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This part codifies policies and procedures for financial assistance awarded by the Environmental Protection Agency (EPA) to State, interstate, and local agencies, Indian Tribes and Intertribal Consortia for pollution abatement and control programs. These provisions supplement the EPA general assistance regulations in 2 CFR parts 200 and 1500.
This subpart establishes administrative requirements for all grants awarded to State, interstate, and local agencies and other entities for the environmental programs listed in § 35.101. These provisions supplement the EPA general assistance regulations in 2 CFR parts 200 and 1500. Sections 35.100-35.118 contain administrative requirements that apply to all environmental program grants included in this subpart. Sections 35.130-35.418 contain requirements that apply to specified environmental program grants. Many of these environmental programs also have programmatic and technical requirements that are published elsewhere in the Code of Federal Regulations.
(a) Purpose. The information in this appendix represents Agency policies and procedures for determining the allowability of project costs based on the Clean Water Act, EPA policy, appropriate Federal cost principles of 2 CFR part 200 and reasonableness.
(b) Applicability. This cost information applies to grant assistance awarded on or after the effective date of this regulation. Project cost determinations under this subpart are not limited to the items listed in this appendix. Additional cost determinations based on applicable law and regulations must of course be made on a project-by-project basis. Those cost items not previously included in program requirements are not mandatory for decisions under grants awarded before the effective date. They are only to be used as guidance in those cases.
A. Costs Related to Subagreements
1. Allowable costs related to sub- agreements include:
a. The costs of subagreements for building the project.
b. The costs of complying with the procurement standards in 2 CFR 200.317 through 200.327 and 2 CFR 1500.10 and 1500.11.
c. The cost of legal and engineering services incurred by grantees in deciding procurement protests and defending their decisions in protest appeals in 2 CFR 200.318.
d. The costs for establishing or using minority and women's business liaison services.
e. The costs of services incurred during the building of a project to ensure that it is built in conformance with the design drawings and specifications.
f. The costs (including legal, technical, and administrative costs) of assessing the merits of or negotiating the settlement of a claim by or against a grantee under a subagreement provided:
(1) The claim arises from work within the scope of the grant;
(2) A formal grant amendment is executed specifically covering the costs before they are incurred;
(3) The costs are not incurred to prepare documentation that should be prepared by the contractor to support a claim against the grantee; and
(4) The Regional Administrator determines that there is a significant Federal interest in the issues involved in the claim.
g. Change orders and the costs of meritorious contractor claims for increased costs under subagreements as follows:
(1) Change orders and the costs of meritorious contractor claims provided the costs are:
(i) Within the scope of the project;
(ii) Not caused by the grantee's mismanagement; and
(iii) Not caused by the grantee's vicarious liability for the improper actions of others.
(2) Provided the requirements of paragraph g(1) are met, the following are examples of allowable change orders and contractor claim costs:
(i) Building costs resulting from defects in the plans, design drawings and specifications, or other subagreement documents only to the extent that the costs would have been incurred if the subagreement documents on which the bids were based had been free of the defects, and excluding the costs of any rework, delay, acceleration, or disruption caused by such defects;
(ii) Costs of equitable adjustments under Clause 4, Differing Site Conditions, of the model subagreement clauses required under § 33.1030 of this subchapter.
(3) Settlements, arbitration awards, and court judgments which resolve contractor claims shall be reviewed by the grant award official and shall be allowable only to the extent that they meet the requirements of paragraph g(1), are reasonable, and do not attempt to pass on to EPA the cost of events that were the responsibility of the grantee, the contractor, or others.
h. The costs of the services of the prime engineer required by § 35.2218 during the first year following initiation of operation of the project.
i. The cost of development of a plan of operation including an operation and maintenance manual required by § 35.2106.
j. Start-up services for onsite training of operating personnel in operation and control of specific treatment processes, laboratory procedures, and maintenance and records management.
k. The specific and unique costs of field testing an innovative or alternative process or technique, which may include equipment leasing costs, personnel costs, and utility costs necessary for constructing, conducting, and reporting the results of the field test.
2. Unallowable costs related to sub- agreements include:
a. The costs of architectural or engineering services incurred in preparing a facilities plan and the design drawings and specifications for a project. This provision does not apply to planning and design costs incurred in the modification or replacement of an innovative or alternative project funded under § 35.2032(c).
b. Except as provided in 1.g. above, architectural or engineering services or other services necessary to correct defects in a facilities plan, design drawings and specifications, or other subagreement documents.
c. The costs (including legal, technical and administrative) of defending against a contractor claim for increased costs under a subagreement or of prosecuting a claim to enforce any subagreement unless:
(1) The claim arises from work within the scope of the grant;
(2) A formal grant amendment is executed specifically covering the costs before they are incurred;
(3) The claim cannot be settled without arbitration or litigation;
(4) The claim does not result from the grantee's mismanagement;
(5) The Regional Administrator determines that there is a significant Federal interest in the issues involved in the claim; and
(6) In the case of defending against a contractor claim, the claim does not result from the grantee's responsibility for the improper action of others.
d. Bonus payments, not legally required, for completion of building before a contractual completion date.
e. All incremental costs due to the award of any subagreements for building significant elements of the project more than 12 months after the Step 3 grant award or final Step 2 + 3 approvals unless specified in the project schedule approved by the Regional Administrator at the time of grant award.
B. Mitigation
1. Allowable costs include:
a. Costs necessary to mitigate only direct, adverse, physical impacts resulting from building of the treatment works.
b. The costs of site screening necessary to comply with NEPA related studies and facilities plans, or necessary to screen adjacent properties.
c. The cost of groundwater monitoring facilities necessary to determine the possibility of groundwater deterioration, depletion or modification resulting from building the project.
2. Unallowable costs include:
a. The costs of solutions to aesthetic problems, including design details which require expensive building techniques and architectural features and hardware, that are unreasonable or substantially higher in cost than approvable alternatives and that neither enhance the function or appearance of the treatment works nor reflect regional architectural tradition.
b. The cost of land acquired for the mitigation of adverse environmental effects identified pursuant to an environmental review under NEPA.
C. Privately or Publicly Owned Small and Onsite Systems
1. Allowable costs for small and onsite systems serving residences and small commercial establishments inhabited on or before December 27, 1977, include a. through e. below. Alternatively, the two-thirds rule at 40 CFR 35.2116(b) may be used to determine allowable residential flows to be served by publicly owned small and alternative wastewater systems, including a. through e. below:
a. The cost of major rehabilitation, upgrading, enlarging and installing small and onsite systems, but in the case of privately owned systems, only for principal residences.
b. Conveyance pipes from property line to offsite treatment unit which serves a cluster of buildings.
c. Treatment and treatment residue disposal portions of toilets with composting tanks, oil flush mechanisms, or similar in-house devices.
d. Treatment or pumping units from the incoming flange when located on private property and conveyance pipes, if any, to the collector sewer.
e. The cost of restoring individual system building sites to their original condition.
2. Unallowable costs for small and onsite systems include:
a. Modification to physical structure of homes or commercial establishments.
b. Conveyance pipes from the house to the treatment unit located on user's property or from the house to the property line if the treatment unit is not located on that user's property.
c. Wastewater generating fixtures such as commodes, sinks, tubs, and drains.
