<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:81271.wais]
S. Hrg. 107-614
REGULATE AIR QUALITY ON THE SOUTHERN UTE INDIAN RESERVATION
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 2065
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
__________
JULY 18, 2002
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
81-271 WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
S. 2065, text of................................................. 2
Statements:
Brown King, Fran, division head, Environmental Programs
Division, Southern Ute Indian Tribe, Ignacio, CO........... 8
Burch, Leonard, chairman, Southern Ute Indian Tribe, Ignacio,
CO......................................................... 7
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 1
Fagan, Renny, Deputy Attorney General, State of Colorado,
Denver, CO................................................. 10
Maynes, Sam W., attorney for tribes.......................... 9
Appendix
Prepared statements:
Brown King, Fran............................................. 19
Burch, Leonard............................................... 17
Fagan, Renny (with letter)................................... 20
Whitman, Christie Todd, administrator, U.S. Environmental
Protection Agency (with letter)............................ 22
REGULATE AIR QUALITY ON THE SOUTHERN UTE INDIAN RESERVATION
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THURSDAY, JULY 18, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 11:36 a.m. in
room 485, Russell Senate Building, Hon. Ben Nighthorse Campbell
(vice chairman of the committee) presiding.
Present: Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. If we could proceed, we still have
another bill to go.
Those who are concerned about water can leave, and those
who are concerned about air, stay. [Laughter.]
We will now receive testimony on legislation that I
introduced along with Senator Allard in March, 2002. The bill
is S. 2065, and it provides for the Congressional ratification
of an agreement entered into by the State of Colorado and the
Southern Ute Tribe. After many years of negotiations, I am very
pleased that the parties were able to reach an agreement and
that the Environmental Protection Agency has endorsed this
agreement.
[Text of S. 2065 follows:]
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Senator Campbell. Before we proceed, let me make just a
couple of points.
The Clean Air Act clearly authorizes Indian tribes to
exercise jurisdiction over all the lands within their
reservations, even the non-Indian fee lands on the
reservations. Tribes have both the inherent right to exercise
jurisdiction, and the Clean Air Act, itself, includes
procedural and other protections to ensure that this authority
is exercised in a fair and responsible manner.
With respect to the Southern Ute Tribe, however, a statute
enacted in 1984 appears to prevent the tribe from exercising
inherent jurisdiction over non-Indians on fee lands. I share
the tribe's concerns, being a resident in that area, that this
1984 act might allow a party to challenge the authority
delegated to it under the Clean Air Act.
I certainly applaud the response of the tribe and the State
to this possible dilemma. Instead of leaving the conflict to
courts again, they have forged an agreement that is before us
today.
I am delighted to see my good friend here, the chairman of
the Southern Utes, Leonard Burch, and my colleague from the
Legislature in Colorado, who served right after I left, Renny
Fagan. Nice to have you here.
With that, why don't we go ahead with Chairman Burch. Would
you like to proceed?
STATEMENT OF LEONARD BURCH, CHAIRMAN, SOUTHERN UTE INDIAN
TRIBE, IGNACIO, CO
Mr. Burch. Thank you, Senator Campbell, vice chairman of
the committee. I am Leonard Burch, chairman of the Southern Ute
Tribal Council. Thank you for inviting the tribe to testify
today regarding S. 2065 entitled:
A Bill to Implement the Intergovernmental Agreement between
the Southern Ute Indian Tribe and the State of Colorado
Regarding Air Quality Control on the Southern Ute Indian
Reservation.
It is my pleasure to express the tribe's support for this
important legislation. In your packet, Senator Campbell, we
have a map of our reservation. It is checkerboarded. Within the
boundary of the reservation there is Indian land, non-Indian
land, and some Federal lands.
To give background, for over 10 years the State, the tribe,
and the U.S. Environmental Protection Agency have disagreed
over tribal and State eligibility to receive delegation of
authority to administer programs under the Clean Air Act on the
Southern Ute Reservation. Under the 1984 law that confirmed the
boundaries of the reservation, the tribe relinquished
territorial jurisdiction over non-Indians conducting activities
on non-Indian lands.
Amendments to the Clean Air Act in 1990, however,
authorized EPA to delegate primacy to tribes with respect to
administration of various programs under the statute and
arguably restored tribal jurisdictional authority for
reservation-wide air quality program.
Rather than allow ourselves to become embroiled in bitter
and costly litigation that would probably result in a decision
unacceptable to all parties, tribal and State government
officials have formulated a resolution supported by all.
As you know, Mr. Chairman, we worked this thing out with
the State, and we have come up with this verifying legislation
that is acceptable.
This legislation confirms the authority of EPA to grant to
the tribe treatment as State status under the Clean Air Act for
such time as the governmental agreement remains in effect. The
status will enable the tribe to administer a single air quality
program on all lands within the exterior boundaries of the
Southern Ute Indian Reservation, as delegated by EPA and in
accordance with rules promulgated by the Environmental
Commission.
Additionally, this legislation provides for exclusive
Federal judicial review of final action by the Environmental
Commission and authorizes the Southern Ute Tribe or the
Environmental Commission, as appropriate, to file in Federal
court--a petition for declaratory or injunctive relief or other
orders in aid of enforcement for person who had failed to
comply with final civil order of the tribe or the Environmental
Commission made pursuant to the air quality program established
under the inter-governmental agreement.
Mr. Chairman, the legislation, as you know, was worked on
together by the State, the tribe, the Governor's office, the
attorney general's office, and the State General Assembly that
passed the resolution this spring. It requires the approval of
the Congress. At the end of this month more information will be
given on that by the company group here.
The resolution of these complex jurisdictional problems
present on the Southern Ute Reservation has long been a
challenge. Unlike the relationship between many other States
and tribes, in recent years the State of Colorado and Southern
Ute Indian Tribe have been able to amically resolve several
difficult jurisdictional issues. A spirit of cooperation and
willingness of the State and the tribe to negotiate on a
government-to-government basis led to the development of the
agreement.
