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I. INTRODUCTION
The U.S. Environmental Protection Agency (EPA), Region 8, has developed
this document to provide guidance and information to Regional managers and
staff. This guidance is intended to respond to and clarify questions that
are most frequently raised by our internal and external customers and
constituents, relating to: (1) Agency protocol in working with federally
recognized tribes, (2) Agency support of federally recognized tribal
governments in building capacity to manage environmental programs, and (3)
Agency positions on environmental program responsibilities and jurisdiction.
II. BACKGROUND
In November 1984, Administrator Ruckelshaus formally signed and adopted
an EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN
RESERVATIONS. Subsequently, Administrator Reilly in February 1990 and
Administrator Browner in March 1994 formally reaffirmed the 1984 Indian
Policy. Although much was accomplished in the intervening decade, most of
the work of establishing environmental programs on Indian Reservations
remains to be done. Thus, in recognition of its responsibility to human
health and the environment throughout the Region, Region 8 has adopted this
Policy to implement the 1984 EPA Indian Policy.
The overarching task in implementing the 1984 Indian Policy is to
develop environmental programs for Indian Country that are as comprehensive
and as effective as the programs now in place in the rest of the Region.
This effort will emphasize the central role of tribal governments in
environmental protection, and will give first priority to developing
EPA/tribal partnerships patterned after the EPA/state partnerships already
in place.
The Region's approach to implementing the 1984 Indian Policy is
presented only in part in the guidance of this policy document. It will be
presented in more specific detail in the Region 8 Tribal Work Plan and
Tribal/EPA agreements called for in Administrator Browner's
directive of July 14, 1994.
These documents are now under development.
III. PRINCIPLES
A. Region 8 will work with tribal governments on a government-to-government
basis.
B. Region 8 will support the principle of tribal self-government in
the implementation and administration of environmental programs.
C. Region 8's primary focus will be to protect human health and the
environment in Indian Country.
D. Region 8 will seek tribal government agreement before making
decisions on environmental matters (other than certain enforcement actions)
(1) affecting tribal governments and/or
tribal natural resources. If no agreement can be reached, then a formal
dispute resolution process (2) can be
invoked by either Region 8 or the tribal government.
E. Region 8 will assist tribal governments in building tribal
capacity to manage reservation environmental programs.
F. Region 8 will encourage cooperation between tribal and state
governments to address environmental issues.
G. Region 8 will work cooperatively with other federal agencies to
protect reservation environments.
H. Region 8 will work with tribal governments to encourage the
development of public participation processes as part of authorized tribal
environmental programs.
IV. PROTOCOL FOR WORKING WITH TRIBAL OFFICIALS
A. INTRODUCTION
In Region 8's recent reorganization, the Tribal Assistance Program Office was
created as a central core tribal program for overall management and
accountability of the Regional Indian Program. This approach promotes the
direct government-to-government relationship that is the basis of the 1984
Indian Policy.
This protocol does not govern conduct of criminal investigations or
criminal enforcement. Such activities are not undertaken by Region 8.
Region 8 will work with each tribal government through the development
of Tribal/EPA Agreements (TEAs) to determine
what, if any, cultural components each tribe wants to include in the TEA.
B. PROCEDURES FOR VISITS OR INSPECTIONS TO RESERVATIONS
1. Regional employees scheduling trips to Indian Country in Montana
will inform the Tribal Assistance Program Office and the Montana Operations
Office of the intended inspection/visit.
2. Regional Administrator/Deputy Regional Administrator
non-issue-specific visits to reservations will be coordinated by the Tribal
Assistance Program Office including coordinating the pre-visit briefing.
3. Issue or program-specific visits will be coordinated by the
Office responsible for the issue. Programs and Offices will inform the
Tribal Assistance Program Office of the scheduled visits.
4. Region 8 will notify the Tribal Chair and the Tribal
Environmental Official of inspections in Indian Country at least seven
calendar days prior to the inspection. Other criteria and procedures for
unannounced inspections may be developed in Tribal/EPA agreements. Region 8
will offer entrance and exit interviews concerning announced inspections to
the appropriate Tribal Chair and Tribal Environmental Official. This
notification may be by telephone unless the tribe requests other means of
notification.
