Consultation and Coordination on Potential EPA Actions to Increase Tribal Capacity to Maintain and
Expand Nonpoint Source Management Programs
Summary of Comment Period 1
Background:
On March 29, 2022, the U.S. Environmental Protection Agency (EPA) initiated consultation and
coordination with federally recognized Indian tribes to inform potential EPA actions the Clean Water Act
section (§) 319 national Nonpoint Source (NPS) program could take to better support §319-eligible tribes
in their efforts to manage NPS pollution. This consultation and coordination period is anticipated to
remain open for the remainder of fiscal year 2022 (through September 30, 2022) as EPA's national NPS
program works to identify and implement actions to advance equity in the program. The consultation
period will include two 60-day comment periods.
During the first 60-day comment period, held from March 29, 2022 to May 27, 2022, EPA sought input
from tribes on their experiences, including successes and challenges, building and sustaining tribal NPS
program capacity. Once EPA evaluates and considers tribal comments from the initial comment period, a
second 60-day comment period is planned as part of the consultation and coordination process in
summer 2022 to seek input on any subsequent proposed reforms to the §319 program based on the
input received.
Comment Period 1 Summary:
Comment Period #1 was open from March 29 to May 27, 2022. On March 29, 2022, a consultation
notification letter and plan were emailed to the leadership of all 574 federally recognized tribes
notifying them of this tribal consultation opportunity. During the consultation and coordination period,
EPA held two informational webinars for tribes on April 19 and April 27 to provide tribal representatives
an opportunity to ask questions and learn more about this consultation opportunity and potential EPA
actions to advance equity in the national NPS program.
A total of 44 Tribal participants attended the two information session webinars. EPA held individual
staff-level meetings with two Tribes who were interested in learning more about the consultation: Red
Lake Band of Chippewa (Region 5) and Yakama Indian Nation (Region 10). In total, EPA received
comments from three Tribes/Nations during Comment Period #1: Seneca Nation (Region 2), Elk Valley
Rancheria (Region 9), and Yakama Indian Nation (Region 10). See the end of this document for individual
comments from these Tribes/Nations.
Comment Period 1 Questions:
EPA invited Tribal input on the following Comment Period #1 questions via email (to
tribal319grants@epa.gov) or by completing EPA's webform:
1. What are the main challenges you face in working to manage NPS pollution and its potential
impacts to human health? Please prioritize among the following potential needs [listed in plan],
2. What change(s) would you recommend EPA's §319 program make to better support Tribes in
addressing these challenges?
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3. What EPA §319 program requirements feel confusing, unclear, duplicative, or onerous?
4. How can EPA better support Tribes in building partnerships and securing assistance beyond
§319 grants to address NPS pollution?
5. Should EPA consider changes to its current approach of allocating §319 grants to Tribes via base
grants and competitive grants? [Sub-part questions listed in plan],
EPA HQ outreach during Comment Period #1:
• Presented on EPA Regional Tribal Program Managers meeting (4.7.22)
• Presented on National Tribal Water Council monthly call (4.13.22)
• Featured in April EPA Office of Water National Tribal Water Program Updates E-Newsletter
Consultation Information Session Webinars:
EPA hosted two 1-hour information session webinars to provide an overview of the consultation
opportunity, answer any questions, and provide an opportunity for Tribes to provide comments.
Webinar 1 April 19th, 2022: 38 attendees, 30 self-identified Tribal attendees. Questions/comments
received on this webinar:
• How does this apply to states that provide NPS funding? (Patrick Antonio, Navajo EPA)
EPA Response: The changes we are soliciting input on are related to the Tribal 319 set aside.
Specifically, the factors that go into base grants or competitive funds and how they are allocated.
There wouldn't be an impact to how states allocate their 319 funding. One potential action is for
EPA to take a look at tribal 319 amount $8M or 5% (which is ever greater). Changes to this could
impact state funding available. Work is underway to advance equity in the NPS program via
workgroup conversations with states to look at approaches how funding is allocated to local
partners. These workgroups fall out of the scope of this consultation.
• Are there stipulations that states have when they receive 319 funding since tribal lands (even
when tribes have TAS) are included in their awards? (Blythe Monoian, Water Quality Scientist for
the Yakama Nation).
