Buena Vista Rancheria Wastewater Treatment Plant (Casino) (Board decision, September 6, 2011)

Read the official release (epa.gov)

Plain-English summary

EPA Region 9 issued an NPDES permit for the Buena Vista Rancheria of Me-Wuk Indians to operate a wastewater treatment plant serving the Buena Vista Casino in California. Four petitioners challenged the permit, raising issues about EPA's jurisdiction, wastewater flow calculations, effluent limits, monitoring, flooding, downstream impacts, and historic-preservation obligations. The Environmental Appeals Board treated the Lone Band of Miwok Indians' late petition as timely because the Region had not sent it notice, then denied review because the petitioners did not show that the permit was clearly erroneous or otherwise warranted review. The Board's denial also made the related requests to stay construction moot.

Decision snapshot

• Cited authorities: 33 U.S.C. §§ 1251, 1311, 1313, 1342, 1344, 1362, and 1377; 40 C.F.R. §§ 122, 123, 124, 131, and 403; 16 U.S.C. § 470; 25 U.S.C. § 2703.
• Outcome: Review of the NPDES permit was denied, and the related stay requests were rendered moot.
• Key point: A permit petitioner must identify a clearly erroneous finding, legal error, or important policy issue that warrants EAB review, and the Board generally defers to adequately supported technical judgments by the permitting authority.

Full text (EPA EAB public release)

                                                                                    a




                                                                          ~
                  ENVIRONMENTAL APPEALS BOARD                                       o
         UNITED STATES ENVIRONMENTAL PROTECTION A                             (~
                         WASHINGTON, D.C.                                          SEP - 6 2011

                                                                              Clerk, E nviron~ls Board

In re: ) ~~I N~
ITI~
Al~
S ~:=~~~==__~
)
Buena Vista Rancheria )
Wastewater Treatment Plant ) NPDES Appeal Nos. 10-05, 10-06, 10-07 & 10-13
)
NPDES Permit No. CA 0049675 )
)

                            ORDER DENYING REVIEW

                                I Statement of the Case

     Mr. Glen Villa, Jr., the County of Amador ("County"), Friends of Amador County, and

the lone Band of Miwok Indians ("lone Band") (collectively "Petitioners") each petitioned I the

Environmental Appeals Board ("Board") to review the final National Pollutant Discharge

Elimination System ("NPDES") permit ("Permit") that Region 9 ("Region") of the U.S.

Environmental Protection Agency ("EPA") issued on June 25,2010, under the Clean Water Act

("CW A" or "Act"), 33 U .S.C. § 1342, to the Buena Vista Rancheria of Me-Wuk Indians ("Tribe"

or "Rancheria") to operate the Buena Vista Casino Wastewater Treatment Plant ("Facility"). See

Permit, Administrative Record ("A.R.") 3-24.2

    Mr. Villa's petition was designated as NPDES Appeal No. 10-05, the County's petition
     I

was designated as NPDES Appeal No.1 0-06, Friends of Amador County's petition was designated as NPDES Appeal No. 10-07, and the lone Band's petition was designated as NPDES Appeal No. 10-13.

     The administrative record is loosely organized by subject matter. For clarity, this order
     2

references documents in the record by their title and by their page number in the administrative record. The Region prepared a certified index to the administrative record that is accessible through the Board's public docket for these appeals at www.epa.gov/eab (click on EAB Dockets). See Dkt. #12.01. The Permit authorizes the Facility, located on the Rancheria's sixty-seven acres in

Amador County, to discharge tertiary treated wastewater generated from the operation of the

Buena Vista Casino into a constructed, vegetated swale located south of the parking garage and

casino. NPDES Permit No. CA 0049675 Fact Sheet at 3 (June 2010) ("Fact Sheet") (A.R. 27);

see also EPA Region IX's Response to Petitions for Review at 5 (Sept. 27, 2010) ("Region's

Response"). The discharge will flow onsite for approximately one-half mile to the northwest

comer of the Rancheria at Coal Mine Road and then pass through a reverse siphon into a drain

under Coal Mine Road to the receiving water, an unnamed tributary/drainage channel of Jackson

Creek, which then flows into Dry Creek and to the lower Mokelumne River. Permit at 1

(A.R. 3); Fact Sheet at 1, 3 (A.R. 25, 27); Region's Response at 5-6 & n.9. For the reasons

discussed below, the Board denies review of the Permit.

                                  II Issues on Appeal

   A.     Did the Region have jurisdiction to issue the NPDES Permit?

   B.     Did the Region err in issuing the NPDES Permit in the following respects:

           1.     Did the Region err when it calculated wastewater flow rates for the
                  Facility based on the reduced design capacity of the proposed gaming
                  casino?

           2.     Did the Region properly set the Facility's effluent limitations?

           3.     Did the Region err by failing to identify the location of the outfall, define
                  the receiving waters for purposes of monitoring requirements, specify
                  where erosion protection measures will be located, or require a monitoring
                  well to assess the effects on potable water from contact with reclaimed
                  water?

          4.      Did the Region err when it did not include in the Permit a condition to


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address potential flooding of the roads leading to the casino, including
Coal Mine Road?

            5.      Did the Region err when it did not include in the Permit a condition to
                    address downstream and offsite impacts of the Facility's discharge?

    C.      Did the Region satisfy its obligation under section 106 of the National Historic
            Preservation Act?


                                   III Standard of Review

    When determining whether to grant review of petitions filed pursuant to 40 C.F.R.

§ 124. 19(a), the Board will first consider whether each petitioner has fulfilled certain threshold

procedural requirements including timeliness, standing, and issue preservation. 40 C.F.R.

