U.S. Environmental Protection Agency (EPA)
Response to Tribal Consultation &
Coordination Comments

on

Plan EJ 2014 Strategy and
Implementation Plans

Public Comments Received:
October 2011


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

Plan EJ 2014 is EPA's roadmap for addressing and integrating environmental justice into the Agency's
programs, policies and activities. In order to ensure the Plan is most effective at addressing the
environmental and public health concerns of tribes and other indigenous stakeholders, EPA held two
tribal consultation and coordination webinars on October 4, 2011, and October 12, 2011. An in-person
tribal consultation and coordination meeting was also held in Albuquerque, New Mexico, on October
27, 2011. In addition, an indigenous stakeholder outreach webinar was held on October 13, 2011.

During these sessions an overview of Plan EJ 2014 was presented, and participants had an opportunity
to ask questions and give comments. The presentation slides are available at
http://www.epa.gov/compliance/ei/resources/policy/plan-ei-2014/plan-ei-2014-presentation.pdf.
Under the "Comment" column you will find the compilation of specific comments, questions, and
recommendations obtained during all the sessions. Under the "Response" column you will find the
responses provided by EPA.

Any additional questions or concerns that you may have should be directed to the agency contact as
indicated. Environmental Protection Agency: lee.charles@epa.gov.

2


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

Comments	Responses

1

What do you mean by "permits"
[permitting in the context of Plan EJ 2014]?

Some activities require permits at the federal, state, local,
or tribal level before they can be carried out. The
permitting process often involves some form of public
engagement, such as public notices and public hearings.

2

What type of enforcement remedies are
you talking about [in Plan EJ 2014]?

EPA, through Plan EJ 2014, seeks appropriate remedies in
enforcement actions to benefit overburdened communities
and address environmental justice concerns. An important
activity of the plan is to increase efforts to address
environmental justice concerns through use of injunctive
relief, including mitigation, and Supplemental
Environmental Projects in civil enforcement actions, as
appropriate. Plan EJ 2014 also seeks to increase efforts to
benefit affected communities through use of community
service and the Crime Victims' Rights Act in criminal
actions. EPA will continue to look for opportunities to work
with other federal agencies, state, tribal, and local
governments, and the business community to complement
and leverage tribal and community benefits resulting from
enforcement activities.

3

Can tribes get an electronic copy of the
presentation?

Yes. An electronic copy of the presentation slides was sent
to webinar participants, and it can be accessed online at
http://www.epa.gov/compliance/ei/resources/policv/plan-

ej-2014/plan-ej-2014-presentation.pdf.

4

Will implementation of Plan EJ 2014 occur
all at once or gradually? Is there a
timeline?

Each topic area is assigned separate timelines and
milestones, so implementation for different focus areas will
occur on separate tracks. Timelines for the five cross-
agency focus areas and the four tools development areas
can be found at http://www.epa.gov/compliance/ei/plan-

ejL

5

Has this effort [Plan EJ 2014] looked at
implementation within rural and
reservation communities? The focus seems
to be on urban populations.

Yes. Plan EJ 2014 is broad-based and encompasses
environmental justice issues pertaining to urban, suburban,
rural, and reservation communities. For example, the
nationally consistent EJ screening tool EPA is developing
will provide information about every Census block group in
the entire country, including rural and tribal lands. In
addition, the Community Cumulative Assessment Tool
(CCAT - working title) is being developed so that it could be
applied in many community settings, including rural and
tribal communities. EPA continues to place a high priority
on addressing environmental justice concerns as it
develops the specific targeting and case selection strategies
for both National Enforcement Initiative cases and the
many other enforcement cases. EPA's Strategic
Implementation Teams (SITs) for each National
Enforcement Initiative identify opportunities to protect and

3


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments





benefit overburdened communities when selecting and
developing specific cases. For example, when selecting
facilities for enforcement action, priority may be given to
facilities that are affecting or threatening the drinking
water supplies of poor rural communities, including those
in Indian country. EPA also gives specific consideration and
priority to environmental justice concerns and
overburdened communities when selecting enforcement
actions to address other important compliance problems,
regardless of whether they are part of a National
Enforcement Initiative. EPA obtains advice and
recommendations on each of these areas from the National
Environmental Justice Advisory Council, a federal advisory
committee to the Agency.

