UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION IX 

75 Hawthorne Street - San Francisco, CA 94,105-3901 

February 6,2004 

MEMORANDUM 

SUBJECT: - The Eligibility of the Gila River Indian Community for Grants Under Section 319 

of the Clean Water Act 

FROM: Danita Yocom, ORC-1 

Assistant Regional Counsel 

THROUGH: Nancy J. Marvel, ORC-1 

Regional Counsel 

TO: Alexis Strauss, WTR- 1 

Director, Water Division 

Attached for your review and signature is a Determination of Eligibility of the Gila River 

Indian Community ("Tribe") Under Section 3 19 of the Clean Water Act ("Determination"). The 

Determination summarizes the review by the Office of Regional Counsel ("ORC") of 

information submitted by the Tribe in connection with its application for a grant under section 

319 of the Clean Water Act ("CWA"), 42 U.S.C. 3 1329. The attached Determination also 

incorporates by reference the primary review performed by the Water Division. Our review is 

based on the criteria established in section 518 of the CWA, 42 U.S.C. 3 1377, and in 40 C.F.R. 

Parts 35 and 130. 

Based on the information submitted by the Tribe, ORC has found that the Tribe meets the 

jurisdictional requirement for eligibility to receive grant funds under section 3 19 of the CWA, 

and we recommend that you sign the attached Determination. If you have any questions 

regarding this matter, please call Danita Yocom at 972-3885. 
EPA DETERMINATION OF ELIGIBILITY OF 

THE GILA RIVER INDIAN COMMUNITY FOR A GRANT 

UNDER SECTION 3 19 OF THE CLEAN WATER ACT 

I. Introduction. 

The Region IX Office of the Environmental Protection Agency ('EPA) has completed 

its review of the information submitted by the Gila River Indian Community (the "Tribe") to 

determine the Tribe's eligibility for a grant under section 3 19 of the Clean Water Act ("CWA"), 

33 U.S.C. 5 1329. This Determination incorporates by reference the review performed by the 

Water Division and is based on the criteria established in section 518 of the CWA, 33 U.S.C. 5 

1377, and in the regulations that implement the Indian provisions of the statute found at 40 

C.F.R. Parts 35 and 130.' This Determination is also based on information set forth in EPA's 

Eligibility Determination in which EPA determined that the Tribe is eligible for a grant under 

section 106 of the CWA, 33 U.S.C. 5 1256. 

11. Requirements for Eligibility under Section 3 19. 

Funds available under section 3 19 of the CWA may be awarded to an Indian Tribe, if EPA 

determines that the Indian Tribe meets the requirements set forth in 40 C.F.R. $ 130.6(d).2 40 

C.F.R. 9 3 5.633. The regulations found at 40 C.F.R. 9 130.6(d) specify that an Indian tribe is 

eligible for a grant under section 3 19 of the cWA3 if: 

(1) the Indian tribe has a governing body carrying out substantial governmental duties and 

powers; 

'EPA published the regulations found in Part 35, Subparts A and H, and Part 130, in an 

Interim Final Rule, 54 Fed. Reg. 14354 (April 11, 1989), and modified such regulations in a 

Final Rule, 59 Fed. Reg. 13814 (March 23, 1994). EPA published new regulations at 66 

Fed.Reg. 3781-3807 (January 16,2001), which, inter alia, incorporated the administrative 

provisions for grants included in 40 C.F.R. Part 35, Subparts A and H, into a new Part 35, 

Subpart B ("Subpart B" ). The Subpart B regulations went into effect on April 17,2001. 

?he requirements of 40 C.F.R. 5 130.6(d) are the same as those set forth in section 

5 18(e) of the CWA. 

3~he rquirements of 40 C.F.R 5 130,6(d) are applicable to all CWA assistance programs 

.administered under 40 C.F.R. Part 35, Subpart B or 40 C.F.R. Part 35, Subparts A and H. 
(2) the functions to be exercised by the Indian Tribe pertain to the management and 

protection of water resources which are held by an Indian Tribe, held by the United States 

in trust for Indians, held by a member of an Indian tribe if such property interest is subject 

to a trust restriction on alienation, or otherwise within the borders of an Indian 

reservation; and 

(3) the Indian Tribe is reasonably expected to be capable, in EPA's judgment, of carrying 

out the functions to be exercised in a manner consistent with the terms and purposes of 

the Clean Water Act and applicable reg~lations.~ 

The terms "Tribe and "Indian tribe" are defined as "any Indian tribe, band, group, or community 

recognized by the Secretary of the Interior and exercising governmental authority over a Federal 

Indian reservation." Section 5180 of the CWA; 40 C.F.R. $5 35.632, 130.2(b), respectively. 

