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EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it will work directly with Tribal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued general
statements of policy which recognize the importance of Tribal Governments
in regulatory activities that impact reservation environments. It is the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements in a manner consistent with the overall Federal position
in support of Tribal "self-government" and "government-to-government" rela-
tions between Federal and Tribal Governments. This statement sets forth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies in the conduct of their respective responsibilities.
It is important to emphasize that the implementation of regulatory
programs which will realize these principles on Indian Reservations cannot
be accomplished immediately. Effective implementation will take careful
and conscientious work by EPA, the Tribes and many others. In many cases,
it will require changes in applicable statutory authorities and regulations.
It will be necessary to proceed in a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing in the direction
established under these principles, over time we can significantly enhance
environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the
fundamental objective of the Environmental Protection Agency is to protect
human health and the environment. The keynote of this effort will be to
give special consideration to Tribal interests in making Agency policy,
and to insure the close involvement of Tribal Governments in making
decisions and managing environmental programs affecting reservation lands.
To meet this objective, the Agency will pursue the following principles:
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4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties in the language
of our statutes and regulations have limited our ability to work directly
and effectively with Tribal Governments on reservation problems. As
impediments in our procedures, regulations or statutes are identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove those impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed in certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental interests of Indian Tribes when carrying out its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutual consideration of neighboring governments, whether those
governments be neighboring States, Tribes, or local units of government.
Accordingly, EPA will encourage early communication and cooperation
among Tribes, States and local governments. This is not intended to
lend Federal support to any one party to the jeopardy of the interests
of the.other. Rather, it recognizes that in the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the environment on reservations. We will
work with other agencies to clearly identify and delineate the roles,
responsibilities and relationships of our respective organizations and
to assist Tribes in developing and managing environmental programs for
reservation lands.
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8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
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 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 reservation facilities 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 on Indian reservations 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, EPA will respond as described in the first paragraph above..
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING !
AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING GUIDANCE, LEGISLA-
TIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY ANp
REGULATION DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles
of this Policy are effectively institutionalized by incorporating them into
the Agency's ongoing and long-term planning and management processes. Agency
managers will include specific programmatic actions designed to resolve probj-
lems on Indian reservations in the Agency's existing fiscal year and long-term
planning and management processes.
William D. Ruckelshaus
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 8 1984
OFFICE OF
MEMORANDUM
SUBJECT: Indian Policy Implementation Guidance
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FROM: Alvin L. Aim
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This
document sets forth the broad principles that will guide the Agency in
its relations with American Indian Tribal Governments and in the adminis-
tration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized
Tribal Governments and the environment of a geographical area that is
larger than the combined area of the States of Maryland, New Jersey,
Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is an
important sector of the country, and constitutes the remaining lands of
America's first stewards of the environment, the American Indian Tribes.
The Policy places a strong emphasis on incorporating Tribal Govern-
ments into the operation and management of EPA's delegable programs.
This concept is based on the President's Federal Indian Policy published
on January 24, 1983 and the analysis, recommendations and Agency input
to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1983).
TIMING AND SCOPE
Because of the importance of the reservation environments, we must
begin immediately to incorporate the principles of EPA's Indian Policy
into the conduct of our everyday business. Our established operating
procedures (including long-range budgetary and operational planning acti-
vities) have not consistently focused on the proper role of Tribal Govern-
ments or the special legal and political problems of program management
on Indian lands. As a result, it will require a phased and sustained
effort over time to fully implement the principles of the Policy and to
take the steps outlined in this Guidance.
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I
Some Regions and Program Offices have already made individual starts
along the lines of the Policy and Guidance. I believe that a clear
Agency-wide policy will enable all programs to build on these efforts 'so
that, within the limits of our legal and budgetary constraints, the Agency
as a whole can make respectable progress in the next year. j
i
As we begin the first year of operations under the Indian Policy, we
cannot expect to solve all of the problems we will face in administering
programs under the unique legal and political circumstances presented by
Indian reservations. We can, however, concentrate on specific priority
problems and issues and proceed to address these systematically and care-
fully in the first year. With this general emphasis, I believe that we
can make respectable progress and establish good precedents for working
effectively with Tribes. By working within a manageable scope and pace,
we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this Guidance in
the conduct of our everyday business, the first year's implementation effort
will emphasize concentrated work on a discrete number of representative
problems through cooperative programs or pilot projects. In the Regions,
this effort should include the identification and initiation of work on
priority Tribal projects. At Headquarters, it should involve the resolution
of the legal, policy and procedural problems which hamper our ability to
implement the kinds of projects identified by the Regions. i
The Indian Work Group (IWG), which is chaired by the Director of the
Office of Federal Activities and composed of representatives of key regional
and headquarters offices, will facilitate and coordinate these efforts.
