# EPAPOLICY 

# 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 

# AThe Consultation Process 

## 4 

# B What Activities 

# May Involve Consultation 

## 5 

# CWhen 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 EPASenior 

## Management Review 8

# I Policy 

### Statement 

## EPA’s policy is to consult 

### on a government

## togovernment basis with federally 

# recognizedgovernments when 

## EPA actions 

### and decisions 

## may affect tribal interests Consultation is process of 

### meaningful communication and coordination 

### between 

## EPA and tribal officials 

# EPA

taking actions or

### implementing decisions that

## may affect tribes 

## As a 

### process 

# consultincludes
several 

### methods of interaction that

## may occur at different levels 

## The appropriate 

# lof

interaction is 

### determined by past 

### and current practices adjustments 

## made through this 

# Pthe

continuing dialogue 

### between 

## EPA and tribal 

### governments and programand regional 

# ofconsultation procedures 

### and plans tribal 

### a rior to ation evel 

### olicy fice

This Policy establishes national guidelines 

### and institutional controls forconsultation across

# EPA EPA program and regional offices 

### have the 

### primary responsibility forconsulting 

### with tribes All 

### programand regional office consultation plans 

### and practices 

### mustbe in accord 

### with this 

### Policy This Policy seeks to strike a balance 

### between providing sufficient guidance forpurposes of achieving consistency 

### and predictability 

### and allowing 

### forand 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

1

### II 

## Background To put into effect the policy statement 

## above 

## EPA has 

### developed this 

### proposed 

## EPA Consultation 

### and Coordination with Indian Tribes 

## PolicyThe Policy 

### complies 

# witPresidential Memorandum 

## Memorandum issued 

## November 

# 52009 directing 

# agendevelop

a plan to 

### implement fully Executive 

### Order13175 Executive 

## Order The 

# EOrder

specifies that 

### each 

## Agency musthave an accountable process to ensure 

# meanintimely
input 

### by tribal officials in the 

### development of regulatory policies that 

### have 

# tribimplications

This Policy reflects the principles expressed in the 

### 1984 

## EPA Policy forthe 

# AdministEnvironmental Programson Indian Reservations 

### 1984 Policy for interacting with t Policy 

### on h the cies to xecutive

gful 

### and al

ration of 

### ribes The 1984 Policy 

### remains the cornerstone for

## EPA’s Indian 

### programand “assure

# s that tribal concerns 

### and interests are considered 

### whenever 

## EPA’s actions 

## andordecisions 

## may affect” tribes 

### 1984 Policy

# p 3 principle 

## no

# 5 One of the 

### primary goals of this Policy is to fully 

### implementboth the Executive 

### Orderand 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 forconsultation in line with the 

### 1984 Policy’s directive to consider tribal interests 

### whenever 

## EPA takes 

### an action that 

### “

## mayaffect” 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

2

### 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

# US

# C 479a 

# B “Tribal official” 

### means an elected 

### appointed ordesignated 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 rights 

## ofway running 

### through the reservation 

# 2 All 

### dependent Indian 

### communities within the borders of the 

### United States 

### whether within the original orsubsequently 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

## ofway 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 setaside for Indian tribes See for example Oklahoma Tax 

### Comm’n

## v Sac and Fox Nation 508

# US 114 123 

## 1993 56 

### Fed

## Reg 64876 64881 

## 1991 or63 

### Fed

## Reg 7254 7258 

## 1998 3

## EPA ensures the close 

### involvement of tribal 

### governments and gives special consideration to their interests 

### whenever 

## EPA’s actions 

## may affect Indian country orother 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 

# LowIncome 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

## nonfederally recognized tribes individual tribal 

## members tribal 

## communitybasedgrassroots 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 forconsultation using the 

### mechanisms described in section

# B2 below The identification phase should include a determination of the 

### complexity of the activity its potential implications fortribes 

### and any time

## andor 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

## maybe appropriate forconsultation
Notification 

### can occur in a 

### number of

## ways depending on the nature of the activity 

### and the 

## numberof tribes potentially affected 

### For

## example 

## EPA maysend 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 4Notification 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 mayneed to undertake 

