EPA POLICY 

ON 

CONSULTATION AND COORDINATION 

WITH 

INDIAN TRIBES 

May 4, 2011 
Table of Contents 

I. Policy Statement 1 

II. Background 2 

III. Definitions 3 

IV. Guiding Principles 3 

V. Consultation 4 

A. The Consultation Process 4 

B. What Activities May Involve Consultation 5 

C. When Consultation Occurs 7 

D. How Consultation Occurs 7 

VI. Managing the Consultation Process 7 

A. Roles and Responsibilities 7 

B. National Consultation Meeting 8 

C. Reporting 8 

D. EPA Senior Management Review 8 
 

I. Policy Statement 

EPA’s policy is to consult on a government-to-government basis with federally recognized tribal 

governments when EPA actions and decisions may affect tribal interests. Consultation is a 

process of meaningful communication and coordination between EPA and tribal officials prior to 

EPA taking actions or implementing decisions that may affect tribes. As a process, consultation 

includes several methods of interaction that may occur at different levels. The appropriate level 

of interaction is determined by past and current practices, adjustments made through this Policy, 

the continuing dialogue between EPA and tribal governments, and program and regional office 

consultation procedures and plans. 

This Policy establishes national guidelines and institutional controls for consultation across EPA. 

EPA program and regional offices have the primary responsibility for consulting with tribes. All 

program and regional office consultation plans and practices must be in accord with this Policy. 

This Policy seeks to strike a balance between providing sufficient guidance for purposes of 

achieving consistency and predictability and allowing for, and encouraging, the tailoring of 

consultation approaches to reflect the circumstances of each consultation situation and to 

accommodate the preferences of tribal governments. The consultation process is further detailed 

in Section V of this document. 

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II. Background 

To put into effect the policy statement above, EPA has developed this proposed EPA Policy on 

Consultation and Coordination with Indian Tribes (Policy). The Policy complies with the 

Presidential Memorandum (Memorandum) issued November 5, 2009, directing agencies to 

develop a plan to implement fully Executive Order 13175 (Executive Order). The Executive 

Order specifies that each Agency must have an accountable process to ensure meaningful and 

timely input by tribal officials in the development of regulatory policies that have tribal 

implications. 

This Policy reflects the principles expressed in the 1984 EPA Policy for the Administration of 

Environmental Programs on Indian Reservations (1984 Policy) for interacting with tribes. The 

1984 Policy remains the cornerstone for EPA’s Indian program and “assure[s] that tribal 

concerns and interests are considered whenever EPA’s actions and/or decisions may affect” 

tribes (1984 Policy, p. 3, principle no. 5). 

One of the primary goals of this Policy is to fully implement both the Executive Order and the 

1984 Indian Policy, with the ultimate goal of strengthening the consultation, coordination, and 

partnership between tribal governments and EPA. 

The most basic result of this full implementation is that EPA takes an expansive view of the need 

for consultation in line with the 1984 Policy’s directive to consider tribal interests whenever EPA 

takes an action that “may affect” tribal interests. 

The Policy is intended to be implemented using existing EPA structures to the extent possible. 

The use of current EPA business processes, such as the Action Development Process, National 

and Regional Tribal Operations Committees, and tribal partnership groups is purposeful so that 

consultation with tribal governments becomes a standard EPA practice and not an additional 

requirement. 

The issuance of this Policy supports and guides the development and use of program and 

regional office consultation plans and practices consistent with this Policy. 

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III. Definitions 

A. “Indian tribe” or “tribe” means an Indian or Alaska Native tribe, band, nation, 

pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an 

Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1944, 25 U.S.C. 

479a. 

B. “Tribal official” means an elected, appointed, or designated official or employee 

of a tribe.