124.19(a); accord In re Circle T Feedlot, Inc., NPDES Appeal Nos. 09-02 & 09-03, slip op. at 4

(EAB June 7, 2010), 14 E.A.D. ; In re Avon Custom Mixing Servs., 10 E.A.D. 700, 704-08

(EAB 2002). Specifically, petitions must be filed within thirty days after issuance of the NPDES

permit. 3 40 C.F.R. § 124.19(a). Each petitioner must have participated in the permit proceeding

    3 The lone Band of Miwok Indians filed their petition for review on August 14,2010,

well after the thirty-day deadline for appealing the Region's issuance of the NPDES permit. See lone Band Petition at 3; Declaration of William Wood in Support of Petition for Review (Aug. 13,2011) (describing lone Band's participation throughout permitting process) ("Wood Declaration"). The lone Band avers it was inadvertently omitted from the Region's distribution list and thus did not receive notice of issuance of the NPDES permit until August 6, 2010. lone Band Petition at 3 & Exs. 7, 9 (documenting lone Band's receipt of final permit decision on August 6,2010, and subsequent phone call with personnel from Region regarding inadvertent omission from notification list); Wood Declaration at,-r,-r 8-9. The Board notes that the Region does not dispute this assertion, and that the Region responded to the lone Band's challenges to the NPDES permit in its response to the petitions for review. See Region's Response at 2 (summarizing the lone Band's challenges to the permit).

    Failure to file a petition for review by the filing deadline will ordinarily result in dismissal

of the petition on timeliness grounds, as the Board strictly construes threshold procedural requirements. In re Town of Marshfield, NPDES Appeal No. 07-03, at 4 (Mar. 27, 2007) (Order
(continued ... )

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by either filing comments during the public comment period, or participating in a public hearing

if one was held, or both.4 Id.; see also Avon Custom Mixing Servs., 10 E.A.D. at 704; In re Sutter

Power Plant, 8 E.A.D. 680, 686 (EAB 1999). Petitioners must also establish that issues are

preserved for review by demonstrating that they or another commenter "raise [d] all reasonably

ascertainable issues and submit[ted] all reasonably available arguments supporting their position

by the close of the public comment period." 40 C.F.R. §§ 124.13, 124.19(a), quoted in In re

Chukchansi Gold Resort and Casino Waste Water Treatment Plant, NPDES Appeal Nos. 08-02

through 08-05, slip op. at 7, (EAB Jan. 14,2009), 14 E.A.D. _ . Further, petitioners must

include specific information supporting their allegations, and state why the Region's response to

objections voiced during the comment period is clearly erroneous or otherwise warrants review.

See In re Phelps Dodge Corp., 10 E.A.D. 460, 508 (EAB 2002). Finally, petitioners bear the

burden of demonstrating that review is warranted. See id. at 508-09 (citing 40 C.F.R.

§ 124.19(a)). That burden is particularly heavy in cases where a petitioner seeks review of issues

that are fundamentally technical or scientific in nature, as the Board typically defers to the

    3( ... continued)

Denying Review); accord In re Puma Geothermal Venture, 9 E.A.D. 243, 273 (EAB 2000).- However, consistent with the well-settled principle that an administrative agency maintains discretion to relax or modify its procedural rules for the orderly transaction of business when "in a given case the ends of justice require it," the Board occasionally has entertained untimely petitions where special circumstances warrant. Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970), quoted in Town o.fMarshfield, at 5 & n.4. In particular, the Board previously relaxed the filing deadline where the permit issuer failed to serve all parties that had filed written comments on the draft permit. In re Hillman Power Co., 10 E.A.D. 673, 680 n.4 (EAB 2002). For the same reason, the Board is relaxing the filing deadline and will consider the lone Band's petition timely filed.

   4 Any person who failed to file comments or participate in a public hearing may petition

for administrative review, but only to the extent of the changes from the draft to the final permit. 40 C.F.R. § 124.19(a).

                                             -4-

expertise of the permit issuer on such matters if the permit issuer adequately explains its rationale

and supports its reasons in the record. See In re NE Hub Partners, L.P., 7 E.A.D. 561, 567

(EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3rd Cir. 1999);

accord In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 510 (EAB 2006).

   The Board will not ordinarily review a NPDES permit decision unless the permit

conditions at issue are based on clearly erroneous findings of fact or conclusions of law or

involve important policy considerations that the Board, in its discretion, should review.

40 C.F.R. § 124.19(a); accord In re San Jacinto River Auth., NPDES Appeal No. 09-09, slip op.

at 5 (EAB July 16,2010), 14 E.A.D. _ ; In re Gov't o/D.C. Mun. Separate Storm Sewer Sys.,

10 E.A.D. 323, 332-33 (EAB 2002). The Board's review ofNPDES permits is guided by the

preamble to the permitting regulations, which states that review "should be only sparingly

exercised" and that "most permit conditions should be finally determined at the Regional level."

45 Fed.Reg. 33,290, 33,412 (May 19, 1980); accord Circle T Feedlot, slip op. at 6, 14 E.A.D.

_ ; Chukchansi, slip op. at 6, 14 E.A.D. _ ; In re Mille Lacs Wastewater Treatment Facility,

11 E.A.D. 356, 363 (EAB 2004).

    Despite the stringency of the aforementioned threshold procedural requirements, the

Board endeavors to construe liberally objections raised by parties proceeding pro se, those

unrepresented by counsel, so as to fairly identify the substance of the arguments being raised.

See Circle T Feedlot, slip op. at 6, 14 E.A.D. _ ; Chukchansi, slip op. at 7, 14 E.A.D._;

Sutter Power Plant, 8 E.A.D. at 687. The Board nonetheless expects such petitions "to articulate

some supportable reason or reasons as to why the permitting authority erred or why review is

otherwise warranted." Sutter Power Plant, 8 E.A.D. at 688 (citing In re Beckman Prod. Servs.,

                                             -5-

5 E.A.D. 10, 19 (EAB 1994)); see also Chukchansi, slip op. at 7, 14 E.A.D._.

                                IV. Summary of Decision

   The Board concludes that Petitioners Mr. Villa, the County, Friends of Amador County,

and the lone Band have not demonstrated that their petitions warrant review on any of the

grounds presented. Petitioners have not shown that in issuing the Permit, establishing the

NPDES permit conditions Petitioners challenge, or complying with the requirements of the

National Historic Preservation Act, the Region clearly erred or abused its discretion. The Board

therefore denies review for the reasons explained in detail below.

