) set forth at 40 CFR 130.2 has been broadened in an attempt to make it compatible with several provisions added by the Clean Water Act of 1977 which use the term (see sections 208(b)(4)(B), 304(e), and 404(f)(1)(E)). The process for developing BMPs for WQM nonpoint source programs is not affected by the new definition. -5- ------- New requirements to deal with wetlands and floodplains imposed under Executive Orders 11988 and 11990 and the Agency's policy on agricultural lands have been included. Although section 511(c)(l) of the Act exempts the WQM programs under sections 106, 208, and 303 from the requirement for preparation of Environmental Impact Statements, it is EPA policy that the spirit and intent of NEPA will continue to be served by the WQM program. EPA has issued guidance concerning compliance with NEPA in the water quality management program, which is available to reviewers on request. The proposed regulation provides for consideration of water conservation in the development of WQM plans consistent with the President's national water resources policy. In accordance with the President's urban policy announced on iMarch 27, 1978, and EPA's Urban Initiative, the proposed regulation provides that WQM planning agencies shall assess impacts of the plan on urban development and consider measures for the prevention of urban sprawl. WQM plans must also be consistent with the cost-effectiveness guidelines of the construction grants program, which are also part of EPA's Urban Initiative. Additional Changes to WQM Requirements: Requirements for State certification of WQM plans have been changed in the proposed regulation. The existing Agency policy on State certification requires too many commitments and assurances to be workable. Experience has also shown that the existing plan review procedures, providing for EPA review only after open-ended State review and certification is com- pleted, have led to lengthy delays and a lack of communication between EPA and States. To resolve such problems, the proposed regulations narrow the scope and number of commitments and assurances required of the States and provide for a concurrent State-EPA plan review. The proposed regulation contains a provision which would cut off State 208 funds (and a relevant portion of 106 funds) for failure of the State to act in a timely manner on a WQM plan. An alternative approach would be to consider the inaction of the State to constitute certification. Comments are invited concerning how EPA can deal most effectively with State failure to take prompt action on WQM plans. The proposed regulation provides procedures for changes in designation of planning and management agencies. The regulations set forth in this subpart also constitute EPA's implemen- tation, in cooperation with other Federal, State and substate agencies, of the provisions of Section 102(a) of the Act concerning comprehensive programs for water pollution control. However, nothing in these regulations shall preclude EPA from undertaking activities under Section 102(a) independently of the programs under this subpart, when EPA determines that such programs need supplementation in order to achieve the water quality goals of the Act. -6- ------- The proposed regulation recognizes the important partnership role played by successful State, regional, and local planning agencies in water quality management planning and implementation. The regulation covers responsibil- ities of both State and areawide planning agencies. The WQM program relationships between these levels of government in the development of State/EPA Agreements and WQM plans, plan evaluation, and other areas are clarified. Tlew public participation requirements are included in the proposed regulations at appropriate points. The public participation requirements reflect the recent proposed regulations (40 CFR Part 25, 43 FR 34794) which will replace 40 CFR 105. EPA encourages consolidation of public participation programs at the State and local level to minimize duplication where consistent with public participation goals. The Part 25 regulations establish membership and other requirements for the Advisory Committee required under S35.1533-3 for 208 agencies. Only one official Advisory Committee should be established in accordance with these requirements; however, this should not discourage the formation of technical sub- committees with additional representation at the grantee's discretion to address particular issues. The proposed regulation includes new detail on the relationship of the NPDES program and WQM. WQM plan provisions to be incorporated in NPDES permits under section 208(e) of the Act must be specifically identified in the plan itself and in any plan approvals. However, because this relationship is technically and institutionally complex, EPA solicits suggestions on enhancing the effectiveness of these programs through this regulation. Section 35.1519-6 provides that 208 planning agencies must develop BMPs for nonpoint sources. BMPs may also be developed in the WQM process for certain categories of point sources, such as storm sewers. These BMPs can be used in NPDES permits as minimum requirements. The proposed regulation significantly reduces the specificity for WQM plan content. This was done in part because of EPA's commitment to the President to simplify and consolidate the planning requirements placed on State and local governments, and in part because EPA feels that the grant agreement should be the means for setting out specific requirements and commitments. Several commentors have indicated that a greater level of detail, particularly with regard to plan content, is necessary to help the public and the government in the development of work programs and WQM plans, and to evaluate completed plans (by setting out criteria for plan approval). Other commentors have favored the structure proposed in these regulations, which establishes basic requirements and criteria and allows some Regional Office flexibility in implementation through the grant agreement. Areas where more detail may be desirable include monitoring, the attainment of water quality goals, and reporting requirements. EPA also encourages reviewers to comment on the desired level of detail. -7- ------- Reviewers should note that EPA is presently studying implementation of the Federal Grant and Cooperative Agreement Act, and that this regulation, in final form, may use the term "cooperative agreement" rather than "grant". Such a change will have no effect other than a change in nomenclature. Under EPA's new "sunset" policy for reporting requirements in regulations, the reporting requirements in this regulation will automatically expire five years from the date of promulgation unless EPA takes affirmative action to extend them. To accomplish this, a provision automatically terminating the reporting requirements at that time will be included in the text of the final regulations. EPA is committed to evaluating this regulation three years from the date of publication. This evaluation will assess such factors as overlap of requirements, integration, alternative methods, enforceability, and reporting requirements. Water quality standards policy now in §130.17 is not affected by this regulation. The Agency expects that §130.17 will be incorporated into Part 120 of this chapter. The Agency is developing guidance to complement the regulation. Draft policy on the State/EPA Agreement is available for review and comment from the addressee. Availability of other draft guidance for review and comment will be announced in the FEDERAL REGISTER. This regulation and forthcoming guidance retain major elements of existing policy (e.g., policy on regulatory and nonregulatory programs, development and implementation of BMPs, and management agencies). The policy on regulatory and nonregulatory programs is set forth in SAM-31. SAM-31 was developed with public input and the Agency invites further comments on the policy which can be obtained from the addressee as part of the review. DATE;; 1) 4C CFR is amended by deleting Parts 130, and 35.551 through 35.570. 35.200 through 35.236, 2) 40 CFR is amended by adding a new subpart G as follows: SUBPART G -- GRANTS FOR WATER QUALITY PLANNING, MANAGEMENT AND IMPLEMENTATION §35.1500 Purpose and scope. §35.1501 Applicability. -8- ------- §35.1502 Definitions. §35.1503 Program summary. §35.1505 Water quality goals. §35.1507 State/EPA Agreement for water quality management. §35.1507-1 General. §35.1507-2 Scope. §35.1507-3 Content. §35.1507-4 Role of areawide agencies. §35.1507-5 Grant agreements. §35.1507-6 Relationship to approved WQM plans. §35.1507-7 Development and submission. §35.1507-8 Public participation in development. §35.1507-9 Evaluation. §35.1509 Conflict resolution. §35.1511 WQM work programs of State and areawide agencies. §35.1511-1 General. §35.1511-2 Scope. §35.1511-3 Areawide agency work programs. §35.1511-4 Major work elements. §35.1511-5 Content. §35.1511-6 EPA review and approval of work programs. §35.1511-7 Evaluation. §35.1513 Continuing planning process. §35.1513-1 General. §35.1513-2 State priority system. §35.1513-3 Failure. §35.1515 State assessment and strategy. §35.1515-1 State water quality assessment. §35.1515-2 State strategy. §35.1517 Selection of 208 planning agencies. §35.1517-1 Status of existing planning agency designation. §35.1517-2 Changes in designation status. §35.1517-3 Delegation of planning activities. §35.1519 Water quality management planning. §35.1519-1 General. §35.1519-2 Applicable regulations. §35.1519-3 Relationship to work programs. §35.1519-4 Annual planning outputs. §35.1519-5 Plan development requirements. §35.1519-6 Program areas. §35.1519-7 Planning responsibilities. §35.1519-8 Planning on Indian lands. §35.1521 Evaluation, certification, and approval of WQM plans and designation of management agencies. §35.1521-1 General. §35.1521-2 Plan evaluation. §35.1521-3 Plan certification; designation of management agencies. §35.1521-4 EPA approval. -9- ------- S35.1522 Reviewing plan applicability after approval. §35.1523 Evaluation of management agency performance. §35.1525 Change in management agency designation by States. §35.1529 Intergovernmental coordination and cooperation. §35.1529-1 General. §35.1529-2 Federal responsibility. §35.1529-3 Federal facility compliance. §35.1531 Implementation. §35.1531-1 General. §35.1531-2 Funding. §35.1531-3 Remedies for failure to implement. §35.1531-4 Relationship to other programs. §35.1533 Public participation. §35.1533-1 Purpose. §35.1533-2 Work programs. §35.1533-3 Planning and implementation. §35.1535 Allotments and reallotments. §35.1535-1 Allotments. §35.1535-2 Reallotments. §35.1537 Grant limitations and administration. §35.1537-1 Grant amount. §35.1537-2 Reduction of grant. §35.1537-3 Budget period. §35.1537-4 Eligibility. §35.1537-5 Limitations on award. §35.1537-6 Allowable and unallowable costs. §35.1537-7 Audit. §35.1537-8 Adherence to budget estimates. §35.1537-9 Program changes. §35.1537-10 Payment. §35.1537-11 Financial status report. §35.1537-12 Disputes under this subpart. §35.1580 Development of programs for controlling the discharge or placement of dredged or fill material. [Reserved] Appendix A, Water quality and pollutant source monitoring. [See Appendix A, Subpart B of Part 35] Authority: Section 501(a) of the Clean Water Act, as amended, 33 U.S.C. 1251 et seg. §35.1500 Purpose and scope. This regulation establishes policies, program requirements, and procedures for water quality management planning and implementation under the Clean Water Act and for grants for such purposes under sections 106, 205(g), and 208 of the Act. This subpart supplements the general grant regulations set forth in Part 30 of this chapter. -10- ------- §35.1501 Applicability. This regulation applies to the continuing planning process under 303(e) of the Act, and to all State and areawide water quality management planning and implementation activities and related grants under sections 106, 205(g), and 208 of the Act awarded subsequent to the date of publication of the final regulation in the FEDERAL REGISTER. This regulation does not apply to completion of initial plans under section 208. Completion of initial plans (and satisfaction of requirements pertaining