EPA Issues Final Policy on Consultation and Coordination with Indian Tribes

On May 5, 2011, the Environmental Protection Agency (EPA) issued the attached final EPA Policy on Consultation and Coordination with Indian Tribes (the Policy). The EPA has been working on this policy to comply with President Obama’s November 5, 2009, Memorandum which directed all federal agencies to develop plans to more fully implement Executive Order 13175: Consultation and Coordination with Indian Tribal Governments. That Order requires federal agencies to establish processes for regular and meaningful consultation and coordination with tribal governments.

In a letter to tribal leaders of May 5, 2011, Michelle DePass, EPA’s Assistant Administrator for International and Tribal Affairs, wrote that the Policy serves as the overarching framework for consultation across EPA. The EPA intends for the Policy to establish consistent practices for its program and regional offices while providing flexibility for each office to proceed with consultation in a manner that is appropriate for the situation and accommodates the preferences of tribal governments. The Policy also reflects the principles expressed in EPA’s 1984 Policy for the Administration of Environmental Programs on Indian Reservations, which remains the cornerstone of its Indian program. To implement the Executive Order and the 1984 policy, the EPA is taking an expansive view of the need for government-to-government consultation prior to taking an action that “may affect” tribal interests.

The Policy lists a number of guiding principles, including working directly with federally recognized tribes as sovereign entities, and recognizing the federal government’s trust responsibility. The consultation process is described as four phases: Identification, Notification, Input, and Follow-up. The Policy stresses that notification should occur sufficiently early in the process to allow for meaningful input, and specifically provides that tribal officials may request consultation on matters not identified by EPA.

Section V of the Policy describes the consultation process. The EPA’s mechanisms for identifying matters for consultation include those:

  • Requested by tribal governments;
  • Identified by lead program offices through the Action Development Process and publicized in the semiannual Regulatory Agenda;
  • Deemed appropriate by EPA program and regional offices; and
  • Identified through ongoing communication with national and regional tribal partnership groups.

The Policy includes a long, non-exclusive list of activities which normally are appropriate for consultation if they may affect one or more tribes: regulations or rules; policies, guidance documents and directives; budget and priority planning development; legislative comments; permits; civil enforcement and compliance monitoring actions; state or tribal authorizations or delegations; and EPA activities in the implementation of U.S. obligations under an international treaty or agreement.

The EPA’s Designated Consultation Official will be the Assistant Administrator for the Office of International and Tribal Affairs, who has the authority to define actions appropriate for consultation, evaluate the adequacy of consultation, and ensure that practices are consistent with the Policy. The Policy also directs each Assistant Administrator and Regional Administrator to oversee the process in their respective office. Each office is to designate a Tribal Consultation Advisor who will assist them to identify matters appropriate for consultation and serve as a point-of-contact for EPA staff, tribal governments, and other parties interested in this process.

Please let us know if we may provide additional information or assistance regarding the EPA Policy on Consultation and Coordination with Indian Tribes.