D. Real Property
1. Allowable costs for land and rights-of-way include:
a. The cost (including associated legal, administrative and engineering costs) of land acquired in fee simple or by lease or easement under grants awarded after October 17, 1972, that will be an integral part of the treatment process or that will be used for the ultimate disposal of residues resulting from such treatment provided the Regional Administrator approves it in the grant agreement. These costs include:
(1) The cost of a reasonable amount of land, considering irregularities in application patterns, and the need for buffer areas, berms, and dikes;
(2) The cost of land acquired for a soil absorption system for a group of two or more homes;
(3) The cost of land acquired for composting or temporary storage of compost residues which result from wastewater treatment;
(4) The cost of land acquired for storage of treated wastewater in land treatment systems before land application. The total land area for construction of a pond for both treatment and storage of wastewater is allowable if the volume necessary for storage is greater then the volume necessary for treatment. Otherwise, the allowable cost will be determined by the ratio of the storage volume to the total volume of the pond.
b. The cost of complying with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4621 et seq., 4651 et seq. ), under part 4 of this chapter for land necessary for the building of treatment works.
c. The cost of contracting with another public agency or qualified private contractor for part or all of the required acquisition and/or relocation services.
d. The cost associated with the preparation of the treatment works site before, during and, to the extent agreed on in the grant agreement, after building. These costs include:
(1) The cost of demolition of existing structures on the treatment works site (including rights-of-way) if building cannot be undertaken without such demolition;
(2) The cost (considering such factors as betterment, cost of contracting and useful life) of removal, relocation or replacement of utilities, provided the grantee is legally obligated to pay under state or local law; and
(3) The cost of restoring streets and rights-of-way to their original condition. The need for such restoration must result directly from the construction and is generally limited to repaving the width of trench.
e. The cost of acquiring all or part of an existing publicly or privately owned wastewater treatment works provided all the following criteria are met:
(1) The acquisition, in and of itself, considered apart from any upgrade, expansion or rehabilitation, provides new pollution control benefits;
(2) The acquired treatment works was not built with previous Federal or State financial assistance;
(3) The primary purpose of the acquisition is not the reduction, elimination, or redistribution of public or private debt; and
(4) The acquisition does not circumvent the requirements of the Act, these regulations, or other Federal, State or local requirements.
2. Unallowable costs for land and rights-of-way include:
a. The costs of acquisition (including associated legal, administrative and engineering etc.) of sewer rights-of-way, waste treatment plant sites (including small system sites), sanitary landfill sites and sludge disposal areas except as provided in paragraphs 1. a. and b. of this section.
b. Any amount paid by the grantee for eligible land in excess of just compensation, based on the appraised value, the grantee's record of negotiation or any condemnation proceeding, as determined by the Regional Administrator.
c. Removal, relocation or replacement of utilities located on land by privilege, such as franchise.
E. Equipment, Materials and Supplies
1. Allowable costs of equipment, materials and supplies include:
a. The cost of a reasonable inventory of laboratory chemicals and supplies necessary to initiate plant operations and laboratory items necessary to conduct tests required for plant operation.
b. The costs for purchase and/or transportation of biological seeding materials required for expeditiously initiating the treatment process operation.
c. Cost of shop equipment installed at the treatment works necessary to the operation of the works.
d. The costs of necessary safety equipment, provided the equipment meets applicable Federal, State, local or industry safety requirements.
e. A portion of the costs of collection system maintenance equipment. The portion of allowable costs shall be the total equipment cost less the cost attributable to the equipment's anticipated use on existing collection sewers not funded on the grant. This calculation shall be based on: (1) The portion of the total collection system paid for by the grant, (2) a demonstrable frequency of need, and (3) the need for the equipment to preclude the discharge or bypassing of untreated wastewater.
f. The cost of mobile equipment necessary for the operation of the overall wastewater treatment facility, transmission of wastewater or sludge, or for the maintenance of equipment. These items include:
(1) Portable stand-by generators;
(2) Large portable emergency pumps to provide “pump-around” capability in the event of pump station failure or pipeline breaks; and
(3) Sludge or septage tankers, trailers, and other vehicles having as their sole purpose the transportation of liquid or dewatered wastes from the collector point (including individual or on-site systems) to the treatment facility or disposal site.
g. Replacement parts identified and approved in advance by the Regional Administrator as necessary to assure uninterrupted operation of the facility, provided they are critical parts or major systems components which are:
(1) Not immediately available and/or whose procurement involves an extended “lead-time;”
(2) Identified as critical by the equipment supplier(s); or
(3) Critical but not included in the inventory provided by the equipment supplier(s).
2. Unallowable costs of equipment, materials and supplies include:
a. The costs of equipment or material procured in violation of the procurement standards in 2 CFR 200.317 through 2 CFR 200.327 and 2 CFR 1500.10 and 1500.11.
b. The cost of furnishings including draperies, furniture and office equipment.
c. The cost of ordinary site and building maintenance equipment such as lawnmowers and snowblowers.
d. The cost of vehicles for the transportation of the grantees' employees.
e. Items of routine “programmed” maintenance such as ordinary piping, air filters, couplings, hose, bolts, etc.
F. Industrial and Federal Users
1. Except as provided in paragraph F.2.a., allowable costs for treatment works serving industrial and Federal facilities include development of a municipal pretreatment program approvable under part 403 of this chapter, and purchase of monitoring equipment and construction of facilities to be used by the municipal treatment works in the pretreatment program.
2. Unallowable costs for treatment works serving industrial and Federal facilities include:
a. The cost of developing an approvable municipal pretreatment program when performed solely for the purpose of seeking an allowance for removal of pollutants under part 403 of this chapter.
b. The cost of monitoring equipment used by industry for sampling and analysis of industrial discharges to municipal treatment works.
c. All incremental costs for sludge management incurred as a result of the grantee providing removal credits to industrial users under 40 CFR 403.7 beyond those sludge management costs that would otherwise be incurred in the absence of such removal credits.
G. Infiltration/Inflow
1. Allowable costs include:
a. The cost of treatment works capacity adequate to transport and treat nonexcessive infiltration/inflow under § 35.2120.
b. The costs of sewer system rehabilitation necessary to eliminate excessive infiltration/inflow as determined in a sewer system study under § 35.2120.
2. Unallowable costs include:
a. When the Regional Administrator determines that the flow rate is not significantly more than 120 gallons per capita per day under § 35.2120(c)(2)(ii), the incremental cost of treatment works capacity which is more than 120 gallons per capita per day.
H. Miscellaneous Costs
1. Allowable costs include:
a. The costs of salaries, benefits and expendable materials the grantee incurs for the project.
b. Unless otherwise specified in this regulation, the costs of meeting specific Federal statutory procedures.
c. Costs for necessary travel directly related to accomplishment of project objectives. Travel not directly related to a specific project, such as travel to professional meetings, symposia, technology transfer seminars, lectures, etc., may be recovered only under an indirect cost agreement.
d. The costs of additions to a treatment works that was assisted under the Federal Water Pollution Control Act of 1956 (Pub. L. 84-660), or its amendments, and that fails to meet its project performance standards provided:
(1) The project is identified on the State priority list as a project for additions to a treatment works that has received previous Federal funds;
(2) The grant application for the additions includes an analysis of why the treatment works cannot meet its project performance standards; and
(3) The additions could have been included in the original grant award and:
(a) Are the result of one of the following:
(i) A change in the project performance standards required by EPA or the State;
(ii) A written understanding between the Regional Administrator and grantee prior to or included in the original grant award;
(iii) A written direction by the Regional Administrator to delay building part of the treatment works; or
(iv) A major change in the treatment works' design criteria that the grantee cannot control; or
(b) Meet all the following conditions:
(i) If the original grant award was made after December 28, 1981, the treatment works has not completed its first full year of operation;
(ii) The additions are not caused by the grantee's mismanagement or the improper actions of others;
(iii) The costs of rework, delay, acceleration or disruption that are a result of building the additions are not included in the grant; and
(iv) The grant does not include an allowance for facilities planning or design of the additions.
(4) This provision applies to failures that occur either before or after the initiation of operation. This provision does not cover a treatment works that fails at the end of its design life.
e. Costs of royalties for the use of or rights in a patented process or product with the prior approval of the Regional Administrator.
f. Costs allocable to the water pollution control purpose of multiple purpose projects as determined by applying the Alternative Justifiable Expenditure (AJE) method described in the CG series. Multiple purpose projects that combine wastewater treatment with recreation do not need to use the AJE method, but can be funded at the level of the most cost-effective single-purpose alternative.
g. Costs of grantee employees attending training workshops/seminars that are necessary to provide instruction in administrative, fiscal or contracting procedures required to complete the construction of the treatment works, if approved in advance by the Regional Administrator.