5. In environmental emergency situations in Indian Country, Region 8
will notify as appropriate the Tribal Environmental Official of the
inspection/visit by phone.
6. Region 8 employees will take photographs of reservation areas
only for official use and with tribal permission. The tribe may designate a
tribal official to oversee the photography.
7. If state inspectors request to accompany EPA inspectors to a
reservation site, Region 8 will inform the Tribal Environmental Official of
the state's request in writing. Region 8 will consult with the tribe, and
where appropriate may defer to the tribe's conclusion on whether state
inspectors will accompany EPA to the site. This issue may be addressed
otherwise in Tribal/EPA Agreements.
C. PROCEDURES FOR WRITTEN ROUTINE MATTERS WITH TRIBAL OFFICIALS
1. Letters to the Regional Administrator from Tribal Chairs will be
answered within ten working days of receipt and will be prepared for the
Regional Administrator's signature.
2. If a response cannot be provided by the ten-day deadline, a
phone call from the Tribal Assistance Program Office or the Montana
Operations Office will be placed to the Tribal Chair and/or the Tribal
Environmental Official indicating that the letter has been received and
that a reply is being prepared. An explanation of the delay and an
anticipated date of reply will be provided.
3. Letters to the Regional Administrator from a Tribal Chair will
be treated as controlled correspondence by the Regional Administrator's
Office. The letters will be assigned to the appropriate ARA or Office
Director.
4. Letters from Tribal Chairs or Tribal Environmental Officials
that involve specific program issues and are directed to EPA ARAs, the Montana Operations Office or program staff
will be answered by program staff for signature by the appropriate ARA or
Office Director, or his/her designee.
5. Letters concerning inspections in Indian Country will be
directed to the Tribal Environmental Official with a copy to the Tribal
Chair.
6. Grant documents signed by the Assistant Regional Administrator
for Technical and Management Services or his/her designee, will be sent
directly to the Tribal Chair with a copy to the Tribal Environmental
Official.
7. Letters of decision involving broad policy issues, grant and
program eligibility (Treatment as a State) determinations, jurisdictional
issues, delegations and significant enforcement actions (as defined in
program-specific enforcement response policies) will be prepared for the
signature of the Regional Administrator or his/her designee and sent to the
Tribal Chair. A courtesy copy will be sent to the Tribal Environmental
Officer.
8. EPA notices of inspection form(s) and final inspection reports
will be provided upon completion to the Tribal Environmental Official.
Preliminary results that identify significant environmental problems will
be sent to the Tribal Chair and Tribal Environmental Official immediately.
9. EPA or state inspection reports on sites situated outside
Indian Country that may have an impact on people or the environment in
Indian Country will be forwarded by EPA to the appropriate Tribal
Environmental Official.
10. EPA or Tribal inspection reports on sites situated in Indian
Country that may indicate an impact on people or the environment outside
Indian Country will be forwarded to the appropriate State Environmental
Official.
11. The disclosure of inspection reports with a tribe or state
will be consistent with regulation and policy on disclosure of EPA records
and confidentiality of business information 40 CFR Part
12. Region 8 will make the fullest possible disclosure consistent
with the policy.
D. PROCEDURES FOR TRIBAL VISITS TO REGIONAL OFFICE
1. ARAs and Office
Directors will notify the Tribal Assistance Program Office and the Regional
Administrator/Deputy Regional Administrator of upcoming visits by Tribal
Chairs.
2. Visiting Tribal Chairs will be invited to meet with the Regional
Administrator/Deputy Regional Administrator, ARAs
or the Montana Operations Office Director, as appropriate.
3. Regional staff will notify the Tribal Assistance Program Office
of tribal official visits so that additional meetings can be scheduled if
requested by tribal official.