 C. “Indian country” means: 

1. All land within limits of any Indian reservation1

 under the jurisdiction of the 

United States government, notwithstanding the issuance of any patent, and, including rightsof-way running through the reservation; 

2. All dependent Indian communities within the borders of the United States 

whether within the original or subsequently acquired territory thereof, and whether within or 

without the limits of a state; and 

3. All Indian allotments, the Indian titles to which have not been extinguished, 

including rights-of-way running through the same. 

IV. Guiding Principles 

To understand both the purpose and scope of the Policy as well as the integration of the Policy, 

Memorandum, and Executive Order, it is helpful to list principles found in EPA’s January 2010 

Plan to Develop a Tribal Consultation and Coordination Policy Implementing Executive Order 

13175: 

EPA’s fundamental objective in carrying out its responsibilities in Indian country 

is to protect human health and the environment. 

EPA recognizes and works directly with federally recognized tribes as sovereign 

entities with primary authority and responsibility for each tribe’s land and 

membership, and not as political subdivisions of states or other governmental 

units. 

EPA recognizes the federal government’s trust responsibility, which derives from 

the historical relationship between the federal government and Indian tribes as 

expressed in certain treaties and federal Indian law. 

1

 EPA’s definition of “reservation” encompasses both formal reservations and “informal” reservations, i.e., trust 

lands set aside for Indian tribes. See for example Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123 

(1993); 56 Fed. Reg. 64876, 64881 (1991); or 63 Fed. Reg. 7254, 7258 (1998). 

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EPA ensures the close involvement of tribal governments and gives special 

consideration to their interests whenever EPA’s actions may affect Indian country 

or other tribal interests. 

When EPA issues involve other federal agencies, EPA carries out its consultation 

responsibilities jointly with those other agencies, where appropriate. 

In addition, it is helpful to note the distinction between this Policy, federal environmental laws 

pertaining to public involvement, and Executive Order 12898, Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income Populations. Under this Policy, 

EPA consults with federally recognized tribal governments when Agency actions and decisions 

may affect tribal interests. EPA also recognizes its obligations to involve the public as required 

by federal environmental laws. Finally, EPA recognizes the need to be responsive to the 

environmental justice concerns of non-federally recognized tribes, individual tribal members, 

tribal community-based/grassroots organizations and other indigenous stakeholders. 

V. Consultation 

A. The Consultation Process. To the fullest extent possible, EPA plans to use 

existing EPA business operations to put this Policy into effect. 

Tribal officials may request consultation in addition to EPA’s ability to determine what requires 

consultation. EPA attempts to honor the tribal government’s request with consideration of the 

nature of the activity, past consultation efforts, available resources, timing considerations, and all 

other relevant factors. 

Consultation at EPA consists of four phases: Identification, Notification, Input, and Follow-up: 

1. Identification Phase: EPA identifies activities that may be appropriate 

for consultation, using the mechanisms described in section B.2, below. The 

identification phase should include a determination of the complexity of the activity, its 

potential implications for tribes, and any time and/or resource constraints relevant to the 

consultation process. This phase should also include an initial identification of the 

potentially affected tribe(s). 

2. Notification Phase: EPA notifies the tribes of activities that may be 

appropriate for consultation. 

Notification can occur in a number of ways depending on the nature of the 

activity and the number of tribes potentially affected. For example, EPA may send out a 

mass mailing to all tribes, may contact the tribal governments by telephone, or provide 

notice through other agreed upon means. EPA normally honors tribal preferences 

regarding the specific mode of contact. 

Notification includes sufficient information for tribal officials to make an 

informed decision about the desire to continue with consultation and sufficient 

information to understand how to provide informed input. 

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Notification should occur sufficiently early in the process to allow for meaningful 

input by the tribe(s). 

3. Input Phase: Tribes provide input to EPA on the consultation matter. 

This phase may include a range of interactions including written and oral 

communications including exchanges of information, phone calls, meetings, and other 

appropriate interactions depending upon the specific circumstances involved. EPA 

coordinates with tribal officials during this phase to be responsive to their needs for 

information and to provide opportunities to provide, receive, and discuss input. During 

this phase, EPA considers the input regarding the activity in question. EPA may need to 

undertake subsequent rounds of consultation if there are significant changes in the 

originally-proposed activity or as new issues arise. 