EPA Response: State and territories 319 grants are subject to 319 grant guidelines which are
different than the tribal 319 program. Those guidelines require that state watershed project funding
is at least 50% of funds and must be used in a watershed with an approved watershed-based plan
(WBP) or alternative plan. EPA's current state 319 grant guidance does not set any
requirements/expectations on states using 319 funds to support Tribes.
• Where can we find a description/explanation of the current EPA allocation formula? (Emily
Moloney)
EPA Response: The easiest place is in the supplement of the Consultation package. There is also a
description in the grant guidelines. Refer to resource links provided at the top of these meeting
notes.
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• In many cases, as I know with us there are lands where the state is completely excluded. And so,
those 319 funds are given to them with consideration of lands that they have no say over
whatsoever. This is something that should be taken into consideration at a state level and not just
within tribes. I feel like the 5% that we've been allocated doesn't take into consideration those
types of discrepancies. (Blythe Monoian, Water Quality Scientist for the Yakama Nation).
o Follow up on this comment was included in Tribe's written comments submitted (5.27.22)
Webinar 2 April 27th, 2022: 20 attendees, 14 self-identified Tribal attendees. Questions/comments
received on this webinar:
• Are project officers aware of questions and concerns? If not, is it appropriate to include them
since they approve our end of the year reports? (Tanya Williamson)
EPA Response: EPA HQ team leading consultation webinar work is closely with regional offices. All
regional folks are aware of equity work and consultations in the program. We will share what we are
hearing in the consultation. It also can be helpful to share thoughts directly with the EPA Region.
EPA HQ Engagements with Individual Tribes:
• Red Lake Band of Chippewa, Region 5 (5.15.22): This was a staff-to-staff requested meeting
between the Red Lake Band of Chippewa Department of Natural Resources and the EPA HQ NPS
staff. Topics covered in this 1-hour meeting included: funding for base, competitive, and project
implementation. The staff members highlighted constraints of staff time being split between
programs, and challenges with hiring and retaining staff to implement projects.
• Yakama Indian Nation, Region 10 (5.24.2022): EPA RIO staff met with Yakama Indian Nation on
4.14.2022 to discuss the consultation. As a follow-up, EPA HQ answered the following questions via
email:
1. When was the 30,000 and 50,000 base funding decided on?
The $30K and $50K funding levels were established beginning in fiscal year 2002. Here is the
Tribal 319 guidance document from that year:
https://www.federalregister.gov/documents/2002/01/22/Q2-1499/guidelines-on-awarding-
section-319-grants-to-indian-tribes-in-fy-2002.
2. How were those amounts decided upon?
From the 2001 guidance (linked above): "As in FY 2000, the grants issuance process for FY 2001
is designed to balance the needs to (1) provide at least some minimum "base" funding to all
approved Tribes to help them implement their NPS programs, and (2) provide sufficient funding
to support a significant number of watershed projects that can make a substantial additional
improvement to water quality...EPA considered whether other factors such as population and
water resources should be used [for base funding levels], in addition to or instead of land area,
to distinguish Tribes with the greatest needs from other Tribes. EPA recognizes that each of
these factors is relevant and in some circumstances significant. EPA ultimately chose land area
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as the deciding factor for a cutoff because nonpoint source pollution is strongly related to land
use; thus land area is a reasonable criterion that generally is highly relevant to identifying Tribes
with the greatest needs (recognizing that Tribes have needs that significantly exceed available
resources)."
3. What makes up the funding formula for states?
See Appendix D of the current state 319 grant guidelines
(https://www.epa.gov/sites/default/files/2015-09/documents/319-guidelines-fvl4.pdf) for the
% of state 319 funds awarded to each state. These percentages are calculated using an EPA
allocation formula, based on several factors that attempt to account for the extent of NPS
pollution risk present in each state. The six factors are: wetland, wellhead protection, mining,
forestry, agriculture, and urban population. See below for a longer description of the state
formula. Happy to follow-up to discuss more, if you'd like.
State 319 Allocation Formula Description:
There are six calculation factors and a base apportionment factor used in the section 319
allocation formula to calculate individual state, DC, and territory section 319-allocated funding
and percentage amounts. States and DC use all factors in calculations, while territories only
include a base apportionment factor and calculated wellhead protection factor proportions.