to plans conditionally approved prior to the date of publication) is governed by the earlier regulations superseded by this part, except for plan evaluation, certification, and approval. Water quality standards development, review, and revision are covered under Part 120 of this chapter. §35.1502 Definitions. (a) The term "the Act" means the Clean Water Act, as amended, 33 U.S.C. 1251 et seq. (b) The term "grants under section 205(g) of the Act", and variations thereof, means grants under section 205(g)(2) of the Act for non-construction grants purposes such as administration of approved programs under sections 402 and 404 and grants for administering the statewide waste treatment management program under section 208(b)(4) of the Act. The term does not include construction management assistance grants under subpart F of this chapter. (c) Other definitions shall be as set forth in the Act (see, e.g., sections 212 and 502). Further definitions are set forth in the provisions where the defined term is used. §35.1503 Program summary. (a) General. Water Quality Management (WQM) is the name EPA has given to a complex environmental program under the combined authority of several sections of the Act. The WQM program combines State water pollution programs funded under section 106, State and areawide comprehensive waste treatment manage- ment planning funded under sections 205(g) for nonconstruction activities and 208, and other State planning mandated by section 303 of the Act into a single planning and implementation program. Public participation is provided for in all aspects of the program. (b) Water quality management planning. (1) Each State, along with areawide agencies in specially designated areas, conducts water quality management planning. Each such State and substate agency is required to have a plan, which identifies sources of pollution, the severity of the pollution, and control programs. Each plan will be revised periodically as needed. The control measures must be designed to attain the 1983 goal of the Act, which is water suitable for swimming, fishing, and the protection of wildlife, where attainable. -11- ------- (2) Each State is required to have a continuing planning process, which consists of the procedures by which the State controls water pollution (including WQM planning and implementation). The State's system for prioritizing construction grants projects is included in the continuing planning process. (c) Public participation. EPA considers public participation to be a high priority in the WQM program. Public participation is provided for in all aspects of the program, and is discussed in S35.1533. (d) Annual work programs. Each year, the State prepares a work program (which is submitted as part of the WQM portion of the State/EPA Agreement discussed below) identifying the specific planning and implementation outputs the State will undertake during the subsequent year with funds from sections 106, 205(g), and 208. Each designated areawide agency also develops an annual work program for planning activities funded under section 208. The priority problems which a State or areawide agency may address will vary, depending on the particular needs of the area. (e) Participants. The WQM program is a cooperative effort of EPA and other Federal agencies, States, regional agencies, local governments, and the public. Each has a role in planning and in implementation. The Governor of each State has designated State agencies to manage the WQM program, and, in most cases, areawide agencies to plan in those areas where particularly complex water quality problems exist. The State conducts planning in areas outside the designated areawide areas and coordinates activities of areawide agencies. (f) Implementation. Implementation of solutions that States and areawide agencies develop for water quality problems involves many programs and agencies at all levels of government. Management agencies are designated by the Governor to carry out WQM plans. These agencies must have the capability, including resources, to implement the assigned programs. Implementation may involve construction of treatment works, regulatory programs, management programs, legislative initiatives, enforcement, or other such activities. Implementation is the most important part of the WQM program, because only with successful implementation will water quality goals be achieved. Not all implementation relates to the 208 plan p_er se_; the State uses funds under section 106 of the Act to manage a wide range of WQM activities, including permit activities under Title IV of the Act. Various sanctions are available to EPA to deal with failures in implementation. -12- ------- (g) Funding. State administration and management of the WQM program is supported primarily by grants under sections 106 and 205(g) of the Clean Water Act. WQM planning by State and substate agencies is supported primarily by grants (up to 75 percent of costs) under section 208. Implementation is funded from many sources, among them grants under sections 106, 201, 205, 208(j), and 314 of the Clean Water Act, State funds, local funds, and funds from other Federal agencies. (h) State/EPA Agreement. The WQM program is one of several EPA programs which will be included in State/EPA Agreements. The Agreement is negotiated each year between the Regional Administrator and the Governor. It identifies WQM problems and objectives, describes coordination with other environmental programs, summarizes major work program outputs, and includes a detailed annual work program for WQM. §35.1505 hater quality goals. The water quality goals are: (a) those set forth in section 101 of the Act, including protection and propagation of fish, shellfish, and wildlife and provision for recreation in and on the water by 1983 wherever attainable, restoration and maintenance of the chemical, physical, and biological integrity of the Nation's waters, and prohibition of toxic substances in toxic amounts; (b) achievement of water quality standards; (c) protection of public health and welfare; and (d) reduction of water pollutants from nonpoint sources to the maximum extent feasible. S35.1507 State/EPA Agreement for water quality management. §35.1507-1 General. (a) The State/EPA Agreement integrates planning, management, and implementation of all EPA programs which the State and the Regional Administrator elect to include. In addition, the Agreement reflects appropriate coordination with other Federal, State, regional, and local planning programs affecting or affected by the activities under this subpart. Starting in FY 1980, the Regional Administrator shall not award assistance under this subpart unless he or she has determined that the State has coordinated, and integrated to the maximum extent feasible, all work program elements of the WQM program with other EPA programs included under the State/EPA Agreement. (b) The Regional Administrator and the Governor will negotiate the WQM portion of State/EPA Agreement on State and EPA responsibilities -13- ------- and funding. The Agreement shall (1) ensure that water pollution is controlled in a cost effective manner; (2) coordinate programs, simplify paperwork, and improve program accountability; and (3) serve as the management tool for the WQM programs and as a public information document by identifying activities to be funded and describing the relationship between WQM activities and other environmental programs of the Agency. The Agreement is negotiated annually, but may cover commitments to be performed over a longer period. MOTE: The State/EPA Agreement is not the same as any memoranda of agreement negotiated between a State and EPA governing the operational aspects of other programs such as the permit programs approved under sections 402 and 404 of the Act and implementing regulations (see 40 CFR 123.5), and construction grant delegation agreements under section 205(g) of the Act and implementing regulations (see 40 CFR Part 35, subpart F). However, the State and the Regional Administrator may agree to include such agreements under the State/EPA Agreement for ease of coordination, if the particular requirements applicable to those Agreements are complied with. §35.1507-2 Scope. The WQM portion of the State/EPA Agreement must cover the WQM program funded under sections 106, 208, and 205(g), and the State's responsibilities under section 303(e) of the Act. S35.1507-3 Content. The WQM portion of the State/EPA Agreement consists of the following: (a) A statement of water quality management problems and objectives, based on the State's problem assessment and strategy developed under 835.1515. (b) A description of coordination among water quality management programs and other environmental programs to avoid inconsistent, dupli- cative, or environmentally unsound activities. (For example, coordination with programs to control solid and hazardous waste; in particular, residuals planning and management responsibilities in relation to the requirements of section 4006 of the Resource Conservation and Recovery Act (RCRA)). (c) A summary of major work program outputs, associated funding (and sources), and agency responsibilities for completing the outputs. (d) A work program under §35.1511. §35.1507-4 Role of areawide agencies. For areawide agencies, the WQM portion of the State/EPA Agreement sets a policy framework based on the State strategy, and should include priorities for areawide action and timing of major outputs. Because of the importance -14- ------- of their role, designated areawide planning agencies shall be continually involved in development of all relevant aspects of the Agreement. Failure to involve the areawide agencies shall be a basis for disapproval of the WQM portion of the State/EPA Agreement. Comments of the areawide agencies (if any), the State's responses, and a brief summary of the participation of areawide planning agencies in development shall be forwarded to EPA with the draft Agreement. Nothing shall preclude the right of the designated areawide agency to submit comments directly to EPA. S35.1507-5 Grant agreements. To avoid duplication, the WQM portion of the State/EPA Agreement should constitute the narrative portion of the application for grant funds. In the event of funding delay, the State/EPA Agreement may be negotiated prior to grant award. No grant under this subpart shall be awarded unless the Regional Administrator and the Governor (or other State repre- sentative) have signed the WQM portion of the State/EPA Agreement in accordance with §35.1507-7(b). The Regional Administrator may award a grant to one agency, a grant which directs funds to more than one agency, or separate grants to the various agencies which will be performing under the Agreement. S35.1507-6 Relationship to approved WQM plans. The Regional Administrator shall not enter into the WQM portion of a State/EPA Agreement unless the Regional Administrator determines that it is compatible with the approved State WQM plan (which includes approved elements of areawide plans). S35.1507-7 Development and submission. (a) The State and the Regional Administrator shall develop a draft of the WQM portion of the State/EPA Agreement on an agreed-upon schedule. A draft Agreement shall be submitted to the Regional Administrator not later than June 1 of each year. The Regional Administrator shall review the draft for compliance with the requirements of this subpart and provide comments to the State within 30 days of receipt. (b) The final WQM portion of the State/EPA Agreement shall be submitted to the Regional Administrator not later than September 1 of each year. The Agreement shall be effective upon signature by the Regional Administrator and the Governor or, if the Regional Administrator and the Governor agree that it is appropriate, by one or more heads of State executive agencies. S35.1507-8 Public participation in development. Early in the process under S35.1507-7(a), the State shall notify the public about the goals and scope of the Agreement (including the -15- ------- work program) and shall schedule opportunities for consultation with the public. The State shall consult with the advisory committee established under S35.1533-3. Prior to submission of the draft Agreement to EPA, the State shall