TRIBAL AIR POLLUTION CONTROL AUTHORITY: A STATE VIEWPOINT
| Jurisdiction | United States |
(2000)
TRIBAL AIR POLLUTION CONTROL AUTHORITY: A STATE VIEWPOINT
State of Colorado Office of the Attorney General Natural Resources Section
Denver, Colorado
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FACT SHEET
INTERGOVERNMENTAL AGREEMENT BETWEEN THE SOUTHERN UTE INDIAN TRIBE AND THE STATE OF COLORADO CONCERNING AIR QUALITY CONTROL ON THE SOUTHERN UTE INDIAN RESERVATION
BACKGROUND:
For over ten years, the State, Tribe and United States Environmental Protection Agency (EPA) have disagreed over tribal and State eligibility to receive delegations of authority to administer programs under the Clean Air Act on the Southern Ute Indian Reservation. Pursuant to the 1984 law which confirmed the boundaries of the Reservation, the Tribe relinquished territorial jurisdiction over non-Indians conducting activities on non-Indian land. Amendments to the Clean Air Act in 1990, however, authorized EPA to delegate primacy to tribes with respect to administration of various programs under that statute and arguably restored tribal jurisdictional authority Reservation-wide for air programs. Notwithstanding the Tribe's and the State's conflicting jurisdictional assertions, the Tribe and the State have decided to work cooperatively to develop a comprehensive air quality program applicable to all lands within the boundaries of the Reservation.
HIGHLIGHTS OF THE AGREEMENT:
The Agreement provides for joint participation by the Tribe and the State in the regulation of air quality on the Reservation. Pursuant to the Agreement, a joint commission will be created (via subsequently enacted State and tribal law) composed of six (6) members, three (3) of whom are to be appointed by the Governor and three (3) of whom are to be appointed by the Tribal Council. The Commission, to be known as the Southern Ute Indian Tribe/State of Colorado Environmental Control Commission, will have two main responsibilities. First, the Commission will determine the specific Clean Air Act, or other air programs, that should apply to the Reservation and establish program standards for limiting the continued discharge of pollutants. Second, the Commission will review appealable administrative actions. The Tribe will incorporate the standards set by the Commission as part of its application to EPA for delegation of authority to administer Clean Air Act programs on the Reservation. Once the delegation is received, the Tribe will have the responsibility for day-to-day administration and enforcement of the standards, rules and regulations adopted by the Commission. Civil enforcement actions taken by the Tribe will be subject to administrative review by the Commission. It is contemplated that final decisions of the Commission will be subject to judicial review in federal district court. The costs associated with the Tribe's administration of the program and the necessary expenses of the Commission will be funded primarily by permit fees. Under the Agreement, a tribal ordinance or resolution authorizing the creation of the Commission and approving implementation of the Agreement must be enacted no later than January 26, 2000. Parallel State legislation approving the Agreement must be adopted by the Colorado General Assembly during its next regular session. Finally, the parties agree to seek and support passage of federal legislation confirming the Tribe's eligibility to receive a delegation from EPA under the Clean Air Act provided
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the Agreement remains in effect. Such federal legislation must be enacted within two years or else the Agreement becomes null and void.
BENEFITS:
The benefits of the Agreement include the following:
• The Agreement eliminates confusion and provides certainty to would-be regulators (i.e., the State, Tribe and EPA) and also for those individuals who must comply with the Clean Air Act (i.e., sources of air pollution). The certainty created by the Agreement will minimize duplicative efforts and expenditures of monetary and program resources by the Tribe and State.
• The Agreement assures the protection of air quality on the Reservation through the development of a comprehensive air quality program applicable to all lands within the boundaries of the Reservation. It is agreed that the Reservation air program to be developed under the Agreement should reflect the particular interests of the Tribe, yet remain compatible with State air quality goals.
• The cooperative approach represented by the Agreement eliminates the risk of a protracted and costly jurisdictional dispute, which dispute potentially would include the Tribe, State, EPA and regulated parties.
