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Appendix Ii Application and Supporting Materials for Authorization Under Clean Water Act 518 for Purposes of Administering Wate

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Appendix Ii Application and Supporting Materials for Authorization Under Clean Water Act 518 for Purposes of Administering Wate APPENDIX II APPLICATION AND SUPPORTING MATERIALS FOR AUTHORIZATION UNDER CLEAN WATER ACT 518 FOR PURPOSES OF ADMINISTERING WATER QUALITY STANDARDS AND CERTIFICATION PROGRAMS UNDER §§ 303(c) and 401 Senec.a Nation of Indians Nt1T10/y ^ President - Todd Gates `Q► ^ Treasurer - Maurice A. John, Sr. Clerk - Lenith K. Waterman 12837 ROUTE 438 90 OHI:YO WAY CATTARAUGUS TERRITORY t% ALLEGANY TERRITORY SENECA NATION SENECA NATION IRVING, NY 14081 SALAMANCA, NY 14779 o o A ^ Q Tel. (716) 532-4900 ^ Tel. (716) 945-1790 FAX (716) 532-6272 of the •Wese k° FAX (716) 945-0150 PRESIDENT'S OFFICE March 28, 2018 Peter D. Lopez Regional Administrator U.S. Environmental Protection Agency, Region 2 290 Broadway New York, NY 10007-1866 RE: Seneca Nation's Application for Recognition of Eligibility for CWA fi 106 Grant and for Authorization to Implement Water Quality Standards and Certification Programs Under CWA §§ 303 and 401 Dear Mr. Lopez: The Seneca Nation of Indians is applying to the U.S. Environmental Protection Agency under Section 518(e) of the Clean Water Act, 33 U.S.C. § 1377(e), for eligibility to obtain a grant under CWA § 106, 33 U.S.C. § 1256, and to administer a water quality standards program pursuant to CWA § 303, 33 U.S.C. § 1313, and a water quality certification program under CWA § 401, 33 U.S.C. § 1341. The application and supporting documentation are included with this letter. Thank you in advance for your prompt attention to this matter. If you have any questions, please do not hesitate to contact Lisa Maybee, Director, Seneca Nation Environmental Protection Department, at 716-532-4900 ex. 5445, [email protected] , or Jill Grant, environmental attorney for the Seneca Nation, at 202-821-1950, [email protected] . Sincerely your , Todd Gates President, Seneca Nation y0N30N0dS38>'00u:3it1oJ;^0'` Z N01032: Vc3'S'SI S^ I WV L i8dV 8 I Ot cc: Argie Cirillo, Assistant Regional Counsel, EPA Region 2 03A I D`) 3:^ SENECA NATION OF INDIANS P NATION °f ALLEGANY TERRITORY A CATTARAUGUS TERRITORY 90 Ohi:yo' Way ^L ^ 7'^ 12837 Route 438 P. O. Box 231 Irving, New York 14081 Salamanca, New York 14779 y ^ ^ ut (1^::^e ® Phone: (716) 945-1790 ^^ ®j Phone: (716) 532-4900 Fax: (716) 945-6869 ^^ o Fax: (716) 945-6869 (no!(or aerrere ^ij"j:uperr) ^ `c (rrot fnr renzte o% paperrJ e - fAe VleSl LEGAL DEPARTMENT STATEMENT OF LEGAL COUNSEL FOR THE SENECA NATION OF INDIANS REGARDING REGULATORY AUTHORITY AND JURISDICTION TO ADMINISTER A CWA § 106 GRANT AND CWA §§ 303 AND 401 WATER QUALITY STANDARDS AND CERTIFICATION PROGRAMS The Seneca Nation of Indians ("Nation" or "SNI") submits this jurisdictional statement as part of its application for recognition of eligibility ("Application") under Section 518(e) of the Clean Water Act ("CWA"), 33 U.S.C. § 1377(e), to receive and administer a grant under CWA § 106, 33 U.S.C. § 1256, and to administer water quality standards and certification programs under CWA §§ 303 and 401, 33 U.S.C. §§ 1313 and 1341. The Nation asserts authority to obtain this grant and administer these programs over all waters within the Seneca Nation Territories. I. The Seneca Nation Territories are Equivalent to "Reservation" under CWA § 518(e) The Seneca Nation Territories consist of five areas located in Western New York: the Allegany Territory; the Cattaraugus Territory; the Oil Spring Territory; the Buffalo Creek Territory; and the Niagara Falls Territory. See map attached as Application Exhibit 3. The Allegany Territory consists of 31,180.9 acres and is located along the Allegany River in Cattaraugus County, New York, around 70 miles south of Buffalo. Approximately 10,000 acres were taken by the United States on permanent easement for the Kinzua Dam and Reservoir and were inundated following construction of those facilities. The Cattaraugus Territory consists of 22,060.8 acres and is located along Cattaraugus Creek in Cattaraugus, Chautauqua and Erie Counties, New York. The Oil Spring Territory consists of 641.9 acres near Cuba, New York on the border of Cattaraugus and Allegany Counties. The Buffalo Creek Territory is located in Buffalo City in Erie County, New York and is just under 10 acres. The Niagara Falls Territory is located in Niagara Falls City in Niagara County, New York and is approximately 56.2 acres. Both areas were acquired in connection with the New York State Gaming Compact. These five Territories constitute the Nation's "reservation" for purposes of CWA § 518(e), as discussed below.l ` The Buffalo Creek and Niagara Falls Territories do not contain any surface waters, and therefore the Seneca Nation Environmental Protection Department would not be administering CWA water quality standards or certification programs in those Territories. A. The Meaning of "Reservation" under CWA § 518(e) CWA § 518(e)(2) provides that an Indian tribe is eligible to administer various CWA programs if: 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. An "Indian reservation" is defined under the Clean Water Act as "a111and within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent and including rights-of-way running through the reservation." CWA § 518(h); see also 40 C.F.R. §§ 35.582, 131.3(k). In its rulemaking establishing requirements for tribal eligibility applications under CWA §§ 303 and 401, EPA interpreted the language of Section 518(e)(2) to mean that tribes are limited to obtaining approval for "lands within the boundaries of the reservation." 56 Fed. Reg. 64876, 64881 (Dec. 12, 1991). EPA stated, however, that "the meaning of the term `reservation' must, of course, be determined in light of statutory law and with reference to relevant case law" and that "it is the status and use of the land that determines if it is to be considered `within a reservation' rather than the label attached to it." Id. Thus, land may be considered part of a reservation even if it is tribal trust land outside the formal reservation boundaries. See, e.g., Oklahoma Tax Comm'n V. Sac & Fox Nation, 508 U.S. 114,123 (1993); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991); United States v. John, 437 U.S. 634, 648 (1978); 56 Fed. Reg. at 64,881 ("EPA considers trust lands formally set apart for the use of Indians to be `within a reservation' for purposes of section 518(e)(2), even if they have not been formaily designated as `reservations. "'). Moreover, land may be considered "reservation" even if a tribe holds title to the land rather than the United States holding title in trust for the tribe. See, e.g., United States v. Chavez, 290 U.S. 357 (1933); United States v. Candelaria, 271 U.S. 432 (1926); United States v. Sandoval, 231 U.S. 28, 48 (1913) (all holding that Pueblo lands, which consist at least in part of tribal fee lands, are equivalent to "reservation" land). As a result, EPA has approved numerous Pueblo CWA eligibility applications, finding that Pueblo fee land "is functionally equivalent to a reservation" for purposes of the CWA; "the type and extent of jurisdiction a Tribe exercises over a pueblo is equivalent to that it would exercise over a reservation [citing Chavez and Sandoval];" and "the fact that the Tribe holds title to the pueblo in fee, rather than having title held in trust for the Tribe by the United States is not an obstacle to reservation status [citing Indian Country, U.S.A. v. Oklahoma Tax Commission, 829 F.2d 967, 975 (lOth Cir. 1987)]."2 In Indian Country, U.S.A., the court held 2 Memorandum regarding Application of the Pojoaque Pueblo for Treatment as a State under Section 106 of the Clean Water Act (September 26, 1989), from Gerald H. Yamada, Acting General Counsel, to Rebecca Hammer, Acting Assistant Administrator for Water, at 3; Memorandum regarding Application of the Pueblo of Isleta for Treatment as a State under Section 106 of the Clean Water Act (May 3, 1990), from George R. Alexander, Jr., Regional Counsel, to Myron Knudson, Director, Water Management Division, at 3. See also EPA Approval of Pueblo of Taos Application for Treatment in the Same Manner as a State Under § 518 of the Clean Water Act (CWA) for Purposes of Administering CWA § 303(c) and § 401 (Decision Document, December 2005), at 8(Pueblo of Taos fee lands "meet the test for being `within a reservation"), 2 that "[p]atented fee title is likewise not an obstacle to either reservation or Indian country status of [tribal] lands," 829 F.2d at 975. See also Williams v. U.S., 215 F.2d 1, 3(9th Cir. 1954) (issuance of patent in fee simple did not remove land from reservation); City ofAlbuquerque v. Browner, 97 F.3d 415 (lOth Cir. 1996) (upholding EPA's approval of water quality standards for Pueblo of Isleta, which includes tribal fee land). Here, where the Nation holds recognized title in restricted fee status in the Allegany, Cattaraugus, and Oil Spring Territories (as explained in more detail below), the Territories are equivalent to reservation land within the meaning of the Clean Water Act. See Indian Country, U.S.A., 829 F.2d at 976 (tribally owned treaty lands "historically were considered Indian country and still retain their reservation status within the meaning of 18 U.S.C.
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