distribute to the public a fact sheet'which explains in layman's terms the contents of the proposed Agreement and hold a public hearing in accordance with Part 25 of this chapter. A summary of significant public comments from the hearing and other sources (including the advisory committee) and the State's responses shall be forwarded to EPA with the draft Agreement. S35.1507-9 Evaluation. Annual evaluation of implementation of the State/EPA Agreement shall be conducted with the evaluation of the work program under §35.1511-7, or on any other basis established in the State/EPA Agreement. §35.1509 Conflict resolution. The State shall develop procedures for resolving conflicts among the State, designated areawide agencies, local governments, and potential and designated management agencies, in accordance with EPA guidance. A written statement of such procedures shall be submitted to the Regional Administrator for approval as an output of the FY 1979 work program. Once approved, it need not be resubmitted, unless amended substantially. Nothing shall preclude the right of any agency to request EPA comment and review, after exhausting available procedures at the State level. All agencies and members of the public have the right to submit comments to EPA. §35.1511 WQM work programs of State and areawide agencies. S35.1511-1 General. (a) The annual work program of States and areawide agencies provides the basis for tying available Federal and non-Federal funds to the requirements of this subpart, in order to achieve the water quality goals of the Act. It translates the requirements of this subpart and the EPA annual guidance into specific output commitments, including WQM planning. (b) Most State control program expenses (including expenses of staffing to meet 208 implementation responsibilities) will be funded under section 106 of the Act. State funding under section 208 of the Act is available primarily for planning in nondesignated areas. Thus, the major portion of the wQM program (including permits administration, monitoring, enforcement, and administration of nonpoint source programs) at the State level is a 106-related effort. (c) The State's work program shall be based on the continuing planning process, the water quality problem assessment, and the State strategy, and shall indicate how the problems identified in the strategy and assessment will be handled and how the WQM requirements will be met. -16- ------- Although the work program is an annual submission, the Regional Administrator may allow outputs to be addressed on a multi-year basis as long as the Regional Administrator determines that EPA oversight and evaluation capability remains unaltered. Areawide planning agency work programs are developed separately in accordance with §§35.1511-3 and 4. The Regional Administrator shall review work programs of both States and areawide agencies to assure that redundant outputs are not included. §35.1511-2 Scope. The State and areawide work programs shall identify outputs and associated funding within the appropriate work elements of §35.1511-4. Specific consolidation efforts should be made concerning planning agencies' use of common data bases, simplified and coordinated reporting, and other elimination of conflict and redundancy among programs. Work programs shall meet the requirements of §35.1529 concerning intergovernmental cooperation. §35.1511-3 Areawide agency work programs. The WQM portion of the State/EPA Agreement sets the policy framework, based on the State strategy, for areawide work programs. The !/\iQM portion of the State/EPA Agreement should include priorities for areawide action and timing of major outputs. Areawide planning agencies which the Regional Administrator determines should receive 208 funding must submit a draft and final work program in accordance with the requirements of §35.1511 concurrently to the State for review and to EPA for approval. Draft and final areawide work programs shall be submitted on the same schedule as the State submissions (see §35.1507-7). The State shall have 30 days to review and comment on the adequacy of the areawide work program and its compatibility with the WQM portion of the State/EPA Agreement and the State WQM plan, and shall submit its comments, if any, to both the areawide agency and EPA. Areawide agency work programs must also meet the public participation requirements of §35.1507-8, including consultation with the areawide agency's advisory committee. §35.1511-4 Major work elements. (a) General. EPA will provide annual guidance (see §35.404 of this chapter) identifying specific outputs under the major program elements listed below. Each work program shall be free from redundant or inconsistent outputs; common outputs (i.e., funded from more than one program) may be developed (see §35.1537-7). An important output of the State is the annual project priority list for construction grants (both the fundable and extended portions), developed and approved in accordance with §35.915. (b) Areawide agencies. Areawide agencies shall receive grants directly from EPA. Grants to areawide agencies under this subpart are only for water quality management planning under section 208 of the Act. In addition, such agencies may receive funds from the State, under interagency agreement, to perform -17- ------- specific activities on behalf of the State under sections 106, 205(g), 208, and 314 of the Act; however, such activities remain the responsibility of the State and are not outputs for which the areawide agency is directly accountable to EPA. Areawide agencies similarly may receive funds from other substate agencies; for example, to perform facilities planning activities. (c) State agencies. With approval of the Regional Administrator after negotiation with the State, the State may receive funding for the following elements (potential funding sources shown in brackets): (1) Construction grants management, including development of the project priority list (to the extent not funded under subpart F), and planning for and management of pretreatment programs [106, 205(g), 208]. (2) Administration of permits programs, including programs under sections 402 and 404 of the Act [106, 205(g)]. (3) WQM planning and certification [primarily 208; 106 where the Regional Administrator determines appropriate; 205(g) for development of the 208(b)(4) program]. (4) Water quality standards development, review, and revision [106, 208]. (5) Nonpoint source management activities [106]. (6) Monitoring and assessment [106, 203]. (7) Enforcement (including compliance assurance and litigation support activities) [106]. (8) Training and facilities operation and maintenance [106]. (9) Emergency response programs [106]. (10) Evaluation [106, 208]. (11) Administration of regulatory and other water quality control programs [106]. (12) Planning for and coordination with section 208(j) programs [106, 208]. (13) Administration [106, 205(g), 208]. (14) Public participation in accordance with S35.1533 [106, 205(g), 208]. S35.1511-5 Content. The draft and final work program submitted by an areawide agency or by the State shall contain the following: -18- ------- (a) A summary and evaluation of the current year's program, including outputs produced and those not completed, and a summary of public partici- pation. (b) Identification of the outputs to be produced under each program element in §35.1511-4, and, for each output, the person-years to be used; the costs; the funding source(s); milestones for completion of the output; a disbursement schedule; and the agency(ies) responsible. §35.1511-6 EPA review and approval of work programs. (a) The areawide agency work program, and the State work program submitted as a part of the State/EPA Agreement, shall be forwarded to the Regional Administrator in accordance with the schedule in §35.1507-7. Grants shall be awarded only upon approval of the work program. The Regional Administrator may award a grant under this Subpart with special conditions if the work program requires minor changes. In such an event, the Regional Administrator shall provide the agency with a statement of deficiencies in the work program and revisions which must be made to obtain approval. The grant award shall include this statement and a schedule for making the corrections. Noncompliance may result in a reduction of grant amount or termination. (b) The Regional Administrator shall not approve a designated areawide agency's work program if, based on the Regional Administrator's review and advice from the State, the Regional Administrator determines that the work program is incompatible with the State strategy and EPA guidance. (c) The Regional Administrator shall review the work program of each State and areawide agency to determine if it meets these requirements, and to determine: (1) The consistency of the work program and expected products with this subpart and EPA guidance, including any EPA guidance designed to coordinate activities under this subpart with activities under other EPA programs. (2) The feasibility of achieving expected results in relation to the nature of problems, authority, organization, past performance of the agency(ies) involved, and their available resources. (d) The Regional Administrator shall not approve a work program for any agency which has had its WQM plan or an element thereof approved with conditions unless he or she determines that the agency is moving as rapidly as possible to fulfill the conditions. §35.1511-7 Evaluation. It is EPA policy to limit EPA evaluation to that which is necessary for responsible management of the national effort to control pollution. Each Regional Administrator shall hold meetings to review and evaluate State and areawide programs as follows: -19- ------- (a) Mid-year evaluation. The Regional Administrator shall conduct a joint, on-site, mid-year evaluation meeting with each State and designated areawide agency, and hold a public meeting, to review and evaluate the program accomplishments of the current budget period under the work program and to discuss the work projected for the coming year. (b) Other reviews. The Regional Administrator may conduct an end-of-year evaluation meeting with appropriate State and other officials to review the accomplish- ments of the program year, and such other reviews as are deemed appropriate. (c) Reports. The Regional Administrator shall prepare a written report of each evaluation, forward a copy to the grantee (and the State, where the grantee is an areawide agency), and notify the public of the report's availability. §35.1513 Continuing planning process. §35.1513-1 General. Each State shall have an approved Continuing Planning Process (CPP) for both point and nonpoint sources as required by section 303(e) of the Act and EPA guidance. The CPP shall respond to the objectives and requirements of all relevant provisions of the Act, and shall cover both planning and implementation responsibilities. The CPP shall be described in a document submitted by the State to, and approved by, the Regional Administrator. It consists of the operating policies, procedures, and practices that comprise the water quality management program of the State; describes program working relationships; and sets forth the procedures that will govern the development of the WQM portion of the State/EPA Agreement. Revisions to the approved CPP description shall be developed as outputs of the State's work program. §35.1513-2 State priority system. The CPP includes the State priority system for construction grants, developed in accordance with §35.915 of this chapter. The State priority system describes the methodology used to rate and rank municipal wastewater treatment projects eligible for grant assistance under subpart I. It also sets forth the administrative, management, and public participation procedures required to develop and revise the State project priority list under §35.915(c). Under §35.1531-4(b)(2), areawide priorities are developed consistent with the State priority system. §35.1513-3 Failure. The CPP is the process under which State WQM planning is conducted. Therefore, a substantial failure of State WQM planning and implementation -20- ------- may indicate a deficiency in the CPP for which the Regional Administrator may withdraw approval