                           V. Procedural and Factual History

   A. Statutory and Regulatory History

   Congress enacted the CWA "to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. § 1251(a). The CWA

requires states to establish water quality standards ("WQSs") designed to protect the public

health or welfare, enhance water quality, and serve the purposes of the Act. CWA

§ 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). WQSs "serve as the goals for the water body and the

legal basis for the water-quality based NPDES permit requirements under the CWA." Combined

Sewer Overflow Control Policy, 59 Fed. Reg. 18,688, 18,694, quoted in San Jacinto River Auth.,

slip op. at 9, 14 E.A.D. _ , and In re Dist. of Columbia Water and Sewer Auth., 13 E.A.D. 714,

725 n.25 (EAB 2008). WQSs consist of: (1) the designated uses of the navigable waters

involved; (2) water quality criteria, which are numerical concentration levels and/or narrative

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statements specifying the amount of pollutants that may be present in each water body segment

without impairing the designated uses of that water body segment, and; (3) an antidegradation

policy. CWA § 303(c)(2)(A), 33 U.S.c. § 1313(c)(2)(A); 40 C.F.R. §§ 131.10-.12; see Water

Permits Division, US. EPA, EPA-833-K-I0-00l, NPDES Permit Writers' Manual 6-3 to-4

(2010) ("NPDES Manual").

   NPDES permits regulate the discharge of any pollutant from a point source into waters of

the United States. CWA §§ 301(a), 402,33 US.C. §§ 1311(a), 1342. Regulations specifically

governing the process of issuing an NPDES permit are found in 40 C.F.R. part 122. NPDES

permits generally contain either technology-based or water quality-based effluent discharge

limitations and related monitoring and reporting requirements. CWA §§ 301, 304(b),

402(a)(1 )-(2); 33 U.S.c. §§ 1311, 1314(b), 1342(a)(1 )-(2). Technology-based limitations for

publicly owned treatment works are numeric limitations that establish the effluent reduction

attainable through the application of secondary treatment, comprised of requirements expressed

in terms of five-day biochemical oxygen demand ("BODS "), total suspended solids ("TSS"), and

pH. CWA §§ 301(b)(1)(B), 304(d)(1), 33 US.C. §§ 1311(b)(1)(B), 1314(d)(1); 40 C.F.R.

part 133. When technology-based limitations are insufficient to meet applicable state water

quality standards, more stringent water quality-based effluent limitations are implemented to

protect the designated and existing uses of the receiving water body. CWA § 301 (b)(1 )(C),

33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.44(d); see also In re City of Moscow, 10 E.A.D. 135,

139 (EAB 2001). NPDES permits are effective for a fixed term not to exceed five years, and in

general contain discharge limitations and establish related monitoring and reporting

requirements. See CWA § 402(a)(I)-(2), (b), 33 U.S.C. § 1342(a)(1)-(2), (b); 40 C.F.R.

                                           -7-

§§ 122.45, .46(a), .48; accord Circle T Feedlot, slip op. at 16, 14E.A.D._.

   In passing the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 to 470x-

6, Congress declared that "the historical and cultural foundations ofthe Nation should be

preserved" and established a statutory scheme intended to preserve historic properties significant

to the Nation's heritage. NHPA § l(a)-(b), 16 U.S.C. § 470(a)-(b). One of the key terms of the

NHP A and its implementing regulations is an undertaking, which is defined as any project,

activity, or program that, among other things, requires a federal permit. See 16 U.S.C.

§ 470w(7); 36 C.F.R. § 800. 16(y). Section 106 of the NHPA, 16 U.S.C. § 470(f), in turn requires

that a federal agency "having authority to license any undertaking shall * * * prior to the issuance

of any license * * * take into account the effect of the undertaking on any district, site, building,

structure, or object that is included in or eligible for inclusion in the National Register [of

Historic Places].,,5 This process, commonly referred to as the "section 106 process," or "section

106 consultation," seeks to integrate historic preservation concerns with the needs of federal

undertakings by affording parties with an interest in the effects of the undertaking the opportunity

to consult with federal agency officials. 36 C.F .R. § 800.1 (a). Once a federal agency official

determines that a proposed undertaking has the potential to cause effects on historic properties,

the official shall identify the appropriate State Historic Preservation Officer ("SHPO") and

contact the SHPO to initiate consultation. 36 C.F.R. § 800.3(a), (c). In consultation with the

     5 The National Register of Historic Places ("National Register") is maintained by the

Secretary of the Department of the Interior ("DOl") and is "composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." NHPA § 101, 16 U.S.C. § 470(a)(1)(A); see also 36 C.F.R.
§ 800.16(q). The Secretary of DOl has established criteria and procedures for evaluating the eligibility of properties for listing in the National Register that are available at 36 C.F.R. parts 60 and 63. See 36 C.F.R. § 800.l6(r); accord Phelps Dodge, 10 E.A.D. at 503 n.31.

                                              -8-

SHPO, the federal agency official must determine and document the area of potential effects, the

geographic area or areas in which an undertaking may directly or indirectly alter the character or

use of any historic properties that may exist there. See 36 c.P.R. §§ 800.l6(d), .4(it). Ultimately

the goals of the section 106 consultation are to identify historic properties 6 potentially affected by

the undertaking, assess the undertaking'S effects/ and pursue ways to avoid, minimize, or

mitigate any adverse effects on historic properties. Id §§ 800.l(a), .4-.6.

    The Advisory Council on Historic Preservation ("Council") generally oversees

section 106 consultations, advising and providing comments to agency officials on individual

undertakings, and sometimes formally entering the section 106 process, either of its own accord

or by the request of any individual, agency or organization. Id §§ 800.2(b), .9(a). In addition to

the Council and federal agency officials, other parties that may participate in the section 106

consultation, collectively referred to as consulting parties, include the State Historic Preservation

Officer, Indian tribes and/or Native Hawaiian organizations, local government representatives,

    6 A historic property is any prehistoric or historic district, site, building, structure, or

object included in, or eligible for inclusion in, the National Register. 36 C.P.R. § 800.16(1)(1). This includes artifacts, records, and remains that are related to and located within such properties, as well as properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet the National Register criteria. Id

    7 The agency official shall apply the criteria of adverse effect to historic properties within

the area of potential effects in consultation with the SHPO and Indian tribes that attach religious or cultural significance to identified historic properties. 36 C.P.R. § 800.S(a). An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Id § 800.S(a) (1 ). Examples of adverse effects include, among other things, introduction of visual, atmospheric, or audible elements that diminish the integrity of the property's significant features. Id § 800(a)(2)(v); see id § 800(a)(2)(i)-(vii) (non-exhaustive list of adverse effects on historic properties).