S. 2065 is needed to implement and enforce the unique and
innovative air pollution control between the State of Colorado
and the Southern Ute Tribe.
Mr. Chairman, I appreciate the time. I hope the committee
will pass this very important legislation so we can move on to
implement the agreement.
Again, I would like to thank your staff and the staff of
Chairman Inouye for the hard work that they have given us to
get this legislation to where we are today.
Thank you.
Senator Campbell. Thank you.
[Prepared statement of Chairman Burch appears in appendix.]
Senator Campbell. You were accompanied by Fran King Brown.
Were you prepared to make some comments, too, Fran?
Ms. Brown. Yes; I am, sir.
Senator Campbell. All right.
STATEMENT OF FRAN KING BROWN, DIVISION HEAD, ENVIRONMENTAL
PROGRAMS DIVISION, SOUTHERN UTE INDIAN TRIBE, IGNACIO, CO
Ms. Brown. The first thing I'd like to do is just go over
the key terms of the agreement.
As encouraged by Congress in the Clean Air Act, the
Southern Ute Indian Tribe and the State of Colorado have
entered into this intergovernmental agreement. The agreement
provides for joint participation by the tribe and the State for
regulation of air quality on the reservation. Under the
agreement, a joint commission has been created by a
subsequently enacted State and tribal law. The Commission is
composed of six members, three of whom are appointed by the
Governor and three of whom are appointed by the tribal council.
The Commission is to be known as the ``Southern Ute Indian
Tribe State of Colorado Environmental Control Commission'' and
has two main responsibilities.
First, the Commission will determine the specific Clean Air
Act or other programs that should apply to the reservation and
establish program standards for managing 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.
Once the delegation is received, the tribe will have the
responsibility for day-to-day administration and enforcement of
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 the final decisions of the
Commission will be subject to judicial review in Federal court.
The cost associated with the tribe's administration of the
program and the necessary expenses of the Commission will be
funded primarily through permit fees.
As required by the agreement, a tribal resolution was
enacted in January, 2000, authorizing the creation of the
Commission and approving implementation of the agreement.
Parallel State legislation approving the agreement was adopted
by the Colorado General Assembly and signed by Governor Owens
on March 15, 2000.
The agreement gives Congress until December 13, 2002, to
adopt Federal legislation. If the Federal legislation is not
enacted before that time, then the agreement will become null
and void and the parties retain their previous status.
In addition to the bill as it stands, the tribe has seen a
need to ask for an amendment to this bill, and the tribe's
attorney, Sam W. Maynes, will address that.
Senator Campbell. Okay. Sam W., Junior. I guess I shouldn't
use that word ``junior'' in this day and age.
STATEMENT OF SAM W. MAYNES, ATTORNEY, SOUTHERN UTE INDIAN TRIBE
Mr. Maynes. Thank you, Mr. Vice Chairman. My name is Sam W.
Maynes. I'm an attorney for the Southern Ute Indian Tribe.
As Chairman Burch indicated, the tribe urges the
committee's approval of the bill, but the tribe also
respectfully requests that the committee consider amending the
bill so as to remove section 4B. Section 4B of the bill
provides that nothing in the bill will alter the right of a
person to bring what is known as a ``citizen's suit'' pursuant
to section 304 of the Clean Air Act.
The tribe is concerned that the inclusion of that provision
will subject the tribe, the Southern Ute Indian Tribe, to
citizen suit liability in situations where neither states nor
other tribes would be subject to such liability.
Under the Clean Air Act, the citizen's suit provision
applies to States only to the extent permitted by the 11th
amendment. In other words, States retain, under the Clean Air
Act, their 11th amendment immunity from suit.
In 1990, the Congress directed EPA to determine which
provisions of the Clean Air Act it was appropriate to apply to
tribes who receive treatment as a State status. In its regs,
EPA determined that the citizen's suit provision was one of the
provisions for which it was not appropriate to treat tribes as
States.
There were two reasons for that. One was EPA recognized and
was concerned that a determination that the citizen's suit
provision applied to tribes would constitute an administrative
waiver of tribal sovereign immunity. Second, EPA did not want
to or was concerned that application of the citizen's suit
provision to tribes might hinder the development of tribal air
programs.
Early in their development, EPA was concerned that
resources might have to be committed to litigating citizen's
suits rather than building the tribe's air program.
In conclusion, Mr. Vice Chairman, the tribe is concerned
and objects to the inclusion of the citizen's suit language in
the bill because it will subject the tribe to citizen's suit
liability in situations where neither States, because of their
11th Amendment immunity, nor other tribes, because of EPA's
determination, would be subject to such liability.
We have consulted with EPA about this matter, and they have
indicated to us that they do not object to the removal of that
provision.
Thank you, Mr. Vice Chairman.
Senator Campbell. To my knowledge, no one on our committee
has a problem with removing section 4B, nor does anybody in the
EPA, but this bill has also been assigned to the Environment
and Public Works Committee, and I'm not sure about that
committee, but staff is working with them already and hopefully
will be able to do that without any problem, remove that
section.
Also, at this time, before I ask a few questions, I want to
introduce for the record a letter from Edward Krenick, USEPA,
and the testimony in support of S. 2065 by the administrator,
Christie Todd Whitman.
[Letter of Mr. Krenick and testimony of Ms. Whitman appear
in appendix.]
Senator Campbell. Renny, if you would like to go ahead.
STATEMENT OF RENNY FAGAN, DEPUTY ATTORNEY GENERAL, STATE OF
COLORADO, DENVER, CO
Mr. Fagan. Thank you, Mr. Chairman.
I'm Deputy Attorney General Renny Fagan here representing
Attorney General Ken Salazar from the State of Colorado.
Attorney General Salazar was very instrumental in getting these
negotiations going and has been fully supportive of the
agreement.
