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Tribal Water Plan - Appendix D
APPENDIX D: EPA POLICY FOR THE ADMINISTRATION OF
ENNVIRONMENTAL 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-togovernment"
basis.
The Environmental Protection Agency (EPA) has previously issued general
statements of policy which recognized 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 statement in a manner consistent with the overall Federal position
in support of the Tribal "self-government" and "government-
to-government" relations 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 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 in 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:
1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TOGOVERNMENT" RELATIONSHIP),
RATHER THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities with primary authority
and responsibility for the reservation populace. Accordingly, EPA will
work directly with Tribal Governments as the independent authority for
reservation affairs, and not as political subdivisions of States or other
governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency will
view Tribal Governments as the appropriate non-federal parties for making
decisions and carrying out program responsibilities affecting Indian reservations,
their environments, and the health and welfare of the reservation populace.
Just as EPA’s deliberations and activities have traditionally involved
the interests and/or participation of State Governments, EPA will look
directly to Tribal Governments to play this lead role for matters affecting
reservation environments .
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST TRIBES
IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES FOR RESERVATION
LANDS.
The Agency will assist interested Tribal Governments in developing programs
and in preparing to assume regulatory and program management responsibilities
for reservation lands. Within the constraints of EPA’s authority and resources,
this aid will include providing grants and other assistance to Tribes,
similar to what we provide State Governments. The Agency will encourage
Tribes to assume delegable responsibilities, (i.e. responsibilities which
the Agency has traditionally delegated to State Governments for non-reservation
lands) under terms similar to those governing delegations to States.
Until Tribal Governments are willing and able to assume full responsibility
for delegable programs, the Agency will retain responsibility for managing
programs for reservations (unless the State has an expressed grant of
jurisdiction from Congress sufficient to support delegation to the State
Government). Where EPA retains such responsibility, the Agency will encourage
the Tribe to participate in policy-making and to assume appropriate lesser
or partial roles in the management of reservation programs.
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 workeffectively 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 historical
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.
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: (l) 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. When 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, LEGISLATIVE
INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND 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 problems on Indian reservations in the Agency’s existing fiscal
year and long-term planning and management processes.
William D. Ruckelshaus
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