EPA
V/
Agency
United States EPA 841-R-24-008
Environmental Protection
Response to Comments on the 2024 Updated
Nonpoint Source Program and Grants
Guidelines for States and Territories
May 4, 2024
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Introduction
This document provides the EPA's response to public comments on The Draft Revision for Public
Comment of the Nonpoint Source Program Guidelines for States and Territories (referred to as the "Draft
Revision for Public Comment") provided during October 30, 2023 through December 31, 2023. The EPA
received responses from 19 states, one tribe, three national water organizations, and three state or local
organizations. A comprehensive list of all comments received is provided in the attached spreadsheet.
The EPA has reviewed each comment on the draft Guidelines; this document summarizes the comments
by themes with EPA responses. If you do not see your comment directly addressed, please reach out to
your EPA regional contact. In addition, below you will find references to a forthcoming Questions and
Answers (Q&A) document and technical resources (e.g., environmental co-benefits compendium). The
link to the Q&A document will be included on our CWA Section 319 Grant: Current Guidance webpage.
The EPA will announce technical resources and where to find them as they are released in the coming
months.
The EPA released the Nonpoint Source Program and Grants Guidelines for States and Territories (referred
to as the "2024 Guidelines") in June 2024. The 2024 Guidelines are available on the CWA Section 319
Grant: Current Guidance webpage. Revisions noted in the response to comments are incorporated into
the 2024 Guidelines. More details about the revision process and this response to comments can be
found on the CWA Section 319 Grant Guidance Update. The preface of the 2024 Guidelines provides a
list of major changes relative to the 2013 Guidelines.
Comment themes and responses
For your convenience, a list of comment themes and hyperlinks follow:
1. Suggestions to "only include what is required" versus "examples would be helpful."
a. Examples provided in the 2024 Guidelines
b. Are grantees required to follow the Section 319 Guidelines?
c. "Relationship to Other Federal Programs" (Chapter 11) and including other references
using hyperlinks
2. Tribal eligibility and State-Tribal coordination
3. Requests for technical assistance and clarification
a. Accounting for climate resilience in planning activities and best management practice
(BMP) design
b. Wetlands and nature-based solutions
c. Equity work and defining disadvantaged communities
d. Watershed-based planning and watershed planning handbook
e. Watershed financing partnership
4. Advancing protection efforts
5. Elements of NPSMP and Appendix A
6- Frequency of updates to these guidelines
7. Prioritization of national priorities
8. NPS project limitations related to National Pollutant Discharge Elimination System (NPDES)
permits
9- Davis Bacon and Build America, Buy America (BABA)
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10. New additions or updated content in "Relationship to other Federal Programs" (Chapter 11)
a. Match
b- NRCS Regional Conservation Partnership Program {RCPP) clarification
c. CWA Section 604(b)
d. New addition
11. EPA review of WBPs and alternative plans
12. Allocation formula
13. Leverage exemption
1. Suggestions to "only include what is required" versus "examples would be helpful."
a. Examples provided in the 2024 Guidelines
In some sections of the guidelines, grantees asked to remove all examples. Some grantees
expressed concern that when examples are given, they may be confused as requirements. In
contrast, others responded positively to examples as offering greater clarity or requested more
examples be added to improve clarity.
EPA Response:
After discussion with EPA regions and counsel, the EPA considers the 2024 Guidelines' wording
sufficiently clear when offering examples. The EPA recognizes that examples are additional
details that support states and regions looking for more context or clarity.
b. Are grantees required to follow the Section 319 Guidelines?
One commentor asked if grantees are required to follow the 2024 Guidelines.
EPA Response:
Yes, the 2024 Guidelines identify eligible and ineligible activities; however, parts of the
guidelines are meant to be best practices and suggestions for states to consider. Generally
speaking, the 2024 Guidelines identify requirements by using the words required or shall instead
of should and encourage. Note that the EPA provided the opportunity for public comment before
finalization. The grant terms and conditions define requirements and incorporate the 2024
Guidelines by reference.
c. "Relationship to Other Federal Programs" (Chapter 11) and including other references using
hyperlinks
One commenter suggested removing the hyperlinks in the main text and alternatively sharing
them as a separate reference sheet. Additionally, there was a suggestion to remove Chapter 11.