of the CPP. Under section 303(e) of the Act, State failure to maintain an approved CPP constitutes grounds for withdrawal of National Pollutant Discharge Elimination System (NPDES) program approval. Further, if the Regional Administrator determines that the CPP, as implemented and revised, does not meet the requirements of the Act and this part, he may withhold grant funds available to the State under sections 106, 205(g), 208 and 314 of the Act. Disapproval of a portion of the CPP need not require disapproval of the whole CPP; for example, the priority system under §35.1513-2 may be determined approvable by the Regional Administrator in spite of a failure of other portions of the CPP. §35.1515 State assessment and strategy. §35.1515-1 State water quality assessment. (a) General. The State must conduct a water quality assessment based on water quality goals (S35.1505). The assessment shall identify water quality and source control problems for programs funded under sections 106, 205(g), and 208 of the Act, and shall link planning and implementation by determining the effectiveness of control programs (e.g., BMPs and NPDES permits) in achieving water quality goals and by indicating where additional controls are necessary to achieve those goals. Future assessment activi- ties shall build on existing data. The Regional Administrator shall not approve funding for further assessment activities unless it is determined that the work will not duplicate past efforts. Except where otherwise determined by the Regional Administrator, State assessment activities shall be funded only under section 106 of the Act. Updates of the assessment will be developed as WQM outputs of the work program. Assessment data should be available to the State by the first of each calendar year for use in developing the State strategy and the WQM portion of the State/EPA Agreement. (b) Content. The problem assessment must include: (1) The water quality descriptions and constituent analyses of point and nonpoint source problems and control needs in accordance with section 305(b) of the Act and EPA guidance for surface and ground waters. The assessment must be based on land use, demographic, and economic data and projections for 20 years in 5-year increments. (Data must be consistent with the EPA cost-effective guidelines under subpart E, Appendix A.) For all areas (including rural areas), the relationship between the severity and geographic extent of water quality problems and other environmental problems, such as air quality or solid waste disposal problems, must be considered. The location and nature of the problems, and if possible, point and nonpoint source loads, must be identified. -21- ------- (2) An analysis of the individual and cumulative impact on receiving waters of activities causing nonpoint source pollution. (3) The classification of stream segments in accordance with section 303(d)(l)(A) of the Act and EPA guidance, consistent with the needs assessment prepared under section 516(b) of the Act. (4) An evaluation of the effectiveness of existing point and nonpoint source control programs in achieving water quality goals. (5) Other assessments required by programs not funded by sections 106 and 208 which are considered appropriate for developing the WQM work program and WQM plans; for example, relevant data from the inventory of land disposal under section 4005 of RCRA; the identification and classification of publicly owned fresh water lakes required under section 314 of the Act; and estuarine reports required by section 104(n) of the Act. (c) Role of areawide agencies. With the approval of the Regional Administrator, designated areawide agencies may also conduct problem assessment for their planning areas as necessary to meet areawide U'QM responsibilities. State problem assessment activities under sections 106 and 208 may be delegated under interagency agreement to areawide agencies. §35.1515-2 State strategy. (a) General. The State shall prepare and annually update a five-year strategy for controlling water pollution problems from point and nonpoint sources. It shall address the problems identified in the assessment developed under §35.1515-1. It shall be consistent with the management agency performance evaluations developed under §35.1523 and with approved and certified State and area- wide WQM plans, although the strategy may be used to recommend revisions in approved plans. The strategy shall include: (1) Goals for WQM over a five-year period. (2) Priorities for controlling the problems identified in the problem assessment, and in the management agency performance evaluation, including: (i) the construction grant project priority list, and (ii) priority rankings for total maximum daily loads and waste- load allocations development under §35.1519-6(a). (3) A summary of anticipated planning and implementation activities for priorities identified in (a)(2) of this section. -22- ------- An identification of governmental entities responsible for conducting the activities identified in (a)(3) of this section. (5) A summary of anticipated Federal and non-Federal funds for the five-year period for the activities and entities identified in (a)(3) and (4) of this section, for use by EPA in determining resource needs and allocations. (b) Role of areawide agencies. Since the State strategy is used in the Regional Administrator's review and approval of the areawide agency's work program (see §35.1511-3), the State shall involve each affected areawide agency in development of the strategy, and shall consider priorities suggested by the areawide agency. The State shall forward a summary of areawide participation and State response to comments received from areawide agencies to EPA with the strategy. (c) Public participation. (1) Early in the process of strategy development, the State shall notify the public about the goals and scope of the strategy and shall schedule opportunities for public participation. The State shall consult, in accordance with Part 25 of this chapter, with the State advisory committee established under §35.1533-3. The State shall distribute a fact sheet which explains in layman's terms the contents of the proposed strategy and hold a public meeting in accordance with Part 25. The meeting may be consolidated with other meetings or hearings. A summary of significant public comments from the meeting and other sources and the State's responses shall be forwarded to EPA with the strategy. (2) Public participation requirements for priority list develop- ment shall be as set forth in §35.915 of this chapter. To avoid duplication, public participation activities for list development should be combined with other such activities under this section wherever practicable. (d) Submission. Each year, the strategy shall be submitted by April 1 to the Regional Administrator for review and comment to provide guidance in work program development and assistance in negotiating the State/EPA Agreement. With approval of the Regional Administrator, the priority list developed under §35.915 of this chapter may be submitted separately. §35.1517 Selection of 208 planning agencies. §35.1517-1 Status of existing planning agency designation. A designated State, interstate, or areawide planning agency shall retain its designated status unless changed in accordance with this section. While planning grant funds will be awarded only to designated agencies, designa- tion does not automatically entitle any agency to grant funds. An agency must meet all requirements of this subpart to become or continue to be eligible for funding. -23- ------- S35.1517-2 Changes in designation status. (a) General. (1) As of the date of publication of the final regulations, virtually all areas of the United States are covered by 208 planning by existing State or designated areawide agencies. Generally, therefore, it is not necessary for Governors to designate new areawide planning agencies, since a change in planning responsibility usually can be accomplished through a change in designation. With EPA approval, the Governor may: (i) designate a new State planning agency to replace the existing State planning agency; (ii) designate a new areawide planning agency for an area previously administered by the State (note S35.1517-2(a)(3)); (iii) designate a replacement areawide planning agency for an existing designated agency in a planning area; (iv) remove the designation from an existing area and agency, thereby replacing it with the State planning agency; (v) alter the boundaries of existing planning areas. (2) All actions under (a)(l) of this section require the approval of the Regional Administrator, and such changes will be approved only if he or she determines that there is a compelling need for the change and that the procedures set forth below have been followed. Generally, designation changes should not be made where delegation of specific responsibilities through interagency agreement may accomplish the desired ob.iective. Preference should be qiyen to replacement agencies and delegees which have planning responsibilities in other Federal, State, regional, and local environmental and land use planning programs: (3) Designation of new areawide planning agencies for areas previously administered by the State shall be subject to the procedural requirements of this section and any additional procedures the Regional Administrator considers appropriate to meet the intent of section 208(a)(2) of the Act. (b) Procedures. (1) The Governor shall propose any change in area or agency designation in a written statement, which shall contain the reasons for the proposed change, the impact on applicable time schedules and achievement of program requirements, and the identification of a proposed replacement agency or change in planning area boundaries. This statement shall be -24- ------- sent to the Regional Administrator, to the head of the agency to be replaced, and to the chief elected officials of general purpose governments in the affected area. The statement shall also be available for public review in the affected area. (2) Except where the proposed change is contained in a certified and approved WQM plan, following distribution of the statement, and not less than 30 days prior to the effective date of the proposed change, the State shall hold a public meeting in the affected area. Advance notice of the meeting shall be given in accordance with Part 25 of this chapter. Before the change is approved, the State shall submit a summary of significant public comments received at the meeting and elsewhere, and the State's responses, to the Regional Administrator. (3) If there is significant public controversy concerning the proposed action, the Regional Administrator should conduct a public meeting in the area. (4) The Regional Administrator shall approve the designation change if he determines that the proposed change is consistent with (a)(2) of this section and that the proposed replacement agency has the authority, capability (including resources) and willingness to undertake its responsi- bilities. (c) Grant funds. Generally, as soon as the Regional Administrator determines that an agency may lose its designation, and if unexpended grant funds remain, the Regional Administrator should issue a stop work order under §30.915 of this chapter. A stop-work order is not needed where the agency to be replaced is allowed by the Regional Administrator to complete its assigned tasks. Upon designation change, the Regional Administrator shall either transfer the grant under §30.900-3 of this chapter to the replacement agency, or terminate the grant under §30.920 of this chapter and provide part or all the funds released to the replacement agency. The final decision of the Regional Administrator may be appealed in accordance with §30.920-5. §35.1517-3 Delegation of planning activities. Designated State and areawide agencies may delegate (through inter- agency agreements) planning activities, but not ultimate responsibilities for planning, to other State, Federal, Regional, local, and interstate agencies for the conduct of work under this subpart. Delegation shall take place through a written agreement executed by the two agencies, subject to the approval of the Regional Administrator, specifying outputs and