### subsequent rounds of consultation if there are significant 

### changes in the originally

### proposed activity oras

## new issues arise 

# 4 Followup 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 aformalwritten 

### 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 forconsultation 

## The following list of

## EPA activity categories provides a general 

### framework from which to begin the determination of

### whether any particular action ordecision is appropriate forconsultation 

## The final decision 

### on consultation is 

### normally 

## made after 

### examining the 

### complexity of the activity its implications for tribes

### time

## andor resource constraints 

### an initial identification of the potentially affected tribe

# s application of the 

### mechanisms for identifying matters forconsultation described 

## below and interaction with tribal partnership groups 

### and tribal 

### governments 

## The following 

## nonexclusive list of

## EPA activity categories are 

### normally appropriate forconsultation 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 casewhere due to short legislative timeframes consultation inadvance of comment submission

### may notalways 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 

### 5

### • Civil 

### enforcement and compliance monitoring actions3



### • Response actions 

### and emergency preparedness4



### • State or tribal authorizations ordelegations



### • 

## EPA activities in 

### implementation of

# US obligations 

### under an international treaty or

### agreement 

# 2 EPA’s Mechanisms for Identifying 

### Matters for 

### Consultation The mechanisms 

## EPA uses for identifying mattersappropriate forconsultation 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 timingconsiderations 

### and all other relevant factors 

# b Action Development Process 

# ADP Early in the 

### process the lead 

### program office assesses 

### whether consultation is appropriate forthe 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 forthe sole 

### purpose of a consultation analysis

# NonADP actions are subject to consultation analysis 

### through other 

### mechanisms identified within the 

### Policy 

# c National 

### Program Offices 

### and Regional Offices Forthose 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 

## andor 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

## maybe appropriate for consultation

3 Primaryguidance 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 towork with the Tribal Consultation Policy inacomplementary fashion to ensure appropriate consultation with tribeson civil enforcement matters 4 The term “response”as defined under the Comprehensive Environmental Response Compensation and Liability Act 

## CERCLA includes removals and remedial actions 

### 6

# 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 

### Formore routine operational 

### matters a less formal process 

## maybe 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 programand regional offices 

## The responsibility for initially analyzing the 

### need forconsultation 

### and then subsequently carrying it 

## out resides with these offices 

# 1 Designated Consultation Official In addition to 

### being the 

## EPA’s National 

### Program Manager forthe 

## EPA Tribal 

## Program EPA’s Assistant Administrator forthe Office of International 

### and Tribal Affairs 

# OITA is the

# EPADesignated 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 forconsultation 

# 2 evaluating the 

### adequacy of that consultation 

### and



# 3 ensuring that

## EPA programand 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 

## Order5 

### Further the 

### Designated Consultation Official certifies 

### compliance with the Executive 

### Orderforapplicable 

## 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 forthe 

### Designated Consultation Official 

# 2 Assistant 

### AdministratorsAssistant Administrators oversee the consultation process in their respective offices including analysis forpotential

5 Report is filed annually by August 3rd 

### 7consultation 

### and the consultation 

### process Each program office is directed to prepare a

## semiannual 

### agenda of matters appropriate forconsultation 

### and a brief 

## summaryof 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 AdministratorsRegional Administrators oversee the consultation process in their respective offices including analysis forpotential consultation 

### and the consultation 

### process Each region is directed to prepare a

## semi annual 

### agenda of matters appropriate forconsultation 

### and a brief

## summaryof 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 forconsultation 

### 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 forconsultation 

## TCAs also serve as a 

### point

## ofcontact for

## EPA staff tribal 

### governments and other parties interested in the consultation 

### process 

## TCAs are the 

## in office subject matterexperts to assist staff 

### and 

## management in the implementation of the 

### Policy 

# B National Consultation Meeting 

# OITAAIEOmayconvene 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 

## systemto 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

8