6

Is OAQPS (the Office of Air Quality
Protection Standards) involved in this
process?

Yes. OAQPS has been involved in several of the task
forces and workgroups that are implementing Plan
EJ 2014, including work groups that focus on EJ and
permits, EJ analysis to support rulemaking, EJ and
the action development process, and meaningful
involvement for communities with EJ concerns.

7

On the advice and recommendations for
Plan EJ 2014 and the Border 2020
program—where is this information going
next, and how long does it take to get to
Administrator Jackson or to President
Obama? In other words, what happens to
this tribal input and at what level are these
issues being heard at the EPA?

EPA will review the comments received and compile
responses. The Agency will incorporate appropriate
changes to the Implementation Plans for Plan EJ 2014 when
the next updates are conducted, scheduled for late 2012.
EPA made a commitment to post an annual report on the
progress of Plan EJ 2014 at the end of each fiscal year
(September 30, 2012). Administrator Jackson appointed
Lisa Garcia as the Senior Advisor on environmental justice
(EJ) to make sure there is a high level Agency official
focused on EJ that is engaged in EPA decision-making. Ms.
Garcia meets with Administrator Jackson regularly to make
sure all populations are brought into the conversation. On
tribal issues, Ms. Garcia works with Assistant Administrator
Michelle DePass, Office of International and Tribal Affairs
(OITA). The Agency recently created and charged the
NEJAC's Indigenous Peoples Working Group to provide the
Agency advice and recommendations on how the EPA can
most effectively address the EJ concerns of tribal and
indigenous peoples. In addition, EPA created its own work
group which is in the process of creating guiding
principles/policy on working with tribes and indigenous
peoples to address their environmental justice concerns.
Border 2020, gives more emphasis to working with colonias
and addressing border issues with Mexico, through a
separate program managed by EPA's OITA. The program's
plan was recently out for public comment. Please see
http://www.epa.gov/border2012/docs/2020/Border2020F

4


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments





actSheetFinal-13oct2011.pdf

8

The Pueblo of Taos was never given a
straight answer on how EPA arrived at the
$4,000 penalty on the Town of Taos Water
District for polluting our waters.
Confidentiality is stressed. The tribe needs
to talk with Mr. Almendariz [then-Regional
Administrator for EPA Region 6]
government to government. Please let
him know.

Historically, enforcement/compliance efforts have an
element of confidentiality, so many settlements are not
public. There is an effort to figure out how EPA can be
more transparent where possible. If the penalty has
already been assessed, EPA Region 6 can explain how they
arrived at the penalty. There are regulations/authorities
that speak to the amount of fines that can be enforced or
assessed. This goes on throughout the country.

On March 16, 2012, EPA Region 6 and the Pueblo of Taos
participated in a government-to-government consultation
meeting. The meeting agenda included a follow-up
discussion on the issues raised at the Plan EJ 2014 tribal
consultation.

9

Permittees are not being monitored and
that's our biggest problem. Those people
need to be advised to listen to tribal issues,
what's involved with sacred sites and tribal
lands. We lost our river—the amount of
stuff released into it is unacceptable. EPA
needs to be stricter with the permitting
process.

Plan EJ 2014 focuses on agency-wide areas critical to
advancing environmental justice, including permitting.
"Considering Environmental Justice Concerns in EPA's
Permitting Process" is one of the five focus areas of Plan EJ
2014. The goal is to enable indigenous populations and
tribes to have full and meaningful access to the permitting
process and to develop permits that address environmental
justice issues to the greatest extent practicable under
existing environmental laws. EPA seeks to strengthen
community-based programs to engage overburdened
communities and build partnerships that promote healthy,
sustainable, and green communities. Specifically, EPA will
explore the feasibility of how EPA funding, policies, and
programs can inform or help decision makers to maximize
benefits and minimize adverse impacts from land use
decision-making, planning, siting, and permitting.

10

Environmental justice is overarching and
affects minority populations, but we have
a special relationship with the Federal
government. Tribes should not be placed
in the same room with other minority
populations.