E. PROCEDURES FOR ELEVATION OF ISSUES AND DISPUTE RESOLUTION
Timely resolution of issues is important and
Region 8 recognizes the need for an elevation procedure. If a tribe requests
a timetable for resolution of an issue requiring Agency decision, a
response will be provided by the appropriate Assistant Regional
Administrator (ARA). If a timely decision or response is not then provided,
the Tribal Chair may elevate the issue to the Regional Administrator.
Region 8 is committed to resolving issues at the Regional level and
strongly encourages tribes to work within the Regional framework.
When an elevation process has begun, the project manager will keep the
Tribal Assistance Program Office Director informed and involved in the
process.
Where tribal agreement and dispute resolution are called for in this
document in making EPA decisions, every reasonable effort will be made to
obtain tribal agreement. Region 8 will endeavor to accommodate the tribe to
the extent the law allows. In cases of continuing disagreement, the
responsible ARA may, to the extent permitted by law and upon tribal
request, refer the issue to the Regional Administrator, who--following
consultation with the tribal chair, the Director of the American Indian
Environmental Office (AIEO) and the Headquarters program office, as
appropriate--will make a final decision.
Existing Memoranda of Agreement between Headquarters program offices and
the Region will be augmented by this policy. The Regional Administrator
will raise substantive issues to the appropriate Assistant Administrators
consistent with these MOAs.
V. TRIBAL
CAPACITY BUILDING
A. INTRODUCTION
Region 8 views tribal governments as the appropriate party for making
decisions and carrying out program responsibilities affecting the health
and welfare of the reservation population and environment where they can
demonstrate the capability and authority to do so. In order to achieve the
Agency objective of protecting the environment and human health in Indian
Country, in a manner consistent with support of tribal self-government, EPA
will assist tribes in developing the technical, fiscal, and administrative
infrastructure necessary to implement environmental protection programs.
EPA is cognizant of the differences between tribes and states, and among
tribes. In assisting tribes in building environmental capacity, EPA will be
sensitive to the unique qualities of each tribe, including varying customs,
beliefs, environmental protection experience and technical, fiscal, and
administrative infrastructure.
B. BACKGROUND
The 1984 EPA Indian Policy outlines nine principles for ensuring that the
Agency carries out its responsibilities on Indian reservations. The third
principle asserts that the "Agency will take affirmative steps to
encourage and assist tribes in assuming regulatory and program management
responsibilities for reservation lands." This principle guides Region
8 in its development of a tribal capacity-building policy which describes
objectives that will assist tribal governments in developing programs and
in preparing to assume regulatory and program management responsibilities
in Indian Country.
C. POLICY STATEMENT
Region 8 will provide outreach, education, training, and technical,
financial and legal assistance to develop, implement, and maintain
comprehensive tribal environmental programs.
Objective 1: Region 8 will work directly with each
Indian tribe to provide guidance and develop a Tribal/EPA agreement for
building tribal capacity, to include identification of resources,
milestones for progress, and timetables.
Objective 2: Region 8 will develop an integrated grants
process to fund tribal environmental programs. In each planning cycle, EPA
will, where appropriate, make every effort to reprogram Regional funds, and
request appropriate funding levels from Headquarters programs as necessary
to ensure reasonable progress toward full tribal program administration,
consistent with the Tribal/EPA agreement developed in Objective 1. The goal
of this integrated approach is to simplify the grant application and award
process and to encourage each tribe to implement a core environmental
management program tailored to that tribe's specific needs. It is Region
8's policy to make reasonable progress toward the necessary funding for
every tribe to have the ability to assess problems, rank risks, develop
adequate infrastructure, and develop a core program. We will use all available
grant authorities to implement this integrated approach, including
multi-media (General Assistance Program) grants and single media grants to
Indian tribes or tribal consortia.
Objective 3: Region 8 will provide appropriate
financial and programmatic oversight for each of these grants based on the
needs of the Indian tribe receiving funding consistent with statutory and
regulatory requirements. As tribes demonstrate continuous improvement in
grants management and program development, oversight will be adjusted
accordingly. This oversight will include providing necessary program
specific guidance.
