r 

I GILA RIVER INDIAN COMMUNITY 

SACATON, AZ 85247 

LAW OFFICE 

Post Office Box 97 

(520) 562-6200 Fax: (520) 562-6233 

Ms. Jenee Gavette December 1 1,2003 

Non-Point Source Coordinator 

U.S. Environmental Protection Agency 

Region IX 

75 Hawthorne Street 

San Francisco, Ca. 941 05-3901 

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 of the Community's 

request, the Community's legal department (Law Office) was asked to submit a statement 

describing the basis for Community authority over water resources located within the 

boundaries of the Gila River Indian Community Reservation. The Law Office is pleased to 

assist in this request; however, there are some preliminary 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 3 19(h) program, the ~ommunity i6 aware that "[all1 Section 

3 19(h) grants will be awarded and administered consistent with the statutory requirements in 

section3 3 19(h) and 5 1 8(e) of the Clean Water Act arid applicable regulations in 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. Environmental Protection Agency (4503T), 1200 Pe~lnsylvania Avenue, NW, Washington, DC 

20460. (202) 566-1 198, drabkowski.ed@e~a.gov. Mr. Drabkowski was kind enough to send, via electronic mail, a 

draft copy of the "Guidelines on Awarding Section 319 Grants to Indian Tribes in FY 2004". 

The word "section" is capitalized in some documents but appears in lowercase in others. To remain consistent with 

the most recent EPA-issued guidelines, when referring to a specific section, that word will be capitalized. 
Clean Water Act Sections 

i 

Although Section 3 1901) is the controlling source for the grant program, the 

Clean Water Act directly address Indian Tribes in Section 5 18. Section 5 18(e) describes in 

great detail the method by which Indian tribes may be treated as states for Section 3 19 grants. 

Section 5 18(e) identifies three requirements applicant tribes must satisfy in order to receive 

treatment as states (TAS) under Section 3 19. The section provides 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 5 1 8(f) directly addresses nonpoint source program grants. It states "the 

Administrator shall make grants to an Indian tribe under section 3 19 of [the Clean Water Act] 

as though such tnbe was a state." Clean Water Act 5 18(f), 33 U.S.C. 1377(f) (2000). The 

Section states that in addition to Section 3 19's provisions, the applicant tribe "shall be required 

to meet the requirements of paragraphs (I), (2), and (3) of subsection (d) of [Section 5 181 in 

order to receive such a grant. As subsection (d) does not contain any numbered paragraphs, it is 

believed that this language refers to the three provisions identified in Section 5 18(e). 

Code of Federal Re~uIations 

40 CFR 3 1 describes the administrative requirements applicable to state and local 

government grant recipients. 40 CFR 35.630 - 638 detail the method by which Indian tribes 

qualify for nonpoint source management grants under Section 3 19(h) and 5 18(f) of the 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 State under 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 submission requirements.4 However, the Community strongly believes that 40 CFR 

4 Subparagraph (b)(3) states in its entirety "Each such report shall include but is not limited to the following: [a]n 

estimate of the 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 tribal program 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 Office recognizes that 40 CFR 123.31 and 

123.32 address tribal requests for NPDES permit approval and not necessarily nonpoint source 

funding, the Community believes that those sections will provide the USEPA with all of the 

information it needs 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 (including the nature or subject matter of the 

asserted regulatory authority). . . . 

40 CFR 123.32(c). With these preliminary matters now 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 3 19 Non-Point Source Funding. 

The GRIC is a federally recognized Indian Tribe as published in the Federal 

Register. A copy of the Federal Regster is provided as Attachment B of the Financial 

Assistance Eligibility Application Checklist. 

\ 

An act of Congress established the original boundaries of the Gila hver Indian 

Community Reservation (Reservation) on February 28, 1859. The reservation covers 

approximately 581 square miles of south central Anzona. The reservation population consists 

primasily of of Alumel 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 of the 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. 5 5 46 1 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 governing conduct with the exterior boundaries of the 

reservation (25 U.S.C. 4 476) the Community will regulate activities withn the reservation as 

outlined under Montana v. United States, 450 U.S. 544 (1 98 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 

Montana remains a hallmark case in the area of civil jurisdiction over non-members who enter 

consensual relationships with tribes. Accordingly, the Community finds that non-members 

engaged in conduct or activities within the reservation pursuant to a lease agreement or contract 

.... 

under this language would inadequate the EPA's goals. Accordingly, the Community is instead following the 

programmatic requirements of 40 CFR 123.32. 
have expressly agreed to the Community jurisdiction 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 3 19 could 

pose an imminent threat to the political integrity, economic security, and health and welfare of 

the Community. 

The Community tribal government has a long history of government-togovernment relationshp with the United States of America. The Co~nrnunity revised its 

constitution in 1960, and on March 17, 1960 the 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 demonstrates the GRIC' s inherent authority to 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 granted TAS under 

the Clean Water Act, Section 106. On March 26, 1999 the 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 19 grant 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 Quality program is now one of six 

different programs 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 ths time the GRIC Department of Environmental Quality would like to 

increase the management and stewardship of the water resources by applying for Section 3 19 

grant funding. The Water Quality Program is currently in the process of developing a Municipal 

Waste Water Management Ordinance, A Groundwater Quality Management Ordinance, 

Groundwater Quality Standards, and Minimum Well Construction and Decommissioning 

Standards. The Water Quality Program has completed in recent years a Well Head Protection 

Strategy, Dry Well Management Standards and a Storm Water Management Plan. The success 

of these programs demonstrates the GRICJs inherent ability to manage water resources. 

To this end the GRIC Dsvartment of Environmental Quality has 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.