EPA recognizes that the U.S. government has a unique legal
relationship with federally recognized tribes (tribes). This
relationship recognizes tribes as sovereign governments
and the federal government's trust responsibility to tribes.
The EPA Policy for the Administration of Environmental
Programs on Indian Reservations, November 8, 1984,

(EPA's 1984 Indian Policy) sets out a number of principles
for how EPA works with tribes as co-regulators and how the
Agency gives special consideration to tribes in making
policies that may affect their interests. These principles
include honoring a direct government-to-government
relationship with tribes and consulting with tribal
governments before making decisions that may affect
them. Executive Order 13175 "Consultation and
Coordination with Indian Tribal Governments" was issued

5


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments





to provide federal agencies specific guidelines on
consultation with tribal governments for certain actions.
One of the goals of the EPA Policy on Consultation and
Coordination with Indian Tribes is to fully implement
Executive Order 13175 and certain aspects of EPA's 1984
Indian Policy. Thus, EPA does not work with tribes as just
another population, but recognizes the unique political
status of tribes as sovereigns and works with tribes on a
government-to-government basis. Section 6-606, of
Executive Order 12898, Federal Actions for Addressing
Environmental Justice in Minority Populations and Low-
Income Populations, notes that each federal agency
responsibility set forth under the order shall apply equally
to Native American programs. For this reason, EPA works
with tribes, as it deems appropriate, to address their
environmental justice concerns.

11

Environmental justice is about helping
disproportionately impacted communities,
but the administrative burdens of these
grants stand as significant barriers. Tribes
are overburdened with bureaucratic
requirements, which are repetitive and
redundant. They prevent tribes from
fulfilling objectives and having successful
programs. Tribes hope this can be looked
at in the Draft Implementation Plans.

EPA often hears that the grant process is burdensome for
small tribes and community groups. This topic is being
discussed at an interagency level. EPA is currently looking
at tribal and community grants to identify opportunities for
improving the processes for grants management for tribes
and communities.

12

EPA strategic plans put an undue burden
on tribes. As tribes develop their proposals
and grants they must tell EPA how the
projects fit under EPA's priorities.

However, tribes have their own plans, and
they need to develop projects that fit
under their priorities first.

Plan EJ 2014 does not envision a one-size-fits-all approach
to addressing environmental concerns across the country.
EPA is aware that tribes set environmental and human
health priorities and develop plans to address each priority.
EPA works with tribes to align the Agency's plans and
priorities, to the extent possible, with tribal plans and
priorities. In addition, EPA has a range of financing and
technical assistance vehicles in place that each tribe can
use to meet both their priorities and EPA's priorities. For
example, EPA's Indian General Assistant Program provides
funds to tribes and tribal consortia for planning,
developing, and establishing environmental protection
programs in Indian country, as well as for developing and
implementing solid and hazardous waste programs on
tribal lands. EPA is currently consulting with tribes on a
"Guidebook for Building Tribal Environmental Capacity"
(GAP Guidebook) that will provide a framework for
supporting tribal capacity. In addition, the GAP Guidebook
will facilitate EPA's ability to ensure that the Agency's and
tribe's priorities are addressed by requiring specific,

6


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments





negotiated environmental plans that link funding to
activities and to short- and long-term goal measurements.
EPA also has a range of funds available to help indigenous
communities improve their understanding of
environmental and human health issues and develop local
solutions that minimize people's exposure to harmful
conditions. EPA's criminal enforcement program - the
Office of Criminal Enforcement, Forensics, and Training - is
collaborating with the Department of Justice in developing,
through its National Indian Country Training Initiative, a
training program on enforcement of wildlife and
environmental laws in Indian country. The goal of the
training is to help build tribal capacity to assume additional
responsibility for the enforcement of environmental and
wildlife laws in Indian country and promote federal tribal
partnerships in this area. It is anticipated that this training
will occur in the first half of calendar year 2012. EPA is
currently reviewing some of its grants processes in order to
be able to reach more communities through its grants
process. For example, EPA is emphasizing and promoting
community-based participatory research approaches as a
way to design research so that it meets the needs of
communities. Plan EJ 2014 priorities are being
incorporated into the EPA Strategic Plan, which pertain to
the work EPA is authorized to perform and support through
federal environmental law.