In addition, I also bring the support of Governor Bill
Owens and his administration to the agreement. The Governor's
office was also very involved in the negotiations, and the
State Department of Public Health and Environment has been also
there every step of the way and continues to work with the
tribe on the purposes of the agreement.
Finally, in the spirit of cooperation, also there should be
submitted in the record a letter from the Colorado Petroleum
Association representing the oil and gas producers in the area
that does support both this legislation and the agreement.
Senator Campbell. We'll include that letter in the record.
[Letter from the Colorado Petroleum Association appears in
appendix.]
Mr. Fagan. Senator Campbell, we very much appreciate your
bringing this bill forward. We also appreciate Senator Allard
cosponsoring the legislation. As has been mentioned, the
agreement calls for Federal legislation to accomplish a couple
of important key objectives that would, once adopted by
Congress, make the agreement fully enforceable and fully able
to be implemented by the parties.
This agreement represents another historic agreement
between the State of Colorado and the Southern Ute Indian Tribe
to resolve matters without litigation, but to really focus on a
practical solution, and our practical solution here is how to
have clean air for all the residents of the area of the State
in which you reside; the Commission, which is made up of the
three tribal appointees and the three State appointees, would
establish the rules and regulations for the air quality
authority and also serve as the appellate review panel.
We feel that, by having a jointly shared authority, but
have the day-to-day administration done by the tribe, that this
is the best way to regulate air quality in that area and also
is consistent with the purposes of the Clean Air Act's
authorization to treat tribes as a State for purposes of air
quality.
There are a couple of key pieces to the legislation that I
would just like to comment on briefly.
The first is section three with regard to tribal authority.
This is the section of the bill that authorizes the
Environmental Protection Agency to treat the tribe as a State
under this kind of arrangement. The specific uniqueness of it
is that, while the tribe will receive the delegation from the
EPA, that delegation exists only so long as the Commission and
the agreement are in effect, and that, in effect, the
delegation is exercised by the Commission's purpose under the
agreement.
So, because that perhaps could be argued by some as being a
little unusual, we wanted to make sure that Congress would
fully authorize the EPA to do that so that we didn't have
issues down the road.
A second part of that section 3 that's important to the
State is that both parties provided in the agreement that
either party could terminate the agreement if it didn't work
out the way we wanted it to. While we are fully committed to
its success, there could come a time in the future where it
didn't work out the way we envisioned, and in that case the
agreement provides that both parties would go back to their
original positions and the delegation would cease, and so we
wanted to make sure that the Federal legislation also included
that, and that is included in paragraph 3A that if the
agreement is ever terminated that the EPA would take the
appropriate administrative action to withdraw delegation. So a
key part of the agreement is to make sure that the EPA would
authorize this and help us enforce the terms of the agreement.
A second key part of S. 2065 has to do with the Federal
jurisdiction. The parties discussed how to make all orders of
the tribe and the Commission fully enforceable and also what
would be the appropriate judicial review body. Because we set
this up to be a truly cooperative entity in that we had three/
three on the Commission so it takes consensus in order to do
anything, we also decided that it would not be appropriate for
the courts of the other entity being the place where
enforcement would occur, so instead we thought that the Federal
courts would be the best place to do that and would be a
neutral forum. We also thought that was consistent in that the
Commission would serve as the final agency action and would be
like the EPA if the EPA had been running a Federal program
within the reservation, so therefore it seemed logical to us to
have the Federal courts be both the enforcement and the
judicial review. Therefore, sections 4 and 5 of the bill would
clearly state that the Federal court does have jurisdiction in
those two matters.
We think this is important to make sure everything is
enforceable. At the same time, the State's experience in
running its own air program is that it is rare to have a court
action, particularly at the judicial review level; therefore,
we don't see this as a burdensome thing to place upon the
Federal courts in Colorado, but it is necessary to accomplish
through this legislation.
Finally, the bill provides that this bill is unique to this
specific agreement. It does not change any piece of the Clean
Air Act. It does not change any piece of the Public Law 98-290,
which is the key jurisdictional piece between the tribe and the
State. It only is to implement this legislation.
In closing, Mr. Chairman, I would also say that the State
does support the tribe's request to delete section 4B regarding
the citizen's suits. We see that as something that should be
done in accordance with the EPA's tribal authority rule and
makes sense in the context of our agreement.
We appreciate your bringing this bill forward. We also
appreciate the staff's work to bring the bill to this level. We
look forward to Congress adopting this so that we can finally
move forward and get this thing fully in gear.
[Prepared statement of Mr. Fagan appears in appendix.]
Senator Campbell. We only have about 30 working days here,
as you probably know, this year before we are out, so we will
have to really push to move this one through the process in the
Senate and House side both.
Let me maybe just ask a couple of questions for the record,
first to Chairman Burch.
Mr. Fagan indicated that a Federal court was chosen by the
parties as the best venue because it is a neutral forum. What
factors came up in that discussion? Did the discussion involve
claims first brought in a tribal court and then into a Federal
court?
Mr. Burch. Senator, I'm going to refer to my attorney
there.
Senator Campbell. Good. That's what I usually do, too. Go
ahead, Mr. Maynes.
Mr. Maynes. Thank you, Mr. Vice Chairman. There was
discussion about claims going into tribal court, and we had
some discussion with the staff about that matter, as well.
Senator Campbell. Did any non-Indian residents express
discomfort about going into the tribal court?
Mr. Maynes. You know, I think their discomfort was probably
expressed through the State. I mean, the State expressed
concern about disputes going to a neutral forum and, as Mr.
Fagan stated, it was the desire of the parties that this be a
completely cooperative agreement and approach to air quality,
and, in keeping with that spirit of cooperation, it was felt
like Federal court would be the most appropriate forum.
Senator Campbell. Well, since that reservation is
checkerboarded, there are a lot of non-Indians who live on the
reservation. Were they involved at all in the discussion or
were they aware of it or anything?