2. Unallowable costs include:
a. Ordinary operating expenses of the grantee including salaries and expenses of elected and appointed officials and preparation of routine financial reports and studies.
b. Preparation of applications and permits required by Federal, State or local regulations or procedures.
c. Administrative, engineering and legal activities associated with the establishment of special departments, agencies, commissions, regions, districts or other units of government.
d. Approval, preparation, issuance and sale of bonds or other forms of indebtedness required to finance the project and the interest on them.
e. The costs of replacing, through reconstruction or substitution, a treatment works that was assisted under the Federal Water Pollution Control Act of 1956 (Pub. L. 84-660), or its amendments, and that fails to meet its project performance standards. This provision applies to failures that occur either before or after the initiation of operation. This provision does not apply to an innovative and alternative treatment works eligible for funding under § 35.2032(c) or a treatment works that fails at the end of its design life or to a failed rotating biological contactor eligible for funding under § 35.2035.
f. Personal injury compensation or damages arising out of the project.
g. Fines and penalties due to violations of, or failure to comply with, Federal, State or local laws, regulations or procedures.
h. Costs outside the scope of the approved project.
i. Costs for which grant payment has been or will be received from another Federal agency.
j. Costs of treatment works for control of pollutant discharges from a separate storm sewer system.
k. The cost of treatment works that would provide capacity for new habitation or other establishments to be located on environmentally sensitive land such as wetlands or floodplains.
l. The costs of preparing a corrective action report required by § 35.2218(c).
I. Design/Build Project Grants
1. Allowable costs include:
a. The costs of supplementing the facilities plan to prepare the pre-bid package including the cost of preliminary boring and site plans, concept and layout drawings, schematic, general material and major equipment lists and specifications, instructions to builders, general and special conditions, project performance standards and permit limits, applicable State or other design standards, any requirements to go into bid analyses, and other contract documents, schedules, forms and certificates.
b. The costs for building the project, including:
(1) Project costs based on the lowest responsive, responsible competitive design/build project bid.
(2) Construction management services including detailed plans and specifications review and approval, change order review and approval, resident inspection, shop drawing approval and preparation of an O & M manual and of user charge and sewer use ordinance systems.
(3) Any adjustments to reflect the actual reasonable and necessary costs for preparing the pre-bid package.
(4) Post-construction activities required by project performance certification requirements.
(5) Contract and project administration activities including the review of contractor vouchers and payment requests, preparation of monitoring reports, grant administration and accounting services, routine legal costs, cost of eligible real property.
(6) Contingencies.
2. Unallowable costs include:
a. All costs in excess of the maximum agreed Federal share.
b. Costs of facilities planning where the grantee has received a Step 1 grant.
1. This appendix provides the method EPA will use to determine both the estimated and the final allowance under § 35.2025 for facilities planning and design. The Step 2 + 3, Step 3 and Step 7 grant agreements will include an estimate of the allowance.
2. The Federal share of the allowance is determined by applying the applicable grant percentage in § 35.2152 to the allowance.
3. The allowance is not intended to reimburse the grantee for costs actually incurred for facilities planning or design. Rather, the allowance is intended to assist in defraying those costs. Under this procedure, questions of equity (i.e., reimbursement on a dollar-for-dollar basis) will not be appropriate.
4. The estimated and final allowance will be determined in accordance with this appendix and tables 1, 2 and 3. Table 2 is to be used in the event the grantee received a grant for facilities planning. Table 3 is to be used to determine the facilities planning allowance for a Step 7 grant if the grantee did not receive a Step 1 grant. The amount of the allowance is computed by applying the resulting allowance percentage to the initial allowable building cost.
5. The initial allowable building cost is the initial allowable cost of erecting, altering, remodeling, improving, or extending a treatment works, whether accomplished through subagreement or force account. Specifically, the initial allowable building cost is the allowable cost of the following:
a. The initial award amount of all prime subagreements for building the project.
b. The initial amounts approved for force account work performed in lieu of awarding a subagreement for building the project.
c. The purchase price of eligible real property.
6. The estimated allowance is to be based on the estimate of the initial allowable building cost.
7. The final allowance will be determined one time only for each project, based on the initial allowable building cost, and will not be adjusted for subsequent cost increases or decreases.
8. For a Step 3 or Step 7 project, the grantee may request payment of 50 percent of the Federal share of the estimated allowance immediately after grant award. Final payment of the Federal share of the allowance may be requested in the first payment after the grantee has awarded all prime subagreements for building the project, received the Regional Administrator's approval for force account work, and completed the acquisition of all eligible real property.
9. For a Step 2 + 3 project, if the grantee has not received a grant for facilities planning, the grantee may request payment of 30 percent of the Federal share of the estimated allowance immediately after the grant award. Half of the remaining estimated allowance may be requested when design of the project is 50 percent complete. If the grantee has received a grant for facilities planning, the grantee may request half of the Federal share of the estimated allowance when design of the project is 50 percent complete. Final payment of the Federal share of the allowance may be requested in the first payment after the grantee has awarded all prime subagreements for building the project, received the Regional Administrator's approval for force account work, and completed the acquisition of all eligible real property.
10. The allowance does not include architect or engineering services provided during the building of the project, e.g., reviewing bids, checking shop drawings, reviewing change orders, making periodic visits to job sites, etc. Architect or engineering services during the building of the project are allowable costs subject to this regulation and 40 CFR part 33.
11. The State will determine the amount and conditions of any advance under § 35.2025(b), not to exceed the Federal share of the estimated allowance.
12. EPA will reduce the Federal share of the allowance by the amount of any advances the grantee received under § 35.2025(b).
Table 1—Allowance for Facilities Planning and Design
Building cost
Allowance as a percentage of building cost*
$100,000 or less
14.4945
120,000
14.1146
150,000
13.6631
175,000
13.3597
200,000
13.1023
250,000
12.6832
300,000
12.3507
350,000
12.0764
400,000
11.8438
500,000
11.4649
600,000
11.1644
700,000
10.9165
800,000
10.7062
900,000
10.5240
1,000,000
10.3637
1,200,000
10.0920
1,500,000
9.7692
1,750,000
9.5523
2,000,000
9.3682
2,500,000
9.0686
3,000,000
8.8309
3,500,000
8.6348
4,000,000
8.4684
5,000,000
8.1975
6,000,000
7.9827
7,000,000
7.8054
8,000,000
7.6550
9,000,000
7.5248
10,000,000
7.4101
12,000,000
7.2159
15,000,000
6.9851
17,500,000
6.8300
20,000,000
6.6984
25,000,000
6.4841
30,000,000
6.3142
35,000,000
6.1739
40,000,000
6.0550
50,000,000
5.8613
60,000,000
5.7077
70,000,000
5.5809
80,000,000
5.4734
90,000,000
5.3803
100,000,000
5.2983
120,000,000
5.1594
150,000,000
4.9944
175,000,000
4.8835
200,000,000
4.7894
Note: The allowance does not reimburse for costs incurred. Accordingly, the allowance tables shall not be used to determine the compensation for facilities planning or design services. The compensation for facilities planning or design services should be based upon the nature, scope and complexity of the services required by the community.
*Interpolate between values.