13

On incorporating EJ into rulemaking, there
is a guidance for EPA rulemaking with
tribes—the Tribal Consultation Policy.
When plans are being developed tribes
need to be incorporated at the outset of
the process. Offices dealing with tribes
needs to be reminded of this.

In November of 2009, President Obama reaffirmed
Executive Order 13175. This presidential directive charges
all federal agencies to engage in consultation and
collaboration with Indian governments, strengthen the
government-to-government relationship, and reduce the
imposition of unfunded mandates upon tribes. This
directive requires that agencies have "an accountable
process to ensure meaningful and timely input by tribal
officials in the development of regulatory policies that have
tribal implications." Agencies must also certify consultation
when their proposed regulations or legislation have tribal
implications. The EPA has developed internal procedures
and controls to institutionalize these requirements.

Every office and region has a Tribal Consultation Advisor
and EPA has mandated that all of its employees take
training on working effectively with tribal governments.

14

On advancing EJ through compliance and
enforcement: EPA fails to adequately act
or assist tribes in addressing the issues.
OECA's strategy is looking at tribal water

EPA's strategic plan includes an element specifically
designed to increase the percent of the tribal population
served by community drinking water systems that meet all
applicable health-based drinking water standards. This

7


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments



systems and moving into enforcement
without addressing compliance assistance
that tribes are looking for. These are some
of the oldest, poorest maintained things
and there is no money.

strategic plan element is tied to a national enforcement
goal to ensure clean drinking water for all communities,
including those in Indian country. To attain this strategic
plan element and national enforcement goal, EPA provides
funds to build and fix drinking water systems, provides
compliance and technical assistance to ensure proper
maintenance and operation of those systems, and, when
appropriate, takes enforcement to protect the health of
tribal and non-tribal consumers of drinking water systems.
Particularly important is EPA's Drinking Water Act Tribal
Set-Aside Program (DWTSA). The DWTSA program provides
funding to construct or improve tribal drinking water
systems. EPA works with tribes and other federal agencies,
including the Indian Health Service, to ensure that drinking
water projects addressing the greatest health risks are
ranked highest for DWTSA funding. In addition, EPA's
Public Water System Supervision Tribal Support Grants are
used to fund tribes that want to assume responsibility for
developing and carrying out the federal drinking water
program in Indian country. EPA continually engages tribes
and tribal organizations on funding decisions and on
compliance assistance and enforcement activities. These
dialogues enable EPA and tribes to take appropriate action
to protect the health of tribal and non-tribal members.

15

EJ is a way for EPA to be able to provide
low-income, minority, and tribal
communities with equal footing to industry
and states. Also, tribes can apply for
Treatment-As-State. However, the
fiduciary trust responsibility is still there.
Tribes need to be elevated above states.

As the Agency considers environmental justice issues it
recognizes the unique legal relationship that the US
government has with federally recognized tribes. Plan EJ
2014 is a roadmap that will help EPA integrate
environmental justice into the Agency's programs, policies,
and activities. EPA is using this roadmap as it works with
tribes who are interested in obtaining the ability to
implement and maintain federal environmental programs
(i.e., "treatment in a similar manner as a state" or "TAS").
If and when a tribe implements and maintains a federal
program, the tribe is held to the same standard as EPA. At
the same time that EPA is working with tribes to build their
capacity to implement federal programs, the Agency is
using Plan EJ 2014 to guide our direct implementation
activities in Indian country where tribes have not obtained,
or are unable to obtain, TAS. This means that EPA is
working to fully protect the health in communities over-
burdened by pollution, to empower communities to take
action to improve their health and environment, and to
establish partnerships with tribal and indigenous
organizations to achieve healthy and sustainable
communities.

8


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

16

Hundreds of tribes have to compete for
the same funding, but they all have the
same needs. For example, states have a
revolving loan fund for Section 106
funding, but tribes have to compete with
each other for the 106 funding. EJ should
look at how EPA can achieve equal
dissemination of resources so tribes can all
develop these resources.