The IWG will begin immediately to help identify the specific projects
which may be ripe for implementation and the problems needing resolution
in the first year.
Because we are starting in "mid-stream," the implementation effort
will necessarily require some contribution of personnel time and funds.
While no one program will be affected in a major fashion, almost all Agency
programs are affected to some degree. I do not expect the investment in
projects on Indian Lands to cause any serious restriction in the States'
funding support or in their ability to function effectively. To preserve
the flexibility of each Region and each program, we have not set a target
for allocation of FY 85 funds. I am confident, however, that Regions and
program offices can, through readjustment of existing resources, demonstrate
significant and credible progress in the implementation of EPA's Policy in
the next year.
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ACTION
Subject to these constraints, Regions and program managers should now
initiate actions to implement the principles of the Indian Policy. The
eight categories set forth below will direct our initial implementation
activities. Further guidance will be provided by the Assistant Adminis-
trator for External Affairs as experience indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS
LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY MATTERS.
This responsibility will include coordinating the development of
appropriate Agency guidelines pertaining to Indian issues, the
implementation of the Indian Policy and this Guidance. In this effort
the Assistant Administrator for External Affairs will rely upon the
assistance and support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND RECOMMENDING DETAILED
GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT
ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD
DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE IWG'S
RESPONSIBILITIES UNDER THE DIRECTION OF THE ASSISTANT ADMINISTRATOR FOR
EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of
Federal Activities, will be an important entity for consolidating the
experience and advice of the key Assistant and Regional Administrators on
Indian Policy matters. It will perform the following functions: identify
specific legal, policy, and procedural impediments to working directly
with Tribes on reservation problems; help develop appropriate guidance
for overcoming such impediments; recommend opportunities for implementation
of appropriate programs or pilot projects; and perform other services in
support of Agency managers in implementing the Indian Policy.
The initial task of the IWG will be to develop recommendations and
suggest priorities for specific opportunities for program implementation
in the first year of operations under the Indian Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant
Administrator must be actively represented on the IWG by a staff member
authorized to speak for his or her office. Further, the designated
representative(s) should be afforded the time and resources, including
travel, needed to provide significant staff support to the work of the
IWG.
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3. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND
LIAISON WITH TRIBES, PROVIDING ADEQUATE INFORMATION TO ALLOW THEM TO WORK
WITH US IN AN INFORMED WAY.
In the first thirteen years 6f the Agency's existence, we have worked
hard to establish working relationships with State Governments, providing
background information and sufficient interpretation and explanations to
enable them to work effectively with us in the development of cooperative
State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (p'referably on the
reservation) with Tribal Government officials. This liaison is essential to
understanding Tribal needs, perspectives and priorities. It will also foster
Tribal understanding of EPA's programs and procedures needed to deal effec-
tively with us.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET
TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY COMPETING PRIORITIES AND BY
OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA
or State Governments, an appropriate block of funds must be set aside to
support reservation abatement, control and compliance activities.
Because we want to begin to implement the Indian Policy now, we cannot
wait until FY 87 to formally budget for programs on Indian lands. Accordingly,
for many programs, funds for initial Indian projects in FY 85 and FY 86
will need to come from resources currently planned for support to EPA-and
State-managed programs meeting similar objectives. As I stated earlier, we
do not expect to resolve all problems and address all environmental needs on
reservations immediately. However, we can make a significant beginning
without unduly restricting our ability to fund ongoing programs.
I am asking each Assistant Administrator and Regional Administrator to
take measures within his or her discretion and authority to provide sufficient
staff time and grant funds to allow the Agency to initiate projects on Indian
lands in FY 85 and FY 86 that will constitute a respectable step towards
implementation of the Indian Policy.
5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT PROVIDED BY THE
GENERAL COUNSEL, SHOULD ASSIST TRIBAL GOVERNMENTS IN PROGRAM DEVELOPMENT AS
THEY HAVE DONE FOR THE STATES.
The Agency has provided extensive staff work and assistance to State
Governments over the years in the development of environmental programs
and program management capabilities. This assistance has become a routine
aspect of Federal/State relations, enabling and expediting the States'
assumption of-delegable programs under the various EPA statutes. This "front
end" investment has promoted cooperation and increased State involvement
in the regulatory process.