Mr. Maynes. There was a public meeting--I'm trying to think
when. It probably was 15 months ago--where they expressed some
of their concerns. As a result----
Senator Campbell. So they're not going to come running in
here and say they didn't know anything about it?
Mr. Maynes. Certainly not.
Senator Campbell. Okay.
Mr. Maynes. Certainly not.
Senator Campbell. All right. Let me ask about the joint
commission, Leonard. What sort of response did you get from
tribal members, Leonard, or tribal businesses about being
subject to an entity like a Commission that is not a tribal
body? Did anybody see that as giving up some tribal
sovereignty?
Mr. Burch. No; we have several commissions that do similar
operation that they sit on the boards and commissions and all
that. This certainly was supported by the tribal council. They
didn't have a problem with that to get it going.
Senator Campbell. Well, the Southern Utes have set really a
model for a lot of work with non-tribal governments with the
State and the counties, and I certainly admire that.
As I remember, there were about nine different
jurisdictions down there that have some law enforcement ability
or authority, because it is checkerboarded. Have negotiations
on this bill set any kind of a rationale or a model that might
be used to broaden that cooperation with areas like some of the
law enforcement jurisdictions? Maybe Renny could answer that.
You might not even know. I just thought about it.
Mr. Fagan. Well, I think we have--as issues of jurisdiction
and shared authority have come up, the State and the tribe have
addressed those. For example, after this agreement we
negotiated an agreement regarding driver's license revocation
that also recognized the sovereignty of both the State and the
tribe and accomplished the objectives of both governments to
have safe roads and drivers that are safe on the roads.
Senator Campbell. Yes.
Mr. Fagan. We haven't specifically addressed the law
enforcement issue yet.
Senator Campbell. Well, that's part of it. The reservation
has about 680,000 acres, and about 378,000 or so are owned in
fee with many non-Indian residents living there, as I
mentioned. In the negotiation process that led to a conclusion
of a single authority, what were some of the issues or factors
that came up?
Mr. Fagan. Mr. Chairman, I think some of the factors were
how could we establish an entity that would truly be shared,
and that's where the three/three membership came in.
A second--and this is written into the agreement--is to
basically give wide latitude to the Commission to fashion an
air quality program that would fit the unique needs of the
area, which would include the economic, environmental, and
cultural components of that.
Senator Campbell. What's the makeup of the Commission? Some
Indian, some non-Indian, some State, some tribal, or----
Mr. Fagan. There are three appointees by the Governor and
three by the tribal council.
Senator Campbell. For six total. Yes.
Mr. Fagan. We also, during the agreement, factored in
somewhat of a process in that the Commission would hold public
hearings as it looks at considering rules and regulations, and
ultimately, like the application to become treated as a State,
and other things like that, so we provided local input.
Also, as I mentioned earlier, we provided for termination
if things didn't work out the way that we envisioned. So we
don't expect that to happen, but, in terms of especially on the
State side for the residents of the area, and because the State
has passed the State law that empowers the Commission to have
authority over non-Indians on the fee lands, we thought that
that kind of thing would be important if we ever got to that
point.
So I think on the whole it was to try to have a shared
authority, to have a process that would be local, and to really
give latitude to the Commission, working with the tribe's
Environmental Division and the State Air Pollution Control
Division to establish a program that really works best for that
area.
Senator Campbell. Chairman Burch?
Mr. Burch. We have met with different elected officials. As
you know, Senator, part of our reservation lies a little bit in
Montezuma County, LaPlata County, and Archuleta County. We have
met with the commissions in Archuleta and LaPlata to talk about
some of the issues. This was certainly one of them, talking
about the mutual concerns of all the people that are in that
area.
So we have a good working relationship, as you know,
Senator, that we try to work with the elected officials in that
area.
Senator Campbell. And, speaking of other jurisdictions, the
southern border of the Southern Ute Reservation borders New
Mexico, and it's not very far away where you have some pretty
big power plants.
Mr. Burch. Yes.
Senator Campbell. Has there been any multi-jurisdiction
pollution that you know of that has been a problem to the
tribes from New Mexico?
Mr. Burch. We have had some concerns on that and hearings
before because of the power plants. That's why we put a
monitoring station in this area to monitor the pollution that
come across.
Senator Campbell. That was the response to the----
Mr. Burch. Right.
Senator Campbell [continuing]. Pollution, a monitoring
system?
Mr. Burch. Right. Yes.
Senator Campbell. Well, I have no further questions, and I
will do my very best in these remaining days to try to move
this bill forward. I know Senator Inouye is supportive of it,
too. We'll do the best we can.
We are going to have a few little things we have to iron
out, as you probably know, so I'm going to, with the chairman's
consent, keep the record open for 2 more weeks for any
additional comments that you or anybody in the audience might
have.
With that, this hearing is adjourned.
Mr. Burch. Thank you.
[Whereupon, at 12:05 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Statement of Leonard C. Burch, Chairman, Southern Ute Indian Tribal
Council
Chairman Inouye, Vice Chairman Campbell, and members of the
committee:
I am Leonard C. Burch, chairman of the Southern Ute Indian Tribal
Council. Thank you for inviting the tribe to testify today regarding S.
2065, entitled a bill to implement the intergovernmental agreement
between the Southern Ute Indian Tribe and State of Colorado regarding
Air Quality Control on the Southern Ute Indian Reservation. It is my
pleasure to express the tribe's support for this important legislation.
In summary, the Southern Ute Indian Tribe strongly supports the
bill, and urges that, with the adoption of one amendment to the bill,
the committee approve, and the Senate pass, this important legislation
as soon as possible.
For over 10 years, the State, tribe, and U.S. 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. Under
the 1984 law that 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 Reservationwide for air
programs. Rather than allow ourselves to become embroiled in bitter and
costly litigation that would probably result in a decision unacceptable
to all parties, tribal and State governmental officials have formulated
a solution supported by all.