Objective 4: Region 8, will initiate activities to provide
training and technical assistance to tribal governments. Our policy is to
provide training to meet the tribes' needs to build technical, fiscal and
administrative capacity, as identified by the tribes in consultation with
EPA technical staff. This assistance will be coordinated through the
Program Office to provide process guidance to environmental program
personnel developing technical assistance or training curricula specific to
tribal programs.
Objective 5: Region 8 is committed to building tribal
environmental capacity by working with tribes in the field. We will, in
developing Tribal/EPA agreements, determine the appropriate number and
scope of visits to each reservation.
Objective 6: Region 8 will make personnel available
through short-term details, Intergovernmental Personnel Act (IPA), or
similar assignments, to assist tribes in developing environmental
protection programs. Region 8 will also encourage tribal representatives to
visit both the Denver and Helena
offices in the same capacity. This may include such assignments as
short-term training visits, internship assignments, and IPAs.
D. IMPLEMENTATION
Each of the preceding objectives has been identified as a means to assist
tribal governments in building environmental program capacity. Region 8
will incorporate these objectives into its Annual Strategic, Operating and
Budget Plans and the Tribal/EPA agreements to be negotiated with each
tribe.
VI. ENVIRONMENTAL PROTECTION IN INDIAN COUNTRY (3)
Program Implementation and Jurisdiction
A. JURISDICTION GENERALLY
1. Background
The 1984 EPA Indian Policy states clearly that EPA recognizes tribal
governments as the ". . . primary parties for setting
standards, making environmental policy decisions and managing programs for
reservations consistent with Agency standards and regulations....The Agency
will assist interested tribal governments in developing programs and in
preparing to assume regulatory and program management responsibilities for
reservation lands....Until tribal governments are willing and able to
assume full responsibility for delegable programs, the Agency will retain
responsibility for managing programs for reservations."
In accordance with the Agency's national policy, Region 8 supports
tribal government assumption and management of environmental programs for
Indian Country, to the maximum extent permitted by law. Until such programs
are in place, Region 8 retains responsibility for direct implementation of
environmental programs for Indian Country in the Region.
Most of the programs for which Region 8 is responsible are regulatory
programs requiring enforcement of environmental standards and rules.
Accordingly, jurisdiction is an important factor in policies and decisions
relating to the assumption and management of regulatory programs in Indian
Country.
Jurisdiction in Indian Country is a matter of federal law, based upon
the U.S. Constitution, treaties, statutes and decisions of the federal
courts.
Region 8 generally does not give "advisory" opinions on state
and tribal jurisdiction. To date, Region 8 has given opinions on state and
tribal jurisdiction only when faced with a federal decision, such as a
"Treatment in the same manner as a State" application or request
for program approval, that requires a prior
determination of jurisdiction. In such cases, Region 8 has based its
decision upon its understanding of the relevant statutes and principles of
Federal Indian Law. The Agency has, in appropriate cases, consulted with
legal experts in the Department of the Interior and the Department of
Justice, and the Agency has had the benefit of the views of states, tribes
and other interested parties as part of a public record.
2. Principles
a. The federal government has broad jurisdiction over pollution
sources throughout the United States,
including Indian Country.
b. EPA presumes that, in general, tribes are likely to possess
the authority to regulate activities which are regulated by EPA statutes
and which affect resources on the reservation.
c. States applying to administer federal environmental programs
within Indian reservations must adequately demonstrate their jurisdiction
to do so. Through a transition process initiated by this Policy, Region 8
will begin to issue federal permits, under the priorities set forth in this
Policy.
d. Region 8 encourages cooperative agreements between tribes and
states for administering environmental programs in Indian Country, where
this serves the mutual self-interest of the parties and the environment.