Calculated factors include a wetlands factor, a wellhead protection factor, an urban population
factor, an agriculture factor, a mining factor, and a forestry factor. The agriculture, mining, and
forestry factors are combined into one "non-urban" factor, as these three factors contribute to
non-urban NPS pollution.
All six calculation factors (wetland, wellhead protection, mining, forestry, agriculture, and urban
population) are given weighting proportions that attempt to account for the risk that the factor
contributes to NPS issues. The original guidance document for the 319 allocation formula (USEPA
1990) explains that the weighting proportion assigned to each factor is "necessarily subjective
and must be derived by the exercise of reasonable judgement. USEPA selected weightings that,
in its judgment, appropriately gave affect to the distribution of surface and ground waters to be
protected, prevalence of nonpoint sources that may impact those waters, and the populations
that use the waters and are thereby adversely affected by use impairments."
Three of the factors (mining, forestry, and agriculture) are combined into one "non-urban"
factor, due to these factors contributing to non-urban NPS pollution. Each individual factor is
calculated separately, and is then added together with the other two non-urban factors to get a
total non-urban factor proportion. The non-urban factor has its own weighting proportion
(0.28611), and each factor within the non-urban factor has its own weighting proportion as well.
4. Are tribal lands and populations taken out of (subtracted from) the state calculation or are
they included?
Tribal land area and population data are not subtracted from state formula calculations.
Tribal comments received during Comment Period #1:
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• Elk Valley Rancheria, Region 9 - via webform
• Seneca Nation, Region 2 - via webform
• Yakama Indian Nation, Region 10 - via letter to tribal319grants@epa.gov
Webform Submissions
Name
Catherine Buchanan
Anna Carr
Tribe
Elk Valley Rancheria
Seneca Nation
Contact
cbuchanan@elk-valley.com
anna.carr@sni.org
Region
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Question 1: What are the main
challenges you face in working
to manage NPS pollution and its
potential impacts to human
health? Please prioritize among
the following potential needs
[listed in form].
Improper funding to develop
comprehensive Stormwater
Management Programs that
include prevention of
discharging of Non-Point
Source pollution, which is
supposed to be the goal of
this national attention to
Non-Point Source pollution.
As they're listed above, a, b, c
and d
((a) Additional funding for
tribal NPS staff, (b) Additional
funding to support NPS
project implementation, (c)
Training for tribal NPS staff,
(d) NPS technical assistance)
Question 2: What change(s)
would you recommend EPA's
§319 program make to better
support Tribes in addressing
these challenges?
Include trainings to
comprehensive development
of Stormwater Management
Programs.
Funding for personnel and
then training and support.
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Question 3:
There seems to no support
for the maintenance of the
established programs.
How and who can apply.
Question 4:
Provide program funding that
actually recognized Tribal
Sovereignty and the ability to
protect their
Outreach
Question 5a:
Yes. The formula needs to be
Yes, absolutely! This is a
skewed to favor the smaller
hurdle for tribes that are
tribes that have less than 250
short staffed and at the
members.
ground floor of their
programs.
Question 5b:
Yes. Competitive grants have
a bias that favor the larger
Tribal communities.
Yes
Question 5c:
The EPA should make the
Yes, this correlates with
awards of the grants based
response for Question 5a.
on the lands that have been
extremely degraded and help
the Tribes to ensure the
Tribes receive the technical
needed to successfully clean-
up/protect/prevent further
negative impacts.
Question 5d:
Eliminate the competitive
aspect of the grant, and
modify the scoring criteria.
And remind the Federal
government to enforce the
laws that are already on the
books, so that the clean-ups
do not fall onto the people
who did not put the toxic
waste there in the first place.
Yes.