Table 2—Allowance for Design Only
Building cost
Allowance as a percentage of building cost*
$100,000 or less
8.5683
120,000
8.3808
150,000
8.1570
175,000
8.0059
200,000
7.8772
250,000
7.6668
300,000
7.4991
350,000
7.3602
400,000
7.2419
500,000
7.0485
600,000
6.8943
700,000
6.7666
800,000
6.6578
900,000
6.5634
1,000,000
6.4300
1,200,000
6.3383
1,500,000
6.1690
1,750,000
6.0547
2,000,000
5.9574
2,500,000
5.7983
3,000,000
5.6714
3,500,000
5.5664
4,000,000
5.4769
5,000,000
5.3306
6,000,000
5.2140
7,000,000
5.1174
8,000,000
5.0352
9,000,000
4.9637
10,000,000
4.9007
12,000,000
4.7935
15,000,000
4.6655
17,500,000
4.5790
20,000,000
4.5054
25,000,000
4.3851
30,000,000
4.2892
35,000,000
4.2097
40,000,000
4.1421
50,000,000
4.0314
60,000,000
3.9432
70,000,000
3.8702
80,000,000
3.8080
90,000,000
3.7540
100,000,000
3.7063
120,000,000
3.6252
150,000,000
3.5284
175,000,000
3.4630
200,000,000
3.4074
Note: The allowance does not reimburse for costs incurred. Accordingly, the allowance tables shall not be used to determine the compensation for facilities planning or design services. The compensation for facilities planning or design services should be based upon the nature, scope and complexity of the services required by the community.
*Interpolate between values.
Table 3—Allowance for Facilities Planning for Design/Build Projects
Building cost (dollars)
Allowance as a percentage of building cost*
100,000 or less
5.9262
120,000
5.7337
150,000
5.5061
175,000
5.3538
200,000
5.2250
250,000
5.0163
300,000
4.8516
350,000
4.7162
400,000
4.6019
500,000
4.4164
600,000
4.2701
700,000
4.1499
800,000
4.0483
900,000
3.9606
1,000,000
3.8837
1,200,000
3.7538
1,500,000
3.6003
1,750,000
3.4976
2,000,000
3.4109
2,500,000
3.2703
3,000,000
3.1595
3,500,000
3.0684
4,000,000
2.9915
5,000,000
2.8669
6,000,000
2.7686
7,000,000
2.6880
8,000,000
2.6198
Note: Building cost is the sum of the allowable cost of (1) the initial award amount of the prime subagreement for building and designing the project; and (2) the purchase price of eligible real property.
*Interpolate between values.
The following criteria will be used by the RA to evaluate a proposed SERP.
(A) Legal foundation. Adequate documentation of the legal authority, including legislation, regulations or executive orders and/or Attorney General certification that authority exists.
(B) Interdisciplinary approach. The availability of expertise either in-house or otherwise accessible to the State Agency.
(C) Decision documentation. A description of a documentation process adequate to explain the basis for decisions to the public.
(D) Public notice and participation. A description of the process, including routes of publication (e.g., local newspapers and project mailing list), and use of established State legal notification systems for notices of intent, and criteria for determining whether a public hearing is required. The adequacy of a rationale where the comment period differs from that under NEPA and is inconsistent with other State review periods.
(E) Consider alternatives. The extent to which the SERP will adequately consider:
(1) Designation of a study area comparable to the final system;
(2) A range of feasible alternatives, including the no action alternative;
(3) Direct and indirect impacts;
(4) Present and future conditions;
(5) Land use and other social parameters including recreation and open-space considerations;
(6) Consistency with population projections used to develop State implementation plans under the Clean Air Act;
(7) Cumulative impacts including anticipated community growth (residential, commercial, institutional and industrial) within the project study area; and
(8) Other anticipated public works projects including coordination with such projects.
The following criteria will be used by the RA to evaluate a proposed SERP:
(A) Legal foundation. Adequate documentation of the legal authority, including legislation, regulations or executive orders and/or Attorney General certification that authority exists.
(B) Interdisciplinary approach. The availability of expertise, either in-house or otherwise, accessible to the State agency.
(C) Decision documentation. A description of a documentation process adequate to explain the basis for decisions to the public.
(D) Public notice and participation. A description of the process, including routes of publication (e.g., local newspapers and project mailing list), and use of established State legal notification systems for notices of intent, and criteria for determining whether a public hearing is required. The adequacy of a rationale where the comment period differs from that under NEPA and is inconsistent with other State review periods.
(E) Alternatives consideration. The extent to which the SERP will adequately consider:
(1) Designation of a study area comparable to the final system;
(2) A range of feasible alternatives, including the no action alternative;
(3) Direct and indirect impacts;
(4) Present and future conditions;
(5) Land use and other social parameters including relevant recreation and open-space considerations;
(6) Consistency with population projections used to develop State implementation plans under the Clean Air Act;
(7) Cumulative impacts including anticipated community growth (residential, commercial, institutional, and industrial) within the project study area; and
(8) Other anticipated public works projects including coordination with such projects.
(a) The requirements in this subpart apply to all grants awarded for the following programs:
(1) Performance partnership grants (Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. Law 104-134, 110 Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1998, Pub. Law 105-65, 111 Stat. 1344, 1373 (1997)).
(2) Air pollution control (section 105 of the Clean Air Act).
(3) Water pollution control (section 106 of the Clean Water Act).
(4) Public water system supervision (section 1443(a) of the Safe Drinking Water Act).
(5) Underground water source protection (section 1443(b) of the Safe Drinking Water Act).
(6) Hazardous waste management (section 3011(a) of the Solid Waste Disposal Act).
(7) Pesticide cooperative enforcement (section 23(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act).
(8) Pesticide applicator certification and training (section 23(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act).
(9) Pesticide program implementation (section 23(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act).
(10) Nonpoint source management (sections 205(j)(5) and 319(h) of the Clean Water Act).
(11) Lead-based paint program (section 404(g) of the Toxic Substances Control Act).
(12) State indoor radon grants (section 306 of the Toxic Substances Control Act).
(13) Toxic substances compliance monitoring (section 28 of the Toxic Substances Control Act).
(14) State underground storage tanks (section 2007(f)(2) of the Solid Waste Disposal Act).
(15) Pollution prevention state grants (section 6605 of the Pollution Prevention Act of 1990).
(16) Water quality cooperative agreements (section 104(b)(3) of the Clean Water Act).
(17) Wetlands development grants program (section 104(b)(3) of the Clean Water Act).
(18) State administration of construction grant, permit, and planning programs (section 205(g) of the Clean Water Act).
(19) Water quality management planning (section 205(j)(2) of the Clean Water Act).
(20) State Response Program Grants (section 128(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)).
(b) Unless otherwise prohibited by statute or regulation, the requirements in § 35.100 through § 35.118 of this subpart also apply to grants under environmental programs established after this subpart becomes effective if specified in Agency guidance for such programs.
(c) In the event a grant is awarded from EPA headquarters for one of the programs listed in paragraph (a) of this section, this subpart shall apply and the term “Regional Administrator” shall mean “Assistant Administrator'.
Terms are defined as follows when they are used in this subpart.
Allotment. EPA's calculation of the funds that may be available to an eligible recipient for an environmental program grant. An allotment is not an entitlement.
Consolidated grant. A single grant made to a recipient consolidating funds from more than one environmental grant program. After the award is made, recipients must account for grant funds in accordance with the funds' original environmental program sources. Consolidated grants are not Performance Partnership Grants.
Environmental program. A program for which EPA awards grants under the authorities listed in § 35.101. The grants are subject to the requirements of this subpart.
Funding period. The period of time specified in the grant agreement during which the recipient may expend or obligate funds for the purposes set forth in the agreement.
National program guidance. Guidance issued by EPA's National Program Managers for establishing and maintaining effective environmental programs. This guidance establishes national goals, objectives, and priorities as well as the core performance measures and other information to be used in monitoring progress. The guidance may also set out specific environmental strategies, criteria for evaluating programs, and other elements of program implementation.
Outcome. The environmental result, effect, or consequence that will occur from carrying out an environmental program or activity that is related to an environmental or programmatic goal or objective. Outcomes must be quantitative, and they may not necessarily be achievable during a grant funding period. See “output.”
