Tribal Operations Office

September 1996

THE ENVIRONMENTAL EXCHANGE:

A RESOURCE GUIDE FOR TRIBAL LEADERS OF THE

PACIFIC NORTHWEST AND ALASKA

1996-97

TRIBAL PROGRAMS

Cross-Media

General Assistance Program

The EPA Indian Environmental General Assistance Program is administered by the American Indian Environmental Office and Office of Water under the Indian Environmental General Assistance Program Act of 1992, P. L. 12-497, Section 11, 42 U.S. C 4368b, as amended, (Public Law 103-155, 11-24-93). The objectives of the program are to provide general assistance grants to Tribal governments and intertribal consortium to build Tribal environmental capacity and to administer environmental regulatory programs on Tribal lands. EPA provides technical assistance in the development of multi-media programs to address environmental issues impacting Tribal lands and resources.

Activities eligible for funding under this program are those for planning, development, and establishment of Tribal capability to implement environmental protection programs, including the development of solid and hazardous waste programs. General Assistance funding provides the opportunity for Tribes to develop an integrated environmental program, to develop the capability to manage specific programs, and to establish a core program for environmental protection. The General Assistance Grants provide the opportunity for Tribes to define and develop administrative and legal infrastructures, to conduct assessments, monitoring and planning, and other actions, as well as the undertaking of some additional activities within a simplified administrative framework.

The primary purpose of the General Assistance Grants is to support the development of elements of a core environmental program such as: (1) providing for tribal capacity-building to assure an environmental presence for identifying programs and projects, including developing proposals for environmental program grants and managing environmental work, (2) fostering compliance with federal environmental statutes by developing appropriate tribal environmental programs, ordinances and services, and (3) establishing a communications capability to work with Federal, State, Local, and other Tribal environmental officials.

Restriction to the GAP

The principal focus of this program is the development of general tribal environmental capability. Assistance will be provided under this program only for activities which the agency determines are appropriate to carry out the purposes of the Act. No single grant awarded under this program may be for an amount exceeding ten percent of the total annual funds appropriated under Section (h) of the Act.

Those eligible to receive financial assistance are Federally recognized Tribal governments and intertribal consortia. A Tribal government refers to any tribe, band, nation, or other organized group or community, including Alaska Native Villages or regional or village corporation (as defined in or established pursuant to the Alaska Native Claims Settlement Act, 43 U.S. C. 1601 et seq., which is recognized by the U.S. Department of the Interior as eligible for the special services provided by the United States Government to Indians because of their special status. A consortium is defined as a partnership between two or more Indian tribal governments authorized by the governing bodies of those tribes to apply for and receive assistance under this program.

Program Highlights

(1) The Indian Environmental General Assistance Program replaces the Multi-Media Assistance Program which was offered by the Agency during Fiscal Years 1991 through 1993.

(2) The project period for General Assistance grants can be for 1-4 years; the grantee can reapply if additional time is needed for capacity-building.

(3) New grants will be for a minimum of $75,000. Amendments to grants may be made in amounts as are appropriate.

(4) Funds awarded under the grant remain available through the project term of grant.

(5) The Agency's standard grant application, reporting, and audit procedures apply to the Program.

(6) Capacity-building activities are eligible for funding but not construction or site-specific actions.

(7) General assistance funding does not preclude a tribe from also receiving program or project-specific assistance.

(8) The Program provides for a simplified procurement process for procurements of $25,000 and over but less than $50,000.

Region 10 applicants should consult their Tribal Coordinators for more information.

Treatment-As-A-State Regulation

The Clean Water Act, Safe Drinking Water Act, RCRA, and the Clean Air Acts authorize EPA to treat Indian Tribes in a manner similar to a state for several purposes which include: CWA section 303 water quality standards, CWA section 401 certification programs, administration of grant awards, and program authorization, among others. The statutory requirements are that Tribes must be federally recognized, have a governing body that carries out substantial duties and powers, and have adequate jurisdiction and capacity to carry out the proposed activities. The Agency has promulgated regulations for implementing this authority under the Water Acts and has proposed regulations under the Air Acts.

None of the statutes compel the use of a formal TAS or other prequalification process separate from grant or program approval. However, the Agency initially chose to implement provisions of the Clean Water and Safe Drinking Water Acts by establishing a formal prequalification process under which Tribes can seek eligibility under these statutes. According to this regulation, current regulations would be amended to eliminate TAS review as a separate step in the processing of a tribal application for program approval. Under the simplified process, the Agency will ensure compliance with statutory requirements as an integral process of reviewing program approval applications.

The term "treatment-as-a-state" is somewhat misleading and may be offensive to some Tribes. To the extent possible, the rule amends existing regulations so as to discontinue use of the term "treatment-as-a-state." However, since this phrase is included in several statutes, its continued use is somewhat necessary.