B. PROGRAM IMPLEMENTATION ISSUES
1. Tribal Implementation of Programs
a. Region 8 will authorize tribal governments to manage
environmental programs in Indian Country, if permitted to do so by law and
if the tribe applies and is qualified.
b. Tribal governments are encouraged, but not required, to assume
program responsibilities.
c. Tribal applications for program authorization will be approved
if the applicant meets the criteria for program approval under the relevant
EPA statutes and regulations. Although Region 8 must be assured that the
applicant has met the minimum criteria for program effectiveness set forth
in regulations, the Region recognizes the need for flexibility to respond
to the special circumstances and legal status of Indian Tribes.
d. As stated in the 1984 Indian Policy, where a tribe is
unwilling or unable to assume full responsibility under a program,
"the Agency will encourage the tribe to participate in policy-making
and to assume appropriate lesser or partial roles in the management of...[federal, direct implementation] reservation
programs."
e. Region 8 retains responsibility for direct federal
implementation of a program in Indian Country in the absence of an approved
non-federal program. See paragraph B.2.a, below.
f. Where Region 8 has approved a tribal program or entered into a
cooperative tribal/EPA agreement for the management and/or enforcement of a
federal program, Region 8 will assist and support the tribe in carrying out
its responsibilities under the program or agreement (including, if
applicable, the exercise of tribal jurisdiction over non-member pollution
sources located on non-member owned fee lands in Indian Country). EPA will
maintain criminal enforcement authority for cases involving Indian lands.
g. Region 8 will look to the Bureau of Indian Affairs (BIA) and
tribes for guidance concerning the boundaries of reservations and other
parts of Indian Country. Relevant federal agency maps (e.g., BIA, BLM, USGS) although not legally definitive, are useful for
general planning purposes. Questions as to the exact location of specific
sites may need to be carefully researched.
2. Direct Federal Implementation of Programs
a. Region 8 is responsible for direct implementation of
environmental programs for Indian Country in the Region until tribal
governments are formally authorized to implement programs, consistent with
(1) the criteria set forth in EPA statutes and regulations, (2) the
principle, reflected in the 1984 EPA Indian Policy, that tribal governments
are the appropriate non-Federal parties for making decisions and carrying
out program responsibilities affecting Indian reservations, their
environments, and the health and welfare of the reservation populace, and
(3) the objective, reflected in the 1991 EPA/State/Tribal Concept Paper, of
providing for coherent and consistent environmental regulation on
reservations and preventing checkerboarding. To
the extent permitted, Region 8 will provide grant or contract support to
tribes to manage all or part of the Federal program. In carrying out
programs, Region 8 will be guided by Tribal/EPA agreements.
b. Region 8 will establish priorities for its direct federal
implementation activities by addressing as its highest priority the most
serious threats to public health and the environment in Indian Country that
are not otherwise being adequately addressed substantively. This priority
implements the mandate of the EPA and the principle that 'Region 8's
primary focus will be to protect human health and the environment within
Indian reservations.'
c. Standards: Region 8 will work with tribal governments in the
development and adoption of environmental standards (e.g., water quality
standards) for Indian Country under their control. All standards must meet
applicable federal requirements. If agreement on standards cannot be reached
with the tribe, the responsible ARA will invoke the dispute resolution
process described in IV.E, page 5.
d. Program Management (other than enforcement). Region 8 is
responsible for program management in Indian Country. Region 8 will work
with the tribal government, through the Tribal/EPA agreement process, to
reach agreement on program management. If agreement on program management
cannot be reached with the tribe, the responsible ARA will invoke the
dispute resolution process described in IV.E, page 5.
Region 8 may provide grant or contract support (as appropriate and to
the extent permitted by applicable law) to a tribe to manage all or part of
the federal program. Region 8 may provide grant or contract support to a
state to manage all or part of a federal program if the tribe and state
have reached a freely negotiated/mutually agreeable, written arrangement
for the management (other than enforcement actions) of a federal program in
Indian Country, to include funding support to the state.
e. Enforcement Actions. Region 8 has primary enforcement
authority and responsibility until primacy is formally granted to a tribal
government that has demonstrated adequate jurisdiction over Indian Country.
Region 8 will strive to ensure compliance with environmental statutes
and regulations in Indian Country as set forth in the 1984 Indian Policy
which states:
In those cases where facilities owned or managed by tribal governments
are not in compliance with federal environmental statutes, EPA will work
cooperatively with tribal leadership to develop means to achieve
compliance, providing training, technical support and consultation as
necessary to enable tribal facilities to comply. Because of the distinct
status of Indian tribes and the complex legal issues involved, direct EPA
action through the judicial or administrative process will be considered
where the Agency determines, in its judgment, that: (1) a significant
threat to human health or the environment exists, (2) such action would
reasonably be expected to achieve effective results in a timely manner, and
(3) the Federal Government cannot utilize other alternatives to correct the
problem in a timely fashion.
