r

I 

# GILA 

# RIVER INDIAN COMMUNITY
SACATON, 

## AZ 

# 85247

LAW OFFICE Post Office Box 97 (520) 562-6200 Fax: (520) 562-6233



### December 11,2003

Ms. Jenee Gavette Non-Point Source Coordinator U.S. Environmental Protection Agency Region 

### IX 75 Hawthorne Street San Francisco, Ca. 94105-3901

Dear 

### Ms. Gavette:

The Gila River Indian Community (Community) intends to submit a request for a Clean Water Act Section 3 19 non-point source grant for 

### FY 2004. As part ofthe Community's request, the Community's legal department (Law Office) was asked to submit a statement describingthe basis for Community authority over water resources located within the boundaries ofthe Gila River Indian Community Reservation. The Law Office is pleased to assist in this request; however, there are somepreliminary matters that must be addressed.

After reviewing existing guidelines obtained from the United States Environmental Protection Agency's website' and draft guidelines obtained from the EPAYs point of contact2 for 

### FY 2004 tribal 319(h)program, the ~ommunity i6 aware that "[all1 Section 319(h) grants will be awarded and administered consistent with the statutory requirements in section3 319(h) 

### and 

### 518(e) ofthe Clean Water Act arid applicable regulationsin 40 CFR Parts 3

### 1 and 35." Accordingly, the Community will briefly discuss the applicable regulations.



## ' htto://www.~a.~ov/owow/n~s/~bes/fv03puide.html, last accessed December 10, 2003.

Ed Drabkowski. U.S. EnvironmentalProtection Agency (4503T), 1200Pe~lnsylvania Avenue, NW, Washington, DC 20460. (202) 566-1198, drabkowski.ed@e~a.gov. Mr. Drabkowski was kind enough to send, via electronic mail, a draft copy ofthe "Guidelines onAwarding Section319 Grants to IndianTribes in FY 2004".

The word "section" is capitalized in some documentsbut appears in lowercase in others. Toremain consistent with the most recent EPA-issued guidelines, when referring to a specific section, that word willbe capitalized.

### Clean Water Act Sections 

### i Although Section 3 1901)is the controlling source for the grant program, the CleanWater Act directly address Indian Tribes in Section 518. Section 518(e)describes in great detail the method by which Indian tribes may be treated as states for Section 319 grants. Section 5 18(e) identifies three requirements applicant tribes must satisfy in order to receive treatment as states (TAS) under Section 319. The sectionprovides that to the degree necessary, tribes can be treated as states only if

1. the Indian Tribe has a governing body carrying out substantial governmental duties and powers; 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 bibe 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 the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the temls and purposes of [the Clean Water 

### Act] and of all applicable regulations.

Section 518(f) directly addresses nonpoint sourceprogram grants. It states "the Administrator shall make grants to an Indian tribe under section 319 of [the Clean Water Act]
as though such tnbe was a state." Clean Water Act 518(f), 33 U.S.C. 1377(f) (2000). The Section states that in addition to Section 319's provisions, the applicant tribe "shall be required to meet the requirements ofparagraphs (I), (2), and (3) of subsection (d) of [Section 5181in order to receive such a grant. As subsection (d) does not contain any numbered paragraphs, it is believed that this languagerefers to the three provisions identified in Section 518(e).

Code of Federal Re~uIations

40 CFR 3 1 describes the administrative requirements applicableto state and local government grant recipients. 40 CFR 35.630 - 638 detail the methodby which Indian tribes qualify for nonpoint source management grants under Section 3 19(h)and 5 18(f)ofthe Clean Water Act. 40 CFR 35.633 states that tribes are eligible for such grants if the applicant tribe "meets the requirements for treatment in a manner similar to a Stateunder section 5 18(e) of the Clean Water Act.



### . . ." While perfectly clear 

### that tribes may seek nonpoint source funding, there appears to be some confusion as to 

### how applicant tribes seek funding. A sample nonpoint source program request letter the Cornunity obtained indicated that 40 CFR 130.8(b)(3) specified program submissionrequirements.4 However, the Community strongly believes that 40 CFR

4 Subparagraph (b)(3) states in its entirety "Each suchreport shall include but is not limited to the following: [a]n estimate ofthe environmental, economic and social costs and benefits needed to achieve the objectives of the CWA and
an estimate of the date of such achievement." The Community respectfdly believes that a tribalprogram submission. - 

### 123.31 ("Requirements for eligibility of Indian Tribes") and 40 CFR 123.32("Request by an Indian Tribe for a determination of eligbility") much more clearly defines what information applicant tribes need to submit. While the Law Officerecognizes that 40 CFR 123.31and 123.32address tribal requests for NPDES permit approval and not necessarily nonpoint source funding,the Communitybelieves that those sections will provide the USEPA with all ofthe information itneeds to consider our request. Accordingly,the Community Law Office understands that we have been requested to submit

a statement by the Tribal Attorney General (or equivalent officials authorized to represent the Tribe in all legal matters in court pertaining to the program for which it seeks approval) which describes the basis for the Tribe's assertion (includingthe nature or subject matter ofthe asserted regulatory authority).

