[Congressional Record Volume 148, Number 34 (Thursday, March 21, 2002)]
[Senate]
[Pages S2287-S2288]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL (for himself and Mr. Allard):
  S. 2065. A bill to provide for the implementation of air quality 
programs developed pursuant to an Intergovernmental Agreement between 
the Southern Ute Indian Tribes and the State of Colorado concerning Air 
Quality Control on the Southern Ute Indian Reservation, and for other 
purposes; to the Committee on Environment and Public Works.
  Mr. CAMPBELL. Mr. President, I am pleased to introduce the Southern 
Ute and Colorado Intergovernmental Agreement Implementation Act of 
2002.
  As my colleagues know, successful environmental laws recognize that 
local implementation is almost always better than a ``one size fits 
all'' program run from Washington, DC. For example, the Federal Clean 
Air Act authorizes States and Indian tribes to become responsible for 
establishing implementation plans, designating air quality standards, 
and implementing many of the regulatory programs needed to maintain or 
improve air quality.
  With respect to the Southern Ute Indian Reservation in my State of 
Colorado, however, there is some question about whether the 
Environmental Protection Agency, EPA, can delegate Clean Air Act 
jurisdiction to the Southern Ute Tribe in the same manner that it would 
delegate authority to any other Indian tribe.
  In 1984 Congress ratified a jurisdiction and boundary agreement 
between the Southern Ute Indian Tribe and the State of Colorado. 
Approving this agreement spared both sides the exorbitant costs of 
going to court to fight over the jurisdictional status of each square 
inch on the Reservation.
  In addition, the 1994 arrangement allows the tribe and the State to 
work out any questions about jurisdiction within their agreed-upon 
framework. With respect to Federal officials dealing with the tribe and 
the State, however, this arrangement could create some uncertainty. 
Because it could be argued that it prevents the tribe from exercising 
authority that may be delegated to any Indian tribe under the Clean Air 
Act.
  Instead of placing the Environmental Protection Agency in the middle 
of a controversy about whether it is authorized to delegate Clean Air 
Act programs within the Southern Ute Indian Reservation, the tribe and 
the State signed a historic ``Intergovernmental Agreement'' to resolve 
any controversy between the Southern Ute Indian Tribe and the State of 
Colorado.

  In this way, the State and the tribe have once again agreed that it 
is better for them to control their own destiny by reaching an accord 
they can both live with rather than putting their fate in the hands of 
bureaucrats and judges. I applaud the proactive spirit which led the 
tribe and the State to resolve a potential controversy before a problem 
or conflict even arose.
  The program established by the agreement reflects the unique issues 
and context that brought the tribe and the State to the negotiating 
table. First, consistent with Congress' mandate in the Clean Air Act, 
the Tribe will be the entity responsible for administering Clean Air 
Act programs within the reservation boundaries. The tribal program 
administrators have complete access to the State's technical resources 
and personnel. Second, an equal number of tribal and State 
representatives will sit on the Commission established by the 
agreement.
  The Commission is authorized to hear and decide any appealable 
decisions. The Commission will also set the pace for tribal 
applications for delegations of authority. Finally, the agreement seeks 
to make the Federal courts available to hear any challenges to 
decisions by the Commission.
  I am aware of the number of complex issues raised by this historic 
agreement, and efforts are already underway to address and resolve some 
of these issues. I believe it is the right time to introduce a bill to 
allow the appropriate committee to begin to formally consider this 
proposal. I know the parties will continue to direct their efforts at 
bringing this important matter to a successful conclusion.
  In closing, let me again commend the efforts of both the tribe and 
the State in negotiating and signing this historic agreement. I would 
ask unanimous consent that a letter from Colorado Governor Bill Owens 
be printed in the Record. Finally, I am pleased that Senator Wayne 
Allard joins with me in the views expressed in this statement and in 
cosponsoring this bill.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


[[Page S2288]]




                                            State of Colorado,

                                         Denver, CO, May 22, 2000.
     Re: Intergovernmental Agreement between the State of Colorado 
         and the Southern Ute Indian Tribe Regarding Air Quality 
         regulation.

     Hon. Ben Nighthorse Campbell,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Campbell: On December 13, 1999 I signed an 
     historic agreement between the State of Colorado and the 
     Southern Ute Indian Tribe in which the State and the Tribe 
     agreed to establish a single, cooperative air quality 
     authority for all lands within the Southern Ute Reservation. 
     This cooperative arrangement, negotiated by Attorney General 
     Salazar, my office and the Colorado Department of Public 
     Health and Environment (``CDPHE''), is the first of its kind 
     in the United States between a state and a tribe to regulate 
     air quality. Because the arrangement is unique, statutory 
     authority or clarification is needed at both the State and 
     federal levels to accommodate the agreement. The General 
     Assembly sent to me a bill to accomplish the changes 
     necessary at the State level that I signed into law on March 
     15, 2000. I am writing today to ask you to sponsor 
     legislation achieving a clarification to existing federal law 
     assuring that the agreement in its contemplated framework can 
     move forward. I have attached a draft of the legislation we 
     believe is needed to clarify that the agreement can work as 
     well as a copy of the intergovernmental agreement signed in 
     December.