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the permit applicant, and other individuals and organizations with a demonstrated interest in the

undertaking. Id. § 800.2; see also id. § 800.6(a). The NHPA regulations also specifically

provide for public involvement in the section 106 consultation. Id. §§ 800.2, .3(e), .6(a)(4). The

section 106 consultation culminates in a memorandum of agreement that records the terms and

conditions agreed upon to resolve the adverse effects of an undertaking on historic properties. Id.

§§ 800.6(b)-(c) (noting that a memorandum of agreement evidences the agency's compliance

with section 106 and "shall govern the undertaking and all of its parts"), .16(0) (defining

memorandum of agreement).

   B.      Factual & Procedural History

           1.      2005 Application and Proposed Permit

   In support of its proposal to develop, construct, and operate a gaming and entertainment

facility ("proposed project"), the Tribe submitted an application to the Region in May 2005 for a

NPDES permit to operate a waste water treatment plant that would discharge tertiary treated

wastewater generated from the proposed Facility. Buena Vista Rancheria NPDES Permit

Application (Apr. 2005) (AR. 101-112) ("Permit Application"); see Region's Response at 7.

The engineering report attached to the Permit Application indicated that the wastewater treatment

facility's design capacity would be 250,000 gallons per day ("gpd"), with projected weekday

flows of 100,000 gpd and weekend flows of 180,000 gpd, with an annual average flow of

170,000 gpd. Wastewater Treatment Plant Engineering Report at 8-9 & Tb1.3-2 (May 2005)

(AR. 126-27) ("Engineering Report"); see also Permit Application at 3 (AR. 105). The

proposed project's design was based on a projected gaming facility that would include 2,000 slot

machines and eighty gaming tables. See Engineering Report at 5 (AR. 122); see also Buena

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Vista Casino Comparison ofTEIR Project vs. Current Project (A.R. 1333) ("Project Comparison

Chart").

   The Region issued a proposed permit and accompanying fact sheet on December 15,

2005, and held a public hearing on March 21,2006 in lone, California to solicit public input on

the proposed permit. See Region's Response at 7 (A.R. 47-49) (cataloging written comments

received during comment period for proposed 2005 permit and written and oral comments

received at the March 2006 public hearing). Among other issues, multiple commenters stated

that EPA had not conducted a consultation under the National Historic Preservation Act. See

Final Response to Comments Document at 29 (June 2010) (A.R. 75) ("RTC") (including

comments referring to cultural resources and lack of consultation from 2005 proposed permit);

Region's Response at 7.

           2.      NHPA Section 106 Consultation

   The Region determined that the proposed project was an "undertaking" subject to the

NHP A section 106 process, and initiated consultation with the State Historic Preservation Officer

("SHPO,,).8 Letter from Alexis Strauss, Director, Water Division, U.S. EPA Region 9, to

Milford Wayne Donaldson, State Historic Preservation Officer, CA Dept. of Parks and

Recreation 1 (Feb. 17,2007) (A.R. 1301) ("NHPA Initiation Letter"). The Region also contacted

federally recognized Indian tribes that might attach religious or cultural significance to historic

properties that may be affected, see 36 C.F.R. § 800.2(c)(2)(ii), to solicit information and request

consultation, including the lone Band, Jackson Rancheria of Me-Wuk Indians, and Shingle

   8 Pursuant to 36 C.F.R. § 800.2(a)(2), the Region and the U.S. Army Corps of Engineers,

to whom the Tribe had applied for a permit under CWA section 404,33 U.S.C. § 1344, agreed that EPA would be the lead federal agency for purposes of complying with the NHP A.

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Springs Band of Miwok Indians. RTC at 37-38 (A.R. 83-84); Region's Response at 8. The lone

Band and the Jackson Rancheria of Me-Wuk Indians expressed interest in participating in the

section 106 process, whereas the Shingle Springs Band of Miwok Indians declined the Region's

invitation to consult. RTC at 37-38 (A.R. 83-84); Region's Response at 8. The County also

expressed interest to the Region in participating in the section 106 consultation. See

Memorandum of Agreement Among the U.S. Environmental Protection Agency, the U.S. Army

Corps of Engineers, the California State Historic Preservation Officer, and the Buena Vista

Rancheria of Me-Wuk Indians Regarding the Buena Vista Rancheria of Me-Wuk Indians

Gaming and Entertainment Facility Project 2 (effective June 1, 2010) (A.R. 1348)

("Memorandum of Agreement").

   Based on a review of the plans for the proposed Casino and wastewater treatment

Facility, the Region determined the undertaking's area of potential effects pursuant to 36 C.F.R.

§ 800.4(a)(1), and then made a "reasonable and good faith effort" to identify historic properties

located within the area of potential effects. 36 C.F.R. § 800.4(b)(1); see RTC at 38 (A.R. 84);

Region's Response at 8. This effort included review of existing information and studies, and

consultation with representatives from the SHPO, the Tribe, the U.S. Army Corps of Engineers,

theCounty, the lone Band, and the Jackson Rancheria of Miwok Indians, which included four

separate meetings and a site visit to the Tribe's proposed site for the Casino and wastewater

treatment Facility so that parties could view the exact locations of the proposed project. RTC

at 38-40 (noting that meetings were held in the SHPO's Sacramento offices on May 1,2007,

November 20, 2008, March 12, 2009, and June 30, 2009, and that the site visit occurred on

March 25, 2009) (A.R. 84-86); Region's Response at 8; see also Dkt. #12.01 (noting dates of

                                           -12-

meetings and site visits in confidential portion ofNHPA-related administrative record).

   The Region determined, with concurrence from the SHPO as required by the section 106

process, see 36 C.F.R. § 800.4(c)(1)-(2), that two cultural resources located in the area of

potential effects were historic properties eligible for inclusion in the National Register, namely

the Buena Vista Peaks and CA-AMA-411/H [hereinafter referred to as "Upusfuli Village"].