time schedules. If a State or areawide agency intends to delegate any major planning activities under this paragraph then: -25- ------- (a) Locally elected officials of governments having jurisdiction in the affected area shall be consulted prior to execution of the agreement, and (b) The draft of the delegation agreement should be distributed widely, with a public meeting held thereafter at least 30 days prior to the execution of the agreement. §35.1519 Water quality management planning. §35.1519-1 General. WQM plans shall be prepared as outputs of the work program by States under sections 208 and 303(e) of the Act and by areawide agencies under section 208 of the Act. The term "WQM plan" as used in the context of this regulation refers to the initial plan and subsequent revisions and additions prepared in accordance with section 208(b) of the Act. After a WQM plan is adopted by the areawide agency, certified by the Governor, and approved by EPA under §35.1521, it shall be considered a part of the State's WQM plan. Water quality management decisions are controlled by the applicable provisions of the approved State and areawide plans. §35.1519-2 Applicable regulations. (a) Except as otherwise provided in this subpart, initial planning begun as of the date of publication of final regulations is governed by the requirements formerly published as 40 CFR Parts 130 and 131, and §35.200 through §35.236, which shall remain applicable in uncodified form to the development of initial WQM plans and, to the extent practicable, completion of work needed to fulfill conditional approvals prior to the date of publication of final regulations. (b) All WQM planning subsequent to development of initial plans shall be in accordance with the requirements of this part. §35.1519-3 Relationship to work programs. All planning activities of State and areawide planning agencies under this subpart are controlled under work programs under §35.1511. While funding generally will be available on an annual basis, the approved work program may include planning products which will be developed on a multi- year basis. Multi-year outputs generally shall be evaluated on an interim basis under §35.1511. §35.1519-4 Annual planning outputs. To be eligible for grant funds for planning, each State and areawide agency shall submit, as part of its work program, specific proposed outputs under §§35.1519-5 and 35.1519-6. WQM planning must eventually address all program areas (eee §35.1519-6), although annual work programs will only deal with current priorities. Within the context of the WQM portion of the State/EPA Agreement, the Regional Administrator shall negotiate with -26- ------- each State and areawide agency to determine activities which will have priority for funding in each year, in accordance with annual EPA guidance. The Regional Administrator shall not approve funding for any output unless he determines that it is consistent with section 208(5) of the Act and attainment of water quality goals. S35.1519-5 Plan development requirements. l.'QM plans shall be developed to address point and nonpoint program areas discussed in §35.1519-6 in accordance with the following requirements: (a) Control needs. The plan shall evaluate alternative control strategies and select point and nonpoint source control programs (in accordance with sections 208(b)(2)) for areas under S35.1519-6. A schedule for implementing control programs shall be included. The specific conditions (including effluent limitations for water quality standards and BMPs) to be included in NPDES permits or categories of permits under section 208(e) of the Act shall be clearly identified in the proposed and final plan. The State is responsible for providing appeal procedures for these conditions. EPA permit appeal procedures are not available for such conditions. The plan must set forth an explanation of how these procedures have been or will be implemented. (b) Regulatory and other programs. For control programs identified in S35.1519-5(a), the plan must identify regulatory or other programs under which the control programs will be administered. Existing regulatory programs should be used where effective. Any necessary modifications to existing programs shall be described. Regulatory programs shall have adequate capability including: enabling legislation, ordinances, and other legislative requirements; financing, staffing, and other administrative arrangements; and inspection, enforcement, and surveillance authority. Nonregulatory programs shall have adequate admin- istrative arrangements, financing, public education programs, and surveillance capability. (c) Management agencies. (1) The plan shall propose management agencies for implementing the programs selected. Agencies identified shall have adequate authority and capability to fulfill responsibilities assigned under the plan and shall submit a brief written commitment to fulfill those responsibilities. (2) No later than submission of the WQM plan under §35.1521-2(b), the planning agency and each major management agency (those which have primary responsibility for controlling a source) shall forward to the Governor and the Regional Administrator a letter of commitment which will formalize the management agency's acceptance of responsibilities assigned to the -27- ------- management agency by the plan. The letter shall indicate the legal authority, the administrative and financial capability that the agency has or is seeking in order to carry out its assigned responsibilities, a time schedule, reporting procedures, assurance of coordination with the planning agency, public participation procedures, and implementation actions under way or completed. (3) Proposed management agencies which are to receive construction grant funding shall meet the requirements of section 208(c)(2) of the Act and §35.900 through §35.965 of this chapter before they may be designated. (4) A management agency shall not be designated to carry out regulatory responsibilities if the Regional Administrator determines that (i) a majority of membership of the agency consists of members or representatives of the regulated class, or (ii) the proposed agency is otherwise substantially under the control of members or representatives of the regulated class. (d) Environmental, social, and economic impacts and recreational opportunities. The plan shall assess environmental, social, and economic impacts of implementing plan provisions. This assessment shall include an analysis of primary and, to the extent feasible, secondary impacts of alternative WQM programs and actions. The planning process and plan content shall be consistent with the intent of NEPA, the Executive Order on Flood Plain Management (11988), the Executive Order on Wetlands Protection (11990), published Agency policy on floodplain management and agricultural lands, and other applicable environmental requirements cited in Part 30 of this chapter. Plans shall conform with applicable air quality State implementation plans. An analysis shall be made of open space and recreational opportunities that can be expected to result from improved water quality, including consideration of potential use of lands associated with treatment works and increased access to water based recreation. Measures taken to coordinate with State and local recreation programs and Step 1 facilities planning regarding recreational opportunities shall be identified in the plan. (e) Urban impacts. The plan shall assess the impact on urban development and contain measures for mitigation of adverse impacts to assure consistency with the President's urban policy and the EPA Urban Initiative to minimize urban sprawl, as implemented in subpart E, Appendix A. (f) Public participation. The planning process shall be conducted in accordance with §35.1533. In addition, the WQM planning agency shall involve potentially affected agencies including general purpose units of local governments, proposed -28- ------- and designated management agencies, and other affected State and Federal agencies (e.g., air, solid waste, drinking water, and fish and game offices) in planning activities in the same manner as the general public. (g) Coordination with other programs. Water quality program activities shall be coordinated during plan development with any other programs related to WQM, as discussed in §35.1529. Efforts should be made to achieve common planning agencies and areas, data bases, advisory bodies, and public participation programs; to simplify and coordinate reporting requirements; and to develop programs which are consistent with other programs related to WQM. (h) Plan evaluation and revision. The plan shall contain procedures for evaluating the effectiveness of plan implementation (e.g., application of BMPs) in achieving water quality goals. Provisions shall be made for revising WQM plans in an iterative manner as necessary to achieve those goals. The assessment developed under §35.1515-1 will be a principal means of conducting the evaluation. §35.1519-6 Program areas. The following point and nonpoint program areas shall be addressed through the plan development process described in §35.1519-5. The specific responsibilities of State and areawide WQM agencies are indicated below. (a) Total maximum daily loads, wasteload allocations. States shall develop total maximum daily loads and wasteload allocations consistent with the priorities established under §35.1515-2(a)(2). Areawide agencies shall perform this activity only where delegated under interagency agreement between the State and areawide agency. Wasteload allocations to be incorporated into NPDES permits under section 208(e) must be specifically identified (see §35.15195(a)). (b) Dredged or fill programs. The State may develop programs for the control of the discharge of dredged or fill material under section 208(b)(4)(B) of the Act in accordance with §35.1580. (c) Nonpoint source control. (1) Feasible Best Management Practices (BMPs) for nonpoint surface water (and ground water) quality and source control problems shall be developed under section 208(f) through (k) of the Act to achieve water quality goals (see §35.1505). For nonpoint source control purposes, BMPs are those methods, measures, or practices to prevent or reduce -29- ------- water pollution and include but are not limited to structural and nonstructural controls, and operation and maintenance procedures. BMPs can be applied before, during, and after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters. Economic, institutional, and technical factors shall be considered in determining feasibility. BMPs shall be developed in a continuing process of identifying control needs (see §35.1519-5(a)) and evaluating and modifying the BMPs as necessary to achieve the goals. (2) Nonpoint source regulatory programs shall be identified for implementation of BMPs where regulation is necessary to ensure BMP implementation. Nonregulatory programs are acceptable only where such programs will result in achievement of water quality goals. Nonregulatory programs may supplement regulatory programs. (3) Under section 208(b)(4)(A) of the Act, States may assume responsibility for identifying nonpoint source control needs and developing control programs in designated areas. (d) Municipal and industrial waste treatment systems. (1) Wastewater treatment facilities needs for 20 years shall be determined after assessing alternative waste disposal facility needs. Operation and maintenance needs shall be identified. NPDES permit require- ments (including pretreatment standards), results of prior Step 1 facility planning, regulatory programs that control the location, modification, and construction of facilities for municipal and industrial wastewater treatment, water conservation needs, and pretreatment programs for industrial wastewater shall be considered. Under S35.1531-4(b)(2), facilities needs lists shall be developed consistent with the State priority system. The Regional Administrator shall assure that work of the areawide agency in this area is consistent with the priority list development needs and activities of the State under §35.915. (2) Under S35.915(b), the State is required to maintain a listing of all needed treatment works. This State needs inventory, prepared under