4. Follow-up Phase: EPA provides feedback to the tribes(s) involved in the 

consultation to explain how their input was considered in the final action. This feedback 

should be a formal, written communication from a senior EPA official involved to the 

most senior tribal official involved in the consultation. 

B. What Activities May Involve Consultation? 

1. General Categories of Activities Appropriate for Consultation: The 

broad scope of consultation contemplated by this Policy creates a large number of actions 

that may be appropriate for consultation. 

The following list of EPA activity categories provides a general framework from 

which to begin the determination of whether any particular action or decision is 

appropriate for consultation. The final decision on consultation is normally made after 

examining the complexity of the activity, its implications for tribes, time and/or resource 

constraints, an initial identification of the potentially affected tribe(s), application of the 

mechanisms for identifying matters for consultation, described below, and interaction 

with tribal partnership groups and tribal governments. 

The following, non-exclusive list of EPA activity categories are normally 

appropriate for consultation if they may affect a tribe(s): 

• Regulations or rules 

• Policies, guidance documents, directives 

• Budget and priority planning development 

• Legislative comments2 

• Permits 

2

 Legislative comments are a special case where, due to short legislative timeframes, consultation in advance of 

comment submission may not always be possible. Nevertheless, EPA will strive to inform tribes when it submits 

legislative comments on activities that may affect Indian country or other tribal governmental interests. 

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• Civil enforcement and compliance monitoring actions3 

• Response actions and emergency preparedness4 

• State or tribal authorizations or delegations 

• EPA activities in implementation of U.S. obligations under an 

international treaty or agreement. 

2. EPA’s Mechanisms for Identifying Matters for Consultation: The 

mechanisms EPA uses for identifying matters appropriate for consultation are as follows: 

a. Tribal Government-Requested Consultation. Tribal officials may 

request consultation in addition to EPA’s ability to determine what requires 

consultation. EPA attempts to honor the tribal government’s request with 

consideration of the nature of the activity, past consultation efforts, available 

resources, timing considerations, and all other relevant factors. 

b. Action Development Process (ADP). Early in the process, the lead 

program office assesses whether consultation is appropriate for the subject action. 

Its determination is available to tribes in the semiannual Regulatory Agenda as 

well as in the subset of rules on the Regulatory Gateway accessed through the EPA 

website. 

This Policy is not intended to subject additional Agency actions to the ADP 

process for the sole purpose of a consultation analysis. Non-ADP actions are 

subject to consultation analysis through other mechanisms identified within the 

Policy. 

c. National Program Offices and Regional Offices. For those actions 

and decisions not in the ADP process, program and regional offices also determine 

if consultation is appropriate under this Policy. EPA’s Tribal Consultation 

Advisors, described below, provide assistance with that determination. Such 

determination includes coordination with national and/or regional tribal 

partnership groups. 

d. National and Regional Tribal Partnership Groups. EPA meets 

regularly with a number of national and regional tribal partnership groups. These 

groups assist in the identification of matters that may be appropriate for 

consultation. 

3

 Primary guidance on civil enforcement matters involving tribes can be found in "Guidance on the Enforcement 

Priorities Outlined in the 1984 Indian Policy," and "Questions and Answers on the Tribal Enforcement Process." 

This guidance is intended to work with the Tribal Consultation Policy in a complementary fashion to ensure 

appropriate consultation with tribes on civil enforcement matters. 

4

 The term “response” as defined under the Comprehensive Environmental Response, Compensation, and Liability 

Act (CERCLA) includes removals and remedial actions.
 

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C. When Consultation Occurs. Consultation should occur early enough to allow 

tribes the opportunity to provide meaningful input that can be considered prior to EPA deciding 

whether, how, or when to act on the matter under consideration. As proposals and options are 

developed, consultation and coordination should be continued, to ensure that the overall range of 

options and decisions is shared and deliberated by all concerned parties, including additions or 

amendments that occur later in the process. 

