# EPA POLICY

ON

CONSULTATION AND COORDINATION

WITH

INDIAN TRIBES

May 4 , 2011Table 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 I nvolve 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 8I. Policy Statement

EPA’s policy is to consult on a gove rnment-to-government basis with federally recognized tribal governments when EPA actions and decisions may aff ect 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, adjust ments 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 prim ary responsibility for consulting with tribes. All program and regional office consulta tion 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 a llowing for, and encour aging, the tailoring of consultation approaches to reflect the circum stances of each consulta tion situation and to accommodate the preferences of tribal governments. The consultation process is further detailed in Section V of this document.

1II. Background

To put into effect the policy statemen t 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 regulator y policies that have tribal implications.

This Policy reflects the prin ciples 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 I ndian 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 st rengthening 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 direc tive to consider tribal interests whenever EPA takes an action that “may a ffect” 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 Devel opment Process, National and Regional Tribal Operations Committees, and tr ibal 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 gui des the development and use of program and regional office consultation plans and pract ices consistent with this Policy.

2III. Definitions

A. “Indian tribe” or “tribe” means an Indi an or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of th e 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, appoint ed, or designated official or employee of a tribe.

C. “Indian country” means:

1. All land within limits of any Indian reservation 1 under the jurisdiction of the United States government, notwithstanding the is suance of any patent, and, including rightsof-way running through the reservation;

2. All dependent Indian communities with in 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, th e Indian titles to which ha ve not been extinguished, including rights-of-way running through the same.

IV. Guiding Principles

To understand both the purpose and scope of the Po licy as well as the inte gration 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 dire ctly with federally recogni zed tribes as sovereign entities with primary authority and re sponsibility for each tribe’s land and membership, and not as political subdivi sions of states or other governmental units.

EPA recognizes the federal government’s tr ust responsibility, which derives from the historical relationship between the fe deral 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).

3EPA ensures the close involvement of tribal governments and gives special consideration to thei r interests whenever EPA’s actio ns may affect Indian country or other tribal interests.

When EPA issues involve other federal ag encies, 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 involveme nt, and Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Po pulations 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 recognize s its obligations to invol ve the public as required by federal environmental laws. Finally, EPA re cognizes the need to be responsive to the environmental justice concerns of non-federally recognized tribes, individual tribal members, tribal community-based/grassroots organiza tions 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 go vernment’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, Notifica tion, 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 determin ation of the complexity of the activity, its potential implications for trib es, and any time and/or resource constraints relevant to the consultation process. This phase should al so 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 informati on for tribal officials to make an informed decision about the desire to c ontinue with consultation and sufficient information to understand how to provide informed input.

4Notification should occur sufficiently early in the process to allow for meaningful input by the tribe(s)

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3. Input Phase : Tribes provide input to EP A on the consultation matter. This phase may include a range of in teractions including written and oral communications including exchanges of info rmation, phone calls, meetings, and other appropriate interactions de pending upon the specific circ umstances involved. EPA coordinates with tribal offici als during this phase to be responsive to their needs for information and to provide opportunities to prov ide, 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 act ivity 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 cons idered in the final act ion. This feedback should be a formal, written communication from a senior EPA offici al 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 th is 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 whet her any particular action or decision is appropriate for consultation. The final decisi on on consultation is normally made after examining the complexity of the activity, its im plications for tribes, time and/or resource constraints, an initial identification of the pot entially affected tribe(s), application of the mechanisms for identifying matters for cons ultation, 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 th ey may affect a tribe(s):

• Regulations or rules

• Policies, guidance documents, directives

• Budget and priority planning development

• Legislative comments 2

• Permits

2 Legislative comments are a special case where, due to s hort legislative timeframes, consultation in advance of comment submission may not always be possible. Neverthe less, EPA will strive to inform tribes when it submits legislative comments on activities that may affect Indi an country or other tribal governmental interests.

5• Civil enforcement and co mpliance monitoring actions 3

• Response actions and emergency preparedness 4

• State or tribal authoriz ations 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 C onsultation. Tribal officials may request consultation in addition to EPA’ s ability to determine what requires consultation. EPA attempts to honor th e tribal government’s request with consideration of the nature of the activity, past cons ultation 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 consultati on 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 Gatewa y 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 anal ysis through other mechanisms identified within the Policy.

c. National Program Offices and Regi onal Offices. For those actions and decisions not in the ADP process, pr ogram and regional offices also determine if consultation is approp riate under this Policy. EPA’s Tribal Consultation Advisors, described below, provide assistance with that determination. Such determination includes c oordination with national and/or regional tribal partnership groups.

d. National and Regional Tribal Partnership Groups. EPA meets regularly with a number of national and re gional tribal partnership groups. These groups assist in the identification of matters that may be appropriate for consultation.

3 Primary guidance on civil enforcemen t matters involving tribes can be found in "Guidance on the Enforcement Priorities Outlined in the 1984 Indian Policy," and "Ques tions 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 Comprehens ive Environmental Response, Compensation, and Liability Act (CERCLA) includes removals and remedial actions.

6C

. 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 unde r consideration. As proposals and options are developed, consultation and coordina tion should be continued, to en sure 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 th e analysis, planning, and implementation of consultation should consider all aspects of the act ion under consideration. In th e case of national rulemaking, a series of meetings in geogra phically diverse areas may be ap propriate. 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 responsib ilities reflect the fact th at, while oversight and coordination of consultation occurs at EPA hea dquarters, as a practical matter, much of the actual consultation activity occurs in EPA’s program and regiona l offices. The responsibility for initially analyzing the need for consultation and then subsequently carry ing 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 respon sibilities include coordination and implementation of tribal cons ultation in accordance with this Policy and Agency compliance with th e 1984 Indian Policy.

The Designated Consultation Official has the authority for: (1) defining EPA actions appropriate for consulta tion, (2) evaluating the adequa cy of that consultation, and (3) ensuring that EPA program and regional offi ce consultation pract ices are consistent with this Policy.

Per the Memorandum, the Designated Consu ltation Official repor ts 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 Environmen tal Office (AIEO) is located within OITA and coordinates the operational details of th e 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 3 rd

. 7consultation and the consultation process. Each program office is directed to prepare a semi-annual agenda of matters appropriate fo r consultation and a brief summary of consultation that has occurred. Th e 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 semi

annual agenda of matters appropriate fo r 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 provi de it to AIEO. TCAs receive and provide advice within their respective program offi ces 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 Co nsultation 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 provi des 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 syst em, to consider any ma tters requiring senior management attention, and to make adjustme nts necessary to improve the Policy or its implementation.

EPA plans to receive ongoing feedback on the Polic y from all parties to assess its effectiveness and implement improvements.

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