111. Determination of the Tribe's Eli~ibilitv. 

A. Determination as to Recognition and Government. 

When the Tribe applied for and received a grant under section 106 of the CWA, the Tribe 

demonstrated that it: (1) meets the definition of an "Indian tribe," as set forth in section 5 18(h); 

and 40 C.F.R. $5 35.632, 130.2(b); and (2) has a governing body carrying out substantial 

governmental duties and powers. Accordingly, based on this previous demonstration, EPA has 

determined that the Tribe meets the requirements of 40 C.F.R. 5 130.6(d)(l) and section 

5 18(e)(l) of the CWA for purposes of section 3 19 of the CWA. 

B. Jurisdiction. 

Once EPA makes a determination that a tribe meets the jurisdictional criteria of Section 

5 18(e)(2) of the CWA, EPA does not need to conduct a separate review to verify that a tribe 

meets such criteria in subsequent tribal applications under the CWA, unless the subsequent 

application "raises different legal issues." 59 Fed. Reg. 1 3 8 14, 1 38 16. Accordingly, EPA has 

limited its inquiry here to whether the Tribe's section 3 19 application raises different legal issues 

requiring additional information regarding the Tribe's authority to conduct activities within the 

scope of the section 3 19 program. 

Based upon the Office of Regional Counsel's review, EPA has determined that nothing in 

the Tribe's application for financial assistance under section 3 19 of the CWA raises legal issues 

regarding the Tribe's jurisdiction which differ from the legal issues reviewed by EPA in 

determining that the Tribe is eligible to receive grants pursuant to section 106. Therefore, EPA 

finds that the Tribe has demonstrated that it meets the jurisdictional requirements of 40 C.F.R. 

4~hile these regulations implementing Section 518 do not elaborate upon the statutory 

requirements, the preamble to the Interim Final Rule provides guidance for adequately 

demonstrating that a tribe meets the statutory criteria. 
8 130.6(d)(2) and section 5 18(e)(2) of the CWA. This finding of tribal jurisdiction applies only 

to the activities within the scope of section 3 19 of the CWA. 

C. Capability. 

Based upon the Water Division's review of the Tribe's application for financial assistance 

under section 3 19 of the CWA, EPA has determined that the Tribe has demonstrated that it is 

capable of administering a section 3 19 program. (See, attached memorandum from Kristin 

Gullatt, State, Tribal, and Municipal Programs Oflice, Water Division, to Nancy Marvel, 

Regional Counsel, dated December 19,2003.) Accordingly, the Tribe has demonstrated that it 

meets the requirements of 40 C.F.R. 8 130.6(d)(3) and section 5 18(e)(3) of the CWA. 

IV. Conclusion. 

Based upon the foregoing and information submitted by the Tribe, EPA has determined 

that the Tribe is eligible to receive grant funds under section 3 19 of the CWA, pursuant to section 

51 8 of the CWA and 40 C.F.R. Parts 35 and 130. 

Date: 16 pk 

Alexis Strauss 

Director, Water Division 

U.S. Environmental Protection Agency, Region IX 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION IX 

75 Hawthorne Street 

San Francisco, CA 94105 

MEMORANDUM 

DATE: December 19,2003 

SUBJECT: Gila River Indian Community Application for Financial Assistance with respect to 

the Nonpoint Source Program under the Clean Water Act's Section 319 

FROM: Kristin Gullatt, C 

State, Tribal, and ce, Water Division (WTR-10) 

TO: Nancy Marvel, Regional Counsel (OR-1) 

The purpose of this memorandum is to inform you of the results of our review of the 

subject application and establish a record for the files. Our review, which supplements the legal 

review to be performed by our Olice, is based ua die criteria established for tl.eatment as a State 

in Section 518 of the Act, 33 U.S.C. Section 1377, and in the regulations implementing the 

Indian provisions of the statute at 40 C.F.R., Part 130 which were included in an Interim Final 

Rule published by EPA at 54 Fed. Reg. 14354 (April 11, 1989), and 40 C.F.R. Parts 35 and 130 

Indian Tribes: Eligibility of Indian Tribes for Financial Assistance; Final Rule. , 

Section 518(e) of the Clean Water Act establishes three criteria which must be satisfied in 

order for an Indian Tribe to qualify for treatment as a State. These criteria are as follows: 

(12 . The Tr@e musthave . a-governing - - body - carrying - - - out - substantial - - - governmental .- -- - - - - - 

duties and powers; 

(2) The functions to be exercised by the Indian Tribe must pertain to the management 

and protection of water resources which are held by the Tribe, held by the United 

States in trust for Indians, held by a member of the Tribe if such property interest 

is subject to a trust restriction on alienation, or are otherwise within the borders of 

the Indian Reservation; and 

(3) The Tribe is reasonably expected to be capable, in the Administrator's judgment, 

of carrying out the functions to be exercised in managing and protecting the 

resources in a manner consistent with the terms and purposes of Section 5 18 of 

the Act and all applicable regulations. 

Section 5 18 (h) of the Act further requires that to be eligible for treatment as a State, Indian 

Tribes must be recognized by the Secretary of the Interior, and must exercise governmental 

authority over a Federal Indian Reservation. 