Output. An environmental activity or effort and associated work products related to an environmental goal or objective that will be produced or provided over a period of time or by a specified date. Outputs may be quantitative or qualitative but must be measurable during a grant funding period. See “outcome.”
Performance Partnership Agreement. A negotiated agreement signed by the EPA Regional Administrator and an appropriate official of a State agency and designated as a Performance Partnership Agreement. Such agreements typically set out jointly developed goals, objectives, and priorities; the strategies to be used in meeting them; the roles and responsibilities of the State and EPA; and the measures to be used in assessing progress. A Performance Partnership Agreement may be used as all or part of a work plan for a grant if it meets the requirements for a work plan set out in § 35.107.
Performance Partnership Grant. A single grant combining funds from more than one environmental program. A Performance Partnership Grant may provide for administrative savings or programmatic flexibility to direct grant resources where they are most needed to address public health and environmental priorities (see also § 35.130). Each Performance Partnership Grant has a single, integrated budget and recipients do not need to account for grant funds in accordance with the funds' original environmental program sources.
Planning target. The amount of funds that the Regional Administrator suggests a grant applicant consider in developing its application, including the work plan, for an environmental program.
Regional supplemental guidance. Guidance to environmental program applicants prepared by the Regional Administrator, based on the national program guidance and specific regional and applicant circumstances, for use in preparing a grant application.
Work plan commitments. The outputs and outcomes associated with each work plan component, as established in the grant agreement.
Work plan component. A negotiated set or group of work plan commitments established in the grant agreement. A work plan may have one or more work plan components.
A complete application for an environmental program must:
(a) Meet the requirements in 2 CFR part 200, subpart C.
(b) Include a proposed work plan (§ 35.107); and
(c) Specify the environmental program and the amount of funds requested.
An applicant should submit a complete application to EPA at least 60 days before the beginning of the proposed funding period.
(a) Bases for negotiating work plans. The work plan is negotiated between the applicant and the Regional Administrator and reflects consideration of national, regional, and State environmental and programmatic needs and priorities.
(1) Negotiation considerations. In negotiating the work plan, the Regional Administrator and applicant will consider such factors as national program guidance; any regional supplemental guidance; goals, objectives, and priorities proposed by the applicant; other jointly identified needs or priorities; and the planning target.
(2) National program guidance. If an applicant proposes a work plan that differs significantly from the goals and objectives, priorities, or core performance measures in the national program guidance associated with the proposed activities, the Regional Administrator must consult with the appropriate National Program Manager before agreeing to the work plan.
(3) Use of existing guidance. An applicant should base the grant application on the national program guidance in place at the time the application is being prepared.
(b) Work plan requirements. (1) The work plan is the basis for the management and evaluation of performance under the grant agreement.
(2) An approvable work plan must specify:
(i) The work plan components to be funded under the grant;
(ii) The estimated work years and the estimated funding amounts for each work plan component;
(iii) The work plan commitments for each work plan component and a time frame for their accomplishment;
(iv) A performance evaluation process and reporting schedule in accordance with § 35.115 of this subpart; and
(v) The roles and responsibilities of the recipient and EPA in carrying out the work plan commitments.
(3) The work plan must be consistent with applicable federal statutes; regulations; circulars; executive orders; and EPA delegations, approvals, or authorizations.
(c) Performance Partnership Agreement as work plan. An applicant may use a Performance Partnership Agreement or a portion of a Performance Partnership Agreement as the work plan for an environmental program grant if the portions of the Performance Partnership Agreement that serve as all or part of the grant work plan:
(1) Are clearly identified and distinguished from other portions of the Performance Partnership Agreement; and
(2) Meet the requirements in § 35.107(b).
The Regional Administrator and applicant may negotiate the length of the funding period for environmental program grants, subject to limitations in appropriations acts.
(a) Any applicant eligible to receive funds from more than one environmental program may submit an application for a consolidated grant. For consolidated grants, an applicant prepares a single budget and work plan covering all of the environmental programs included in the application. The consolidated budget must identify each environmental program to be included, the amount of each program's funds, and the extent to which each program's funds support each work plan component. Recipients of consolidated grants must account for grant funds in accordance with the funds' environmental program sources; funds included in a consolidated grant from a particular environmental program may be used only for that program.
(b) Insular areas that choose to consolidate environmental program grants may be exempted by the Regional Administrator from requirements of this subpart in accordance with 48 U.S.C. 1469a.
The Regional Administrator will review a complete application and either approve, conditionally approve, or disapprove it within 60 days of receipt. This period may be extended by mutual agreement between EPA and the applicant. The Regional Administrator will award the funds for approved or conditionally approved applications when the funds are available.
(a) The Regional Administrator may approve an application upon determining that:
(1) The application meets the requirements of this subpart and 2 CFR part 200, subpart C.
(2) The application meets the requirements of all applicable federal statutes; regulations; circulars; executive orders; and delegations, approvals, or authorizations;
(3) The proposed work plan complies with the requirements of § 35.107; and
(4) The achievement of the proposed work plan is feasible, considering such factors as the applicant's existing circumstances, past performance, program authority, organization, resources, and procedures.
(b) If the Regional Administrator finds the application does not satisfy the criteria in paragraph (a) of this section, the Regional Administrator may either:
(1) Conditionally approve the application if only minor changes are required, with grant conditions necessary to ensure compliance with the criteria, or
(2) Disapprove the application in writing.
(a) After approving an application under § 35.111, the Regional Administrator will consider such factors as the applicant's allotment, the extent to which the proposed work plan is consistent with EPA guidance and mutually agreed upon priorities, and the anticipated cost of the work plan relative to the proposed work plan components, to determine the amount of funds to be awarded.
(b) If the Regional Administrator finds the requested level of funding is not justified or the work plan does not comply with the requirements of § 35.107, the Regional Administrator will attempt to negotiate a resolution of the issues with the applicant before determining the award amount. The Regional Administrator may determine that the award amount will be less than the amount allotted or requested.
(a) Notwithstanding the requirements of 2 CFR parts 200 and 1500, EPA may reimburse recipients for pre-award costs incurred from the beginning of the budget period established in the grant agreement if such costs would have been allowable if incurred after the award. Pre-award costs must be identified in the grant application EPA approves.
(b) The applicant incurs pre-award costs at its own risk. EPA is under no obligation to reimburse such costs unless they are included in an approved grant award.
The following provisions govern amendments and other changes to grant work plans and budgets after the work plan is negotiated and a grant awarded.
(a) Changes requiring prior approval. Recipients may make significant changes in work plan commitments only after obtaining the Regional Administrator's prior written approval. EPA, in consultation with the recipient, will document these revisions including budgeted amounts associated with the revisions.
(b) Changes requiring approval. Recipients must request, in writing, grant amendments for changes requiring adjustments in environmental program grant amounts and extensions of the funding period. Recipients may begin implementing a change before the amendment has been approved by EPA but do so at their own risk. If EPA approves the change, EPA will issue a grant amendment. EPA will notify the recipient in writing if the change is disapproved.
(c) Changes not requiring approval. Other than those situations described in paragraphs (a) and (b) of this section, recipients do not need to obtain approval for changes, including changes in grant work plans, budgets, or other components of grant agreements, unless the Regional Administrator determines approval requirements should be imposed on a specific recipient for a specified period of time.
(d) OMB cost principles. The Regional Administrator may waive in writing approval requirements for specific recipients and costs contained in OMB cost principles.
(e) Changes in consolidated grants. Recipients of consolidated grants under § 35.109 may not transfer funds among environmental programs.
(f) Subgrants. Subgrantees must request required approvals in writing from the recipient and the recipient shall approve or disapprove the request in writing. A recipient will not approve any work plan or budget revision which is inconsistent with the purpose or terms and conditions of the federal grant to the recipient. If the revision requested by the subgrantee would result in a significant change to the recipient's approved grant which requires EPA approval, the recipient will obtain EPA's approval before approving the subgrantee's request.
