National Tribal Environmental Council

The U.S. Environmental Protection Agency released its Policy on Consultation and Coordination with Indian Tribes on June 9th, and held a comment period through September 16th. This policy complies with President Obama's directive for federal agencies to develop plans for tribal consultation, and also integrates the EPA's existing Indian Policy and Indian program structures into a "new and improved" consultation policy. The Policy is undergoing internal Agency review in response to comments, and will likely be published in the Federal Register in late November/early December for a 60-day comment period. The Policy should be finalized in early 2011.

The Policy on Consultation and Coordination with Indian Tribes can be found at the EPA Tribal Portal (www.epa.gov/tribal). This policy establishes a framework for government-to government consultation with federally recognized tribes, and does an admirable job in meeting the Agency's intended objectives: establishing clear standards for the consultation process; designating individuals within EPA as points of contact, for tribes and EPA to internally, to promote consistency and coordination for the consultation process; and establishing a management oversight and reporting structure to ensure accountability and transparency.

This Policy contains a familiar set of guiding principles incorporated from the 1984 Agency Indian Policy. In clear terms, this Policy establishes national guidelines and institutional controls, for which the program and regional offices must conform. It further articulates a balancing "between providing sufficient guidance for 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 new design of the consultation process is well conceived, consultation activity categories are sufficiently defined, and consultation actions include tribally initiated matters.

Roles and responsibilities are defined between EPA headquarters, and program and regional offices. The Assistant Administrator for the Office of International and Tribal Affairs (OITA-AA) is the Designated Consultation Official who is responsible for coordination and implementation of tribal consultation. The Designated Consultation Official has authority to define EPA actions appropriate for consultation, evaluate adequacy of consultation, and ensure that program and regional office consultation policies and practices are consistent with the Policy. The Designated Consultation Official is required to report annually to the Office of Management and Budget on implementation of Obama's Executive Order on Tribal Consultation; and also certifies compliance with the Executive Order. The role of the American Indian Environmental Office (AIEO) is to coordinate operational details and compile consultation-related information for the Designated Consultation Official.

Assistant Administrators oversee the consultation process in their respective offices, including analysis for potential consultation and the consultation process. Each program office is directed to prepare a semi-annual agenda of consultation matters and summary of consultation that has occurred. Each office is directed to designate a Tribal Consultation Advisor.

Regional Administrators (RAs) are responsible to oversee the consultation process including analysis for potential consultation and the consultation process; and prepare a semiannual agenda for consultation matters and a summary of consultation that has occurred. RAs are directed to designate a Tribal Consultation Advisor.

Tribal Consultation Advisors (TCAs) are responsible to assist in identifying matters appropriate for consultation, prepare summary information on consultation activities, and provide such information to the American Indian Environmental Office. TCAs will serve as the point-of-contact for EPA staff, tribal governments, and other parties interested in the consultation process.

There are a number of elements for tribal leaders and their representatives to consider in this new and improved consultation policy:

• A statement in the background section expresses that the Policy is intended to be implemented by using existing structures; and the "use of current EPA business processes...is purposeful so that consultation with tribal governments becomes a standard EPA practice and not an additional requirement." This is a laudable goal, although, there are specific references to the National and Regional Tribal Operations Committees, and tribal partnership groups, which may allude to media groups such as the National Tribal Air Association, National Tribal Water Council, and other similar groups. These committees and groups may serve supportive roles to the consultation process, but should not be the exclusive entities with which the EPA conducts consultation.

• The definition of Indian tribe is based on the Federally Recognized Indian Tribes List Act of 1994. This law requires the Bureau of Indian Affairs to publish a list of federally acknowledged tribes. The most recent list of federally acknowledged tribes was published on October 1, 2010 (75 FR 60810).

• The definition of Indian country may pose problems for tribes who have issues about their territorial jurisdiction.

• In the follow-up phase of the consultation process, the EPA must provide written communication to tribes involved in a consultation to explain how their input was considered in a final action.

• Tribal consultation advisors are critical to the consultation process. This is a new position or designation, and it is unclear how this position will be filled and resourced to carryout consultation analyses, determinations, and communications.

• Semi-annual agendas are to be prepared by the Assistant Administrators and Regional Administrators. These agendas should be published for tribes to review.

• OITA/AIEO may convene a national consultation meeting to review the consultation process across the Agency.

In the months ahead, this policy will be finalized and the implementation phase will follow. This will be the real test for the new policy. Time will tell if this new policy will achieve its goals and truly transform consultation so that it becomes a standard practice at the Agency.