EPA Response:
The 2024 Guidelines will include hyperlinks in the main text as presented in the 2024 Draft for
public comment. However, the EPA will also provide a separate reference sheet that lists all the
referenced web pages in the guidelines. Providing both of these options should accommodate
different users' reading styles. The 2024 Guidelines will include Chapter 11 titled relationship to
other federal programs.
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2. Tribal eligibility and State-Tribal coordination
Comments included a request to clarify that a Tribe may apply for Section 319 funds even if they do
not currently have "treatment as a state" (TAS) status. Other commenters requested that Tribes be
included in the lists of partners in Appendix A. There was also a request to update the EPA Tribal CWA
Section 319 Guidelines, which the EPA issues separately from guidelines for states and territories.
EPA Response:
In Chapter 1, a call-out box entitled "Tribes and Section 319" first introduces that Tribes are not
required to have EPA-approved nonpoint source management programs (NPSMPs), which includes
TAS approval under CWA Section 518 from the EPA, to be eligible for state Section 319 subawards.
The EPA incorporated minor revisions in Chapter 4.6.3, "When implementing an EPA-approved Tribal
NPSMP Plan." The partner lists provided under components 4 and 5 in Appendix A were updated to
include Tribes. Lastly, the EPA is evaluating updates that may be needed for the Tribal CWA Section
319 Guidelines.
3. Requests for technical assistance and clarification
a. Accounting for climate resilience in planning activities and best management practice (BMP)
design
Comments included requests for (1) examples of activities that address climate change impacts;
(2) technical assistance (i.e., data, tools, or training) regarding BMP design considerations for
climate change; and (3) flexibility in how climate resilience in planning and BMP design is met.
EPA Response:
The EPA anticipates providing a list of technical resources that support and inform climate
change considerations in planning efforts and BMP selection and design. This list of resources
will be shared in a Q&A document released soon after the 2024 Guidelines on the CWA Section
319 Grant: Current Guidance webpage. The EPA will update the NPS community as these
reference documents are released.
In addition, the EPA uses the term "consider" in the 2024 Guidelines because we recognize that
our collective understanding of approaches to climate change adaptation, climate resiliency and
hazard mitigation continues to evolve as we gather data from the latest published scientific
literature and observations from projects on the ground. To that end, the EPA anticipates
working with states in the coming months and years. Additionally, the EPA anticipates providing
a compendium of resources and tools to estimate environmental co-benefits and hosting
technical forums to support knowledge exchange. Lastly, we anticipate reestablishing the
national long-term monitoring effort to support and inform our collective understanding of how
BMPs perform under changing climate conditions.
b. Wetlands and nature-based solutions
Several comments requested the recognition of wetlands as an asset for climate resiliency.
EPA Response:
The EPA added a definition of nature-based solutions to the 2024 Guidelines (Chapter 7.9.2
Co-benefits and the glossary). The definition recognizes restoring or protecting wetlands as
nature-based solutions that provide multiple benefits.
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c. Equity work and defining disadvantaged communities
Comments included requests for technical assistance to help identify disadvantaged
communities, clarity on the disadvantaged communities definition, and state flexibility in
identifying disadvantaged communities at the local level, such as recognizing the different
challenges faced by small rural communities and large urban communities. One commenter
asked what documentation besides a watershed-based plan (WBP)/ NPSMP is needed by the EPA
to allow project funds for equity work.
EPA Response:
• Regarding technical assistance, the EPA encourages you to reach out to your EPA regional
point of contact. See Appendix A for added clarity on the eligibility for using Section 319
funds and the consistency with civil rights laws.
• Regarding the clarity of defining a disadvantaged community, the EPA slightly modified the
definition in the 2024 Guidelines glossary: As set forth in Executive Order 14008, Tackling the
Climate Crisis at Home and Abroad, disadvantaged communities are those that are
marginalizedunderserved, and overburdened by pollution. Definitions of disadvantaged
communities will be updated in Grants Reporting and Tracking System (GRTS) to reflect the
latest agency guidance.