EPA's funding for tribes has been on a steady increase over
the past several years. It is EPA's intention to continue to
support the development of tribal environmental programs
to the extent possible. Each EPA media office awards
grants based on the amount of funding available from
Congress along with requirements dictated by their
respective statute. As the Agency develops its General
Assistance Program (GAP) Guidebook, opportunities for
supporting the tribes with the greatest needs are being
considered. EPA's American Indian Environmental Office
and Office of Environmental Justice are working together to
identify how to best work with tribes to address their
environmental justice concerns.

17

On permitting: When there is a
wastewater treatment plant that
discharges directly into tribal waters, when
does the trust responsibility kick in? Before
the permit is issued or during the
expansion plans? Tribes are treated like a
citizen and we can only comment like a
public citizen, but monies have gone out
already. The permitting process needs to
allow earlier engagement and meaningful
involvement with tribes.

The EJ in Permitting work group is looking at ways to give
guidance on consultation and improve collaboration,
including understanding the needs of new facilities before
the permit is requested or issued and before the expansion
occurs. The Agency wants to bring in the voice of the
impacted community, and tribes, before the application
phase.

18

Permit and compliance is done on a top-
down model. When it comes to the
regions, it might be different from one
wing of the EPA building to the other. 1
understand confidentiality (ex. on how
penalties are derived) on the
administrative level, but that's not the
government-to-government level.
Contamination on our land—tribes should
know how the decision was arrived at.

EPA works diligently to communicate with affected tribes,
communities, and the public about civil enforcement
actions that may affect them. EPA recognizes that tribes
and communities have a legitimate need to be informed of
and to understand the federal government's civil
enforcement activities to protect their environment, and to
have their voices heard in the determination of appropriate
resolutions for civil violations of federal environmental laws
that affect them. As EPA implements Plan EJ 2014, the
Agency commits to tribal consultation and outreach to
communities and to provide more information about
environmental problems caused by failure to comply with
federal environmental laws, our efforts to address those
problems, and available civil judicial and administrative
solutions to those problems that can address the tribes'
and communities' concerns and needs. At the same time, it
is important for tribes and communities to understand the
legitimate and essential need to protect the confidentiality
of enforcement activity when a case is under development
and in settlement negotiations. This is essential to assure
that effective enforcement, and its ultimate benefits for
tribes and communities, will not be undermined and

9


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments





adversely affected by premature disclosure of confidential
enforcement information. While this consideration will
necessarily limit the amount and kind of information that
EPA is able to share with a tribe or community at various
stages of enforcement activity, the Agency is committed to
sharing as much information as possible to enable tribes
and communities to be informed and have their voices
heard in the determination of appropriate resolutions for
civil violations of federal environmental laws that affect
them.

19

On communication of permits: For
example, when a permit goes through a
state agency for state lands and the State
Game and Fish Department investigated,
none of this information went back
through the tribe. State-tribal relations,
EPA-state relations, and EPA-tribal
relations have cracks. From an EJ
perspective tribes are vulnerable.

EPA appreciates this comment. EPA's Policy on
Consultation and Coordination with Indian Tribes
(http://www.epa.gov/tp/consultation/consult-policy.htm)
establishes clear standards for when and how EPA should
consult with tribal governments, such as when EPA issues a
permit that will affect tribes. The NEJAC/lndigenous People
Work Group has been tasked with providing advice and
recommendations on addressing tribal and indigenous EJ
issues. The EPATribal and Indigenous Peoples
Environmental Justice Workgroup is developing guiding
principles on addressing tribal and indigenous EJ issues.

20

On enforcement: If EPA doesn't have
someone in New Mexico to enforce,
they're going to rely on the state of New
Mexico, who has little or less interest in
investigating tribal issues. When the state
is involved, communication breaks down.
Tribes don't know what's going on
between the state and EPA. Tribes don't
have the resources to do a full-blown
investigation ourselves. The processes in
place do not work. There's a trust
responsibility, but EPA is programmatically
delegating stuff to the states. Tribes need
to fill the voids (inspectors, monitoring
situations, building capacity), but it all
comes back to communication.
Consultation needs to happen early, not
after contamination.