As encouraged by Congress in the Clean Air Act, the Southern Ute
Indian Tribe and the State of Colorado have entered into an
intergovernmental agreement concerning air quality control on the
Southern Ute Indian Reservation. The agreement provides for joint
participation by the tribe and the State in the regulation of air
quality on the reservation. Under the agreement, a joint commission has
been created (via subsequently enacted State and tribal law) composed
of six (6) members, three (3) of whom are appointed by the Governor and
three (3) of whom are appointed by the tribal council. The Commission,
to be known as the Southern Ute Indian Tribe/State of Colorado
Environmental Control Commission, has 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 managing 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 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.
As required by the agreement, a tribal resolution was enacted on
January 18, 2000, authorizing the creation of the Commission and
approving implementation of the agreement. Parallel State legislation
approving the agreement was adopted by the Colorado General Assembly
and signed by Governor Bill Owens on March 15, 2000. The agreement
gives Congress until December 13, 2002, to adopt Federal legislation.
If the Federal legislation is not enacted before December 13, 2002, the
agreement will become null and void.
S. 2065 is needed for three reasons. First, without Federal
legislation, it is unclear who has jurisdictional authority to regulate
non-Indian owned sources of air pollution that are located on non-
Indian fee land within the reservation boundaries. Second,
implementation of the intergovernmental agreement is conditioned on the
passage of Federal legislation. And third, S. 2065 is needed to clarify
and provide for enforcement authority.
This legislation confirms the authority of EPA to grant the tribe
``treatment as a State'' status under the Clean Air Act for such time
as the intergovernmental agreement remains in effect. This status will
enable the tribe to administer a single air quality program on all
lands with the exterior boundaries of the Southern Ute Indian
Reservation, as delegated by the EPA and in accord with the rules
promulgated by the Environmental Commission. Additionally, this
legislation provides for exclusive Federal judicial review of final
actions by the Environmental Commission, and authorizes the Tribe or
the Environmental Commission, as is appropriate, to file in Federal
court a petition for declaratory or injunctive relief, or for other
orders in aid of enforcement, where persons have failed to comply with
a final civil order of the tribe or the Environmental Commission made
pursuant to the air quality program established under the
intergovernmental agreement.
Section 4(b) of the bill provides that:
Nothing in this act shall be construed to alter, amend, or modify
the right or authority of any person, as defined in section 302(e) of
the Clean Air Act (42 U.S.C. 7601(e)), to bring an action under section
304 of such act (42 U.S.C. 7603).
The section of the Clean Air Act referred to is commonly known as a
``citizens suit provision,'' which authorizes any person to bring
certain civil actions in the Federal district courts for enforcement of
the act. For four reasons, the tribe respectfully requests that the
committee consider amending the bill to delete the citizen suit
provision.
First, the tribe objects to the inclusion of the citizen suit
language because it might be construed to be a waiver of tribal
sovereign immunity from suit. The citizen suit provision in the Clean
Air Act only applies to States to the extent permitted by the 11th
amendment to the Constitution. Because States are subject to citizen
suit liability only to the extent permitted by the 11th amendment,
applying it to the tribe in this bill would make the requirement more
burdensome than it would be for States.
Second, subjecting the tribe to citizen suits could hinder
development of the tribe's and State's Reservation air program because
it could add significant resource constraints, financial and otherwise,
particularly with respect to potential litigation.
Third, citizen suit recourse is unnecessary since EPA retains the
authority to directly enforce the Clean Air Act as well as to withdraw
the tribe's delegation of authority in the event of non-enforcement.
And fourth, for the reasons noted above, EPA has listed the Clean
Air Act's citizen suit provision among those provisions for which it is
not appropriate to treat tribes in the same manner as states. See 40
C.F.R. 49.4; 63 Fed. Reg. 7254, 7260--61, 7271 (Feb. 12, 1998). The
tribe is concerned, therefore, that without the removal of the citizen
suit language, the Southern Ute Indian Tribe might be subject to
citizen suit liability in situations where neither states, because of
their 11th amendment immunity, nor other tribes, because of EPA's
administrative determination, would be subject to such liability.
Therefore, the tribe objects to the inclusion in the bill of the
citizen suit language and respectfully requests that the committee
consider amending the bill to remove that language.
Resolution of the complex jurisdictional problems present on the
Southern Ute Indian Reservation has long been a challenge. Unlike the
relationship between many other states and tribes in recent years, the
State of Colorado and Southern Ute Indian Tribe have been able to
amicably resolve several difficult jurisdictional issues. A spirit of
cooperation and a willingness of the State and tribe to negotiate on a
government-to-government basis led to the development of the
intergovernmental agreement. S. 2065 is needed to implement and enforce
the unique and innovative air pollution control agreement between the
tribe and the State of Colorado. The approval of this bill will allow
for the joint participation of the tribe and State in the regulation of
air quality on the reservation. Such cooperation between an Indian
tribe and a State is unprecedented in Indian country. I hope you will
support this important legislation so that the agreement can be
implemented.
This concludes my statement. I will be happy to answer any
questions the committee may have.
______
Prepared Statement of Fran King Brown, Division Head, Environmental
Programs Division, Southern Ute Indian Tribe
Mr. Chairman, Mr. Vice Chairman, and members of the committee:
My name is Fran King Brown and I am honored to appear before you
today to offer testimony in support of S. 2065.
As some of you know, the Southern Ute Indian Reservation is located
in the northern portion of the San Juan Basin which is rich in natural
gas production. Vast amounts of gas are produced on tribal and fee
lands within the exterior boundaries of the reservation. With the boom
of coal-bed methane gas development in the late 1980's and early 90's,
gas production has resulted in increases in production wells, treating
facilities, pipelines, compressors, and unpaved roads. Those facilities
are the primary sources of air pollution that are subject to
regulation. Based on an emissions inventory prepared by the tribe's Air
Quality Program, particulate matter, carbon monoxide and nitrogen
oxides were identified as the major pollutants generated by methane gas
exploration and production. There are a total of approximately 100
sources of air pollution on the reservation. Out of those 100 sources,
approximately 30 meet the criteria for classification under the Clean
Air Act as a ``major source.'' Additional economic activities such as
tourism as well as a growth in population and housing have also
contributed to the overall generation of air pollutants.