section 516(b) of the Act, should be used to satisfy the wastewater treatment facilities needs requirement under paragraph (d) (1) of this section. (3) All wastewater treatment facility needs in approved areawide WQM plans shall be included in the State needs inventory, except where the State or Regional Administrator determine that a project would be ineligible for a construction grant. Areawide agencies shall use procedures and criteria established by the State and EPA under section 516(b) of the Act when updating facility needs assessments. -30- ------- (e) Urban stormwater. Requirements for improving stormwater systems must be identified. BMPs must be established in the same manner as described in (c) of this section. Regulatory programs must be established to control the location, modification, and construction of facilities for municipal stormwater management. Fiscal analysis of the necessary capital and operations and maintenance expenditures must be included. (f) Residual waste control, land disposal. Control needs for waste disposal to protect water quality and ground water supplies shall be identified. Relationships of residual waste disposal needs to wastewater treatment facility needs (e.g., toxic solid waste disposal, land treatment) shall be described. Activities under WQM planning and the Resource Conservation and Recovery Act shall be coordinated. Regula- tory programs to control the location, modification, and construction of facilities for residual waste disposal and other program needs shall be established to achieve water quality goals. States may assume responsibilites from areawide agencies under this paragraph in accordance with section 208(b)(4)(A) of the Act. NOTE: Control needs for waste disposal to protect surface and ground water from land disposal of solid waste and from hazardous waste are identified in programs under Subtitles C and D of the Resource Conservation and Recovery Act (RCRA). To avoid redundancy and incon- sistency, the Regional Administrator and the State shall establish (through the State/EPA Agreement) the planning and funding responsibilities attributable to the RCRA and WQM programs. The division of responsibilities shall be in accordance with annual EPA guidance. (g) Hater quality standards. State water quality standards shall be reviewed and appropriate recom- mendations made on revising such standards to meet water quality goals. The State shall consider the recommendations in the review and revision of standards. §35.1519-7 Planning responsibilities. (a) Governor. The Governor shall: (1) Assure that adequate WQM planning consistent with this part is conducted throughout the State to control point and nonpoint pollution to meet water quality goals. (2) Take action necessary to correct a failure in planning of a State or areawide agency by promptly designating a replacement State or local agency or otherwise assuring production of required planning products. -31- ------- (3) Promptly take action on plans in accordance with §35.1521-3. (b) State. The State planning agency, and any other appropriate State agency designated by the Governor, shall: (1) Review and comment on proposed areawide annual work programs in accordance with S35.1511-3. (2) Continually review development of areawide plans including revisions and additions. (3) To the maximum extent feasible, act as a resource for areawide planning agencies, provide them with technical assistance and information on BMPs and pollution control technologies. (4) Perform planning for nondesignated areas under section 208 of the Act and planning for which the State is responsible in designated areas. The State is responsible for timely completion of its initial planning responsibilities and those identified in its approved work program. (5) If designated by the Governor, promptly assure completion of necessary additional planning in the event of failure of a designated areawide agency. In such an event, the former work program shall be examined and modified as determined by agreement between the successor agency and the Regional Administrator, consistent with the objectives of the Act. (c) Areawide agencies. The areawide agency shall prepare and submit an areawide WQM plan, including revisions and additions, and shall carry out all responsibilities assigned to it under any grant agreement, its approved work program, and any agreement with the State, consistent with this part. (d) Local Involvement. State and areawide WQM planning agencies must assure that affected local governments are involved in WQM plan development. Therefore, no grant will be awarded under this subpart to a State or areawide planning agency unless the Regional Administrator is satisfied that adequate provisions have been made for such local involvement (including the participation of local elected officials). (e) Failure. Failure to meet any of the requirements of this section may result in withholding of all or part of grant funds available under sections 106, the nonconstruction related portion of 205(g), 208, or 314 of the Act and disapproval of the CPP under §35.1511-2. 201 funds may be withheld in the circumstances described in §35.1531-4(b). -32- ------- S35.1519-8 Planning on Indian lands. To the maximum extent feasible, States and areawide agencies shall coordinate with Indian tribal organizations within and adjacent to their planning areas in the development of WQM plans. Where this is not feasible, the Regional Administrator shall work with the State and Indian Tribe to ensure development of WQM planning on Indian lands. The WQM planning area should include all lands within the reservation regardless of ownership. Where the State finds it cannot legally deal with an Indian tribal organization through designation or interagency agreement, the State and the Regional Administrator may agree to allow EPA to use a portion of the State's 208 funds to support a cooperative agreement between EPA and the Indian Tribe to accomplish 208 tasks on Indian land. The State shall review the Indian tribe's work program and work outputs for consistency with State and adjacent areawide agency work. Where the Governor determines that he or she has no authority to take action on Indian tribal plans under §35.1521, the Governor shall, at a minimum, review and comment on the plan submission and provide his or her comments to EPA. All WQM plans for Indian lands shall be submitted to EPA for review and approval. §35.1521 Evaluation, certification, and approval of WQM plans and designation of management agencies. §35.1521-1 General. The terms "certify" and "certification" mean the finding by the Governor that a State or areawide WQM plan meets the criteria in §35.1521-2(c). EPA approval constitutes the finding by the Regional Administrator that the plan meets those criteria. Areawide WQM plan outputs are officially incorporated into State WQM plans upon State certification and EPA approval. State certification is a prerequisite for EPA approval. Failure of the State to take action within the time specified in §35.1521-3(a) will result in EPA action as specified in §35.1521-3(b). §35.1521-2 Plan evaluation. (a) Review of proposed WQM plans. In accordance with Part 25 of this chapter, the planning agency shall hold a public hearing on its proposed plan. The public hearing shall be preceded by 45 days notice. Comments shall be solicited from the public, the State, EPA, and agencies affected by the WQM plan. Affected agencies include general purpose units of local government, proposed and designated management agencies, and other State and Federal agencies whose lands or programs are impacted (e.g., air, solid waste, drinking water, and fish and game offices). Copies of the proposed plan must be made available to the public and affected agencies at a convenient location. All comments shall be considered. -33- ------- (b) Review of final WQM plans by the State and EPA. Within 30 days after the public hearing under paragraph (a) of this section, the planning agency shall submit its WQM plan to the Governor and EPA for their concurrent review and evaluation. In accordance with Part 25 of this chapter, a summary of comments received in the hearing and elsewhere and the planning agency's response shall accompany the submittal. (c) Evaluation criteria. To be certified by the Governor and approved by EPA, a WQM plan shall: (1) Be consistent with work program provisions, other relevant portions of the State/EPA Agreement, this subpart, and the Act; (2) Be consistent with other planning and implementation activities relevant to WQM planning provisions; (3) Be technically valid; (4) Be economically feasible; and (5) Represent substantial progress toward achievement of water quality goals (see S35.1505). (d) Management agency designation criteria. Management agencies shall satisfy requirements of S35.1519-5(c) to be designated by the State and accepted by EPA. §35.1521-3 Plan certification; designation of management agencies. (a) Within 120 days after receipt of the WQM plan for evaluation under §35.1521-2(b), the Governor shall submit a letter to the Regional Administrator and the planning agency containing findings that the Governor certifies, or does not certify, each element of the plan. Prior to such submission, the Governor shall give public notification of the intended action on the WQM plan and allow an adequate public comment period. If there is sufficient public interest, a public hearing may be held in accordance with Part 25 of this chapter. Plan provisions may be certified, and management agencies may be designated, with conditions. The certification letter shall be accompanied by a summary of public participation and comments received, and the Governor's response to those comments. The certification letter shall specify: (1) Plan provisions the Governor certifies in accordance with S35.1521-2(c). Specific conditions endorsed for incorporation into NPDES permits under section 208(e) shall be identified. Where provisions are certified under this section with conditions, a schedule for completing revisions shall be included. -34- ------- (2) For plan provisions the Governor does not certify, the plan revisions necessary for certification. (3) Designated management agencies for implementing certified plan provisions. Where such agencies are not identified, the plan revisions necessary to obtain designation must be stated. Where the Governor designates a management agency which differs from the agency set forth in the plan, he or she shall forward with the certification letter the rationale for the selection, a summary of comments of the planning agency on the substitution, the Governor's response to those comments, and the commitment letter of the management agency. (b) Where the Regional Administrator determines that the Governor has failed without good cause to meet in a timely manner the certification requirements of paragraph (a), the Regional Administrator shall withhold further 208 grant awards (and appropriate portions of 106 and 205(g) grant awards) to the State pending compliance with the requirements, and may suspend or terminate the current 208 grant (and appropriate portions of the 106 and nonconstruction related 205(g) grants) in accordance with SS30.915 and 30.920 of this chapter. S35.1521-4 EPA approval. (a) Within 150 days after receipt of a WQM plan for evaluation under §35.1521-2(b), the Regional Administrator shall take action under this section. Plan recommendations may be approved and designated management agencies accepted with conditions. The Regional Administrator shall notify the Governor and the planning agency in writing of the following: (1) Plan provisions approved and designated management agencies accepted. Specific conditions approved for incorporation into NPDES permits under section 208(e) shall be identified. Where provisions are approved under this section with conditions, a schedule for completion of revisions shall be included. (2) For plan recommendations disapproved and designated management agencies not accepted, the plan revisions necessary to obtain approval and acceptance. (b) Periodically, EPA shall publish notices in the FEDERAL REGISTER describing actions taken under this section. Where a plan is approved with conditions, the notice shall specify