[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR123.32]

[Page 252-253]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 123_STATE PROGRAM REQUIREMENTS--Table of Contents
 
                   Subpart B_State Program Submissions
 
Sec.  123.32  Request by an Indian Tribe for a determination of eligibility.

    An Indian Tribe may apply to the Regional Administrator for a 
determination that it qualifies pursuant to section 518 of the Act for 
purposes of seeking NPDES permit program approval. The application shall 
be concise and describe how the Indian Tribe will meet each of the 
requirements of Sec.  123.31. The application shall include the 
following information:

[[Page 253]]

    (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) A map or legal description of the area over which the Indian 
Tribe asserts authority under section 518(e)(2) of the Act; a statement 
by the Tribal Attorney General (or equivalent official authorized to 
represent the Tribe in all legal matters in court pertaining to the 
program for which it seeks approval) which describes the basis for the 
Tribe's assertion (including the nature or subject matter of the 
asserted regulatory authority); copies of those documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe believes are relevant to its 
assertion under section 518(e)(2) of the Act; and a description of the 
location of the surface waters for which the Tribe proposes to establish 
an NPDES permit program.
    (d) A narrative statement describing the capability of the Indian 
Tribe to administer an effective, environmentally sound NPDES permit 
program. The statement should include:
    (1) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and service 
authorized by the Indian Self-Determination and Education Assistance 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 an NPDES permit program (including a description of the 
relationship between the existing or proposed agency and its regulated 
entities);
    (5) A description of the technical and administrative abilities of 
the staff to administer and manage an effective, environmentally sound 
NPDES permit program or a 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.
    (e) The Regional Administrator may, at his or her discretion, 
request further documentation necessary to support a Tribe's 
eligibility.
    (f) If the Administrator or his or her delegatee has previously 
determined that a Tribe has met the prerequisites that make it eligible 
to assume a role similar to that of a state as provided by statute under 
the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, 
then that Tribe need provide only that information unique to the NPDES 
program which is requested by the Regional Administrator.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]