(a) Joint evaluation process. The applicant and the Regional Administrator will develop a process for jointly evaluating and reporting progress and accomplishments under the work plan. A description of the evaluation process and a reporting schedule must be included in the work plan (see § 35.107(b)(2)(iv)). The schedule must require the recipient to report at least annually and must satisfy the requirements for progress reporting under 2 CFR 200.329.
(b) Elements of the evaluation process. The evaluation process must provide for:
(1) A discussion of accomplishments as measured against work plan commitments;
(2) A discussion of the cumulative effectiveness of the work performed under all work plan components;
(3) A discussion of existing and potential problem areas; and
(4) Suggestions for improvement, including, where feasible, schedules for making improvements.
(c) Resolution of issues. If the joint evaluation reveals that the recipient has not made sufficient progress under the work plan, the Regional Administrator and the recipient will negotiate a resolution that addresses the issues. If the issues cannot be resolved through negotiation, the Regional Administrator may take appropriate measures under 2 CFR 200.339 through 200.343. The recipient may request review of the Regional Administrator's decision under the dispute processes in 2 CFR part 1500, subpart E.
(d) Evaluation reports. The Regional Administrator will ensure that the required evaluations are performed according to the negotiated schedule and that copies of evaluation reports are placed in the official files and provided to the recipient.
If funds remain in a State's allotment for an environmental program grant either after grants for that environmental program have been made or because no grant was made, the Regional Administrator may, subject to any limitations contained in appropriation acts, use all or part of the funds to support a federal program required by law in the State in the absence of an acceptable State program.
If funds for an environmental program grant remain in a State's allotment either after an initial environmental program grant has been made or because no grant was made, and the Regional Administrator does not use the funds under § 35.116 of this subpart, the Regional Administrator may award the funds to any eligible recipient in the region, including the same State or an Indian Tribe or Tribal consortium, for the same environmental program or for a Performance Partnership Grant, subject to any limitations in appropriation acts.
Subject to any relevant provisions of law, if a recipient's Financial Status Report shows unexpended balances, the Regional Administrator will deobligate the unexpended balances and make them available, to either the same recipient in the same region or other eligible recipients, including Indian Tribes and Tribal Consortia, for environmental program grants.
(a) Purpose of section. Sections 35.130 through 35.138 govern Performance Partnership Grants to States and interstate agencies authorized in the Omnibus Consolidated Rescissions and Appropriations Act of 1996, (Pub. L. 104-134; 110 Stat. 1321, 1321-299 (1996)) and the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1998, (Pub. L. 105-65; 111 Stat. 1344, 1373 (1997)).
(b) Purpose of program. Performance Partnership Grants enable States and interstate agencies to combine funds from more than one environmental program grant into a single grant with a single budget. Recipients do not need to account for Performance Partnership Grant funds in accordance with the funds' original environmental program sources; they need only account for total Performance Partnership Grant expenditures subject to the requirements of this subpart. The Performance Partnership Grant program is designed to:
(1) Strengthen partnerships between EPA and State and interstate agencies through joint planning and priority-setting and better deployment of resources;
(2) Provide State and interstate agencies with flexibility to direct resources where they are most needed to address environmental and public health priorities;
(3) Link program activities more effectively with environmental and public health goals and program outcomes;
(4) Foster development and implementation of innovative approaches such as pollution prevention, ecosystem management, and community-based environmental protection strategies; and
(5) Provide savings by streamlining administrative requirements.
Applicants and recipients of Performance Partnership Grants must meet:
(a) The requirements in §§ 35.100 to 35.118, which apply to all environmental program grants, including Performance Partnership Grants; and
(b) The requirements in §§ 35.130 to 35.138, which apply only to Performance Partnership Grants.
(a) Eligible programs. Except as provided in paragraph (b) of this section, the environmental programs eligible, in accordance with appropriation acts, for inclusion in a Performance Partnership Grant are listed in § 35.101(a)(2) through (17) and (20). (Funds available from the section 205(g) State Administration Grants program (§ 35.101(a)(18)) and the Water Quality Management Planning Grant program (§ 35.101(a)(19)) and funds awarded to States under State Response Program Grants (§ 35.101(a)(20)) to capitalize a revolving loan fund for Brownfield remediation or purchase insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for response actions may not be included in Performance Partnership Grants.)
(b) Changes in eligible programs. The Administrator may, in guidance or regulation, describe subsequent additions, deletions, or changes to the list of environmental programs eligible for inclusion in Performance Partnership Grants. A current list of environmental programs eligible for inclusion in Performance Partnership Grants is available at www.epa.gov/nepps.
(a) Eligible agencies. All State agencies (including environmental, health, agriculture, and other agencies) and interstate agencies eligible to receive funds from more than one environmental program may receive Performance Partnership Grants
(b) Designated agency. A State agency must be designated by a Governor, State legislature, or other authorized State process to receive grants under each of the environmental programs to be combined in the Performance Partnership Grant. If it is not the designated agency for a particular grant program to be included in the Performance Partnership Grant, the State agency must have an agreement with the State agency that does have the designation regarding how the funds will be shared between the agencies.
(c) Programmatic requirements. In order to include funds from an environmental program grant listed in § 35.101 of this subpart in a Performance Partnership Grant, applicants must meet the requirements for award of each of the environmental programs from which funds are combined in the agency's Performance Partnership Grant, except the requirements at §§ 35.268(b) and (c), 35.272, and 35.298 (c), (d), (e), and (g). These requirements can be found in this regulation beginning at § 35.140.
(a) A recipient may use a Performance Partnership Grant, subject to the requirements of paragraph (c) of this section, to fund any activity that is eligible for funding under at least one of the environmental programs from which funds are combined into the grant.
(b) A recipient may also use a Performance Partnership Grant to fund multi-media activities that are eligible in accordance with paragraph (a) of this section and have been agreed to by the Regional Administrator. Such activities may include multi-media permitting and enforcement and pollution prevention, ecosystem management, community-based environmental protection, and other innovative approaches.
(c) A recipient may not use a Performance Partnership Grant to fund activities eligible only under a specific environmental program grant unless some or all of the recipient's allotted funds for that program have been included in the Performance Partnership Grant.
(a) An applicant for a Performance Partnership Grant must provide a non-federal cost share that is not less than the sum of the minimum non-federal cost share required under each of the environmental programs that are combined in the Performance Partnership Grant. Cost share requirements for the individual environmental programs are described in §§ 35.140 to 35.418.
(b) When an environmental program included in the Performance Partnership Grant has both a matching and maintenance of effort requirement, the greater of the two amounts will be used to calculate the minimum cost share attributed to that environmental program.
(a) An application for a Performance Partnership Grant must contain:
(1) A list of the environmental programs and the amount of funds from each program to be combined in the Performance Partnership Grant;
(2) A consolidated budget;
(3) A consolidated work plan that addresses each program being combined in the grant and that meets the requirements of § 35.107; and,
(4) A rationale, commensurate with the extent of any programmatic flexibility (i.e., increased effort in some programs and decreased effort in others) indicated in the work plan, that explains the basis for the applicant's priorities, the expected environmental or other benefits to be achieved, and the anticipated impact on any environmental programs or program areas proposed for reduced effort.
(b) The applicant and the Regional Administrator will negotiate regarding the information necessary to support the rationale for programmatic flexibility required in paragraph (a)(4) of this section. The rationale may be supported by information from a variety of sources, including a Performance Partnership Agreement or comparable negotiated document, the evaluation report required in § 35.125, and other environmental and programmatic data sources.
(c) A State agency seeking programmatic flexibility is encouraged to include a description of efforts to involve the public in developing the State agency's priorities.