While the tribe is committed to develop its mineral resources, it
also acknowledges a need to protect its natural environment and the
health and welfare of its people. Protection of the reservation
environment has always been among the tribe's major objectives. For
almost 81-271 20 years, the tribe has administered an air quality
program and it has long been a goal of the tribe to receive a
delegation of authority from EPA to administer a comprehensive air
quality control program on the reservation.
As stated by Chairman Burch, S. 2065 is needed to implement and
provide for enforcement of the air quality agreement between the tribe
and State of Colorado. That agreement has many benefits:
The agreement eliminates confusion and provides certainty to would-
be regulators (that is, the State, Tribe and EPA) and also for those
individuals who must comply with the Clean Air Act (that is, 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. I
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 agreement would guarantee local input in the setting and
enforcement of air quality standards, subject to air quality
requirements of the Clean Air Act.
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.
In conclusion, the tribe is looking forward to working
cooperatively with the State to ensure the protection of air quality
and, hence, the health of tribal members as well as non-Indians on the
Reservation. The tribe and State need the support of Congress in order
to move forward with their cooperative approach to the regulation of
air pollution on the reservation. As stated by Chairman Burch, the
tribe urges the committee's amendment of the bill and then its prompt
consideration and approval on the Senate floor.
Thank you for the committee's time and attention. I would be happy
to answer any questions.
______
Prepared Statement of Renny Fagan Deputy Attorney General on behalf of
Ken Salazar, State Attorney General, Colorado
I am Deputy Attorney General Renny Fagan. I am appearing on behalf
of Colorado Attorney General Ken Salazar in support of S. 2065
introduced by Sen. Campbell and Sen. Allard. Attorney General Salazar
was instrumental in initiating negotiations between the Southern Ute
Indian Tribe [tribe] and the State of Colorado that led to the air
quality agreement which is the subject of S. 2065. The final agreement
is the result of cooperative efforts by the Southern Ute Indian Tribe,
Governor Bill Owens, Attorney General Salazar and the Colorado
Department of Public Health and Environment. Attorney General Salazar
asks this committee to support S. 2065, which if adopted by Congress,
will be the final step necessary to fully implement the agreement.
The Southern Ute Indian Tribe's Reservation consists of
approximately 681,000 acres, located mainly in La Plata County, CO. 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'']. Additionally, the tribe owns the majority of
the mineral estate underlying a majority of the reservation lands. The
remaining 378,000 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. The law 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.
Since 1970's, the State's Air Pollution Control Division has issued
permits to non-Indian owned sources located on fee lands.
The Clean Air Act allows Indian tribes to be treated in the same
manner as States to administer certain air quality programs. In 1998,
the EPA issued regulations implementing these provisions of the act. 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 Public Law
98-290, the State was prepared to object, claiming that it had
jurisdiction over the non-Indian sources on the fee lands.
Instead of a potentially long and costly fight in the Federal
courts about who has jurisdiction over the fee lands, the Tribe and the
State agreed to establish a single, cooperative air quality authority
for all lands within the reservation. Pursuant to an intergovernmental
agreement [``the Agreement''], a joint tribal/State commission will
establish air quality standards. When the agreement is fully
implemented, 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.
Since air does not know political boundaries, a single cooperative
program will achieve the best result for everyone in the area. One
program will also be more efficient for the governments and for the
businesses that will be regulated. The commission meets locally and
will adopt a program suited to the needs of the reservation and local
area. The companies affected by air quality regulation support the
agreement.
We believe that this cooperative arrangement is the first of its
kind in the country between a State and a tribe to regulate air
quality. It is also unique to the circumstances of the Southern Ute
Indian Tribe Reservation.
On December 13, 1999, the tribe, Governor Owens, and Attorney
General Salazar signed the Intergovernmental Agreement. As conditions
precedent to full implementation, the agreement requires the adoption
of certain legislation by the tribal council, the Colorado General
Assembly, and Congress. In 2000, both the tribe and the State enacted
the necessary laws. When the agreement is fully implemented, this is
how the Reservation Air Program would work:
No. 1. A tribal/State commission will establish air quality
standards, promulgate rules and regulations pertaining to all lands and
air pollution sources within the exterior boundaries of the
reservation.
No. 2. The commission consists of three members appointed by the
tribe and three State members appointed by the Governor. In 2001, the
tribe and the Governor each named their appointees. All actions of the
commission must be by majority vote of all members. The commission is
not a State agency.
No. 3. The commission's other duties include holding public
hearings, setting fees paid by the sources to fund the costs of the
program, and conducting review of appealable administrative actions.
No. 4. Over time, the tribe will assume day-to-day responsibility
for administering the air quality program, and will cooperate and
coordinate with the Colorado Air Pollution Control Division.
Eventually, the tribe will administer the rules and regulations of the
commission.
No. 5. Funding for the program will come from fees paid by air
pollution sources or EPA grants. The tribe will collect the fees and
grants.
No. 6. After the commission is up and running, and after it adopts
an air quality program for the reservation, the tribe will apply to the
EPA to receive delegation to administer Clean Air Act programs.
No. 7. Any delegation from the EPA to the tribe is specifically
conditioned upon the existence of the Intergovernmental Agreement and
the commission. The tribe and the State believe that this cooperative
effort will work for all people living in the La Plata County area and
for the air pollution sources. The agreement provides that the State
and the tribe will review how the program is working in 3 years and
make any necessary adjustments. The agreement also provides that either
the State or the tribe may terminate it at any time, by giving a 1-year
notice. If either the State or the tribe terminate the agreement, then
any EPA delegation would cease and both parties would go back to the
legal positions they held before the agreement.