• Regarding state flexibilities for identifying disadvantaged communities, the EPA recognizes
the nuances of state-specific water quality, public health, and demographic variables. The
EPA initiated state-level screening pilot projects to address these complexities using the
Recovery Potential Screening (RPS) tool. The pilot analysis assisted three states with applying
the RPS tool to identify subwatersheds where nonpoint source (NPS) issues intersect with
disadvantaged communities. The advantage of this approach is the flexibility for states to
select ecological, stressor, and social indicators tailored to their needs and priorities. The
report Integrating Equity and Environmental Justice into Nonpoint Source Management
Planning with the Recovery Potential Screening Tool summarizes the outcomes of this effort.
It provides state NPS programs with a process and insight into how watershed, water quality,
and demographic data, available in the RPS tool, can be analyzed to support the integration
of equity and environmental justice into NPS management planning.
• Regarding the documentation of equity work using project funds, states should note in their
workplan that they are exercising the flexibility and explain how they identified the
community as disadvantaged and the overall plan for building capacity in that community
(Chapter 6.3.1).
d. Watershed-based planning and the watershed planning handbook
Suggestions included updating the 2008 Handbook for Developing Watershed Plans to Restore
and Protect Our Waters (2008 Handbook) and offering more technical guidance on the level of
specificity needed in emergency plans. One commenter requested examples or a crosswalk
showing the use of existing plans. Other commenters expressed concern about the expected
time frames of 4-5 years to see water quality improvements or reach water quality goals
identified in a WBP.
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EPA Response:
• The EPA agrees that additional technical guidance for alternative plans would be beneficial
as the NPS program navigates the new challenges of climate change and the increased
frequency and severity of natural disasters. The type of technical support needed is best
delivered outside the scope of the guidelines. Regarding the level of specificity in emergency
plans, incorporating site-specific information is an important component to inform effective
rapid decisions. For example, the Burned Area Emergency Response (BAER) program
provides burn severity data that can help inform strategies outlined in a wildfire emergency
plan. The EPA anticipates offering additional technical guidance and sharing lessons learned
as we improve our collective understanding of the effective use of alternative and
watershed-based plans along with climate and equity considerations.
• Some other clarifications are provided in Chapter 4 "Watershed-Based Planning". These
clarifications include when an approved tribal NPSMP can be considered an acceptable
alternative to a nine-element WBP and EPA's role in the review of WBP (nine element and
alternative plans).
• The EPA agrees that, depending on the nature of the water quality challenge, addressing a
water quality issue fully within a 5-year time frame could be unrealistic. The 2008 Handbook
(Page 4-2) states:
"The issues in your watershed and the geographic scope will also affect the temporal
scope of the implementation of the watershed plan. Although there are no hard and
fast rules, watershed plans are typically written for a time span of 5 to 10 years. Even if
you do not achieve your watershed goals in 10 years, much of the information might
become out-of-date, and you'll probably want to update the watershed plan."
We incorporated minor word edits to Chapter 4.4 "Developing the WBP for the Unique
Scope and Scale of the NPS Problem" to support this intent.
• The EPA rearranged and edited the total maximum daily load (TMDL) language in chapters
4.5.1 and 6.2.2 to improve clarity of the potential leveraging of TMDLs and what is expected
to be included if Section 319 funds are used for TMDL development. The revisions in Chapter
4.5.1 also describe that TMDLs can address more than nine-element WBP elements a, b, and
parts of c, based on comments received and TMDL program input.
• The EPA supports the interest in sharing the latest science and lessons from watershed
planning and is exploring approaches to any updates or addendums to the 2008 Handbook.
• Regarding leveraging other plans, the EPA's NPS program is coordinating with the TMDL
program to share examples of state or regional approaches to leveraging existing plans and
streamlining the process. We anticipate sharing a compilation of collected examples and
continuing to build that resource list.
e. Watershed financing partnership
Some reviewers requested that the EPA offer training on watershed financing partnerships.
EPA Response:
The EPA agrees with this need and is currently developing a fact sheet on watershed financing
partnerships to provide a broader context, highlight their potential, and offer a real-world
example of a successful partnership that leverages CWA Section 319 grant funding with financing
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from the Clean Water State Revolving Fund (CWSRF) and other sources. EPA expects to release
this fact sheet in summer 2024, if not sooner. Beyond this, the EPA plans to offer training and
workshops on watershed financing partnerships. The EPA will provide information and
announcements through the usual channels as plans are developed.