Letter from Milford Wayne Donaldson, State Historic Preservation Officer, Office of Parks and

Recreation, to Douglas E. Eberhardt, NPDES Permit Officer, U.S. EPA Region 9 (Apr. 10,2009)

("SHPO Concurrence Letter") (expressing concurrence that Region appropriately defined area of

potential effects and that Region's efforts to identify historic properties represent a reasonable

good faith effort) (A.R. 1323-24); see also RTC at 38 (A.R. 84); RTC at 8 (A.R. 54);

Memorandum of Agreement at 2 (A.R. 1348). In addition, the Region determined that CA-

AMA-650, the area between Buena Vista Peaks and Upusuni Village where the Tribe proposes to

construct the Casino and wastewater treatment Facility, does not have any intact or potentially

eligible cultural resources and confirmed that this central portion of the area of potential effects is

not included within the recorded site areas for either the Buena Vista Peaks or Upusuni Village.

RTC at 38, 42 (A.R. 84, 88); see also SHPO Concurrence Letter at 2 (A.R. 1324); Region's

Response at 23; Memorandum of Agreement at 2 (A.R. 1348).

    Upon determining that the Buena Vista Peaks and Upusuni Village were historic

properties the Region, in conjunction with the consulting parties, applied the adverse effects

criteria and determined that the undertaking would have adverse effects on the two historic

properties. See Region's Response at 9; RTC at 38, 42 (A.R. 84, 88). Specifically, the Region

determined that the cultural affiliation between the Buena Vista Peaks and Upusuni Village, both

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traditional cultural properties, would be adversely affected as a result of visual and audible

intrusions from the proposed project. Region's Response at 9,24; RTC at 38,42 (AR. 84, 88)

(noting that while CA-AMA-650 is not a historic property, it was the consideration of the

potential effects from the construction of the proposed project in this area that formed the entire

rationale and basis for EPA's determination that the project would result in adverse effects on

Buena Vista Peaks and Upusuni Village due to the relationship between the two historic

properties); Memorandum of Agreement at 2 (AR. 1348) (same); see also SHPO Concurrence

Letter (concurring in Region's finding of adverse effects). As part of the assessment of adverse

effects, the Region also concluded that the proposed project would not substantially impair the

use of either property for traditional cultural practices because the proposed proj ect: (1) does not,

in itself, restrict access to either of the historic properties; (2) would not physically damage either

historic property; (3) will not alter existing access routes to the Peaks, and; (4) will not block the

visual connection between the two properties. RTC at 38, 42-43 (AR. 84,88-89).

   Upon finding that the Buena Vista Peaks and Upusuni Village would experience adverse

effects due to the undertaking, the Region continued to consult with the SHPO and consulting

parties to seek ways to avoid, minimize, or mitigate the adverse effects. 36 C.F.R. § 800.6(a);

see also Region's Response at 9; Letter from LaShavio Johnson, Historic Preservation

Technician, Advisory Council on Historic Preservation, to Douglas E. Eberhardt, NPDES Permit

Office, u.s. EPA Region 9 (Aug. 13,2009) (acknowledging receipt of Region's documentation

of adverse effects on historic properties required pursuant to 36 C.F.R. § 800.11 and stating that

based on the information provided the Council "do[es] not believe that our participation in the

consultation to resolve adverse effects is needed") (AR. 1306). Prior to development of a

                                             -14-

memorandum of agreement and historic properties treatment plan, the Tribe made several

changes to the project design to attempt to address adverse effects. 9 RTC at 46 (A.R. 92). The

Region, in consultation with the SHPO and consulting parties, developed a draft memorandum of

agreement and accompanying historic properties treatment plan ("HPTP"). The HPTp 10 includes

measures to minimize impacts to historic properties, including an Archaeological Testing

Program, Archaeological Discovery Plan, and design measures to reduce the visual impacts

associated with the operation of the facilities that include the use of minimum lighting standards,

use of an earth tone color scheme for buildings, use of visual barriers, and landscaping. RTC

at 47 (A.R. 93). The Memorandum of Agreement includes, among other things, authorization for

the Region to issue Notices to Proceed with construction when any of four conditions in the

Memorandum of Agreement are met. Memorandum of Agreement at 3-4 (A.R. 1349-50). The

Region, the Army Corps of Engineers, the California State Historic Preservation Officer, and the

   9 These changes include shifting the location of the proposed Casino southward to avoid

direct impacts to the Upusiini Village; downsizing the proposed Casino's capacity from 71,525 sqaure feet to 25,332 square feet; changing the location ofthe parking structure to keep it outside the boundaries ofUpusuni Village and making it a multi-level structure rather than a larger surface lot; reducing the parking structure from nine levels to six levels, and reducing the height of the proposed Casino by twenty-one feet. RTC at 46 (A.R. 92); see also Project Comparison Chart (noting reductions in gaming tables, slot machines, and restaurant seating).

    10 The HPTP was not included in the administrative record for these appeals due to the

confidential nature of certain information it contains. Materials in the administrative record developed in conjunction with the NHP A section 106 process may be claimed as confidential when they contain information regarding the location, character, or ownership of historic resources. See 16 U.S.C. § 470w-3; 16 U.S.C. § 470hh; CA Govt. Code § 6254.10 (cited in Dkt.

12.01). Thus, the Board considers arguments pertaining to the adequacy of the HPTP based on the public information that is available in the record. The Board notes that while the lone Band has included the HPTP as an exhibit to one of its filings, and no parties have otherwise objected, the Tribe objects to the disclosure of the information pursuant to 36 C.F.R. § 800.6(a)(5), and thus the Board will not consider the substance of the HPTP in its decision.

                                            -15-

Buena Vista Rancheria of Me-Wuk Indians executed the Memorandum of Agreement effective

June 1,2010. See Memorandum of Agreement at 10 (A.R. 1356) (stating that in accordance with

36 C.F.R. § 800.6(b)(1)(iv), EPA has taken into account the effect of the undertaking on historic

properties in order to resolve any adverse effects on historic properties and thereby comply with

section 106 of the NHPA). The Memorandum of Agreement also notes that the lone Band,ll the

Jackson Rancheria Band of Me-Wuk Indians, and the County participated in the consultation

process but declined an invitation to concur in the Memorandum of Agreement. Id at 2 (A.R.