No. 8. The agreement provides that enforcement actions and judicial
review of commission administrative actions will occur in the Federal
courts.
Federal Jurisdiction. The agreement provides that the Federal
courts will be the judicial forum for the enforcement of regulatory
orders of the tribe or commission and for the judicial review of final
agency actions of the commission. The tribe and the State chose this
forum for several reasons.
First, the parties sought to establish a cooperative air quality
authority that balanced the sovereign interests of both parties.
Neither party wanted to authorize the judicial system of the other
party as having jurisdiction for judicial enforcement orders or review
of commission actions. To do so would have given the courts of one
sovereign authority over what is designed to be a joint regulatory
authority. Therefore, the State and the tribe viewed the Federal courts
as being a neutral forum. As such, ensuring that the Federal courts
have jurisdiction is a fundamental part of the agreement.
Second, under the agreement, the commission serves as the ``final
agency action'' for purposes of the air quality regulation. If the
State and tribe had not reached the agreement and if the EPA had
stepped in to serve as the regulatory authority, then the Federal
district court would have jurisdiction over enforcement actions of EPA
and the Federal administrative procedure act would have governed
judicial review of EPA final agency actions. In this respect, the
agreement provides that the commission will serve the same functions or
``stand in the shoes'' of the EPA. Therefore, it seemed appropriate to
provide that the Federal courts would serve the same role as if EPA was
the regulatory authority.
S. 2065 implements Federal jurisdiction. Section 4 provides that
the United States District Court for the district of Colorado shall
have jurisdiction over action brought by the tribe or the commission
for declaratory or injunctive relief to enforce civil orders. Section 5
provides that any decision of the commission that would have been
subject to appellate review if that decision had been made by EPA is
reviewable by the United States Court of Appeals for the 10th circuit
applying the same standard applicable to a final agency action of the
EPA.
Tribal Authority. Under the Agreement, the State will support a
delegation of ``treatment as a State'' status by EPA to the tribe, but
only so long as the Agreement and Commission remain in effect. Because
of the unique nature of this delegation, both parties want to ensure
that EPA is authorized to and will grant a delegation in these
circumstances. Section 3(a) of the bill makes the necessary
authorization to EPA.
While both the tribe and the State are committed to the success of
the joint reservation air program, the agreement provides that either
party may terminate the agreement. Upon termination, both parties
return to the legal positions they held prior the agreement. Thus, the
State would return to its legal position that the EPA is without
authority to grant the tribe regulatory authority over the fee lands.
It is vital to the State that the Federal legislation preserve this
legal right. Section 3 (b) does so by providing that if the agreement
is terminated, the EPA ``shall promptly take appropriate administrative
action to withdraw'' treatment as a State delegation to the tribe.
Limited Scope of S. 2065. Public Law 98-290 sets forth jurisdiction
of lands within the exterior boundaries of the reservation. In
establishing the commission and the Reservation Air Program, the
parties specifically provided that the agreement did not affect any
other aspect of the jurisdiction of either party regarding such lands.
The State and the tribe also want to ensure that Congressional
enactment of S. 2065 will not be construed as changing in any way any
other aspect of the existing jurisdiction. Section 6 of the bill
clearly narrows the effect of this legislation.
The agreement between the State and the tribe for the joint
regulation of air quality for all lands within the reservation is a
unique cooperative endeavor. Both parties believe that this cooperative
regulatory authority is a practical solution to a potentially divisive
legal conflict and a solution that will enhance air quality for all
residents within the exterior boundaries of the reservation. Adoption
of S. 2065 will implement the provisions necessary at the Federal level
to fully implement the agreement. Attorney General Ken Salazar urges
your support of the bill.
______
State of Colorado, Department of Law,
Office of the Attorney General,
Denver, CO, July 12, 2002.
Hon. Danile K., Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Senator Inouye: Thank you for the invitation to testify before
the U.S. Senate Indian Affairs Committee regarding S. 2065, a bill to
Ratify an Agreement to Regulate Air Quality on the Southern Ute Indian
Reservation. I regret that I am unable to be present, but I will be
represented at the hearing on July 18, 2002 by Deputy Attorney General
Renny Fagan, who has served as the lead attorney from my Office on all
matters pertaining to this issue.
The Southern Ute Indian Tribe and the State of Colorado have a long
history of working together to resolve contentious issues though
negotiation. The Intergovernmental Agreement between the Tribe and the
State concerning air quality control on the Southern Ute Indian
Reservation (the Agreement) is another historic example of this
cooperation. The Agreement establishes a Tribal/State Commission to
regulate air quality concerning all lands and people within the
exterior boundaries of the Southern Ute Indian Reservation. Since air
does not know political. boundaries, a single cooperative program will
achieve the best result for everyone in the area.
I believe that two sovereign governments work best together by
cooperating to achieve solutions to common problems. This Agreement
avoids costly litigation over competing jurisdictional claims by the
Tribe, State and Federal Government. But more importantly, the
Agreement provides a practical way to maintain air quality for
everyone. One program will also be more efficient for both the
governments and for the regulated businesses.
In 2000, the Colorado General Assembly unanimously adopted the
Agreement and legislation to implement it. The oil and gas industry
supported the Agreement during the legislative process, and continues
to do so.
I greatly appreciate Senator Ben Nighthorse Campbell bringing S.
2065 to the Committee. This bill represents the final step necessary to
fully implement certain aspects of the Agreement. S. 2065 authorizes
the Environmental Protection Agency to delegate ``treatment as a
state'' status to the Tribe as provided in the Agreement. The bill also
implements parts of the Agreement that provide for the civil
enforcement of regulatory orders of the Tribe or the Commission and for
the judicial review of final agency actions of the Commission in the
Federal courts. The details of the Agreement and the need for S. 2065
are more fully set forth in the attached written testimony of Mr.
Fagan.
I strongly urge the Committee to support S. 2065.
Sincerely,
Ken Salazar, Attorney General.