4. Advancing protection efforts
The EPA received several comments expressing support for the increased emphasis on water quality
protection in the draft guidelines. The EPA also received some questions about the specific
categories of waters included in the definition of "healthy waters."
EPA Response:
Consistent with the 2013 Guidelines, the 2024 Guidelines provide states flexibility to identify the
specific waters targeted for protection. Under previous Section 319 guidelines, the EPA referred to
the protection of "unimpaired/high quality waters." The 2024 Guidelines now refer to the protection
of "healthy waters" to more fully represent the types of waters states may prioritize for protection
and to align with the protection of healthy waters, as described in EPA's Vision for the CWA Section
303(d) Program. The EPA clarified the definition of healthy waters to include "at-risk waters not yet
impaired but where data trends may show signs of water quality degradation." The EPA plans to
create a compendium of NPS protection strategies, including watershed-based planning examples.
Additionally, the EPA is currently working with states to develop the new GRTS success story builder
tool, which will allow states to submit NPS success stories on the protection of healthy waters.
5. Elements of NPSMP and Appendix A
Several commenters asked for additional clarifications on changes that apply to NPSMP expectations.
EPA Response:
Please note that elements are generally the same as the 2013 guidance but are rearranged. The EPA
expanded the expectations to include climate resilience, equity, and protection considerations in
elements 2 and 4. Additionally, the list of stakeholders under element 5 includes Tribal NPS programs
and Tribal governments. States have the flexibility to adjust their programs based on where their
program may be in incorporating these factors.
6. Frequency of updates to these guidelines
Some commenters expressed appreciation for the various opportunities to engage with the guideline
revisions, while others requested more frequent updates (e.g., every 5 years). One commenter
requested more state engagement.
EPA Response:
EPA will keep these suggestions under consideration. In the past, the EPA has updated the guidelines
as circumstances indicated. As with the 2024 update, future updates will involve substantial
engagement with states and subgrantees.
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7. Prioritization of national priorities
Some commenters expressed support for the national priorities, while others requested additional
clarity regarding expectations. Some comments asked for clarification on whether waters to be
addressed also include lakes and wetlands.
EPA Response:
• The EPA's revisions in Chapter 2, NPS Program Goals and National Priorities, reaffirm that
effective state NPSMPs must maintain and improve water quality by addressing criteria listed in
Chapter 2.1 "NPS Program Water Quality Improvement". The primary goal of the NPS Program is
water quality improvements. Other national priorities defined in Chapter 2 are encouraged as
they align with a state's NPSMP.
• The EPA also clarified that national priorities include lakes and wetlands as well as protecting
public health.
8. NPS project limitations related to National Pollutant Discharge Elimination System
(NPDES) permits
Two commenters asked whether the examples provided represent the only cases of project
eligibility. One commenter requested a detailed process for determining what green stormwater
infrastructure is included in an NPDES permit.
EPA Response:
Project eligibility remains consistent with previous programmatic guidance; CWA Section 319
funding cannot be used to support activities required to meet NPDES permit requirements. Revisions
to chapters 7.1.1, 7.1.2, and 7.1.4 focused on updating the language to clarify project eligibility.
NPDES permit requirements vary on a municipality-by-municipality basis. Site-specific complexities
of NPDES permits (and municipal separate storm sewer system (MS4) jurisdictional boundaries) can
create many scenarios where project-specific factors can impact potential eligibility for Section 319
funding. Therefore, the 2024 Guidelines do not specify a detailed process for determining what
green stormwater infrastructure is included in an NPDES permit. The EPA encourages states to
continue to work with their EPA regional NPS contact on specific project scenarios. The EPA may add
more general clarifications of eligibility to our Q&A reference section in the future.
9. Davis Bacon and Build America, Buy America (BABA)
Some commenters requested more detailed guidance on these laws.
EPA Response:
The EPA understands the cross-cutting nature of these programs can be challenging for grantees. For
project-specific determinations, we encourage states to reach out to their EPA regional coordinator
with any questions early in the process. In addition, the EPA developed a two-page document titled
"Build America, Buy America (BABA) Act Summary for Section 319 Grant funded projects" (February
22, 2024) and plans to update this resource as needed. Contact your regional coordinator if you
would like an electronic copy. States may also find additional details in our Q&A reference in the
future.