1348).

            3.      2009 Proposed Permit

     Subsequent to the preparation of a draft Memorandum of Agreement and Historic

Properties Treatment Plan, the Region proposed a permit for the wastewater treatment Facility on

August 5,2009, and published a public notice to solicit comments on the Memorandum of

Agreement, the Historic Properties Treatment Plan, and the proposed permit. Notice of Proposed

      In January 2010, the lone Band contacted the Advisory Council on Historic
     11

Preservation ("ACHP") to request that the ACHP participate in the ongoing section 106 consultation. Letter from William Wood, Holland & Knight, LLP, to Reid Nelson, Director, Office of Federal Agency Programs, Advisory Council on Historic Preservation (Jan. 8,2010) (A.R. 1307-15). The ACHP declined to participate, responding in relevant part:

     Based upon our review, we have concluded that no new information has been
     introduced in this consultation to cause the ACHP to revisit its decision not to
     participate in this case. The section 106 process has been inclusive and
     considered the full range of effects. As we understand, the mitigation set forth in
     the draft [memorandum of agreement] will address effects on known and
     potentially known sites of religious and cultural significance to tribes. We do not
     see where our involvement at this juncture will alter this mitigation strategy.

Letter from Charlene Dwin Vaughn, Asst. Dir., Federal Permitting, Licensing, and Assistance Section, Office of Federal Agency Programs, Advisory Council on Historic Preservation, to William Wood, Holland & Knight, LLP (Apr. 20, 2010) (A.R. 1319-20).

                                             -16-

Action, Proposed NPDES Permit CA0049675, Buena Vista Rancheria: Buena Vista Casino

(formerly Flying Cloud Casino) ("2009 Public Notice") (A.R. 554); see also Region's Response

at 9. Because the Tribe reduced the size of the proposed project originally envisioned in the 2005

proposed permit, the 2009 proposed permit reflected a proposed Facility with lower flows and

smaller capacity. Region's Response at 9; see also Project Comparison Chart (noting reductions

in gaming tables, slot machines, and restaurant seating). The 2009 proposed Facility's design

capacity is 200,000 gallons per day ("gpd"), and based on that design capacity the Permit limits

discharges to 100,000 gpd average monthly and 200,000 gpd daily maximum. Permit at 3 (A.R.

5); see Fact Sheet at 2 (A.R. 26); Region's Response at 5. The 2009 proposed project is expected

to generate flows of 50,000 gpd on weekdays and 100,000 gpd on weekends, with an average of

60,000 gpd annuallyY Fact Sheet at 2 (A.R. 26); Region's Response at 5. The public comment

period was open from August 5, 2009, to September 4,2009, and after making minor changes to

the Permit and accompanying Fact Sheet, the Region issued the Permit on June 25,2010. See

2009 Public Notice (A.R. 554); Region's Response at 10.

           4.     Motions Relating to the Notice to Proceed


   12 The Region notes, both in the Fact Sheet accompanying the Permit and in its response

to comments, that the Casino will be built in two stages. Fact Sheet at 2 (A.R. 26); Final Response to Comments Document at 5-7 & Tb1.2 (June 2010) (A.R. 51-53) ("RTC"); see also Region's Response at 29 (referencing County's argument regarding Casino expansion). The Permit at issue in these appeals reflects the same overall design capacity of the Facility, 200,000 gpd, but only the first phase, Phase 1, of Casino construction. The Casino's second phase, Phase 2, when constructed, is expected to generate weekday flows of 90,000 gpd and weekend flows of 160,000 gpd, with an annual average flow of 100,000 gpd. RTC at 7 Tb1.2 (A.R.53). The Facilty's design capacity (200,000 gpd) was based on anticipated Phase 2 weekend capacity (160,000 gpd) plus contingency capacity of 25% greater than expected Phase 2 weekend flows (40,000 gpd). Id at 5-6 & Tb1.2 (A.R. 51-53).

                                           -17-

On July 5, 2011, during the pendency of these appeals, the Region notified the Board of

its intention to issue a Notice to Proceed ("NTP") with a construction segment of the proposed

project, based on the Tribe's submission of, and the Region's subsequent approval of, findings

from the fieldwork phase of the Archaeological Testing Program that satisfy section IV.C of the

Memorandum of Agreement. See Region's Letter Regarding Buena Vista Rancheria

Wasterwater Treatment Plant at 2-3 & n.2 (July 5, 2011) ("Region's Letter"). The Region

informed the Board of the Region's intention to issue an NTP to Buena Vista no sooner than

twenty-one days from the date of the Region's letter. Id. at 3. In response, Petitioners Friends of

Amador County, the County, and the lone Band all filed motions requesting that the Board stay

the Region's issuance of the NTP. See Friends of Amador County Letter (July 20, 2011); Motion

Requesting Environmental Appeals Board to Stay EPA's Issuance of Notice to Proceed (July 15,

2011); lone Band of Miwok Indians' Motion to Stay Issuance of Proposed Notice to Proceed

(July 20,2011). The Tribe, which until then had not participated in these appeals, filed on

July 22,2011, two motions requesting that Buena Vista be granted leave to intervene and

opposing Petitioners' motions to stay the issuance of the NTP. See Buena Vista Rancheria of

Me-Wuk Indians' Motion for Leave to Intervene and Oppose Motions to Stay Issuance of Notice

to Proceed (July 22,2011); Buena Vista Rancheria of Me-Wuk Indians' Opposition to the

Motions to Stay Issuance of Notice to Proceed (July 22,2011).

   On July 26, 2011, the Board issued an order granting the Region an extension of time to

file a response to Petitioners' motions to stay the issuance of the NTP, and requiring the Region

to respond no later than August 15,2011. Order Granting Region's Motion for Extension of

Time to Respond to Petitioners' Motions to Stay Issuance of Notice to Proceed (July 26,2011).

                                           -18-

In the same order the Board directed the Tribe to contact the parties to these appeals and file a

supplemental statement no later than July 29, 2011, indicating whether the parties oppose or do

not oppose the Tribe's motion to interveneY Id. at 4.