(a) Some environmental program grants are awarded through a competitive process. An applicant and the Regional Administrator may agree to add funds available for a competitive grant to a Performance Partnership Grant. If this is done, the work plan commitments that would have been included in the competitive grant must be included in the Performance Partnership Grant work plan. After the funds have been added to the Performance Partnership Grant, the recipient does not need to account for these funds in accordance with the funds' original environmental program source.
(b) If the projected completion date for competitive grant work plan commitments added to a Performance Partnership Grant is after the end of the Performance Partnership Grant funding period, the Regional Administrator and the applicant will agree in writing as to how the work plan commitments will be carried over into future work plans.
(a) Purpose of section. Sections 35.140 through 35.148 govern Air Pollution Control Grants to State, local, interstate, or intermunicipal air pollution control agencies (as defined in section 302(b) of the Clean Air Act) authorized under section 105 of the Act.
(b) Purpose of program. Air Pollution Control Grants are awarded to administer programs that prevent and control air pollution or implement national ambient air quality standards.
(c) Program regulations. Refer to 40 CFR parts 49, 50, 51, 52, 58, 60, 61, 62, and 81 for associated program regulations.
In addition to the definitions in § 35.102, the following definitions apply to the Clean Air Act's section 105 grant program:
Implementing means any activity related to planning, developing, establishing, carrying-out, improving, or maintaining programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air quality standards.
Nonrecurrent expenditures are those expenditures which are shown by the recipient to be of a nonrepetitive, unusual, or singular nature that would not reasonably be expected to recur in the foreseeable future. Costs categorized as nonrecurrent must be approved in the grant agreement or an amendment thereto.
Recurrent expenditures are those expenses associated with the activities of a continuing environmental program. All expenditures are considered recurrent unless justified by the applicant as nonrecurrent and approved as such in the grant award or an amendment thereto.
(a) The Administrator allots air pollution control funds under section 105 of the Clean Air Act based on a number of factors, including:
(1) Population;
(2) The extent of actual or potential air pollution problems; and
(3) The financial need of each agency.
(b) The Regional Administrator shall allot to a State not less than one-half of one percent nor more than 10 percent of the annual section 105 grant appropriation.
(c) The Administrator may award funds on a competitive basis.
(a) The Regional Administrator may provide air pollution control agencies, as defined in section 302(b) of the Clean Air Act, up to three-fifths of the approved costs of implementing programs for the prevention and control of air pollution or implementing national primary and secondary ambient air quality standards.
(b) Revenue collected pursuant to a State's Title V operating permit program may not be used to meet the cost share requirements of section 105.
(a) To receive funds under section 105, an agency must expend annually, for recurrent section 105 program expenditures, an amount of non-federal funds at least equal to such expenditures during the preceding fiscal year.
(b) In order to award grants in a timely manner each fiscal year, the Regional Administrator shall compare an agency's proposed expenditure level, as detailed in the agency's grant application, to that agency's expenditure level in the second preceding fiscal year. When expenditure data for the preceding fiscal year is complete, the Regional Administrator shall use this information to determine the agency's compliance with its maintenance of effort requirement.
(c) If the expenditure data for the preceding fiscal year shows that an agency did not meet the requirements of § 35.146, the Regional Administrator will take action to recover the grant funds for the year in which the agency did not maintain its level of effort.
(d) The Regional Administrator may grant an exception to § 35.146(a) if, after notice and opportunity for a public hearing, the Regional Administrator determines that a reduction in expenditure is attributable to a non-selective reduction of the programs of all executive branch agencies of the applicable unit of government.
(e) The Regional Administrator will not award section 105 funds unless the applicant provides assurance that the grant will not supplant non-federal funds that would otherwise be available for maintaining the section 105 program.
(a) To calculate the cost share for a Performance Partnership Grant (see §§ 35.130 through 35.138) in the initial and subsequent years that it includes section 105 funds, the minimum cost share contribution for the section 105 program will be the match requirement set forth in § 35.145, or the maintenance of effort established under § 35.146 in the first year that the section 105 grant is included in a Performance Partnership Grant, whichever is greater.
(b) If an air pollution control agency includes its section 105 air program funding in a Performance Partnership Grant and subsequently withdraws that program from the grant:
(1) The required maintenance of effort amount for the section 105 program for the first year after the program is withdrawn will be equal to the maintenance of effort amount required in the year the agency included the section 105 program in the Performance Partnership Grant.
(2) The maximum federal share for the section 105 program in the first and subsequent years after the grant is withdrawn may not be more than three-fifths of the approved cost of the program.
(c) The Regional Administrator may approve an exception from paragraph (b) of this section upon determining that exceptional circumstances justify a reduction in the maintenance of effort, including when an air pollution control agency reduces section 105 funding as part of a non-selective reduction of the programs of all executive branch agencies of the applicable unit of government.
(a) The Regional Administrator will not award section 105 funds to an interstate or intermunicipal agency:
(1) That does not provide assurance that it can develop a comprehensive plan for the air quality control region which includes representation of appropriate State, interstate, local, Tribal, and international interests; and
(2) Without consulting with the appropriate official designated by the Governor or Governors of the State or States affected or the appropriate official of any affected Indian Tribe or Tribes.
(b) The Regional Administrator will not disapprove an application for or terminate or annul a section 105 grant without prior notice and opportunity for a public hearing in the affected State or States.
(a) Purpose of section. Sections 35.160 through 35.168 govern Water Pollution Control Grants to State and interstate agencies (as defined in section 502 of the Clean Water Act) authorized under section 106 of the Clean Water Act.
(b) Purpose of program. Water Pollution Control Grants are awarded to assist in administering programs for the prevention, reduction, and elimination of water pollution, including programs for the development and implementation of ground-water protection strategies. Some of these activities may also be eligible for funding under sections 104(b)(3) (Water Quality Cooperative Agreements and Wetlands Development Grants), 205(j)(2) (Water Quality Management Planning), and section 205(g) (State Administration Grants) of the Clean Water Act. (See §§ 35.160, 35.360, 35.380, 35.400, and 35.410.)
(c) Associated program requirements. Program requirements for water quality planning and management activities are provided in 40 CFR part 130.
Recurrent expenditures are those expenditures associated with the activities of a continuing Water Pollution Control program. All expenditures, except those for equipment purchases of $5,000 or more, are considered recurrent unless justified by the applicant as nonrecurrent and approved as such in the grant award or an amendment thereto.
(a) Allotments. Each fiscal year funds appropriated for Water Pollution Control grants to State and interstate agencies will be allotted to States and interstate agencies on the basis of the extent of the pollution problems in the respective States. A portion of the funds appropriated for States under the Water Pollution Control grant program will be set aside for allotment to eligible interstate agencies. The interstate allotment will be 2.6 percent of the funds available under this paragraph.
(b) State allotment formula. The Water Pollution Control State grant allotment formula establishes an allotment ratio for each State based on six components selected to reflect the extent of the water pollution problem in the respective States. The formula provides a funding floor for each State with provisions for periodic adjustments for inflation and a maximum funding level (150 percent of its previous fiscal year allotment).
(1) Components and component weights —(i) Components. The six components used in the Water Pollution Control State grant allotment formula are: Surface Water Area; Ground Water Use; Water Quality Impairment; Point Sources; Nonpoint Sources; and Population of Urbanized Area. The components for the formula are presented in Table 1 of this section, with their associated elements, sub-elements, and supporting data sources.
(ii) Component weights. To account for the fact that not all of the selected formula components contribute equally to the extent of the pollution problem within the States, each formula component is weighted individually. Final component weights will be phased-in by Fiscal Year (FY) 2004, according to the schedule presented in Table 2 of this section:
Table 2—Component Weights in the Water Pollution Control State Grant Allotment Formula
Component
FY 2000 (percent)
FY2001-FY2003 (percent)
FY2004 + (percent)
Surface Water Area
13
13
12
Ground Water Use
11
12
12
Water Quality Impairment
13
25
35
Point Sources
25
17
13
Nonpoint Sources
18
15
13
Population of Urbanized Area
20
18
15
Total
100
100
100
(2) Funding floor. A funding floor is established for each State. Each State's funding floor will be at least equal to its FY 2000 allotment in all future years unless the funds appropriated for States under the Water Pollution Control grant program decrease from the FY 2000 amount.
