Tribal Enterprises | Regulatory Requirements
Federal Implementation of Environmental Laws
Tribal Assumption of Federal Environmental Laws
National Environmental Policy Act
Range Management Programs
Direct Federal Implementation of Environmental Laws in Indian Country - EPA's Role as Regulator
Environmental program responsibility requires capability and significant resources, among other things. Tribal governments do not always find it practical to assume full responsibility for EPA programs. Based upon a variety of factors, often including program costs, assistance and maintenance costs, and availability of technical expertise, tribal governments may focus on certain high-priority activities, but may decide not to assume an entire regulatory program. When tribes decide not to undertake certain activities under EPA's programs or not to apply for entire programs, EPA will seek to directly implement the environmental programs, as appropriate. EPA may also directly implement certain environmental management programs where federal statutes preclude tribal eligibility.
Tribal Assumption of Federal Environmental Laws
In the EPA Indian Policy, EPA announced its support for Tribal Assumption of Federal Environmental Laws under federal statutes, stating, among other things, that "[t]he 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."
Three environmental statutes - the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), and the Clean Air Act (CAA) - explicitly authorize EPA to "treat tribes in the same manner as states" (TAS) for purposes of implementing various environmental programs. In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) explicitly include a provision that affords tribes substantially the same treatment as states with respect to certain provisions of the Act, while the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also provides a role for tribes. Although the Toxic Substances Control Act (TSCA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) do not explicitly provide for TAS, EPA has taken the position that it has the discretion to approve tribes to implement certain programs in the same manner as states in order to fill gaps in how the statutes are implemented in Indian country.
For tribes to assume many of EPA's regulatory programs, they generally must go through the TAS process and meet the following criteria:
- The tribe must be federally-recognized
- The tribe must have or be able to exercise substantial governmental powers
- The tribe must have or have been delegated jurisdiction over the area in question
- The tribe must be reasonably expected to have the capability to effectively implement a program
In general, once a tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and capability for each subsequent program. If a tribe does not have capability, it must have a plan for acquiring capability over time. A capability showing is required because each program may require different skills and activities to provide protection that meets the requirements of specific statutes and regulations.
Perhaps the most important of the tribe-specific eligibility criteria is whether the functions to be exercised by a tribe are within the applicant tribe's jurisdiction. EPA asks tribes that are applying for regulatory programs to demonstrate in their applications that they have adequate jurisdiction over the areas to be regulated. Under principles of federal Indian law, tribes generally have inherent sovereign authority to regulate both their members and land held in trust (although specific statutes may have affected this general principal for some tribes). Depending on the scope of the application, EPA may also need to evaluate whether a particular tribe has jurisdiction over nonmember activities on nonmember-owned fee lands within the boundaries of an Indian reservation. Jurisdiction over nonmember activities on fee lands may come from two potential sources: a tribe may have inherent authority over these activities; or Congress may, by statute, delegate federal authority to a tribe. Tribal applications for authorization to administer the program are sent to EPA's Regional Administrators.
EPA has made a number of "treatment in the same manner as a State" determinations for tribes, most of which involved findings that tribes are eligible for grants under the CWA. EPA has approved twenty-seven tribes to set water quality standards under section 303 of the CWA. One tribe has received primacy under the SDWA. Five tribes have received program approval under the CAA. Approximately 30 tribes operate pesticide certification or enforcement programs authorized by FIFRA under cooperative agreements with EPA.
National Environmental Policy Act
The National Environmental Policy Act (NEPA) was one of the first laws written to establish the broad national framework for protecting our environment while bolstering the health and welfare of humankind. NEPA directs federal agencies to assess the potential environmental impacts of their proposed major actions significantly affecting the human environment and inform the public about those potential impacts. For Indian country and in other tribal areas, the environmental impacts of federal agency actions may involve such things as water quality or quantity issues, air quality issues, land use, or potential impacts to sacred sites, items of cultural patrimony, and traditional hunting, fishing, and gathering rights. Understanding the range of potential environmental impacts enables federal agencies to integrate environmental values into their decision-making processes.
