### UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGION IX 75 

### Hawthorne Street

- 

### San Francisco, CA 94,105-3901 February 6,2004 

### MEMORANDUM SUBJECT: - The Eligibilityof 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

Attachedfor your review and signature is a Determination of Eligibility of the Gila River Indian Community ("Tribe") Under Section 319of the Clean Water Act ("Determination"). The Determination summarizesthe 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"), 42U.S.C. 

### 3 1329. The attached Determination also incorporates by reference the primary review performedby 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 submittedby 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 attachedDetermination. 

### If you have any questions regarding this matter, please call Danita Yocom at 972-3885.EPA DETERMINATION OFELIGIBILITY OF 

### THE GILA RIVER INDIAN COMMUNITYFOR A GRANT UNDER SECTION 3 19OF

### THE CLEAN WATER ACT

I. Introduction. The Region 

### IX Office of the Environmental Protection Agency ('EPA) has completed its review of the information submittedby the Gila River Indian Community (the "Tribe") to determinethe Tribe's eligibilityfor a grant under section 3 19of the Clean Water Act ("CWA"), 33 U.S.C. 

### 5 1329. This Determination incorporates by referencethe 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 regulationsthat 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 EligibilityDetermination 

### in which EPA determined that the Tribe is eligible for a grant under section 106of the CWA, 33 U.S.C. 

### 5 1256.

11. Requirementsfor Eligibility under Section 3 19. Funds available under section 319of the CWA may be awarded to an Indian Tribe, if EPA determinesthat the Indian Tribemeets the requirements set forth 

### in 40 C.F.R. 

### $ 130.6(d).2 40 C.F.R. 

## 9 35.633. The regulations found at 40 C.F.R. 

## 9 130.6(d) specifythat an Indian tribe is eligible for a grant under section 3 19of 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, 54Fed. Reg. 14354(April 11, 1989), and modified such regulations in a Final Rule, 59Fed. 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 regulationswent into effect on April 17,2001. ?he requirementsof 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 functionsto be exercisedby the Indian Tribe pertain to the management and protection ofwater 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 expectedto be capable, in EPA's judgment, ofcarrying out the functions to be exercised in a manner consistentwith the terms and purposes of the Clean Water Act and applicablereg~lations.~ The terms "Tribe and "Indian tribe" are defined as "any Indian tribe, band, group, or community recognized by the Secretary ofthe Interior and exercisinggovernmentalauthority over a Federal Indianreservation." Section 5180of 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 106ofthe CWA, the Tribe demonstratedthat it: (1) meets the definitionof 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 governingbody carrying out substantial governmental duties and powers. Accordingly, based on this previous demonstration, EPA has determined that the Tribe meets the requirements of40 C.F.R. 

## 5 130.6(d)(l) and section 5 18(e)(l)ofthe CWA for purposes of section 3 19of the CWA. B. Jurisdiction. Once EPA makes a determination that a tribe meets the jurisdictional criteria of Section 5 18(e)(2)ofthe CWA, EPA does not need to conduct a separate reviewto verify that a tribe meets such criteriain subsequent tribal applications under the CWA, unless the subsequent application "raises differentlegal issues." 59 Fed. Reg. 1 3 8 14, 1 3816. Accordingly,EPA has limited its inquiryhere to whether the Tribe's section 3 19application raises different legal issues requiring additional informationregarding the Tribe's authorityto conduct activitieswithin the scope of the section 3 19program. 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 19of the CWA raises legal issues regarding the Tribe's jurisdiction which differ from the legal issuesreviewed by EPA in determining that the Tribe is eligible to receive grantspursuant to section 106. Therefore, EPA finds that the Tribe has demonstrated that it meets thejurisdictional requirements of40 C.F.R.

4~hile these regulationsimplementing Section 518 

### do not elaborate upon the statutory requirements, the preamble to the InterimFinal 

### Rule provides guidance for adequately demonstratingthat a tribe meets the statutory criteria.

## 8 130.6(d)(2)and section 518(e)(2)of the CWA. This finding oftribaljurisdiction applies only to the activitieswithin 

### the scope of section 3 19ofthe CWA. C. Capability. Based upon the Water Division's review ofthe Tribe's application for financial assistance under section 3 19ofthe CWA, EPA has determinedthat the Tribe has demonstrated that it is capable of administering a section 3 19program. (See, attachedmemorandum 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 of40 C.F.R. 

## 8 130.6(d)(3)and section 518(e)(3)ofthe CWA.



### IV. Conclusion. Based upon the foregoingand information submittedby the Tribe, EPA has determined that the Tribe is eligible to receive grant funds under section 319ofthe CWA, pursuant to section 518 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 IXUNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGION IX 75 HawthorneStreet San Francisco, CA 94105

MEMORANDUM DATE: December 19,2003 SUBJECT: Gila River Indian Community Application for Financial Assistance with respect to the Nonpoint SourceProgram 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 memorandumis to inform you of the results of our review of the subject application and establish a record for the files. Our review, which supplementsthe 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 implementingthe Indian provisions of the statute at 40 C.F.R., Part 130which 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 forFinancial 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 andpowers; (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 Statesin 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'sjudgment, of carrying out the functionsto be exercised in managing and protecting the resources in a manner consistent with the terms and purposes of Section 518 of the Act and all applicableregulations. Section 5 18 (h) of the Act furtherrequires that to be eligible for treatment as a State, Indian Tribes must be recognizedby 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 130as published in the March 23, 1994Federal Register, reiterate the statutoryrequiremen.ts. However, the preamble to the regulations provides additional guidance toTribes regarding the supporting documentation they must include in their applications. Moreover, these regulations implement revised EPA policy which discontinuesthe use of the term "treatment as a State" applicationsand 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 authorityunder Part 

### IIt (see below), we have determined that it has satisfied the requirements for financial assistanceunder Section 319 of the Clean Water Act. Specifically, we have concluded as follows: I. Recognition of the Tribe by the Secretaryof 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." (Referto the November 13, 1996Fed. Reg. Document 96-28935). In formallyrecognizing 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 GoverningBody 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) describingthe types of essential governmental functions currentlyperformed; and (3) identifyingthe 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 11,2003application 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, 1989regulations 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 thejurisdictional 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 FunctionsDiscussed Above In determining whether an Indian Tribe is capable of administering an effectiveresource management and protection program, The Regional Administratormay consider (but is not limited to) several factors which are enumerated in the preamble to the April 11, 1989 regulations. In reviewingthe 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 AttachmentsD, 

### E, and G, and the narrative statementin 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))andother environmentalprograms successfully administered by the Tribe. V. Conclusion Based on the above discussion, the Water Division has determined that the subject applicant has adequately addressedthree 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 determinationwith respect to the fourth requirement (the legal basis of the applicant's regulatory authority over its water resources), the Region will be able to concludethat it qualifies for financial assistance under Section 3 19of 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