[Code of Federal Regulations]

[Title 40, Volume 24]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR233.61]



[Page 308-309]

 

                   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) 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.



[[Page 309]]



    (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]