   The Region filed its Response to the Motions to Stay Issuance of the Notice to Proceed

on August 15,2011. Both the County and the lone Band subsequently filed motions requesting

leave to file reply briefs. See Motion for Leave to File Reply Brief to Opposition to Request for

Stay of Notice to Proceed and [Proposed] Reply Brief (Aug. 24, 2011); lone Band of Miwok

Indians' Motion for Leave to File Reply in Support of Motion to Stay Issuance of Proposed

Notice to Proceed (Aug. 26,2011).

   The Board's order denying review of these petitions moots Petitioners' requests for the

Board to stay the issuance of the Notice to Proceed and Petitioners' lone Band and the County's

respective requests to file reply briefs regarding the Notice to Proceed. The Tribe's motion to

intervene in these proceedings is granted.

                                         VI Analysis

   As explained above, the four petitions for review filed before the Board present three

issues for review. The Board addresses each issue in turn below.

    13The Tribe's supplemental statement indicates that the Region is the only party that does

not oppose the Tribe's motion to intervene. Buena Vista Rancheria of Me-Wuk Indians Supplemental Statement in Support of Motion for Leave to Intervene at 2 (July 29,2011). Petitioners Mr. Villa and Friends of Amador County indicated they oppose the Tribe's motion to intervene. Id. at 2-3. Petitioners' lone Band and the County both conditioned their non- opposition to the Tribe's motion to intervene on their ability to file replies to both the Tribe's proposed opposition to the motions to stay the NTP and the Region's response to the Petitioners' motions to stay the NTP. Id. at 2.

                                            -19-

A The Region Properly Exercised Jurisdiction Over the Proposed Facility in Issuing the
NPDES Permit

   The Board first considers the County's challenge to the Region's jurisdiction to issue the

Permit under the NPDES program set forth in CWA § 402, 33 U.S.C. § 1342. The County

alleges that the Region lacks jurisdiction to issue the NPDES permit for the proposed Facility

because the land on which the Tribe intends to build the proposed Facility is mistakenly

classified as "Indian country," and thus California should have issued the NPDES permit as

opposed to the Region. 14 Petition for Review at 2-4 (July 23, 2010) ("County Petition").

   The Region responds that it properly asserted its jurisdiction to implement the NPDES

program on "Indian lands" when, as here, neither the state nor tribe in question has the authority

to administer the NPDES program on "Indian lands." RTC at 30 (AR. 76); Region's Response

at 15-16. The Region further states that it properly issued the Permit because a class action

settlement restored the original boundaries of the Buena Vista Rancheria and established that all

land within the restored boundaries is declared "Indian country." Region's Response at 16-17;

RTC at 30-31 (AR. 76-77). The Region also cites a letter from the National Indian Gaming

Commission declaring that the Rancheria property constitutes "Indian lands" pursuant to the

   14  EPA has authorized most states to administer all or part of the NPDES program within

their jurisdiction, typically within state boundaries excepting Indian country located therein. See Office of Wastewater Management, Office of Water, U.S. EPA, NPDES State Program Status, http://cfpub.epa.gov/npdes/statestats.cfm (last visited Sept. 1,2011) (noting that California operates an approved state NPDES program); see also 40 C.F.R. § 123.l(h) (stating that lack of authority to regulate activities on Indian lands does not impair the state's ability to obtain full NPDES program approval). EPA administers the NPDES program in most of Indian country within the United States, including California. See Final Modification ofNPDES General Permit for Storm Water Discharges from Construction Activities, 69 Fed. Reg. 76,743, 76,744-45 (Dec. 22, 2004) (explaining that the modified general permit applied to areas where EPA was the permitting authority, explicitly including Indian country).

                                            -20-

Indian Regulatory Gaming Act ("IRGA"), 25 U.S.C. § 2703(4)(A).

   The Board's recent decision In re Circle T Feedlot, Inc., NPDES Appeal Nos. 09-02 &

09-03, slip op. at 16-19 (June 7, 2010), 14 E.A.D. , undertook a thorough review ofNPDES

permitting authority on "Indian lands" or in "Indian country," and thus the Board's analysis of

the statutory and regulatory provisions applicable to issuance of a NPDES permit in this instance

is guided by its previous analysis in Circle T. Congress added section 518 of the CWA in 1987,

which authorizes EPA to treat an Indian tribe as a state for purposes of several CWA provisions,

including the NPDES program under section 402, where certain criteria are met. CWA § 518(e),

33 U.S.C. § 1377(e); see also Circle T, slip op. at 17, 14 E.A.D. _ . EPA promulgated in 1993

final regulations implementing section 518 as it pertained to numerous CWA provisions,

including section 402. Treatment ofIndian Tribes as States for Purposes of Sections 308, 309,

401,402, and 405 of the CWA, 58 Fed. Reg. 67,966 (Dec. 22, 1993); see also Circle T, slip op.

at 17-18. Significantly, the 1993 rule explained that "EPA will administer the [NPDES] program

on Indian lands if a State (or Indian Tribe) does not seek or have authority to regulate activities

on Indian lands." 40 C.F.R. § 123.1(h); see also Circle T, slip op. at 18, 14 E.A.D._.

Although part 124 regulations do not explicitly define "Indian lands," they do define "Indian

country." 40 C.F.R. § 122.2.

   The County does not mention in its petition for review the class action settlement in

Hardwick v. Us., No. C-79-1710 SW (N.D. Cal. May 14, 1987) (Stipulation for Entry of

Judgment (Amador County)). In litigation challenging the administrative implementation of the

                                            -21-

California Rancheria Act of 1958,15 the Tribe, in conjunction with several other tribes,

overturned their Rancheria terminations in a series of lawsuits wherein federal courts found the

Secretary of the Interior had failed to comply with a condition precedent to termination, making

the supposed Rancheria terminations unauthorized and void. See Region's Response at 16 &

n.40. A federal court order and accompanying stipulation for entry of judgment resulting from

this litigation stated that "[t]he plaintiff Rancheria and the Plaintiffs were never and are not now

lawfully terminated under the California Rancheria Act * * * in that the requirements of section 3

of the Act were not fulfilled prior to the conveyance of deeds" to the original reservation.

