OAQPS Guidance on -- “Consulting with Indian Tribal Governments”

1. OAQPS Guidance on -- “Consulting with Indian Tribal Governments” November 28, 2007

2. OID Laura McKelvey Yvonne Johnson Tami LaPlante Mike Papp AQAD Mike Papp AQPD Barbara Driscoll Julie McClintock Jessica Montanez HEID Christine Davis SPPD Charlene Spells OAQPS Tribal Team

3. Background • EO 13175: “Consultation and Coordination with Indian Tribal Governments” signed on November 6, 2000 • EPA is in the process of developing Agency guidance but it is taking some time • Many OAQPS “actions” -- policies, guidance, and rules – are currently under development • Many with potential Tribal implications

4. Purpose of Guidance • Introduce to OAQPS staff and managers the basics of government-to-government consultation with American Indian Tribes • Provide steps to determine if there are potential implications or effects on Tribes • Provide advice on how to collaborate and provide outreach to the Tribes • Help determine if a formal Tribal consultation is necessary and, if so, how to proceed

5. Collaboration And Outreach Consultation Tribal Environmental Professionals WITH WHOM Tribal Leaders Gain Tribal perspective and input into overall Tribal interest FOR WHAT Broad impacts, Tribal implications and/or Tribal interest Meetings Conference calls Newsletters Website HOW Offer opportunity for consultation via letters (face-to-face meetings if appropriate) Data gathering starts early in process WHEN Start early but generally no later than proposal Collaboration and Outreach versus Consultation

6. Guidance Consists of 3 Sections • Screening • How to identify potential impacts or effects on Tribes • Collaboration and Outreach • How to provide information to Tribes on actions with potential impacts or effects on Tribes and how to get them involved in the development process • Consultation • How to conduct full consultation with Tribes that may be affected or Tribes that ask to be involved in actions

7. What does “impacts or effects on Tribes” mean? EO 13175 definition states “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes”

8. Screening: How to determine if there are impacts or effects on Tribes? • Form to be completed by project lead with initial questions • Are there substantial effects on: • Tribal governments and/or their ability to self-govern? • Trust resources? • Treaty or other rights? • Does this action affect Indian lands or is it close enough to potentially affect Indian lands (e.g., transport issues)? • Does this action establish new federal standards or significant policy or guidance? • Does this action establish a regulation not required by statute or propose a regulation that preempts Tribal law?

9. Screening: How to determine if there are impacts or effects on Tribes? (con’t) • If YES is answered to any of the questions then action has potential implications • More analysis will have to be conducted to determine if actual implications occur • Tribal Consultation Plan is developed • If NO is clearly answered for all of the questions then lead should begin thinking about Tribal outreach efforts • Outreach/Communication Strategy is developed

10. Collaboration and Outreach • Provides the opportunity for EPA to interact with Tribal environmental professionals (TEP) and other Tribal officials on potential impacts or effects • Determine if govt-to-govt interaction is necessary • Opportunity to inform Tribes of actions • Opportunity to gather info about Tribes from Tribes • Opportunity to determine if Tribes are interested in being involved in action development process • Different than consultation which occurs with Tribal leaders • Steps for conducting effective Collaboration and Outreach included in guidance

11. Consultation (full or formal) • Meetings or discussions with Tribal leaders or some other formal opportunity • Needed for any action that is targeted directly towards Tribes, has impacts or effects on Tribes or has broad Tribal interest • Examples include Tribal Authority Rule, NSR for Indian Country, Mercury MACT for utilities, Rules for Implementing NAAQS • Consultation with Tribal leaders should occur no later than proposal, however, interaction should have already been initiated with Tribal environmental professionals

12. Consultation Process • A consultation letter is generally sent to all Tribal Leaders asking if they are interested in consulting • Project lead will develop a Tribal consultation plan which serves as a roadmap • Communicate with Tribes • Make available to OMB information submitted by Tribes • Develop a Tribal Summary Impact Statement to be sent to EPA American Indian Environmental Office • Document consultation in preamble

13. Guidance Includes Appendix • Key terms and concepts • Tribal organizations referenced in document • EPA Tribal Air Program Contacts • OAQPS Tribal Representatives • Sample forms and letters

14. Roll-out to OAQPS Staff • Email guidance document to OAQPS staff • Include in November 28, 2007 “Working Effectively with Tribes” Training • Post guidance document on OAQPS intranet