During the Formation Phase, the State will continue to assess and collect fees as provided by Colorado statute and will expend such funds to administer the State program for non-Indian sources on fee lands. The Tribe will use its own funds or may apply for EPA grants to fund its activities. During the Development Phase, permitting fees and any other fees for non-Indian owned sources located on fee lands will be divided between the Tribe and State in a manner that is commensurate with the responsibilities, costs incurred, and time spent by each party with respect to such permits and such division of fees shall be authorized pursuant to the State and tribal legislation contemplated herein. The parties shall endeavor to reach agreement on the appropriate division of fees prior to the conduct of any work related to such permits.
B. Other Cooperation during the Formation and Development Phases. During the time period that the Commission is being created by State and tribal legislation, and prior to the time that EPA delegates specific programs to the Tribe, the Tribe and the State agree to cooperate as follows:
Technical Assistance. The State, by and through the APCD, will advise the Tribe about the kinds of technical assistance that it can provide. The Tribe, with the assistance of the APCD, will develop technical assistance priorities. The APCD will make available technical expertise from all APCD program areas to assist the Tribe in the development and management of the Reservation Air Program and to assist the Tribe in developing its own technical expertise in air resource management. The Tribe and the APCD agree to exchange technical expertise regarding matters of mutual interest. Unless otherwise required by state or federal law, the APCD shall not share or release to any other governmental or private agency or person, without the written consent of the Tribe, any information obtained by the APCD from the Tribe or information generated by the APCD through technical assistance to the Tribe; provided, however, this confidentiality requirement shall not apply to information which has already been disclosed to the public by the Tribal Council or its representatives and information that the Tribe specifically approves for distribution to the public. If the APCD receives a request under the state Open Records Act to disclose confidential information, the APCD shall notify the Tribe of the request within a time sufficient to enable the Tribe to assert its claim to confidentiality prior to the APCD producing any requested documents.
Training. Upon request, the Tribe will help APCD employees improve their understanding of Southern Ute traditional values and practices, natural resource values, treaty and other federally reserved rights, and relevant law enforcement policy issues. The APCD will provide the Tribe with access to APCD training programs. To facilitate the attendance of tribal personnel at APCD training programs, the APCD shall notify the Tribe in advance of such programs.
Funding. During the Program Phase, the Reservation Air Program shall be funded as set forth in Article VIII.
Article X
Enforcement and Judicial Review.
During Formation and Development Phase. Prior to the formation of the Commission and the adoption of the federal legislation and actual EPA delegation of Clean Air Act programs, the parties agree that the State may exercise civil and criminal enforcement jurisdiction over non-Indians on fee lands within Reservation boundaries for violations of applicable air quality regulations. Appeals of State air enforcement action and other air quality related decisions may be brought in State court consistent with State law and regulation. Pursuant to P.L. 98-290, the Tribe may exercise jurisdiction over Indians on all lands within the boundaries of the Reservation, and over non-Indians on trust land, for violations of applicable tribal air quality regulations. Nothing herein is intended as restricting, diminishing or defining the jurisdiction of EPA.
During the Program Phase.
Civil Enforcement Action. Following the adoption of the federal legislation and EPA delegation of Clean Air Act programs contemplated by this agreement, the Tribe will exercise civil enforcement jurisdiction over any persons on all lands within Reservation boundaries for violations of the Reservation air quality program, subject to administrative review by the Commission. Consistent with the federal legislation contemplated by this Agreement, final decisions of the Commission will be subject to review in federal district court in accord with the provisions of the federal Administrative Procedure Act.
Criminal Enforcement Action. Following the formation of the Commission and the adoption of the federal legislation contemplated by this agreement, it is the intent of the parties that EPA will exercise criminal enforcement jurisdiction over any persons on all lands with Reservation boundaries for violations of the Reservation Air Program.
Article XI Federal Legislation.
The State and Tribe agree to seek cooperatively federal legislation to confirm the eligibility of the Tribe to receive a delegation of authority to administer programs under the Clean Air Act for all lands within the boundaries of the Reservation, contingent upon the continued existence of this Agreement. The purpose of the federal legislation will be to facilitate the delegation of authority to the Tribe pursuant to the terms and conditions of this Agreement and to provide an effective mechanism for the enforcement of program requirements and for administrative and judicial review. It is agreed that the parties will seek legislation whereby, notwithstanding any limitation contained in P.L. 98-290 or any other limitation contained in federal law, the Tribe will be authorized to be treated as a State for Clean Air Act purposes for all lands within the Reservation and recognized as eligible to receive a delegation of authority from EPA to administer programs pursuant to the Clean Air Act, provided that this Agreement and the joint Southern Ute Indian Tribe/State of Colorado Environmental Control Commission, established pursuant to State and tribal law as provided herein, remains in effect.
Article XII
Tribal Treatment as a State Applications and Requests for Program Approval.
