Comment submitted by Rebecca A. Miles, Chairman, Nez Perce Tribal Executive Committee

Since time immemorial, members of the Nez Perce Tribe (Tribe) have used and occupied the lands and waters of north-central Idaho, southwestern Washington, northeastern Oregon and western Montana for subsistence, ceremonial, commercial and religious purposes. In Article 3 of the Treaty of 1855, the Nez Perce reserved the continued use of much of this territory for fishing, hunting, gathering and grazing. See Treaty of June 9, 1855, with the Nez Perce Tribe, 12 Stat. 957 (1859). The resources which EPA has the authority to protect are integral to the continued use and enjoyment of the Tribe?s Treaty reserved rights. As such, the process by which EPA makes decisions, and seeks input on its decision-making, is very important to the Nez Perce people. Executive Order 13175 expressly states its purpose, which is to ?establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.? The EO goes on to state that an additional purpose is ?to strengthen the United States government-to-government relationships with Indian tribes.? Additionally, the EO recognizes the ?unique legal relationship? between the federal government and the Indian Tribes, and acknowledges that the United States owes a trust responsibility to Tribes and Tribal resources. In the Tribe?s view, these provisions and the EO in general, were meant to change the way the federal government dealt with Indian Tribes, by seeking their involvement in policy issues that affect Tribes and their resources. The draft EPA Guidance works against this change in bureaucratic attitude. The Nez Perce Tribe views this as an attempt by EPA to find loopholes, which it can use to avoid consultation with Tribes on issues of importance. Nowhere is this more evident in the Guidance than with the manufacturing of a requirement that actions have a ?legally binding? effect or that actions require direct compliance by a Tribal governments in order to trigger Consultation. 71 FR 20328-20329. When permits are issued by EPA to facilities on or near a reservation, or to facilities that discharge into areas where the Tribe has a significant interest, the Consultation requirement should be triggered. The same goes for EPA drafted guidance documents which are likely to be relied upon by states when drafting their water quality standards. These types of activities have a direct impact on the health and welfare of the Tribe and the Tribe?s resources, and because of the agency?s trust responsibility to protect Tribal members and Tribal resources, EPA needs to consult with Tribal governments on these actions.