In those cases where facilities in Indian Country are clearly owned or
managed by private parties and there is no substantial tribal interest or
control involved, the Agency will endeavor to act in cooperation with the
affected tribal government, but will otherwise respond to noncompliance by
private parties in Indian Country as the Agency would to noncompliance by
the private sector elsewhere in the country. Where the tribe has a
substantial proprietary interest in, or control over, the privately owned
or managed facility, Region 8 will respond as described in the paragraph
above.
Region 8 will work with the tribal government, in the Tribal/EPA
Agreement process, to reach agreement on federal enforcement. If agreement
on enforcement issues cannot be reached with the tribe, Region 8 will
follow applicable EPA enforcement guidance, and where appropriate, the
responsible ARA may invoke the dispute resolution process described in
IV.E, page 5.
Region 8 may, where appropriate, enter into three party Region
8/tribal/state cooperative enforcement agreements. See Part VII Cooperative
Agreements. Region 8 will not provide funding support for enforcement
activity in Indian Country without a cooperative enforcement agreement.
Where any entity other than the tribe takes enforcement action in Indian
Country without a defined basis for asserting jurisdiction, EPA will assert
federal jurisdiction.
f. Permits. Region 8 is responsible for issuing permits in Indian
Country until a tribal permitting program expressly applying to Indian
Country is formally authorized. Region 8 will carry out this process in a
prioritized manner, beginning with (1) facilities that must be but are not
now permitted, emphasizing those that pose the greatest threat to public
health or the environment; (2) facilities that are now permitted by a state
where the standards being enforced by the state are significantly less
protective of public health or the environment than tribal or EPA standards
applicable to such facilities, or are otherwise substantively inadequate;
and (3) instances where the tribal government raises important
considerations. Over time and after assessment by Region 8 of the initial
implementation, Region may add other criteria for prioritizing permit
issuance. Region 8 will work with tribal governments and in consultation
with affected states and permittees to compile
and, as appropriate, revise a master list, by program, with a schedule for
proposed issuance. EPA will ensure regular compliance inspections and
appropriate enforcement of such permits.
g. Timeliness. The pace of federal program implementation will be
resolved in EPA/Tribal Agreements.
VII. TRIBAL/STATE/EPA COOPERATIVE AGREEMENTS
A. INTRODUCTION
Region 8 encourages tribal/state/EPA cooperative agreements as provided
in the 1984 Indian Policy. The EPA American Indian Environmental Office
issued policy guidance dated May
22, 1995 on tribal/state cooperative agreements. The policy
guidance includes the following guidelines:
1. First and foremost EPA should be building tribal capacity and
comprehensive tribal environmental programs so that tribes can truly
negotiate with states on an equal level to mutually determine a course of
action to adequately protect common resources.
2. Agreements should be recognized by the tribe as a reasonable
option to address their environmental concerns and the tribe should
initiate the process when the agreement is being developed to address
tribal need.
3. EPA should provide financial and technical support to the
tribes during the development and implementation of the agreements to help
ensure that the tribes are truly in a position to freely negotiate and
fully address their environmental concerns.
4. Agreements do not replace formal promulgation of a federal
program or a delegation/authorization of a tribal program. Agreements are
simply one tool, among many, for program implementation. The programs to be
carried out under such agreements must still meet federal
minimums/standards as set forth in the Code of Federal Regulations.
5. Agreements do not abrogate the Agency's statutory and trust
responsibilities for protecting tribal health and environments in a manner
which does not endanger or compromise fundamental governmental rights of
the tribe.
6. Agreements do not, independent of explicit Congressional
intent or judicial finding, confer regulatory jurisdiction.
B. (e.g., 40 CFR Part 123).
C. (4)
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