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As the Agency begins to deal with Tribal Governments as partners in
reservation environmental programming, we will find a similar need for EPA
assistance. Many Regional and program personnel have extensive experience
in working with States on program design and development; their expertise
should be used to assist Tribal Governments where needed.
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6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL
COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED INPUT
INTO EPA'S DECISION-MAKING AND PROGRAM MANAGEMENT ACTIVITIES WHICH AFFECT
RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions relating
directly or indirectly to reservation environments, full consideration and
weight should be given to the public policies, priorities and concerns of the
affected Indian Tribes as expressed through their Tribal Governments. Agency
managers should make a special effort to inform Tribes of EPA decisions and
activities which can affect their reservations and solicit their input as we
have done with State Governments. Where necessary, this should include provid-
ing the necessary information, explanation and/or briefings needed to foster
the informed participation of Tribal Governments in the Agency's standard-
setting and policy-making activities.
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE MAXIMUM FEASIBLE
EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND PREFERENCES INTO EPA'S POLICY
DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration
to local interests and concerns, within the limits allowed by our statutory
mandate and nationally established criteria and standards. Consistent with
the Federal and Agency policy to recognize Tribal Governments as the primary
voice for expressing public policy on reservations, EPA managers should, within
the limits of their flexibility, seek and utilize Tribal input and preferences
in those situations where we have traditionally utilized State or local input.
We recognize that conflicts in policy, priority or preference may arise
between States and Tribes as it does between neighboring States. As in the
case of conflicts between neighboring States, EPA will encourage early communi-
cation and cooperation between Tribal and State Governments to avoid and resolve
such issues. This is not intended to lend Federal support to any one party in
its dealings with the other. Rather, it recognizes that in the field of environ-
mental regulation, problems are often shared and the principle of comity between
equals often serves the interests of both.
Several of the environmental statutes include a conflict resolution mechan-
ism which enables EPA to use its good offices to balance and resolve the con-
flict. These procedures can be applied to conflicts between Tribal and State
Governments that cannot otherwise be resolved. EPA can play a moderating role
by following the conflict resolution principles set by the statute, the Federal
trust responsibility and the EPA Indian Policy.
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8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNMENTS TO ACHIEVE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT
WITH THE PRINCIPLE OF INDIAN SELF-GOVERNMENT.
The EPA Indian Policy recognizes Tribal Governments as the key
governments having responsibility for matters affecting the health and
welfare of the Tribe. Accordingly, where tribally owned or managed
facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to
achieve compliance. Where reservation facilities 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 on Indian reservations as we do to noncompliance by the
private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with
Federal statutes and regulations include providing consultation and
technical support to Tribal leaders and managers concerning the impacts
of noncompliance on Tribal health and the reservation environment
and steps needed to achieve such compliance. As appropriate, EPA may
also develop compliance agreements with Tribal Governments and work
cooperatively with other Federal agencies to assist Tribes in meeting
Federal standards.
Because of the unique legal and political status of Indian Tribes
in the Federal System, direct EPA actions against Tribal facilities
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. Regional Administrators proposing to initiate such action
should first obtain concurrence from the Assistant Administrator for Enforce-
ment and Compliance Monitoring, who will act in consultation with the Assis-
tant Administrator for External Affairs and the General Counsel. In emergency
situations, the Regional Administrator may issue emergency Temporary Restrain-
ing Orders, provided that the appropriate procedures set forth in Agency
delegations for such actions are followed.
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9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE PLANNING AND
PROGRAM MANAGEMENT ACTIVITIES, INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT
ACCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the principles of the EPA Indian Policy and work
effectively with Tribal Governments on a long-range basis, it will be necessary
to institutionalize the Agency's policy goals in the management systems that
regulate Agency behavior. Where we have systematically incorporated State needs,
concerns and cooperative roles into our budget, Operating Guidance, management
accountability systems and performance standards, we must now begin to factor the
Agency's Indian Policy goals into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes
when conducting routine planning and management activities or carrying out
special policy analysis activities. In addition, the IWG, operating under the
direction of the Assistant Administrator for External Affairs and with
assistance from the Assistant Administrator for Policy, Planning and Evaluation,
will identify and recommend specific steps to be taken to ensure that Indian
Policy goals are effectively incorporated and institutionalized in the Agency's
procedures and operations.
Attachment
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