an EPA contact for more information about the conditions. -35- ------- §35.1522 Reviewing plan applicability after approval. The State shall identify, with EPA approval, an agency to review facilities plans and advise EPA concerning whether proposed treatment works projects are in conformity with the approved WQM plan under sections 204(a)(l) and 208(d), and whether proposed permits under section 402 of the Act are in conflict with the plan under section 208(e) (if the permit program has been delegated to the State). EPA shall consider any comments provided by this agency in making the determinations required under sections 204(a), 208(d) and 208(e). The agency identified for waste- water treatment facility plan review shall be the agency which will have responsibility (whether by designation or through delegation from a designated agency) for the ongoing WQM planning functions related to wastewater treatment facilities. The identified agency shall also be responsible for reviewing conformity of treatment works projects with nonpoint source and other elements of the approved WQM plan. S35.1523 Evaluation of management agency performance. (a) Responsibility for evaluation of management agency performance resides primarily with the State, which shall provide a description of its evaluation output commitment in its work program. States may delegate portions of evaluation tasks to other appropriate agencies, but the State shall remain responsible for ensuring an adequate evaluation. The State shall consult with the areawide planning agency when evaluating a management agency responsible for implementing a portion of the areawide's plan. Results of the evaluation shall be reflected in the strategy and subsequent work programs. (b) If the Regional Administrator determines it appropriate, EPA shall independently evaluate management agency performance. (c) The State and EPA shall use the letters of commitment developed under §35.1519-5(c) when evaluating management agency performance in implementing responsibilities assigned under the WQM plan. §35.1525 Change in management agency designation by States. Where evaluation of a management agency indicates a failure to implement assigned responsibilities, the Governor, in consultation with the appropriate planning agency, shall withdraw the existing designation and propose an alternate designation in accordance with §35.1521, or take such other action as is needed to assure implementation. A change in management agency designation shall require EPA acceptance. In proposing to change a management agency's designation, the State shall follow the procedures under S35.1517-2(b), except that such procedures may be modified with concurrence of the Regional Administrator. §35.1529 Intergovernmental coordination and cooperation. -36- ------- §35.1529-1 General. Each agency receiving assistance under this part shall assure adequate involvement of appropriate local, regional, State, interstate, and Federal agencies and coordination with other planning activities of those governments. In accordance with the Presidential directive to consolidate planning requirements, Federal agencies may be delegated responsibility under interagency agreement for developing WQM plan outputs. WQM plans may incorporate planning products of other Federal programs. The Regional Administrator shall not approve any work program unless satisfied that the applicant has procedures which will assure coordination with, and the appropriate involvement of, other affected public agencies, and that the proposed work is in compliance with any applicable planning consolidation and other Federal environmental and community development program requirements. WQM plan development must be consistent with any applicable basin plan approved under section 209 of the Act. §35.1529-2 Federal responsibility. Federal agencies shall cooperate with and give support to State and areawide planning agencies in the formulation and implementation of plans for the control of point and nonpoint pollution relating to Federal property, facilities, or activities, and land areas contiguous with Federally-owned land, in accordance with section 313 of the Act and Executive Order 11752. Upon request, EPA shall assist in assuring that cooperation and coordination are achieved among States and Federal agencies. §35.1529-3 Federal facility compliance. (a) In accordance with section 313 of the Act and Executive Order 11752, Federal properties, facilities, and activities shall comply with all Federal, State, interstate, and local requirements, administrative authority, procedures and sanctions respecting the control and abatement of water pollution in the same manner and to the same extent as any non- governmental entity. (b) Generally, EPA will attempt to facilitate resolution of conflicts among Federal agencies and State, interstate, or local agencies in matters affecting the application of or compliance with a requirement for abatement of pollution. Where EPA determines that its efforts are or likely will be unsuccessful, the matter shall be referred to the Office of Management and Budget under provisions of Executive Order 11752. §35.1531 Implementation. §35.1531-1 General. The fundamental objective of all activities of State and other agencies under this subpart shall be to achieve the water quality goals of the Act. Therefore, all planning shall aim at specific implementation action. -37- ------- The framework for implementation should be developed during the preparation of WQM plans. EPA shall not exercise any approval authority under this part, nor award any grant, unless the Regional Administrator is satisfied that the action for which approval or grant funds is sought accords with this policy. This policy shall also be a key element in evaluations conducted under this part. S35.1531-2 Funding. Except for subsection 208(j), implementation activities are generally not eligible for funding under section 208 of the Act. In accordance with annual EPA guidance, funds under sections 106, 201, 205(g), and 314 of the Act may be used for implementation activities under approved water quality management plans, if such activities are eligible for funding under those sections. Funding may also be available for implementing BMPs in rural areas under section 208(j) and for certain activities of other Federal agencies under section 304(k) of the Act. Under RCRA, assistance is available to plan and implement programs to control disposal of solid and hazardous waste. Other Federal agencies, such as the Department of Housing and Urban Development, may have funding available for certain implementation activities. S35.1531-3 Remedies for failure to implement. The Regional Administrator may take any appropriate action for failure to implement, including the following: (a) If the Regional Administrator determines that a State is not implementing any portion of an approved State WQM plan, or any portion of an approved areawide WQM plan for which the State has implementation responsibility, he may withhold all or part of funds which the State would otherwise receive under sections 106, 205(g), 208, and 314 of the Act. Since the State is responsible for WQM planning throughout the State (see §35.1519-7), the Regional Administrator may also withhold such grant funds from the State if he determines that: (1) any approved portion of an areawide plan is not being implemented; (2) the State has the capability to implement those portions; and (3) after reasonable notice from the Regional Administrator to the Governor, the State has failed to use its best efforts to implement those portions. Note: Reference to funds under Section 205(g) of the Act must be read in light of the definition in §35.1502(b). The term does not include Construction Management Assistance Grants under subpart F of this chapter. (b) The Regional Administrator, after consulting State and areawide planning agencies, and after public notification in accordance with Part 25 of this chapter, may withdraw acceptance of a management agency designation or approval of a planning agency designation if the agency is not meeting its implementation responsibilities. The State shall then promptly designate a replacement agency under §35.1517 or S35.1525. -38- ------- Under S30.340, such a failure may provide a basis for EPA determination that the disapproved agency is not entitled to public trust and, therefore, is ineligible to receive funds under any EPA program. (c) After fiscal year 1979, no funds under section 208 of the Act will be available to any planning agency which developed a certified and approved plan, unless a significant portion of the plan is being implemented, §35.1531-4 Relationship to other programs. (a) Relationship to the NPDES program. In accordance with section 208(e) of the Act, no NPDES permit may be issued to any point source which is in conflict with an approved WQM plan. Under S35.1519-5(a), requirements for incorporation of conditions into permits under 208(e) are identified during WQM planning. Permit conditions identified under section 208(e) may be superseded by applicable more stringent NPDES permit requirements. (b) Relationship to the construction grants program. (1) Under sections 208(d) and 204(a)(l) of the Act, after relevant portions of a WQM plan are approved, section 201 construction grants may be awarded only to designated management agencies for con- struction of treatment works in conformity with the approved WQM plan. The State or areawide agency which the State has selected under §35.1522 shall review each facility plan in its area for consistency with the approved WQM plan. Facility planning shall be based on wasteload alloca- tions, delineation of facility planning areas, and population projection totals and disaggregations in approved WQM plans. After October 1, 1979, the Regional Administrator shall not approve a grant for any municipal treatment works under section 201 of the Act where such facility-related information is not available in an approved WQM plan, unless the Regional Administrator determines in writing, based on information sub- mitted by the State or grantee, that the facility related information was not within the scope of the WQM work program or that the award of the 201 grant is necessary to achieve water quality goals. (2) Construction grant project needs and priorities established during WQM planning shall be developed by State and areawide planning agencies consistent with the priority system of the State under §35.915 and §35.1513-2. In developing its annual priority list, the State shall consider the construction grant needs and priorities set forth in certi- fied and approved State and areawide WQM plans. (c) Relationship to the rural clean water program. Under section 208(j) of the Act and regulations promulgated by the U.S. Department of Agriculture (with concurrence of the Administrator), financial assistance is available for installation of BMPs to control agricultural nonpoint source pollution. -39- ------- NOTE: The Governor, or his or her designee, must submit proposed projects in order of priority to the Secretary of Agriculture. Proposed projects are eligible if they are identified in approved portions of WQM plans. The management agency designated to implement the program must assure there will be an adequate level of participation in BMP implementation in terms of the percentage of critical acreage or source of the problem that will be controlled. The management agency must certify that the BMPs to be cost-shared are consistent with the approved WQM plan. S35.1533 Public participation. S35.1533-1 Purpose. The public participation goals, policies and requirements in Part 25 of this chapter apply to activities under this subpart. The purpose is to involve the public at appropriate implementation points and throughout the planning process (including determination of planning goals and objectives, identification and assessment of alternatives, evaluation of proposed plans, and development of implementation strategies) so that planning and implementation reflect public concerns and so that there is public understanding and support for WQM. S35.1533-2 Work Programs. State and areawide work programs shall include a public participation element which identifies