D. How Consultation Occurs. There is no single formula for what constitutes 

appropriate consultation, and the analysis, planning, and implementation of consultation should 

consider all aspects of the action under consideration. In the case of national rulemaking, a 

series of meetings in geographically diverse areas may be appropriate. For more routine 

operational matters, a less formal process may be sufficient. 

VI. Managing the Consultation Process 

A. Roles and Responsibilities 

The following roles and responsibilities have been defined to allow EPA to effectively 

implement this Policy. These roles and responsibilities reflect the fact that, while oversight and 

coordination of consultation occurs at EPA headquarters, as a practical matter, much of the 

actual consultation activity occurs in EPA’s program and regional offices. The responsibility for 

initially analyzing the need for consultation and then subsequently carrying it out, resides with 

these offices. 

1. Designated Consultation Official: In addition to being the EPA’s 

National Program Manager for the EPA Tribal Program, EPA’s Assistant Administrator 

for the Office of International and Tribal Affairs (OITA) is the EPA-Designated 

Consultation Official under the Executive Order. These responsibilities include 

coordination and implementation of tribal consultation in accordance with this Policy and 

Agency compliance with the 1984 Indian Policy. 

The Designated Consultation Official has the authority for: (1) defining EPA 

actions appropriate for consultation, (2) evaluating the adequacy of that consultation, and 

(3) ensuring that EPA program and regional office consultation practices are consistent 

with this Policy. 

Per the Memorandum, the Designated Consultation Official reports annually to 

OMB on the implementation of the Executive Order.5 Further, the Designated 

Consultation Official certifies compliance with the Executive Order for applicable EPA 

activities. The American Indian Environmental Office (AIEO) is located within OITA 

and coordinates the operational details of the Policy and compiles consultation-related 

information for the Designated Consultation Official. 

2. Assistant Administrators: Assistant Administrators oversee the 

consultation process in their respective offices including analysis for potential 

5

 Report is filed annually by August 3rd. 

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consultation and the consultation process. Each program office is directed to 

prepare a semi-annual agenda of matters appropriate for consultation and a brief 

summary of consultation that has occurred. The program offices provide this information 

to AIEO for reporting to OMB. Each office is directed to designate a Tribal Consultation 

Advisor. 

3. Regional Administrators: Regional Administrators oversee the 

consultation process in their respective offices including analysis for potential 

consultation and the consultation process. Each region is directed to prepare a semiannual agenda of matters appropriate for consultation and a brief summary of 

consultation that has occurred. The regions provide this information to AIEO for 

reporting to OMB. Each region is directed to designate a Tribal Consultation Advisor. 

4. Tribal Consultation Advisors: Tribal Consultation Advisors (TCAs) 

assist in identifying matters appropriate for consultation and prepare summary 

information on consultation activities and provide it to AIEO. TCAs receive and provide 

advice within their respective program offices and regions on what actions may be 

appropriate for consultation. TCAs also serve as a point-of-contact for EPA staff, tribal 

governments, and other parties interested in the consultation process. TCAs are the inoffice subject matter experts to assist staff and management in the implementation of the 

Policy. 

B. National Consultation Meeting 

OITA/AIEO may convene a periodic National Consultation Meeting to be chaired by the 

Designated Consultation Official to review the consultation process across the Agency. 

C. Reporting 

Pursuant to the Memorandum, EPA submits annual progress reports to OMB on the status of the 

consultation process and actions and provides any updates to this Policy. 

D. EPA Senior Management Review 

The Designated Consultation Official communicates regularly with the Assistant and Regional 

Administrators to review the consultation system, to consider any matters requiring senior 

management attention, and to make adjustments necessary to improve the Policy or its 

implementation. 

EPA plans to receive ongoing feedback on the Policy from all parties to assess its effectiveness 

and implement improvements. 

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