EPA's commitment to expand the conversation on
environmentalism includes efforts to further engage all
interested and affected parties to better ensure open
dialogue among the parties. The desire is to encourage
communication early and as often as practicable. EPA
directly implements federal programs in Indian country
unless and until a tribe seeks and obtains program
approval. Thus, in the absence of an approved tribal
program, EPA conducts inspections and pursues
enforcement of federal environmental laws in Indian
country. With rare exceptions, EPA neither approves nor
relies on states, such as New Mexico, to enforce federal
programs in Indian country. As indicated in the prior
comment, when EPA is inspecting or enforcing in Indian
country, EPA engages in appropriate consultation with
tribal governments to protect the confidentiality of
enforcement activity when a case is under development
and in settlement negotiations.

21

EPA's Tribal Consultation Policy says that
tribes have asked to be consulted upon
every action that EPA takes, but that only
addresses over-arching national issues.
However, the issues we care about are
generally on the regional level, not
national, and we would like to be

Pursuant to the EPA Policy on Consultation and
Coordination with Indian Tribes (Consultation Policy, May
4, 2010), the Agency "consult[s] on a government-to-
government basis with federally recognized tribal
governments when EPA actions and decisions may affect
tribal interests. Consultation is a process of meaningful
communication and coordination between EPA and tribal

10


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments



consulted on those. Example: GAP Online.

officials prior to EPA taking actions or implementing
decisions that may affect tribes." The Consultation Policy
establishes national guidelines for consultation across EPA.
EPA program and regional offices have the primary
responsibility for consulting with tribes on activities for
which they have the lead. Thus EPA regions consult with
tribes on individual or region-specific activities as they
arise.

22

EPA needs to take into consideration the
cultural value of a stream (or any other
body of water). More severe punishments
are warranted for polluting culturally
significant streams. Given that there's a
drought on top of the cultural significance
of streams here, each drop of water is so
important. What's the feasibility of
developing something like "the waters of
tribe X?" Since tribes are sovereign, if
tribes decide to declare something as an
important water body, will the federal
government adapt/respect it?

EPA is working to clarify the scope of waters protected by
the Clean Water Act after recent U.S. Supreme court
decisions. We understand that many culturally significant
waters do not flow all the time and, as a result, are working
within the confines of the Act and court decisions to
develop a policy that protects all tributaries, including
intermittent and ephemeral waters. An important Clean
Water Act provision that helps to protect culturally
significant waters on Tribal lands is Section 401 water
quality certification. Under Section 401, all federal permits
or licenses on waters of the US need certification that they
would be consistent with CWA provisions and state/tribal
law. Tribes with treatment in a similar manner as a state
(TAS) status can condition their 401 certification (e.g.,
Section 401 of the CWA, regarding applicants for a federal
license or permit which may result in any discharge into a
navigable water) and the resulting permit or license so that
culturally important waters are protected. Alternatively,
tribes with TAS may deny certification, which prohibits the
issuance of the federal permit or license. Where tribes do
not have TAS status, EPA Regional offices certify on the
Tribe's behalf. The Office of Water has provided training to
tribes on developing tribal Water Quality Standards, and
the use of Section 401, as part of Tribal Water Quality
Standards Academies.

23

On state versus tribal: 1 know EPA cannot
deal with this, but states forget that
crossing into borders means it's not state
land or property but tribal land. When
industries pollute, they're dumping into
international waters.

Under Section 402 of the Clean Water Act, which governs
the National Pollutant Discharge Elimination system
(NPDES), any industry with a point source discharge of
pollutants into waters of the United States must obtain a
NPDES permit from EPA or an authorized state, territory or
tribe. If EPA has found a tribe eligible for federal
treatment in a similar manner as a state status and
approved a tribe's Water Quality Standards (WQS), then
the Tribal WQS would be applied in the NPDES permit at
the state/tribal boundary, if the discharge is upstream of
Indian country. See 40 CFR 122.4(d) and 122.44(d). If the
location of the discharge is in Indian country, EPA or the
tribe would be the permitting authority.

11


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

24

On Plan EJ 2014's Site Tools Development:
It would be helpful to include impacts on
resources due to natural disasters, climate
change (Gulf Coast, hurricanes, fires). EPA
will not be able to provide answers or
solutions, but these factors are important
to consider.