With regard to different language in various statutes referring to TAS status, the terms "recognition" and "governmental" requirements used in the Clean Water Act, Safe Drinking Water Act, and Clean Air Acts all hold the same meaning. The new process will reflect this by establishing identical requirements for reflecting this under each statute. Moreover, the fact that a tribe has met the "recognition" or "governmental function" requirements under the Clean Air or either of the Water Acts will establish that it meets those requirements under all three statutes.

Because a Tribe may have jurisdiction over, and capability to carry out, certain activities (e.g., protection of the quality of a particular lake for the Clean Lakes program under the Clean Water Act), but not others (e.g., waste management on a portion of the reservation far removed from any lakes), the new process does not preclude the Agency from making a specific determination that a Tribe has adequate jurisdictional authority and administrative and programmatic capability before it approves each Tribal program.

The portion of existing regulations under which governments comment on tribal jurisdiction will be altered under the regulation in the following manner:

First, for approval of all Drinking Water regulatory programs and most Clean Water programs under existing regulations, EPA will not authorize a state to operate a program within Indian Country without determining that the state has shown that it has Jurisdiction. This requirement also applies also to tribes seeking approval. Accordingly, a separate TAS jurisdictional review is not necessary to verify that a tribe meets the statutory requirement, and is therefore eliminated for all programs under the Safe Drinking Water Act, and for the Clean Water Act 404 and NPDES programs. This change will have the effect only of eliminating duplicative jurisdictional review requirements.

Second, for the Water Quality Standards program, there is no review of Tribal authority as part of the program approval process. Accordingly, for that process, a comment period will be retained. However, the Agency emphasizes that comments must be offered in a timely manner and specifies that where no timely comments are offered, the Agency will conclude that there is no objection to the Tribal applicant's Jurisdictional assertion.

Third, EPA will no longer be required by regulation to consult with the Department of Interior. EPA may, at its discretion, seek additional information from the Tribe or the commenting party and may consult as it sees fit with other federal agencies prior to making a decision as to tribal jurisdictional authority.

Fourth, to encourage the expedient resolution of Tribal jurisdictional matters, the rule notes that once the Agency makes a jurisdictional determination in response to a Tribal application for an EPA program, it will ordinarily make the same determination for other programs unless a subsequent application raises different legal issues. By contrast, a determination that a Tribe has inherent jurisdiction to regulate activities in one medium might not conclusively establish its jurisdiction over activities in another medium.

Finally, the Agency will continue to retain authority to limit its approval of a Tribal application to those land areas where the Tribe has demonstrated jurisdiction. This will allow EPA to approve the portion of a tribal application covering certain areas, while withholding approval of the portion of the application addressing those land areas where tribal jurisdiction or authority has not been satisfactorily established.

EPA will continue to make a separate determination of Tribal capacity for each program under which a Tribe is approved. However, the Safe Drinking Water and Clean Water Act regulations will be amended to conform to the CWA grant regulations which do not specifically prescribe the material a Tribe must submit to establish capability. Ordinarily, the inquiry EPA will make into applicant capacity, whether it be Tribal or state, would be sufficient to enable the Agency to determine whether a Tribe meets the statutory capability requirement.

Additional Information

"Treatment-as-a-State (TAS) Regulation," the Federal Register,

Vol. 59, no, 239, December 14, 1994.

"Indian Tribes: Eligibility of Indian Tribes for Financial Assistance; Final Rule," the Federal Register, 40 CFR Parts 35 and 130, March 23, 1994.

"Indian Tribes: Eligibility of Indian Tribes for Program Authorization; Proposed Rule," the Federal Register, 40 CFR Parts 123, 124, et al., March 23, 1994.

"Amendments to the Water Quality Standards Regulation That Pertain to Standards on Indian Reservations; Final Rule," the Federal Register, 40 CFR Part 131, December 12, 1991

Pollution Prevention

The Pollution Prevention Act of 1990 establishes pollution prevention as National policy-EPA's preferred approach for protecting human health and the environment. The primary goal of

pollution prevention is preventing or reducing the generation of wastes and pollutants at the source. Potential pollutants or wastes that cannot be prevented should be recycled whenever possible. Potential pollutants that cannot be prevented or recycled should be treated in an environmentally-safe manner. Disposal or other release into the environment should be used only as a last resort and should be conducted in an environmentally-safe manner. Instead of using traditional pollution treatment and control methods to stop existing pollutants from reaching the environment, pollution prevention aims to anticipate and avoid the generation of pollutants in the first place.