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Additional Davis Bacon references:
• The Department of Labor's updated Davis Bacon regulations, effective October 23, 2023.
• EPA Grant Policy Resources - Search for Davis Bacon for the latest EPA policy
BABA References:
• OMB guidance: M-24-02 and 2 CFR 184
• EPA websites: www.epa.gov/cwsrf/build-america-buy-america-baba
• Email inboxes: BABA-OW@epa.gov (include hyphen)
• Made in America Office: MBX.OMB.MadelnAmerica@omb.eop.gov
10. New additions or updated content in "Relationship with other Federal Programs" (Chapter
11)
a. Match
Commenters requested additional examples of how grantees/subgrantees can leverage match
requirements (Chapter 5.2.2).
EPA Response:
The EPA added language in Chapter 11.3 about the Department of Defense's Readiness and
Environmental Protection Integration (REPI) program statutory provision, which allows recipients
of REPI grants to use these funds as a match for conservation or resilience programs, such as
Section 319 grants. The EPA also added language to Chapter 5.2.2 to clarify when other federal
funds might be used as match.
b. NRCS Regional Conservation Partnership Program (RCPP) clarification
One commenter requested clarification on what conditions Section 319 funds can count towards
RCPP contributions.
EPA Response:
The EPA added a paragraph to Chapter 11.3 to provide conditions on when Section 319 funds
can be counted towards RCPP project contributions. These conditions are that the 319-funded
activities support the goals/objectives of the RCPP project, occur within the RCPP boundaries,
and occur after the RCPP award announcement.
c. CWA Section 604(b)
Some commenters requested additional information on the use of Section 604(b) funds to
address emerging contaminants.
EPA Response:
The EPA is compiling examples and plans to share them at a later date. In the interim, questions
about climate, equity, and emerging contaminants can be directed to the EPA regional Section
604(b) point of contact.
d. New addition
Although not in response to a comment, information on the EPA's Water Reuse Program,
another program that provides technical assistance, was added to Chapter 11.2.8.
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11. EPA review of WBPs and alternative plans
Additional clarity was requested regarding the EPA review and approval of acceptable alternative
plans, the eligibility of using 319 funds to implement nine-element WBPs prior to EPA acceptance,
and anticipated timelines for EPA review.
EPA Response:
• The EPA added subheadings to Chapter 4.7 "EPA's Role in Developing and Reviewing WBPs" to
clearly distinguish the differences between EPA review of nine-element and alternative plans.
Alternative plans require EPA approval to ensure the plans address the five elements outlined in
Chapter 4.6.2 and funding is authorized for the specific circumstances defined in Chapter 4.6.3.
• Using Section 319 funds to implement nine-element WBPs requires EPA review and acceptance
prior to or in conjunction with approving a project in the work plan.
• Regarding review timelines, the EPA strives to provide reviews in a timely manner. The review
timeline of a nine-element WBP and alternative plans depends on many factors, including the
EPA region's workload. States are encouraged to work with their EPA regional coordinator to
develop an agreed-upon timeline. For alternative plans, states are also encouraged to request a
timeframe for EPA review.
12. Allocation formula
Commenters suggested modifying the allocation formula to consider or weigh factors such as a
state's effective use of funding, nutrient TMDLs, land use type percentages, or equity considerations.
EPA Response:
Consistent with report language in the EPA's budget for the past several fiscal years, the EPA
continues to evaluate whether the allocation formula is a sound approach for addressing NPS issues
nationally. While revisions to the allocation formula were not in the scope of the 2024 Guidelines
revision process, these comments will be considered in EPA's annual review of the formula.
13. Leverage exemption
One commenter recommended that other federal programs should be allowed to be leveraged
against the 50% watershed project requirement (Chapter 6.6).
EPA Response:
Recognizing the widespread extent of nonpoint source pollution, the EPA continues to believe that
the 50% leveraging exemption is appropriate to benefit states that commit state and local funds
beyond statutory match expectations. Since 2013, the guidelines provide an exemption for states
that contribute substantial state or local funding to watershed projects from the requirement to use
50% of their EPA program funding for watershed projects. This flexibility allows those states to use
more of their EPA funds for staff, planning and monitoring efforts.
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