EPA understands the necessity of looking at impacts of
natural disasters on environmental management and
protection resources. Recently, EPA commented on a
National Environmental Policy Act (NEPA) review to make
sure agencies consult with tribes on emergency response.
EPA is actively involved in the federal Interagency Climate
Change Adaptation Task Force, co-chaired by the White
House Council on Environmental Quality (CEQ), with
representatives from more than 20 Federal agencies. In
addition, EPA is developing its own Climate Change
Adaptation Plan (Plan), and initiated consultation and
coordination with federally- recognized tribes on the
development of the Agency's Plan. This Plan is designed to
guide the Agency's efforts to integrate climate change
adaptation planning into its programs, policies, rules, and
operations to ensure they are effective as climate changes.
These efforts will extend to environmental protection
programs mandated under federal statutes implemented
by tribes and states that have obtained EPA approval or
authorization.

25

Sister agencies should be here as part of
the consultation (Department of the
Interior, Water Resources and
Management).

EPA frequently engages the Bureau of Indian Affairs, the
Indian Health Service, the National Indian Gaming
Commission, the Department of Justice, and other federal
agencies on issues that potentially impact Indian country.
EPA does acknowledge, however, that consultation on
interagency actions may not have been well-coordinated in
the past. EPA continues to search for opportunities to
improve interaction with other federal agencies on tribal
issues. As other federal agencies also develop formal
procedures to consult per President Obama's
Memorandum and Executive Order 13175, the
opportunities to better coordinate should increase.

26

Comment to other tribes: If your land is in
trust, it is in title or ownership to the
tribe—not the state or federal
government. In issues of effluent down a
stream—our tribe has sued the city of
Grants. There are processes in place to
initiate some of these actions. You can
enter into a Memorandum of Agreement
with state departments and utilize those
resources.

EPA has no response or comment.

27

Comment to other tribes: On permitting,
there is a process. Most tribes here have
their own WQS, so whatever is ratified by
the Tribal Council stands. Develop your

EPA agrees with this comment. EPA's Policy on
Consultation and Coordination with Indian Tribes
(http://www.epa.gov/tp/consultation/consult-policy.htm)
establishes clear standards for consulting with tribal

12


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments



own environmental capacity. The
regulatory provision does provide
assistance for better implementation or
processes, initiating the government-to-
government relationship. It's important to
go through that process.

governments when actions, such as permits, may affect
tribal interests.

28

Communication starts at tribal leadership.
In turn tribes work through departments
to communicate those efforts. Continue to
maintain that dialogue across the board.
There should be a standard uniform
protocol for consultation. One agency's
protocol should not be different from
another.

EPA's Policy on Tribal Consultation and Coordination with
Indian Tribes establishes a framework to consult on a
government-to-government basis with federally recognized
tribal governments when "EPA actions and decisions may
affect tribal interests." Consultation is a process of
meaningful communication and coordination between EPA
and tribal officials prior to EPA taking actions or
implementing decisions that may affect tribes. The
Consultation Policy establishes national guidelines for
consultation across EPA. EPA program and regional offices
have the primary responsibility for consulting with tribes.
The Consultation Policy seeks to strike a balance between
providing sufficient guidance for purposes of achieving
consistency and predictability and allowing for, and
encouraging, the tailoring of consultation approaches to
reflect the circumstances of each consultation situation.
Each executive department of the federal government has
been directed to develop a detailed plan of action to
implement Executive Order 13175 "Consultation and
Coordination with Indian Tribal Governments." When EPA
issues involve other federal agencies, EPA carries out its
consultation responsibilities jointly with those other
agencies, where appropriate.

29

Are there Native Americans or tribal
members/leadership on the work
groups/committees that are establishing
the various strategies? Please include a
program person from Pueblo country. Your
programs and policies are affecting
litigation on water, etc. Make sure you
consider these issues.

Each federal agency is developing environmental justice
strategies. Plan EJ 2014 is EPA's strategy. Drafts of EPA's
strategy were informed by tribal input. Recently the EPA
has formed two work groups to look at how EPA can work
with tribes and indigenous populations when issues of
environmental justice arise. The Tribal/Indigenous Peoples
Work Group is an internal work group consisting of EPA
staff who will draft guiding principles/policy on protocols
for how the Agency can respond to these issues. The work
group is consulting with tribes and communicating with
other stakeholders to obtain their input. The Indigenous
Peoples Work Group is a work group under the National
Environmental Justice Advisory Council (NEJAC) that will
advise the NEJAC on recommendations to the EPA on these
issues.