staff and budget resources; the schedule and anticipated nature activities; key decision points for outputs where public consultation will occur and agency responsiveness summaries will be prepared; a description of advisory committee membership; and mechanisms for coordinating public participation. §35.1533-3 Planning and implementation. State and areawide planning agencies shall establish mechanisms to encourage public participation in WQM plan development and implementation in accordance with Part 25 of this chapter. Information concerning the nature, scope, and anticipated impact of planning alternatives under consideration and of the proposed WQM plans shall be readily available to the public. Opportunities shall be provided for the public to review and comment on proposed WQM plans in accordance with §35.1521-2. An advisory committee shall be established in accordance with S25.3(d)(4) of this chapter and shall be consulted at appropriate times during WQM plan development. Any necessary modifications to existing advisory committees to meet the requirements of part 25 of this chapter shall be completed within 45 days of the initial grant award under this subpart. The advisory committee shall have the opportunity to review and comment on the agency's annual grant application and proposed work program. A summary of public participation during WQM plan development shall be forwarded to the State and EPA when the final WQM plan is submitted under S35.1521. -40- ------- §35.1535 Allotments and reallotments. S35.1535-1 Allotments. (a) Section 106. Sums which the Administrator determines will be available for outputs funded under section 106 of the Act for each fiscal year will be allocated to State and interstate agencies on the basis of the extent of the pollution problem. The allotment formula, allotment ratios, and the amounts available shall be announced in a notice in the FEDERAL REGISTER and included in each year's annual guidance. Interstate agency allotment ratios are based on the level of funding received in fiscal year 1973, provided the total sum available under section 106 is at least $40 million. (b) Section 208. Sums which the Administrator determines will be available for outputs funded under section 208 shall be allotted to each Region generally on the basis of need, population, and land area of each Region. The allotment formula, allotment ratios, and the amounts available shall be announced in a notice in the FEDERAL REGISTER and included in each year's annual guidance. Grant amounts shall be negotiated by the Regional Administrator and each State and areawide agency in accordance with §35.1511. (c) Section 205(g). Sums available to States under section 205(g) of the Act and subpart E of this chapter for permit program elements under sections 402 and 404 of the Act and for statewide 208(b)(4) planning will be determined on a case-by-case basis by the Regional Administrator. §35.1535-2 Reallotments. (a) At the end of each fiscal year, unobligated funds available under sections 106 and 208 of the Act shall be reissued as carryover funds to the same Region for allocation to eligible agencies within that Region as determined by the Regional Administrator. (b) Unobligated funds under section 205(g) of the Act shall be managed in accordance with §35.1020(e) of this chapter. §35.1537 Grant limitations and administration. §35.1537-1 Grant amount. (a) For section 106 and 205(g) outputs. Each State and interstate agency shall receive a grant from its final 106 allotment and 205(g) nonconstruction management assistance funds in an amount not to exceed the reasonable cost of carrying out its approved program, as determined by the Regional Administrator. -41- ------- (b) For section 208 outputs. Each State and areawide planning agency shall receive a grant in an amount not to exceed 75% of the reasonable cost of carrying out its approved program, as determined by the Regional Administrator. S35.1537-2 Reduction of grant. (a) Should the Regional Administrator's evaluation of the work program proposed by a State, interstate, or areawide agency indicate that the proposed output commitment is not consistent with -the level of funding requested or national priorities, he or she shall negotiate with the agency to change the output commitment or to reduce the grant amount. However, should an agency propose a different set of outputs than suggested in the EPA annual guidance due to unanticipated regional or statewide pollution problems, the Regional Administrator may approve the program provided he determines the outputs can and should be produced and the proposed funding is appropriate. (b) If a State, interstate or areawide agency fails to submit its work program by the dates specified in S35.1507-7, the grant amount may be reduced by an appropriate amount reflecting the significance of the delay in relation to accomplishment of the proposed program. (c) Funds recovered under this section shall be available for allocation by the Regional Administrator to other agencies within the Region. S35.1537-3 Budget Period. The budget period shall be for the Federal fiscal year. S35.1537-4 Eligibility. (a) Section 106. Grants may be awarded to a State or interstate water pollution control agency provided the agency has submitted a work program which satisfied the requirements of this subpart and is approved by the Regional Administrator. (b) Section 208. (1) Statewide 208 planning grants for non-designated areas may be awarded to the State agency identified in the approved work program. (2) Areawide planning agencies shall be eligible for grant awards under these provisions only if it: -42- ------- (i) is designated by the Governor under 208(a) and approved by the Regional Administrator as the official planning agency for the areas; (ii) agrees to develop or revise a 208 water quality management plan in accordance with an approved work program; and (iii) is deemed likely to be successful in its efforts by the Regional Administrator who shall take into account in making this determination the past efforts of the agency, evaluations, and comments of the Governor and the public. S35.1537-5 Limitations on Award. (a) No funds under section 106 of the Act shall be awarded to any State or interstate agency for any fiscal year unless the agency has certified (and the Regional Administrator agrees) that its expenditures of non-Federal funds during that fiscal year for its recurrent 106 program expenditures will be not less than such expenditures during the fiscal year ending June 30, 1971, or the last year of Federal support if such Federal support was initiated subsequent to the fiscal year ending June 30, 1971. (b) If a State has received a construction management assistance grant under section 205(g) of the Act, the provisions of S35.1016(a) of this chapter determine the maintenance of effort level, but in no case shall a State reduce its expenditures below the amount required in paragraph (a) of this section. (c) No funds under section 208 of the Act shall be awarded to a designated planning agency where previous planning by that agency for the same water quality problem was not certified by the State or was disapproved by EPA. (d) No funds under section 106 of the Act shall be awarded to any State which has not provided or is not carrying out as part of its program: (1) the establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, and to compile and analyze data on (including classification according to eutrophic condition) the quality of navigable waters and to the extent practicable, ground waters including biological monitoring; and provision for annually updating such data and including it in the report required under section 305(b) of the Act. (§35.1570 sets forth the minimum requirements for an acceptable monitoring strategy under the Act.) (2) authority comparable to that in section 504 of the Act, "Emergency Powers", and adequate contingency plans to implement the authority, in accordance with EPA guidance. (e) No grant shall be awarded for any activity which the Regional Administrator determines is not in conformity with an approved State Implementation Plan under the Clean Air Act. -43- ------- (f) No funds under section 106 of the Act shall be awarded to a State unless the Regional Administrator determines that the level of funding for legal expenses related to enforcement activities is adequate (including funding for expenses of the State's attorney general or equivalent office, where the Regional Administrator determines such funding to be appropriate). (g) No funds under section 106 of the Act shall be awarded to any State or interstate agency with respect to which there is in effect any Federally assumed enforcement under section 309(a)(2) of the Act. S35.1537-6 Allowable and unallowable costs. Allowable and unallowable costs under sections 106, 208, and 205(g) shall be determined by the Regional Administrator in accordance with S30.705 of this chapter if he or she determines that the costs are reasonable for carrying out approved activities. Costs related to the following activities shall be unallowable: (a) Costs incurred in sewer evaluation surveys as required under S35.927-2 of this chapter; (b) Costs incurred in detailed sewer system mapping and related surveys; (c) Costs related to sewage collection systems; (d) Cost of special studies for the specific benefit of individual, industrial or commercial establishments; and (e) Costs of activities which are primarily of a research nature. S35.1537-7 Audit. State or other agencies which receive funds under more than one paragraph of S35.1535-1 shall develop outputs for the expenditure of those funds in such a manner as to assure the funds are used for permissable tasks and to permit accountability to each appropriation. However, commonly funded outputs serving more than one program shall be used where feasible. Generally, the audit shall be conducted only back to the approved work program. The Regional Administrator may establish procedures in the State/EPA Agreement for accepting State audit results in lieu of EPA audit. S35.1537-8 Adherence to budget estimates Grant expenditures shall be consistent with the resource estimates contained in the approved work program. If rebudgeting of funds among program elements becomes necessary, the provisions of S30.610 of this chapter shall be applied. -44- ------- §35.1537-9 Program changes. The grantee shall conduct its activities in a manner consistent with the approved work program. If budget changes to the approved State program become necessary, the provisions of S30.610 of this chapter shall be applied. §35.1537-10 Payment. Grant payments shall be made in accordance with §30.615 of this chapter. Notwithstanding the provisions of §30.345 of this chapter, the first grant payment subsequent to grant award may include reimbursement of all allowable costs incurred from the beginning of the approved budget period, provided that monthly costs incurred from the beginning of the budget period to the date of grant award do not exceed the level of costs approved by the Regional Administrator as reasonable. §35.1537-11 Financial status report. Within 90 days after the end of each budget period, the grantee shall submit to the Regional Administrator an annual report of all expenditures (Federal and non-Federal) which accrued during the budget period. Beginning in the second quarter of any succeeding budget period, grant payments may be withheld under §30.615-3 of this chapter until this report is received. §35.1537-12 Disputes under this subpart. Final determinations of the Regional Administrator concerning refusal to award grant funds and termination or suspension of grants, and final determinations of the Regional Administrator concerning disputes as to allowable costs or other matters arising under a grant, shall be, final and conclusive unless appealed by the applicant or grantee in writing within 30 days from the date of receipt of such final determination. Procedures and further requirements are set forth in the "Disputes" provisions of Part 30, subpart J of this subchapter. Appendix A - Water quality and pollutant source monitoring. [Remains the same. See Appendix A, subpart B, Part 35] -45- ------- fA8b) e-ozei t?0909 'A Aauafitf ------- |