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Confederated Tribes and Bands
of the Yakama Nation
Established by the
Treaty of June 9,1855
May 24, 2022
Sent via Electronic Mail
Michael Regan
Administrator
United States Environmental Protection Agency
1200 Pennsylvania Ave. NW
Washington, D.C. 20460
Re: Potential EPA Actions to Increase Tribal Capacity to Maintain and Expand
Nonpoint Source Management Program
Dear Administrator Regan:
I write on behalf of the Confederated Tribes and Bands of the Yakama Nation
("Yakama Nation") in response to the Environmental Protection Agency's ("EPA")
request for comments on strategies to improve the Clean Water Act § 319 national
nonpoint source program. The Yakama Nation requests that the EPA improve the § 319
funding allocation scheme by addressing inequities which limit the success of tribal
nonpoint source pollution programs.
Since time immemorial, the original, free, and independent tribes and bands that later
confederated as the Yakama Nation have depended on water resources for cultural,
spiritual, and economic wellbeing. In Article III of the Treaty with the Yakamas, U.S. —
Yakama Nation, June 9, 1855, 12 Stat. 951 ("Treaty of 1855"), the Yakama Nation
expressly reserved the right to fish at "usual and accustomed places." The Yakama
Nation's Treaty negotiators knew that securing this right was crucial to guaranteeing
the vitality of their people. For the Yakama Nation people, the exercise of fishing rights
was "not much less necessary...than the atmosphere they breathed."1
The Yakama Nation's Treaty-reserved rights must be "understood as bearing the
meaning that the Yakamas understood [them] to have in 1855."2 Rather than securing
a mere "equal opportunity" to catch fish, the Treaty of 1855 guarantees to the Yakama
Nation a portion of the harvest.3 This guarantee is "worthless without harvestable
fish."4 To that end, the Treaty of 1855 also reserved a right to protection of the habitat
1 U.S. v. Winans, 198 U.S. 371, 381 (1905).
2 Wash. State Dept. of Licensing v. Cougar Den, Inc. 139 S. Ct. 1000, 1011 (2019).
3 Washington v. Washington State Commercial Passenger Fishing Vessel, 443 U.S. 658, 681-82 (1979).
4 See United States v. Washington, 827 F.3d 836, 852 (9th Cir. 2016) (aff'd by an equally divided court,
Post Office Box 151, Fort Road, Toppenish, WA 98948 (509) 865 5121
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necessary to sustain the fish resource.5 Nonpoint source pollution, including but not
limited to agricultural runoff, threatens the Yakama Nation's Treaty reserved rights by
negatively affecting water quality in the streams and rivers where the Yakama
Nation's "usual and accustomed" fishing sites are located.
The federal government, including the EPA, has a fiduciary trust obligation to the
Yakama Nation.6 The federal government's trust obhgation is distinct from but related
to its responsibilities stemming from the Treaty of 1855. Where a tribe has reserved
treaty rights, the federal government has a duty to protect those rights.7 Therefore, "in
carrying out its fiduciary duty, it is the [federal government's]... responsibility to
ensure that Indian rights are given full effect."8 Here, the EPA's trust obligation
requires the agency to ensure that the Yakama Nation has the resources to adequately
identify and address nonpoint source pollution in ground and surface waters affecting
our Treaty-reserved rights and the health of our members.
The EPA's § 319 program is not meeting that standard. Unregulated nonpoint source
pollution affects the vast majority of on-reservation waters and off-reservation waters
where the Yakama Nation's "usual and accustomed" fishing sites are located. However,
the Yakama Nation's current § 319 funding is not adequate to support even a single
full-time staff position. This frustrates our ability to recruit, train, and retain staff.
Without adequate § 319 funding to support staff and projects, the Yakama Nation is
forced to either exhaust other funding sources or forego its nonpoint source pollution
work. The lack of funding means that progress is slow and many issues can only be
monitored with no change to the status quo.
There are EPA requirements that take considerable time resources to develop. One
example is the § 319 Management Plan, which is expected to be very detailed and
requires information that a single employee would struggle to produce and maintain.
The § 319 Management Plan, when done correctly, is a valuable tool to facilitate action
for on-reservation non-point source issues. Unfortunately, even when staff are able to
complete a § 319 Management Plan, in addition to their other responsibilities, there are
few experts on the contents of the plan limiting its usefulness in the incident of staff
turnover. Furthermore, limited funding means that, even when § 319 issues are
properly identified and assessed, those issues will likely continue to exist until staff can
secure enough § 319 competitive funding or alternative funding to actually address
them.