Rulings by courts and pronouncements by EPA cannot single handedly clean up the environment or keep it from becoming more polluted. A unified effort is the only solution. There are several ways in which tribal leaders can fight pollution and protect the environmental well-being of their communities. Some suggestions for enhancing pollution prevention are as follows:

(1) Encourage environmental awareness and provide mechanisms to help build/maintain the ethic of preventing pollution.

(2) Set pollution prevention as a major goal and integrate the concept into governmental activities. Publicly recognize pollution prevention as a priority. Set an example for the community.

(3) Educate the Tribal community about pollution prevention. Create an awareness of the profitability and benefits of pollution prevention through greater efficiency and stewardship of natural resources.

There are several economically feasible ways to provide environmental alternatives for the community:

(1) Recycle paper, glass, plastic, aluminum, scrap metal, motor oil and yard wastes.

(2) Use less energy by making creative use of daylight. Use less water. Use ultra-low flush toilets; install water meters; repair leaks; review maintenance schedules and use conservative landscaping.

(3) Buy energy efficient automobiles and other fleet vehicles, and keep them tuned. Carpool, bike, walk or use mass transit when possible.

(4) Encourage sustainable agriculture. Take advantage of natural methods of protection. Apply pesticides such as insecticides and herbicides carefully if they must be used at all.

(5) Reduce smoke, radon, asbestos and other indoor-air pollutants.

(6) Control hazardous waste by reducing toxic use. Encourage product substitution and environmentally sound operation modifications.

(7) Buy recycled or recyclable products. Seek out reusable, recyclable or returnable packages.

(8) Reduce risks from lead. Be careful around surfaces covered with lead-based paint and be cautious when children are nearby during renovation or rehabilitation of old buildings. Be sure drinking water does not contain harmful levels of lead or other contaminants.

(9) Plant trees and shrubs, and enjoy indoor plants. They are aesthetically pleasing, but more importantly, they replenish the earth's oxygen supply and clean the air by removing pollution.

Tribal-Private Partnerships

As a Tribal community leader, the prospect of building or upgrading facilities to meet environmental needs must be acknowledged. This can be problematic, given that with growing environmental protection needs and regulations are coupled with decreased funding for infrastructure projects. As the pressure grows, to minimize rate shock for facility users, Tribal leaders must find new ways for their communities to hold down costs and build support for necessary additional expenses. Tribal-private partnerships offer a solution.

The Self-Help Guide for Local Governments has been written to acquaint local officials with the concept of public-private partnerships, their benefits, and the steps a community must take to build relationships with the private sector. Much of this information is specifically applicable to Tribal situations. The following sections describe this information in detail.

The Essence of Tribal-Private Partnerships

A tribal-private partnership is a contractual relationship between a Tribal and private partner that commits both to providing a particular environmental service. The private sector can be involved in a variety of ways from the initial design of a facility to its daily operation and maintenance. Although each arrangement is unique, most partnerships fall into one of five categories. They include contract services, turnkey facilities, developer financing, privatizations, and merchant facilities. Tribal communities enter into such partnerships for various reasons. These include access to more sophisticated technology, cost-effective design, construction, and/or operation; flexible financing; delegation of responsibility and risk; and guaranteed cost.

An Action Checklist for Building a Tribal-Private Partnership

No two communities build a partnership in exactly the same way, but all must take roughly the same steps. It is helpful to have an action checklist of the steps that will help a community make many of the decisions necessary to enter into a contract with a private firm. First, a tribal community initiates the partnership process by evaluating its service needs, reviewing available technology, and identifying resources that may be able to assist in the development of the contract. It is also important for tribal leaders to generate public support while they are evaluating financing prospects and studying laws and regulations. Reviewing a potential private partner's track record is also an important part of the process. Eventually, Tribal officials must narrow partnership options, select and conduct a procurement process, and develop the service agreement.

Financing, Procurement, and the Service Agreement

Three of the most difficult steps in building a partnership are financing, procurement, and the service agreement. In choosing a financing method, a tribal community should estimate the capital required and identify various financing options. These financing strategies should then be assessed against the financial condition of the Tribe, the project's costs and any risks. The Tribal community must select the option which is most appropriate by comparing benefits and costs.

A tribal government starts to implement its choice by initiating the procurement process. The three types of procurement selected by most communities are advertised procurement, competitive negotiation, and two-step advertising. While advertised procurement allows the community to dictate the terms of the solicitation, competitive negotiation offers greater flexibility.

Finally, a partnership arrangement must be defined in a service agreement. Each contract must include a number of elements. The contract must define (1) the project and performance criteria, (2) compensation method and timing, (3) changing situations and risk allocations, and (4) contract termination and step-in-rights. Insurance and bonding should also be considered since they may affect the terms of the contract.