30

This is consultation on issues that might

The U.S. government has a unique legal relationship with

13


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

affect Indian country. But everything EPA
does affects Indian country because this
whole country was taken from Indians.

federally recognized tribes (tribes). This relationship
recognizes tribes as sovereign governments and recognizes
the federal government's trust responsibility to tribes. The
EPA Policy for the Administration of Environmental
Programs on Indian Reservations, November 8, 1984,

(EPA's 1984 Indian Policy) sets out a number of principles
for how EPA works with tribes as co-regulators and how the
Agency gives special consideration to tribes in making
policies that may affect their interests. These principles
include honoring a direct government-to-government
relationship with tribes and consulting with tribal
governments before making decisions that may affect
them. Executive Order (EO) 13175, "Consultation and
Coordination with Indian Tribal Governments/' was issued
to provide federal agencies specific guidelines on
consultation with tribal governments for certain actions.
One of the goals of the "EPA Policy on Consultation and
Coordination with Indian Tribes" is to fully implement the
EO and certain aspects of EPA's 1984 Indian Policy.

14


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

31

Remember that there is a difference
between consulting with a tribal
government and speaking with a tribal
representative. You have two separate
issues.

EPA considers work it does with tribal governments as a
separate programmatic effort from environmental justice.
EPA's American Indian Environmental Office in the Office of
International and Tribal Affairs has the mission to lead EPA
efforts to protect human health and the environment of
federally recognized tribes by supporting the
implementation of federal environmental laws consistent
with the federal trust responsibility. EPA's policy is to
consult on a government-to-government basis with
federally recognized tribal governments when EPA actions
and decisions may affect tribal interests. EPA is structurally
organized so that work focusing on tribal communities,
rather than tribal governments, is lead by EPA's Office of
Environmental Justice. Executive Order 12898 directs each
Federal Agency to making achieving environmental justice
part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies,
and activities on minority populations and low-income
populations, including tribal populations.

The Tribal and Indigenous Peoples Environmental Justice
Work Group is an internal Agency group created to address
the unique challenges of implementing the Agency's EJ
priorities in Indian country as directed under EO 12898.

32

Tribes are caught in the middle between
trust responsibility and environmental
justice. Tribes are burdened with keeping
track of everything going on at EPA. I'd like
to thank tribal leadership for not holding
us accountable for implementing the
[consultation] processes that should be
happening at the government-to-
government level. 1 feel like I'm letting
tribal leadership down when that doesn't
happen.

We recognize the additional work placed on tribes as an
outcome of all federal agencies complying with Executive
Order 13175. To assist tribes, EPA has established a Tribal
Consultation Opportunity Tracking System that allows
tribes and other interested parties to view all its ongoing or
planned consultation activities via the internet and to
access all consultation-related materials in one centralized
location. Other agencies are considering developing similar
systems. In addition, overtime EPA's regional offices have
developed a relationship with the tribes in their regions
and work with them to identify what issues are most
important for consultation.

15


-------
Plan EJ 2014: EPA's Response to
Tribal Consultation and Coordination Comments

33 Comment to tribes: When President

Clinton wrote the executive orders, there's
one called 12866, Regulatory Planning and
Review. Identify barriers, do an
assessment. Include them in your strategic
plan. It works as a valuable tool that
people don't know about.

Information on Executive Order (EO) 12866 is available on
EPA's website at

http://www.epa.gov/lawsregs/laws/eol2866.html. Section
1 of the EO makes reference to the relationship between
federal agencies and tribes when developing regulatory
actions, and a list of such actions currently under review by
the Office of Management and Budget is available at
http://www.reginfo.gov/public/do/eoPackageMain.
Executive Order 12866 also established planning
mechanisms for the Unified Regulatory Agenda and the
Regulatory Plan. The most current versions of those
documents are available at

http://www.reginfo.gov/public/do/eAgendaMain or at
http://www.epa.gov/lawsregs/regulations/regagenda.html.

16


-------