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INTERGOVERNMENTAL AGREEMENT BETWEEN THE SOUTHERN UTE INDIAN TRIBE AND THE STATE OF COLORADO CONCERNING AIR QUALITY CONTROL ON THE SOUTHERN UTE INDIAN RESERVATION
THIS INTERGOVERNMENTAL AGREEMENT is made and entered into by and between the SOUTHERN UTE INDIAN TRIBE ("Tribe") and the STATE OF COLORADO ("State").
I. PURPOSE AND SUMMARY OF THE AGREEMENT.
The purpose of this Agreement is to establish a single air quality program applicable to all lands within the exterior boundaries of the Southern Ute Indian Reservation ("the Reservation Air Program"). The Southern Ute Indian Tribe/State of Colorado Environmental Commission ("Commission") established under this Agreement shall promulgate rules and regulations for the Reservation Air Program and shall conduct review of appealable administrative actions, pursuant to laws enacted by both parties. Any United States Environmental Protection Agency ("EPA") delegation to the Tribe as contemplated in this Agreement shall be contingent upon and shall last only so long as this Agreement is in effect and shall be exercised pursuant to this Agreement. The Commission shall be the air quality policy making and the administrative review entity for the Reservation Air Program. When all conditions and terms of this Agreement are fully in effect, the Tribe and the State intend that the Reservation Air Program shall be implemented and administered by the Tribe, pursuant to a delegation from the EPA, through the use of the staff of the Tribe's Environmental Programs Division ("EPD"), with the participation of the State's Air Pollution Control Division as outlined in this Agreement.
II. BACKGROUND.
The Southern Ute Indian Reservation ("Reservation") is located in southwest Colorado in the southern portions of La Plata and Archuleta Counties. Congress confirmed the boundaries of the Reservation in the Act of May 21, 1984, Pub. L. No. 98-290, 98 Stat. 201, 202 (found at "Other Provisions" note to 25 U.S.C.S. § 668) ("P.L. 98-290"). The Reservation encompasses approximately 681,000 acres, of which approximately 308,000 surface acres are held in trust by the United States for the benefit of the Tribe. Additionally, the Tribe owns the mineral estate underlying a majority of Reservation lands. As the result of the historical allotment, homesteading, and restoration of undisposed of lands to tribal ownership, the Reservation is a checkerboard of land ownerships, including: lands held in trust by the United States for the Tribe's benefit; lands held in trust by the United States for the benefit of individual tribal members; lands owned in fee by members of the Tribe; lands owned in fee by non-Indians; and National Forest lands.
The Clean Air Act directs EPA to promulgate regulations specifying those Clean Air Act provisions for which Indian tribes may be treated in the same manner as states for the purposes of primacy in the development and implementation of air quality programs. 42 U.S.C. § 7601(d). EPA promulgated such regulations on February 12, 1998. 63 Fed. Reg. 7253. Pursuant to the Clean Air Act and EPA regulations, tribes have the flexibility to assume responsibility for administering some,
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but not necessarily all, Clean Air Act programs and preserving that flexibility is important to the Tribe.
In July, 1998, the Tribe submitted an application for treatment as a state ("TAS application"). In its application, the Tribe requested it be treated as a state with respect to the administration of Clean Air Act programs over all land located within the exterior boundaries of the Reservation. The specific purposes of the TAS application were to receive grant funding under section 105 of the Clean Air Act and recognition as an "affected State" to comment on draft operating permits. The Tribe asserted in its TAS application that it has jurisdiction to regulate all sources of air pollution located within the Reservation's exterior boundaries under the Clean Air Act, including non-Indian owned sources located on fee lands.
In its comments on the Tribe's TAS application, the State has objected insofar as the application requests tribal Clean Air Act authority over non-Indian owned sources located on fee land within the exterior boundaries of the Reservation. The State asserts that P.L. 98-290 establishes its jurisdiction to regulate non-Indian owned sources located on fee lands within the Reservation boundaries. There is no dispute as to the Tribe's jurisdictional authority to regulate sources of air...
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