Environmental assessments may be used by a federal agency to determine whether the environmental impacts of the agency's proposed action are likely to be significant. If the impacts are not expected to be significant, federal agencies prepare a finding of no significant impact. If the impacts are likely to be significant, federal agencies prepare an environmental impact statement (EIS). As part of the NEPA process, federal agencies, including EPA, with jurisdiction by law or with special expertise with respect to any environmental impact involved, or which are authorized to develop and enforce environmental standards, must comment on another agency's EISs.
EPA also has unique comment responsibility under Section 309 of the Clean Air Act because the Agency must review and comment in writing on the environmental impact of, among other things, any newly authorized federal projects for construction and any major federal agency action significantly affecting the environment. Thus, as part of the NEPA process, EPA reviews all EISs prepared by federal agencies, and may also review some environmental assessments. EPA's comment letters are available to tribes and tribal members upon request and EIS comment summaries are available at the EPA Comments on Environmental Impact Statements Web site.
Under the NEPA process, tribes generally are invited to comment on EISs when the effects of the federal agency's action may be on a reservation, and federal agencies should actively solicit tribal government participation as a "cooperating agency" when the project's effects are on a reservation. Agencies should also invite tribes to comment and be a "cooperating agency" when non-reservation tribal resources are affected.
Identifying, understanding and addressing the potential environmental impacts to tribes and Indian country and in other tribal areas are key elements of the NEPA process. Indeed, the Council of Environmental Quality's regulations implementing NEPA specify that federal agencies should consult with affected tribal governments through the scoping process, and identify possible conflicts between a proposed action and the objectives of tribal reservation land use plans, policies and controls. In addition to any scoping comments and comments on draft EISs which the tribes and individual tribal members may offer, EPA uses its knowledge of Indian country to facilitate the identification of potential issues during scoping so that the NEPA process addresses issues that could impact tribes and tribal members.
For certain programs, EPA may also prepare an EIS for an action. In such cases, EPA solicits participation of the tribal government as a "cooperating agency" when the project's effects may impact Indian country and other tribal areas. As part of the EIS process, EPA fully considers potential impacts to the tribal government and/or tribal members as part of its consideration of other relevant environmental statutes, regulations and Executive Orders related to the proposed action. EPA seeks to ensure that mitigation plans developed by EPA for the action incorporate tribal concerns and, for project effects that may impact Indian country or other tribal areas, that the tribal government and/or tribal members will have meaningful involvement in the development and, as appropriate, implementation of these mitigation plans.
Range Management Programs
Range management is an issue for all Tribes with public rangelands within their reservation boundaries. Rangelands include federally owned grazing lands that are leased out for cattle and horse grazing to states, localities, tribes, and private industries for non-tribal uses. These rangelands are usually managed by the federal Bureau of Land Management (BLM). Tribes with rangelands work cooperatively with the BLM to ensure proper management, under the guidelines contained within 43 CFR Section 4180, et seq.
Federal units of national ranges and affiliated refugees may be managed by tribes in certain circumstances when they have a historic, geographic and cultural link to the unit. To develop appropriate standards for rangelands, tribes consider the four fundamentals of rangeland health as outlined in the grazing regulations:
- Watershed functioning
- Water, nutrients, and energy cycling
- Water quality
- Habitat protection
Additionally, ranges raise many environmental issues such as habitat destruction from grazing, water issues (pollution, scarcity), fencing and containment, erosion control, and feral animal management.
In addition to the requirements in the CFR, tribal governments may develop ordinances that deal with the environmental impacts of livestock grazing.
EPA's Civil Enforcement program addresses, among other things, hazardous waste, toxic chemicals, drinking water, and other environmental issues related to ensuring compliance with applicable environmental laws in the operation of tribal enterprises. The program is designed to return violators to compliance and deter misconduct in others, eliminate or prevent environmental harm, and preserve a level playing field for responsible companies that abide by the laws.
EPA's Criminal Enforcement program uses stringent sanctions, including jail sentences, to promote deterrence and help ensure compliance in order to protect human health and the environment. Criminal enforcement is often used against the most serious environmental violations as well as those which involve egregious negligence or conduct involving intentional, willful or knowing disregard of the law.
For related information visit EPA’s National Indian Country Enforcement and Compliance Assurance Priority site and EPA’s Enforcement and Compliance Assurance Program in Indian country site.