                               Background

       As you know, the Southern Ute Indian Tribe's Reservation 
     consists of approximately 681,000 acres, located mainly in La 
     Plata County. The Reservation is a checkerboard of land 
     ownership. About 308,000 surface acres are held in trust by 
     the United States for the benefit of the Tribe (``trust 
     lands.'') The remaining 3780,000 surface acres are owned in 
     fee by non-Indians or individual Tribal members (``fee 
     lands''), or consist of national forest land. In 1984, 
     Congress enacted Public Law 98-290, which confirmed the 
     exterior boundaries of the Reservation. P.L. 98-290 also 
     clarified that the Tribe has jurisdiction over the trust 
     lands and Indians anywhere in the Reservation, and the State 
     has jurisdiction over non-Indians on the fee lands.
       Oil and natural gas production takes place throughout the 
     Reservation. These facilities are stationary air pollution 
     sources. Historically CDPHE's Air Pollution Control Division 
     has issued permits to non-Indian owned sources located on fee 
     lands. Recently, the Tribe petitioned EPA for the right to 
     issue all permits within the exterior boundaries of the 
     Reservation including the facilities historically regulated 
     by the State of Colorado. In 1998, the EPA issued regulations 
     implementing provisions of the Clean Air Act allowing Indian 
     tribes to be treated in the same manner as States to 
     administer certain air quality programs. In July 1998, the 
     Southern Ute Tribe applied to the EPA for treatment as a 
     state for all lands within the Reservation. On the basis of 
     PL 98-290, the State objected, arguing that it had 
     jurisdiction over the non-Indian sources on the fee lands.
       To avoid a potentially long and costly fight in the federal 
     courts about which governmental entity has jurisdiction over 
     the fee lands, the Tribe and the State have now agreed to 
     establish a single, cooperative air quality authority for all 
     lands within the Reservation. On December 13, 1999, the Tribe 
     and the State entered into an Intergovernmental Agreement 
     (copy attached) which provides that a joint Tribal/State 
     Commission will establish air quality standards. The Tribe 
     will receive a delegation of authority from EPA to administer 
     the air quality programs, but the delegation is contingent 
     upon and shall last only so long as the Agreement and 
     Commission are in place.


                      Tribal and State Legislation

       The Agreement provided for legislation by both the Tribe 
     and the State approving the Agreement and enacting 
     substantive law necessary to carry out the Agreement's 
     provisions. On January 18, 2000, the Tribe adopted its 
     legislation. On March 15, 2000, I signed HB 1324, which 
     adopted and codified the Agreement and HB 1325, which 
     established the State's authority to establish the Commission 
     and otherwise implement the Agreement.


                          Federal Legislation

       The Agreement envisions a delegation by the EPA to the 
     Tribe to administer Clean Air Act programs, contingent upon 
     the existence of the Joint State/Tribal Commission. This is a 
     unique arrangement and is not clearly specified within the 
     Clean Air Act. Parties have argued to me that clarifying 
     legislation by Congress is necessary to resolve any 
     uncertainty about the EPA's power to delegate authority to 
     run an air pollution program to the Tribe and for the 
     Commission to act under such a delegation. The Commission 
     also will set the standards and rules of the air quality 
     program that the Tribe will administer. The Commission will 
     serve as the administrative appellate review body for 
     enforcement and other administrative actions. The Agreement 
     provides that the Commission's final review is final agency 
     action, and further judicial review would be in the federal 
     courts. The existence of such federal jurisdiction should 
     also be clarified by Congress.
       Enclosed is a draft of the proposed federal legislation and 
     a legislative history for your review. These draft documents 
     would accomplish the limited but necessary changes to make 
     the Agreement fully operational. The bill is set up to add a 
     section to P.L. 98-290 to narrow the application of the 
     revisions only to the Southern Ute Indian Tribe and the State 
     of Colorado, so that other states or tribes would not be 
     affected.


                               Next Steps

       The full operation of the Agreement is conditioned upon 
     passage of federal legislation no later than December 13, 
     2001. I recognize that this may be difficult but from the 
     State's perspective the sooner the Agreement could be 
     operational the better since EPA will be regulating the 
     affected entities until the Joint Commission and Tribe take 
     over. We would like to be helpful and I offer a meeting 
     between you and your staff and representatives of the 
     Governor's Office, the Colorado Department of Public Health 
     and Environment and the Colorado Attorney General's Office at 
     your earliest convenience discuss this issue.
       Thank you for taking the time to consider this request. 
     Please feel free to contact Britt Weygandt in my office for 
     any assistance you may need. Her extension is (303) 866-6392.
           Sincerely,
                                                       Bill Owens,
     Governor.

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