The regulations which implement the Indian provisions of the Act, which are codified at 

40 C.F.R. Parts 35 and 130 as published in the March 23, 1994 Federal Register, reiterate the 

statutory requiremen.ts. However, the preamble to the regulations provides additional guidance to 
Tribes regarding the supporting documentation they must include in their applications. 

Moreover, these regulations implement revised EPA policy which discontinues the use of the 

term "treatment as a State" applications and in its place substitute the terms "financial assistance" 

(FAE) applications when federal funding is being requested and "program authorization" 

applications when authority is being requested to implement a Clean Water Act program such as 

Water Quality Standards under $303. 

With the exception of the legal basis for the Tribe's authority under Part IIt (see below), 

we have determined that it has satisfied the requirements for financial assistance under Section 

319 of the Clean Water Act. Specifically, we have concluded as follows: 

I. Recognition of the Tribe by the Secretary of the Interior 

The applicant, Gila River Indian Community, is included on the Secretary of the Interior's 

list of "Indian Entities Recognized and Eligible to Receive Services from the United 

States Bureau of Indian Affairs." (Refer to the November 13, 1996 Fed. Reg. Document 

96-28935). In formally recognizing the Tribe, the Department of the Interior in effect has 

affirmed that it exercises governmental authority over a Federal Indian reservation, as , 

rcquired by Section 5 18(h)(2) of the Clean Water Act. 

II. The Tribe has a Governing Body Carrying Out Substantial Govcmmental Duties and 

Powers 

The preamble to the April 11, 1989 regulations implementing Section 518 of the Clean 

Water Act specifies that to meet this requirement, Tribes must provide EPA with a 

-narrative statement: (I) describing the form of Tribal government; (2) describing the 

types of essential governmental functions currently performed; and (3) identifying the 

sources of authorities to perform these functions (e.g. Tribal constitutions, codes, etc.). 

Fed. Reg. At 14355. 

Our review of the subject application indicates that this criterion has been satisfied. 

Specifically, the narrative statement (provided in the December 11,2003 application 

submittal letter) and the Constitution and By-Laws of the Gila River Indian Community, 

Arizona and other ordinances submitted with the application (Attachment C) provides an 

adequate description of the Tribe's governmental structure, duties, and functions. 

ID. The functions to be Exercised by the Tribe Pertain to the Management and Protection of 

Water Resources Held by the Tribe . . . or otherwise Within the Borders of the 

Reservation 

The preamble to the April 11, 1989 regulations indicates that to document its authority in 

this area, a Tribe must submit a statement from its Attorney General or an equivalent 

official which explains the legal basis for the Tribe's authority to manage and protect the 

water resources located on the reservation. 
To satisfy this criteria the applicant has submitted a letter from Rod Lewis, General 

Counsel, Gila River Indian Community. This letter describes the Tribe's legal basis for 

regulatory authority over water resources within the Gila River Indian Community (see 

the "Tribal Attorney Letter", application Attachment E). In addition, the Community 

Council has enacted the "Solid Waste Disposal Ordinance (GR-04-95)", dated April 19, 

1995 (Attachment F), which addresses the applicant's emergency powers per Section 504 

of the Clean Water Act. This memorandum will not provide comments with respect to 

the jurisdictional aspect of the application as it is more appropriately the responsibility of 

your Office. 

IV. The Tribe is Reasonably Expected to becapable of Carrying Out the Water Resources 

Management and Protection Functions Discussed Above 

In determining whether an Indian Tribe is capable of administering an effective resource 

management and protection program, The Regional Administrator may consider (but is 

not limited to) several factors which are enumerated in the preamble to the April 11, 1989 

regulations. In reviewing the application, we have concluded that the applicant has 

submitted substantial information regarding each of the five factors specified in the 

preamble to the regulations and, therefore, has demonstrated its capability to implement 

and manage water resources and protection programs. The application's Attachments D, 

E, and G, and the narrative statement in the December 11,2003 application submittal 

letter provide water quality staff resumes and describes previous and current water quality 

programs (CWA 9 106 and § 104(b)(3))and other environmental programs successfully 

administered by the Tribe. 

V. Conclusion 

Based on the above discussion, the Water Division has determined that the subject 

applicant has adequately addressed three of the four criteria for approval of its financial 

assistance application, namely: (1) federal recognition, (2) governmental adequacy, and 

(3) capability to administer the program. At such time as our Office is able to arrive at a 

positive determination with respect to the fourth requirement (the legal basis of the 

applicant's regulatory authority over its water resources), the Region will be able to 

conclude that it qualifies for financial assistance under Section 3 19 of the Clean Water 

Act. 

If you have any questions regarding this matter, please call me or JenCe Gavette at (415) 

972-3439, of my staff. 

Attachment: FAE application 

cc: WTR-10 Reading File