[Code of Federal Regulations]
[Title 40, Volume 22]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR233.61]

[Page 304-305]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 233--404 STATE PROGRAM REGULATIONS--Table of Contents
 
                    Subpart G--Eligible Indian Tribes
 
Sec. 233.61  Determination of Tribal eligibility.

    An Indian Tribe may apply to the Regional Administrator for a 
determination that it meets the statutory criteria which authorize EPA 
to treat the Tribe in a manner similar to that in which it treats a 
State, for purposes of the section 404 program. The application shall be 
concise and describe how the Indian Tribe will meet each of the 
requirements of Sec. 233.60. The application should include the 
following information:
    (a) A statement that the Tribe is recognized by the Secretary of the 
Interior.
    (b) A descriptive statement demonstrating that the Tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. This Statement should:
    (1) Describe the form of the Tribal government.
    (2) Describe the types of governmental functions currently performed 
by the Tribal governing body, such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (3) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (c)(1) A map or legal description of the area over which the Indian 
Tribe asserts regulatory authority pursuant to section 518(e)(2) of the 
CWA and Sec. 233.60(c);
    (2) A statement by the Tribal Attorney General (or equivalent 
official) which describes the basis for the Tribe's assertion under 
section 518(e)(2) (including the nature or subject matter of the 
asserted regulatory authority)

[[Page 305]]

which may include a copy of documents such as Tribal constitutions, by-
laws, charters, executive orders, codes, ordinances, and/or resolutions 
which support the Tribe's assertion of authority;
    (d) A narrative statement describing the capability of the Indian 
Tribe to administer an effective 404 permit program. The Statement may 
include:
    (1) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and services 
authorized by the Indian Self Determination & Education Act (25 U.S.C. 
450 et seq.), The Indian Mineral Development Act (25 U.S.C. 2101 et 
seq.), or the Indian Sanitation Facility Construction Activity Act (42 
U.S.C. 2004a).
    (2) A list of existing environmental or public health programs 
administered by the Tribal governing body, and a copy of related Tribal 
laws, regulations, and policies;
    (3) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal government.
    (4) A description of the existing, or proposed, agency of the Indian 
Tribe which will assume primary responsibility for establishing and 
administering a section 404 dredge and fill permit program or plan which 
proposes how the Tribe will acquire additional administrative and 
technical expertise. The plan must address how the Tribe will obtain the 
funds to acquire the administrative and technical expertise.
    (5) A description of the technical and administrative abilities of 
the staff to administer and manage an effective, environmentally sound 
404 dredge and fill permit program.
    (e) The Administrator may, at his discretion, request further 
documentation necessary to support a Tribal application.
    (f) If the Administrator has previously determined that a Tribe has 
met the requirements for eligibility or for ``treatment as a State'' for 
programs authorized under the Safe Drinking Water Act or the Clean Water 
Act, then that Tribe need only provide additional information unique to 
the particular statute or program for which the Tribe is seeking 
additional authorization.

(Approved by the Office of Management and Budget under control number 
2040-0140)

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994]