Hardwick v. Us., No. C-79-1710 SWat 4 (N.D. Cal. May 14, 1987) (Stipulation for Entry of

Judgment (Amador County»; see also Region's Response at 16 & n.40. Further, the court held

that it had authority as a court of equity to remedy the effects of the premature and unlawful

termination of the Rancheria, and restored the original boundaries of the Rancheria, declaring

that all land within the restored boundaries is "Indian country." Id. The court continued that

"[t]he Plaintiff Rancheria shall be treated by the County of Amador and the United States of

     15 Prior to 1958, the United States had purchased and held in trust 67.5 acres ofland for

the Buena Vista Rancheria of Me-Wuk Indians' use. Amador County v. Salazar, 640 F.3d 373, 375 (D.C. Cir. 2011). Congress enacted the California Rancheria Act of 1958 in furtherance of the then-popular policy of assimilating Native Americans into American society. Id. The Rancheria Act authorized the Secretary of the Department of the Interior ("DOl") to terminate the federal trust relationship with several California tribes, including the Me-Wuk tribe, and transfer tribal trust lands to individual fee ownership. Id. (citation omitted). Pursuant to the California Rancheria Act of 1958, the Tribe's land was transferred to two members. Id. Twenty years later, other members of the Tribe joined with members of sixteen other California Rancherias and filed a class action lawsuit to undo the effects of the California Rancheria Act of 1958. Id. at 375-76. Specifically, they sought an injunction requiring the Secretary of the DOl "unterminate" the subject Rancherias. Id. at 376 (citation omitted). The lawsuit ended in a settlement between the tribes and the federal government, and resulted in a series of separate stipulated judgments between individual tribes and the counties in which the tribe's land lay. Id.

                                            -22-

America, as any other federally recognized Indian reservation." Id. As a party to the Hardwick

proceedings, and a signatory to the stipulation and order, the County has previously agreed that

the Buena Vista Rancheria is both Indian country and reservation land. 16 See id. at 6 (reflecting

signature of counsel for Amador County); see also Region's Response at 17. The Tribe's

restored land is "Indian country," and EPA has consistently interpreted "Indian lands" to be

equivalent to "Indian country." Circle T, slip op. at 18, 14 E.A.D. _ ; accord In re Mille Lacs

Wastewater Treatment Facility, 11 E.A.D. 356, 366 (EAB 2004). Thus, the Region has the

authority to administer the NPDES permitting program on the Tribe's land pursuant to 40 C.F.R.

§ 123.1(h).

   The County also fails to address the NPDES implementing regulations that essentially

make the Agency, in this case the Region, the default permit issuer in the NPDES program where

a state or (Indian tribe) does not seek or have the authority to regulate NPDES-related activities

in Indian country. 40 C.F.R. § 123.1(h); see Circle T, slip op. at 17, 14 E.A.D. _ . As

demonstrated above, see supra note 14, the state of California does not have the authority to

administer a NPDES permit to the Rancheria, and the Rancheria as an Indian tribe similarly lacks

authority to issue such a permit. Thus, as the only government authority properly authorized to

issue the NPDES permit, see generally Circle Tat 16-19, the Region properly issued the Permit

pursuant to 40 C.F.R. § 123.1(h). The Board denies review of this issue, and concludes that the

    16However, the County is a party to an action in federal court challenging the Secretary of

the Department of the Interior's no-action approval of the Rancheria's gaming compact with the state of California. Amador County v. Salazar, 640 F.3d 373 (D.C. Cir. 2011). The County challenges the validity of the compact issued pursuant to the Indian Regulatory Gaming Act ("IRGA"), 25 U.S.C. §§ 2701-2721, claiming that the Tribe's land fails to qualify as "Indian land" under the IRGA. Id. (remanding to the district court to determine the County's intent to be bound by the Hardwick judgment).

                                            -23-

Region acted within its jurisdiction when it issued the Permit to the Tribe.

   Similarly, the County's assertion that the proposed Facility is not a publicly owned

treatment works ("POTW") must also fail. See County's Petition at 4. The County asserts that

the proposed Facility cannot be a POTW because it fails to meet the provision in CWA

section 518(t)(2), 33 U.S.C. § 1377(t)(2), that requires the tribe to exercise governmental

authority over a "federal Indian reservation.,,!7 Id

   The Region responds that a publicly owned treatment works ("POTW") is defined in

40 C.F.R. § 403.3 as "a treatment works as defined by section 212 of the Act, which is owned by

a State or municipality (as defined by section 502(4) of the Act)." Section 502(4) of the Act in

tum defines municipality to include, among other things, an "Indian tribe." 33 U.S.C. § 1362(4).

As the Region correctly points out, a wastewater treatment facility owned by the Tribe would be

a POTW if the Tribe meets the definition of an Indian tribe. Region's Response at 18. The

regulations implementing the CWA define an Indian tribe as "any Indian tribe, band, group, or

community recognized by the Secretary of the Interior and exercising governmental authority

over a Federal Indian reservation." 40 C.F.R. § 122.2.

     !7 Just as the County appears to challenge the authenticity of the Tribe's status, Mr. Villa

asserts that the Rancheria does not constitute an Indian tribe "in the true sense of the definition" because it consists of "a lone individual" that had "no affiliation with the prior membership of the individuals recognized by the BIA as members of the Buena Vista Rancheria." Petition for Review at 1 (July 21,2011) ("Villa Petition"). Despite Mr. Villa's objections, the Buena Vista Rancheria of Me-wuk Indians is a federally-recognized Indian tribe. See Indian Entities Recognized and Eligible to Receive Services from the U.S. Bureau ofIndian Affairs from the U.S. Bureau ofIndian Affairs ("BIA"), 75 Fed. Reg. 60,810,60810 (Oct. 1,2010); see also 74 Fed. Reg. 40,218, 40,219 (Aug. 11,2009) (recognizing Buena Vista Rancheria as an Indian tribe); 73 Fed. Reg. 18,553, 18,553 (Apr. 4, 2008) (same). The United States government thus recognizes the Buena Vista Rancheria's inherent governmental authority, under which the Tribe has the authority to make decisions regarding land use for land located within its reservation boundaries that is consistent with applicable law. RTC at 54 (A.R. 100).

                                             -24-