Washington v. United States, 138 S. Ct. 1832 (2018)).
5 See id. at 865.
G See U.S. v. Mitchell, 463 U.S. 206, 225 (1983).
7 Parravano v. Babbitt, 70 F.3d 539, 547 (9th Cir. 1995) ("[T]he Tribes' federally reserved fishing rights are
accompanied by a corresponding duty on the part of the government to preserve those rights.")
8 Northwest Sea Farms v. United States Army Corps of Eng'nrs, 931 F. Supp. 1515, 1520 (W.D. Wash. 1996).
(citing Seminole Nation, 316 U.S. 286, 296-97 (1942)).
Post Office Box 151, Fort Road, Toppenish, WA 98948 (S09) 865 5121
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To address these challenges, the EPA should consider the equity of the funding that
tribes are currently receiving through § 319.9 The EPA has posed several questions to
tribes regarding the current allocation of § 319 funding. In each of these questions, the
EPA asks tribes for ideas on reallocating funds to make them more equitable. This
ignores the fact that, in 2021, tribes were only allotted 5% ($8,852,000) of the
$177,000,000 of the EPA's national § 319 funding. The EPA splits the other 95%
between states and territories. In other words, tribes receive a disproportionately small
percentage of the available federal funding to combat non-point source pollution
relative to states and territories. The EPA should address this fundamental inequity
first.
Tribal lands also seem to be included in the states' allocated funding calculation
regardless of whether the relevant tribes have "treatment in a similar manner as a
state" ("TAS") designation for purposes of § 319. This skews the funding allocation in
favor of the states. For example, the state of Washington does not have jurisdiction to
implement nonpoint source pollution programs on Yakama Nation lands and therefore
the Yakama Nation sees very little direct benefit from state § 319 funded programs. If
Yakama Nation lands are counted toward the state's funding allocation, then the state
is receiving additional funding for lands that it does not and cannot implement
programs on. The EPA should instead be allocating the additional funding for Yakama
Nation programs, which would result in a direct benefit for the Yakama Nation.
Next, funding for tribes has been stagnant for two decades with a one-size fits all
approach. Specifically, the EPA gives $30,000 to tribes with a smaller land-base and
$50,000 to tribes with a larger land-base. Since 2002, when the EPA designated these
funding amounts for § 319 TAS tribes, the cost of maintaining a tribal § 319 program
has significantly increased. Furthermore, EPA funding for tribes has been locked at or
near 5% despite the fact that the number of tribes applying for funding has increased
every year. Asking tribes to redistribute current funding amongst themselves, whether
that be base funding or competitive funding, is not the correct approach and does not
suit the vastly different needs of tribes across the country.
The inequities described in this letter are systemic environmental justice issues. Tribal
communities are disproportionately affected by nonpoint source pollution issues
because of inadequate funding, resources, and representation. Consistent with the
EPA's Treaty and trust responsibilities, as well as President Biden's commitment to
addressing environmental justice, the EPA must correct these inequities and more
effectively support tribal § 319 programs.
The Yakama Nation appreciates the opportunity to provide these comments and looks
forward to further engagement with the EPA regarding this important matter. If you
9 The following funding numbers and statistics are derived from the EPA's "Consultation and Coordination
Plan: Potential EPA Actions to Increase Tribal Capacity to Maintain and Expand Nonpoint Source Management
Programs," and "Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 2001.'
Post Office Box 151, Fort Road, Toppenish, WA 98948 (509) 865 5121
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have any questions regarding this letter, please contact Mr. Phil Rigdon,
Superintendent of the Yakama Nation's Department of Natural Resources, at (509)
865-5121, ext. 4655, or phil_rigdon@yakama.com.10
Sincerely,
Delano Saluskin, Chairman
Yakama Nation Tribal Council
10 In submitting this comment, the Yakama Nation does not waive its sovereign immunity from suit, nor does it
waive, alter, or otherwise diminish its sovereign rights, privileges, or remedies guaranteed by the Treaty of
1855. Furthermore, submission of this comment does not substitute for formal government-to-government
consultation on this matter.
Post Office Box 151, Fort Road, Toppenish, WA 98948 (509) 865 5121
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