National Tribal Environmental Council

In response to President Obama’s Memorandum on Tribal Consultation signed on  November 5, 2009,  the Environmental Protection Agency (EPA) has taken steps to develop a plan of action to implement Executive Order 13175, Consultation and Coordination with Indian Tribal Governments.  In January 2010, EPA held two conference calls to solicit comments from tribal leaders.  On February 3, 2010, the EPA submitted its Plan of Action to the Office of Management and Budget. These steps have activated a timeline for tribal comment, public comment, finalization of the consultation policy, and publication in the Federal Register.

Most environmental professionals are aware of the EPA Indian Policy, first adopted in 1984 and reaffirmed by EPA Administrators since Carol Browner in 1994.  The EPA was among the first agencies to adopt such a policy.  The current EPA Indian Policy and Consultation Policy have been in effect for nearly three decades, and the new Plan of Action incorporates the existing policies.  The new plan would seek to implement the 1984 Indian Policy and the Executive Order consistently with each other, and the ultimate goal is to strengthen the consultation, coordination, and partnership between Tribes and the EPA.

 The Assistant Administrator for the Office of International and Tribal Affairs (OITA), Michelle DePass, was appointed as the designated Agency official with principal responsibility for the implementation of Executive Order 13175.  This is consistent with the internal restructuring announced on March 16, 2010, in which the American Indian Environmental office was laterally moved from the Office of Water to the restructured OITA.  Presently, the EPA has not updated its website to reflect these changes, but the American Indian Environmental Office can be found by accessing the Tribal Portal.

 Like the current Indian Policy, the new plan of action recites guiding principles that are summarized as follows:

1. Tribal governments are recognized as sovereigns with primary authority and responsibility for their own land and people.
2. EPA will consider tribes in Agency policies and decisions, and closely involve tribes in decisions and management of environmental programs that affect Indian Country.
3. EPA recognizes the trust relationship between tribes and the federal government.
4. EPA will work cooperatively with other federal agencies on matters that affect Indian Country and tribal interests.
5. EPA takes government-to-government consultation with federally recognized tribes very seriously.
6. EPA views consultation as a process of meaningful communication and coordination at the appropriate time and with tribal officials or their authorized representatives.
7. EPA interprets the definition of “tribal implications” very broadly, and that consultation on policies with tribal implications should be integrated into national and regional operations.

 The development of the enhanced Tribal Consultation and Coordination Policy will take the rest of the calendar year to come to fruition.  Here are the milestones for the plan:

• November 5, 2009, White House Tribal Nations Conference,  Presidential  Memorandum on Tribal Consultation.

• January 6 and 27, 2010:  EPA hosted conference calls to solicit tribal  comments  about Plan of Action. Transcripts, audio, and participant lists can be found on the EPA Consultation Calendar of Events.

• February 3, 2010: EPA submitted Plan of Action to OMB.
• August 2, 2010: EPA proposes to submit progress report to OMB on the status of each action included in its Plan of Action.  Also, opens 60-day public comment period.
• October 1, 2010: 60-day comment period closes.  Opens 90-day timeframe for EPA to issue final consultation policy.
• December 30, 2010: final tribal consultation and coordination policy to be published in Federal Register.

Tribal leaders are encouraged to provide comments throughout the process as EPA strives to finalize the tribal consultation and coordination policy.  EPA has published its Plan of Action, Consultation Policy, and Calendar at http://www.epa.gov/indian/consultation, and it can also be found by accessing the Tribal Portal.