EPA POLICY

ON

CONSULTATION AND COORDINATION

WITH

INDIAN TRIBES

May 4 2011

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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

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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

processEPA of meaningful communication and coordination between EPA and tribal officials consultincludes taking actions or implementing decisions that may affect tribes As a process lof several methods of interaction that may occur at different levels The appropriate Pthe interaction is determined by past and current practices adjustments made through this ofconsultation continuing dialogue between EPA and tribal governments and program and regional

procedures and plans

tribal

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rior to

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evel

olicy

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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

Consultation witPresidential and Coordination with Indian Tribes Policy The Policy complies agendevelop Memorandum Memorandum issued November 5 2009 directing EOrder a plan to implement fully Executive Order 13175 Executive Order The meanintimely specifies that each Agency must have an accountable process to ensure

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

This Policy reflects the principles expressed in the 1984 EPA Policy for the AdministEnvironmental Programs on 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 program and “assures 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 USC

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 rights

ofway 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 rightsofway 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 ie trust

lands set aside 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 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 FinallyEPA recognizes the need to be responsive to the

environmental justice concerns of non federally 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 Followup

1 Identification Phase EPA identifies activities that may be appropriate

for consultation using the mechanisms described in section B2 below The

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

potential implications for tribes and any time andor resource constraints relevant to the

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

potentially affected tribes

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 tribes

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

originallyproposed activity or as new issues arise

4 Followup Phase EPA provides feedback to the tribess 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 tribes 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 tribes

• 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 US 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 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 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 Order5Further 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

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Report is filed annually by August 3rd

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consultation and the consultation process Each program office is directed to

prepare a semiannual 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 semi

annual 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 pointofcontact for EPA staff tribal

governments and other parties interested in the consultation process TCAs are the in

office subject matter experts to assist staff and management in the implementation of the

Policy

B National Consultation Meeting

OITAAIEO 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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