. 

## . . 40 CFR 123.32(c). With these preliminary mattersnow discussed, the Law Office is pleased to support and affirm certification of legal authority as required by the EPA to obtain Clean Water Act Section 

### 319Non-Point SourceFunding.

The GRIC is a 

### federally recognized Indian Tribe as published in the Federal Register. A copy ofthe Federal Regster isprovided as Attachment 

### B of the Financial Assistance Eligibility Application Checklist.

\ An 

### act of Congress establishedthe original boundaries ofthe Gila hverIndian Community Reservation (Reservation) on February 28, 1859. The reservation covers approximately 581 square miles of south central Anzona. The reservation population consists primasily of ofAlumel O'odham (Pima) and Pee Posh (Maricopa) peoples. A copy of Executive Orders issued by various Presidents of the United States specifying the legal description ofthe Community and its reservation are included here for your reference.

Pursuant to the express delegation of authority by Congress under the Indian Reorganization Act (2

### 5 

### U.S



### .C. 

## 55 461 et seq.), which provided the Community authority to organize and adopt the Gila River Indian Community Constitution and Bylaws (March 17, 1960) and to enact ordinances governingconduct withthe exterior boundaries ofthe reservation (25U.S.C. 

## 4 476) the Community will regulate activities withn the reservationas outlined under Montana v. 

### United States, 450 U.S. 544 (198 1).

While the Community is well familiar with the array of United States Supreme Court cases and trends in Indian Law post-Montana, specifically the cases addressing tribal jurisdiction over non-members, the Community is also aware that Montanaremains a hallmark case in 

### the area of civiljurisdiction over non-members who enter consensual relationships with tribes. Accordingly,the Community finds that non-members engaged in conduct or activities within the reservationpursuant to a lease agreement or contract

.... under this language would inadequate the EPA's goals. Accordingly,the Community is instead followingthe programmaticrequirements of40 CFR 123.32.have expressly agreed to the Communityjurisdiction and are subject to regulation under the Community laws, ordinances and regulations. The Community further finds that if left unregulated, compliance and enforcement issues pursuant to Clean Water Act Section 319 could pose an imminent threat to the political integrity, economic security, and health and welfare of the Community.

The Community tribal governmenthas a long history of government-togovernment relationshp with the United States ofAmerica. The Co~nrnunity revised its constitution in 1960, and on March 17, 1960the U.S. Department of the Interior approved the Constitution and Bylaws of the GRIC. The Constitution and Bylaws and over 43 years of 

### G~vernment~to-Government interaction demonstratesthe GRIC' s inherent authorityto regulate.

As a whole, the Comm~mity manages many millions of dollars in federal grants from a variety of agencies and has always been considered "in good standingJ'with regards to responsibilities. The GRIC Department of Environmental Quality (GRDEQ) is experienced at grant management and has twice before completed Treatment as State Applications for 

### GRDEQ programs. On March 30, 1990 the GRIC was the first Region 9 Tribe to be grantedTAS under the Clean Water Act, Section 106. On March 26, 1999the GRIC was the first Region 9 Tribe to be granted TAS status under the Clean Air Act, Section 105. Copies of both EPA determination letters are provided with the current Clean Water Act, Section 3 19grant application as Attachment 

### H.

The GRIC established a Water Quality Program in May of 1990 and a Department of Environmental Quality in 1995.The Water Qualityprogram is now one of six differentprograms operated by the GRIC Department of Environmental Quality. Each of the six programs have been recogmzed by the EPA for a number of nlilestones in environmental stewardship.

At thstime the GRIC Department of Environmental Quality would like to increase the management and stewardship of the water resources by applying for Section 319 grant funding. The Water Quality Program is currently in the process of developing a Municipal Waste Water Management Ordinance, A GroundwaterQuality Management Ordinance, Groundwater Quality Standards, and MinimumWell Construction and Decommissioning Standards.The Water Quality Programhas completedin recent years a Well Head Protection Strategy,Dry Well Management Standards and a Storm Water Management Plan. The success ofthese programs demonstrates the GRICJs inherent ability to manage water resources.
To this end the GRIC Dsvartment of Environmental Qualityhas prepzed the December 10,2003 Financial Eligibility Application for Section 3 19 Non-Point Source Funding. If you have any questions about this letter or the program submission package, please contact Glenn Stark or Bruce Robinson at (520) 562-2234.

### Gila River b%&&Eomn~~~nit~

cc: Honorable Richard Narcia, Governor Gila River Indian Conmnity Pat Mariella, GRIC Department of Environmental Quality Director Glenn 

### Stark, GRTC Water Quality Prog-ram Manager Bruce Robinson, GRIC Water Quality Program Groundwater Hydrologist

Attachment: Part 

### I11 of the Executive Orders Relating to Reserves for Pima and Maricopa or Gila &ver Reserves.