During the Development Phase, the Tribe shall apply to EPA for approval of Clean Air Act programs and delegation to the Tribe of the authority to administer such programs with respect to all lands within the Reservation, as determined by the Commission and subject to the terms of this Agreement. The State agrees that it will not jurisdictionally challenge the Tribe's requests to EPA for approval of these programs or delegation to the Tribe of the authority to administer Clean Air Act programs with respect to the Reservation, including non-Indian facilities located or non-Indian activities conducted on fee lands within the boundaries of the Reservation, provided such requests are pursuant to the determination of the Commission and subject to the terms of this Agreement.
For Indian tribes establishing eligibility pursuant to 40 C.F.R. § 35.220 (a), EPA may provide financial assistance in an amount up to 95 percent (95%) of the approved costs of planning, developing, establishing, or approving an air pollution control program, and up to 95 percent (95%) of the approved costs of maintaining that program, 40 C.F.R. § 35.205.
The Tribe and the State agree to cooperate in seeking from EPA any recognition of or delegation to the Tribe necessary to carry out the terms and conditions of this Agreement. The State agrees that it will support an amended or additional TAS application or request for program delegation by the Tribe which incorporates the terms of this Agreement. The Tribe agrees that it will not submit a request for approval of a Clean Air Act program or for approval of partial elements of a Clean Air Act program unless asked to do so by the Commission and in accordance with the requirements contained in this Agreement.
Article XIII
Miscellaneous.
Effective Date. This Agreement shall begin and become effective when executed by both parties.
Amendment. The parties may amend this Agreement from time to time in writing, provided that such amendment must bear the signature of an authorized representative of each party. This provision for amendment is not intended to grant to any party individually or to the parties collectively any legislative authority to change State or Tribal law without the concurrence of the appropriate legislative body.
Termination. This Agreement shall continue in effect until terminated by joint agreement of the parties, provided, however, that either party may terminate the agreement contained herein by giving advance written notice of one year to the other party. Any termination of this Agreement shall serve to end the delegation from EPA to the Tribe to administer any Clean Air Act programs delegated pursuant to this Agreement. The termination of this Agreement shall also operate as an automatic repeal of the State and tribal legislation enacted pursuant to Article VI of this Agreement.
Notices. Notices hereunder shall be in writing and shall be given by personal delivery or by deposit in the United States mail by certified mail, return receipt requested, postage prepaid and addressed to the Tribe and the State at the addresses set forth below, or such other place as is provided to the other parties by written notice:
Southern Ute Indian Tribe
Attention: Tribal Chairman
P.O. Box 737
Ignacio, CO 81137 with a copy to:
Southern Ute Indian Tribe
Environmental Programs Division
Attention: Director
P.O. Box 737
Ignacio, CO 81137
State of Colorado
Office of the Governor
136 State Capitol
Denver, CO 80203-1792 with a copy to:
Executive Director
Colorado Department of Public Health and Environment
4300 Cherry Creek Drive South,
Building A, First Floor
Denver, CO 80246-1530
Attorney General
1525 Sherman Street, 7th Floor Denver, CO 80203
Notice shall be effective as of the date of receipt.
No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Tribe and the State, and is not intended to create any benefit, obligation, or cause of action, whether direct or indirect, for any party not a signatory to this Agreement.
Severability. If any provisions of this Intergovernmental Agreement are determined to be prohibited by or invalid under applicable laws, those provisions shall be ineffective only to the extent of such prohibition or invalidity, without affecting the validity or enforceability of the remaining provisions of this Intergovernmental Agreement. The Tribe and the State agree to meet and negotiate in good faith to amend this Intergovernmental Agreement in the event any provisions are determined to be prohibited by or invalid under applicable laws.
Complete Understanding. This Agreement is intended as the complete integration of all understandings between the parties concerning the Reservation Air Program. No prior or contemporaneous addition, deletion, or other amendment to this Agreement shall have any force or effect whatsoever, unless embodied in this Agreement.
Periodic Review. On the anniversary date of this Agreement or on some other mutually agreed upon date, but in no event less than every three years, the parties to this Agreement agree to meet and confer to discuss compliance, progress in implementation, whether amendments are necessary, and other issues related to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed:
SOUTHERN UTE INDIAN TRIBE
Howard D. Richards, Sr.,
Vice-chairman
Southern Ute Indian Tribal Council
STATE OF COLORADO
Bill Owens,
Governor
Ken Salazar,
Attorney General
Source: L. 2000: Entire article added, p. 91, § 1, effective March 15. L. 2002: Article VI D amended, p. 1094, § 4, effective June 1.
Editor's note: (1) Section 5 of chapter 280, Session Laws of Colorado 2002, provides that the act amending article VI D applies to actions taken on or after December 13, 2001, with reference to the Southern Ute Indian tribe/state of Colorado environmental commission.
(2) 40 C.F.R. § 35.220 (a) referenced in the second paragraph of Article XII of this compact is no longer contained in the Code of Federal Regulations. However, said section did exist in the 1998 Code of Federal Regulations.