______
Prepared Statement of Christie Todd Whitman, Administrator, United
State Environmental Protection Agency
Good afternoon, Mr. Chairman and Members of the Committee. I
appreciate this opportunity to provide the Administration's views on S.
2065, the ``Southern Ute and Colorado Intergovernmental Agreement Act
of 2002.''
The Environmental Protection Agency [EPA] is charged with
responsibility, under the Clean Air Act, with ensuring protection of
the Nation's air quality. In discharging our responsibilities, we work
closely with States and tribes and encourage them to take the
leadership role within their jurisdictions to provide for the
protection of their air quality. EPA has been privileged to work with
the Southern Ute Indian Tribe and the State of Colorado for over 5
years in the development of this unique Intergovernmental Agreement
concerning air quality control. The Tribe and the State jointly led the
effort and EPA played a supportive role of providing technical
assistance. EPA participated at the signing of the Agreement on
December 13, 1999, between the Governor of Colorado and the Vice
Chairman of the Southern Ute Indian Tribe.
Since the Agreement was entered into in 1999, the State and the
Tribe have made considerable progress in developing the capacity of the
Southern Ute/State of Colorado Environmental Commission to provide for
the regulation of air quality within the exterior boundaries of the
Southern Ute Indian Reservation. Further, the Tribe has begun to build
its professional, managerial, and regulatory capacity so as to be able
to effectively provide for the many responsibilities of regulating air
quality including permit writing, inspection and enforcement of the
Clean Air Act and rules to be written by the Commission. The State has
provided-and continues to provide--technical assistance to the Tribe.
Currently, EPA is the issuing agent within the Reservation for
Clean Air Act Title V Operating Permits and has, to date, issued 22 and
has 9 in process. In the event that S. 2065 becomes law and the Tribe
applies for and EPA grants authorization to the Tribe to administer the
Title V Operating Permits Program, the EPA will, in an orderly manner,
``turn over'' those permits to the Tribe to administer.
The Administration views the Intergovernmental Agreement between
the Southern Ute Indian Tribe and the State of Colorado as an
appropriate instrument that can serve the needs of protecting and
effectively regulating air quality within the exterior boundaries of
the Reservation in a manner consistent with the Clean Air Act. EPA has
worked cooperatively with both the Tribe and the State to implement the
Agreement and will continue to provide support and encouragement. For
those reasons, the Administration supports passage of S. 2065.
Thank you Mr. Chairman and Members of the Committee for the
opportunity to present the Administration's views.
______
U.S. Environmental Protection Agency
Washington, DC, July 15, 2002.
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Senator Inouye: Thank you for the opportunity to provide
written testimony for the Committee's hearing on, July 18, 2002
regarding S. 2065. I appreciate the opportunity to provide the
Administration's Views on your efforts to ratify an agreement to
regulate air quality on the Southern Ute Indian Reservation. Enclosed
is written testimony to be included in the hearing record.
The Administration supports passage of S. 2065. In particular, the
Environmental Protection Agency (EPA) has worked closely with States
and Tribes to support their efforts to protect their air quality. EPA
has been privileged to work with the Southern Ute Indian Tribe and the
State of Colorado for over 5 years in the development of a unique,
Intergovernmental Agreement concerning air quality control. The
Intergovernmental Agreement between the Southern Ute Indian Tribe and
the State of Colorado is an appropriate instrument for protecting and
effectively regulating air quality within the Reservation in a manner
consistent with the Clean Air Act. EPA has worked cooperatively with
both the Tribe and the State to implement the Agreement and will
continue to provide support and encouragement. It is for these reasons
that the Administration supports ratification of the Intergovernmental
Agreement.
Again, thank you for the opportunity to provide the
Administration's views. I hope you will find the testimony useful. If
you have further questions, please contact me or your staff may contact
Michele McKeever in my office.
Sincerely,
Edward Krenick, President
Colorado Petroleum Association
Denver, CO, July 16, 2002
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Chairman Inouye: The Colorado Petroleum Association ``CPA''
would like to take this opportunity to express its strong support for
S. 2065 ratifying an Agreement to Regulate Air Quality on the Southern
Ute Indian Reservation. The Colorado Petroleum Association represents
the oil and gas industry in Colorado, including many of the producers
as well as gathering and processing companies operating on ``fee
lands'' located within the exterior boundaries of the Southern Ute
Reservation. CPA respectfully asks that this letter be placed in the
record supporting S. 2065.
CPA and its members have strongly supported the efforts of the
Southern Ute Tribe and the State of Colorado to work together to
protect the air quality in Southwestern Colorado, while at the same
time allowing for the development of natural gas resources so important
to the Southern Ute Tribe, State of Colorado, and the entire United
States. S. 2065 ratifies a historic agreement reached in 1999 which
successfully resolves very difficult jurisdictional issues regarding
the treatment of ``fee lands'' under the Clean Air Act. CPA notes that
the agreement before you was approved unanimously by the Colorado
General Assembly.
CPA believes that this agreement is beneficial to the oil and gas
industry because it fully resolves the question of who will regulate
our industry with regards to implementation to the Clean Air Act. The
agreement before you allows the Southern Ute Tribe and the State of
Colorado to work cooperatively to properly regulate the activities that
affect air quality in this area. As you might expect, our members who
must meet the requirements of the Clean Air Act are anxious to avoid
the situation in which companies must answer to duplicate regulatory
agencies. Furthermore, CPA appreciates the efforts by the Environmental
Protection Agency, State of Colorado and the Southern Ute Tribe in
assisting our members obtain the necessary permits needed to operate
their businesses as the difficult jurisdictional issues are resolved.
CPA wishes to thank the committee for its consideration of this
important legislation, and Senator Campbell for his leadership in
sponsoring S. 2065. CPA looks forward to working with the Southern Ute
Tribe as well as the State of Colorado and the Environmental Protection
Agency in the implementation of this historic agreement.
Sincerely,
Stan Dempsey, Jr., President.
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