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

1. OAR Guidance on -- “Consulting with Indian Tribal Governments” May 21, 2012

2. Background • EO 13175: “Consultation and Coordination with Indian Tribal Governments” signed on November 6, 2000 • OAQPS Guidance finalized in 2009 • EPA Guidance signed May 2011 • Update OAQPS Guidance to • Apply to all of OAR • Reflect OAQPS lessons learned • Address AIEO requirements • Goal to maintain the strengths of the existing policy but modify to be responsive to new requirements.

3. Purpose of Guidance • Introduce to OAR 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

4. 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

5. Guidance Consists of 4 Sections • Screening • How to identify potential impacts or implications on/for Tribes • Collaboration and Outreach • How to provide information to Tribes on actions with potential impacts or implications on/for Tribes and how to get them involved in the development process • Consultation • How to conduct consultation with Tribes that may be affected or Tribes that ask to be involved in actions • Standard Operating Procedures for EPA project leads.

6. What does “implications for 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” BUT……….

7. But .. What about the other tribal interests • We heard from tribes they have other interests/implications that also need to be considered • Cultural resources • Lifeways • Economic development

8. OAR TRIBAL OUTREACH AND CONSULTATION PROCESS Step 1 – Initial Determination: Rule or program to OAR tribal team & NTAA Step 2A – Early Outreach & Collaboration: NTAA call /OAR Tribal Newsletter Step 3 – Formal Consultation (if needed) Step 2B – Informational Activities: Information calls and consultation letters If NOT a rule If a rule TCOTS Database Summarize for preamble document If there are implications If there are NO implications or effects If there are effects Step 4 – Certification: Prepare certification letter Document for preamble Send response letter to tribe(s)

9. Screening: How to determine if there are impacts or effects on Tribes? • The following will assist you in better reflecting a more comprehensive review of potential tribal implications: • Will this action likely or have the potential to impact one or more Indian tribes, in the following ways: • Does the rule impose an economic cost upon Indian tribes? • Will this rule impact tribal trust resources? • Are there impacts on resources that may be outside a reservation boundary -- but for which a tribe (or tribes) has treaty rights -- such as the ability to take water, hunt, fish, or gather a resource from a certain area? • Are there impacts which will affect the relationship (or the distribution of power) between the federal government and Indian tribes? • Example: Will the rule affect the status of tribes as a co-regulator or the tribe’s right to self-government? • Are there any special legal considerations such as jurisdiction in Indian country?

10. Screening: How to determine if there are impacts or effects on Tribes? • Will this rule impact how tribes develop or implement a program? • Are there any implications specific to Alaska Native Villages and/or Alaska Native corporations? • Has EPA conferred with tribes (either nationally or through the regions) to determine if there is tribal interest regarding this rule? • If the answer is yes or tentatively yesto at least one of the questions above have you: • Consulted with the Tribal Consultation Advisor and the Senior Regulatory Manager (SRM) for your office? • Prepared a plan for tribal consultation/outreach?

11. 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

12. 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

13. Mechanisms for Outreach and Collaboration • Tribal Air Newsletter • Monthly NTAA policy calls • Webinars • Informational meetings OAR Tribal team and CTPG can assist

14. Consultation (full or formal) • Meetings or discussions with Tribal leaders or their designee with a Senior Agency Official (Decision maker) • 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

15. Consultation Process • Initial determination (screening) - OAR tribal team and NTAA executive steering committee review upcoming rules/programs and give initial direction on outreach • Early Outreach and Collaboration • NTAA calls • Tribal Air Newsletter • Other forum? • Project lead will develop a Tribal consultation plan which serves as a roadmap • Informational Activities – Send letters to tribal leaders where appropriate • Informational meeting on issue at hand • Formal Consultation where appropriate

16. Consultation Process: Rulemaking • For rulemaking determine if the rule has implications or effects • Draft preamble language summarizing the consultation process • If there are implications: • Develop a Tribal Summary Impact Statement to be sent to EPA American Indian Environmental Office via certification letters • AIEA will make available to OMB information submitted by Tribes • Draft response letters to the tribal leadership. • This process will need to be repeated in the development of the final rule.

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

18. Issues for discussion • Are there other issues around outreach and consultation we need to include? • Are there better ways of informing the tribes and opening the door for participation? • Is the language appropriate between implications and effects? • Are you comfortable with the NTAA ex steering committee playing a role in the screening process? • Are there other issues/activities that should be included? • Is this the right process for non regulatory activities? • How can we best bring the tribal voice into voluntary programs?

19. For More Information • CTPG – Laura McKelvey • OAR Tribal Website • www.epa.gov/oar/tribal