(3) Funding decrease. If the appropriation for Water Pollution Control State grants decreases in future years, the funding floor will be disregarded and all State allotments will be reduced by an equal percentage.
(4) Inflation adjustment. Funding floors for each State will be adjusted for inflation when the funds appropriated for Water Pollution Control State grants increase from the preceding fiscal year. These adjustments will be made on the basis of the cumulative change in the Consumer Price Index (CPI), published by the U.S. Department of Labor, since the most recent year in which Water Pollution Control State grant funding last increased. Inflation adjustments to State funding floors will be capped at the lesser of the percentage change in appropriated funds or the cumulative percentage change in the inflation rate.
(5) Cap on annual funding increases. The maximum allotment to any State will be 150 percent of that State's allotment for the previous fiscal year.
(6) Cap on component ratio. A component ratio is equal to each State's share of the national total of a single component. The cap on each of the six State formula components ratios is 10 percent. If a State's calculated component ratio for a particular component exceeds the 10 percent cap, the State will instead be assigned 10 percent for that component. The component ratios for all other States will be adjusted accordingly.
(7) Update cycle. The data used in the State formula will be periodically updated. The first update will impact allotments for FY 2001, and will consist of updating the data used to support the Water Quality Impairment component of the formula. These data will be updated using the currently available Clean Water Act section 305(b) reports. After this initial update, the data used to support all six components of the Water Pollution Control State grant allotment formula will be updated in FY 2003 (for use in the determination of FY 2004 allotments). Thereafter, all data will be updated every five years (e.g., in FY 2008 for FY 2009 allotments and in FY 2013 for FY 2014 allotments.) There will be an annual adjustment to the funding floor for all States, based on the appropriation for Water Pollution Control State grants and changes in the CPI.
(c) Interstate allotment formula. EPA will set-aside 2.6 percent of the funds appropriated for the Water Pollution Control State grant program for interstate agencies. The interstate agency Water Pollution Control grant allotment formula consists of two parts: a funding floor with provisions for periodic adjustments for inflation, and a variable allotment.
(1) Funding Floor. A funding floor is established for each interstate agency. Each interstate's funding floor for FY 2005 will be at least equal to its FY 2003 allotment. Beginning in FY 2006, the interstate funding floor will ensure that unless there is a decrease in the CWA section 106 state appropriation, each interstate will receive at a minimum, the same level of funding received in the previous fiscal year. The funding floor for each interstate agency will be adjusted for inflation when the funds appropriated for states under the Water Pollution Control State grant program increase from the preceding fiscal year. These adjustments will be made on the basis of the cumulative change in the Consumer Price Index (CPI), published by the U.S. Department of Labor, since the most recent year in which Water Pollution Control State grant funding increased. Inflation adjustments to the interstate agency funding floor will be capped at the lesser of the percentage of change in appropriated funds or the cumulative percentage change in the inflation rate. If the appropriation for states under the Water Pollution Control State grant program decreases in future years, the funding floor will be disregarded and all interstate agency allotments will be reduced by an equal percentage.
(2) Variable allotment. The variable allotment provides for funds to be distributed to interstate agencies on the basis of the extent of the pollution problems in the respective States. Funds not allotted under the base allotment will be allotted to eligible interstate agencies based on each interstate agency's share of their member States' Water Pollution Control grant formula allotment ratios. Updates of the data for the six components of the Water Pollution Control State grant allocation formula will automatically result in corresponding updates to the variable allotment portion of the interstate allotments. The allotment ratios for those States involved in compacts with more than one interstate agency will be allocated among such interstate agencies based on the percentage of each State's territory that is situated within the drainage basin or watershed area covered by each compact.
(d) Alternative allotment formula. Notwithstanding paragraphs (b) and (c) of this section, if the Administrator determines that a portion of the funds appropriated under the Water Pollution Control grant program should be allotted for specific water pollution control elements, the Administrator may allot those funds to States and interstate agencies in accordance with a formula determined by him after consultation with the respective States and interstate agencies. The Administrator will make this determination under this paragraph only if EPA's appropriation process indicates that these funds should be used for this purpose.
To receive a Water Pollution Control grant, a State or interstate agency must expend annually for recurrent section 106 program expenditures an amount of non-federal funds at least equal to expenditures during the fiscal year ending June 30, 1971.
(a) The Regional Administrator may award section 106 funds to a State only if:
(1) The State monitors and compiles, analyzes, and reports water quality data as described in section 106(e)(1) of the Clean Water Act;
(2) The State has authority comparable to that in section 504 of the Clean Water Act and adequate contingency plans to implement such authority;
(3) There is no federally-assumed enforcement as defined in section 309(a)(2) of the Clean Water Act in effect with respect to the State agency;
(4) The State's work plan shows that the activities to be funded are coordinated, as appropriate, with activities proposed for funding under sections 205(g) and (j) of the Clean Water Act; and
(5) The State filed with the Administrator within 120 days after October 18, 1972, a summary report of the current status of the State pollution control program, including the criteria used by the State in determining priority of treatment works.
(b) The Regional Administrator may award section 106 funds to an interstate agency only if:
(1) The interstate agency filed with the Administrator within 120 days after October 18, 1972, a summary report of the current status of the State pollution control program, including the criteria used by the State in determining priority of treatment works.
(2) There is no federally-assumed enforcement as defined in section 309(a)(2) of the Clean Water Act in effect with respect to the interstate agency.
(a) Purpose of section. Sections 35.170 through 35.178 govern Public Water System Supervision Grants to States (as defined in section 1401 (13)(A) of the Safe Drinking Water Act) authorized under section 1443(a) of the Act.
(b) Purpose of program. Public Water System Supervision Grants are awarded to carry out public water system supervision programs including implementation and enforcement of the requirements of the Act that apply to public water systems.
(c) Associated program regulations. Associated program regulations are found in 40 CFR parts 141, 142, and 143.
(a) Basis for allotment. The Administrator allots funds for grants to support States' Public Water System Supervision programs based on each State's population, geographic area, numbers of community and non-community water systems, and other relevant factors.
(b) Allotment limitation. No State, except American Samoa, Guam, the Virgin Islands, and the Commonwealth of the Northern Mariana Islands, shall be allotted less than $334,500 (which is one percent of the FY 1989 appropriation).
The Regional Administrator may provide a maximum of 75 percent of the State's approved work plan costs.
(a) Initial grants. The Regional Administrator will not make an initial award unless the applicant has an approved Public Water System Supervision program or agrees to establish an approvable program within one year of the initial award.
(b) Subsequent grants. The Regional Administrator will not award a grant to a State after the initial award unless the applicant has assumed and maintained primary enforcement responsibility for the State's Public Water System Supervision program.
(a) Purpose of section. Sections 35.190 through 35.198 govern Underground Water Source Protection Grants to States (as defined in section 1401(13)(A) of the Safe Drinking Water Act) authorized under section 1443(b) of the Act.
(b) Purpose of program. The Underground Water Source Protection Grants are awarded to carry out underground water source protection programs.
(c) Associated program regulations. Associated program regulations are found in 40 CFR 124, 144, 145, 146, and 147.
The Administrator allots funds for grants to support State's underground water source protection programs based on such factors as population, geographic area, extent of underground injection practices, and other relevant factors.
The Regional Administrator may provide a maximum of 75 percent of a State's approved work plant costs.
The Regional Administrator will only award section 1443(b) funds to States that have primary enforcement responsibility for the underground water source protection program.
STATE AND LOCAL ASSISTANCE (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-40-part-35
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