Importance of the Initiative
The Commonwealth of Virginia is home to Tribal Nations with whom the
Commonwealth has important and unique government-to-government relationships. Virginia’s
Tribal Nations were firmly established on ancestral lands long before the English arrived to settle
in Jamestown in 1607. Prior to English colonization, Algonquian, Siouan, and Iroquoian
speaking people flourished on these lands.
These Tribal Nations had their land taken and their identities, culture, and sovereignty
attacked and undermined. While Articles 3 and 4 of the 1677 Treaty ofMiddle Plantation promised
to respect the boundaries of reserved Tribal lands in perpetuity, most tribes in the Commonwealth
had their land seized and their reservations disbanded.
Over the centuries, the relationship of Virginia’s Indian population and the
Commonwealth varied greatly. Tribal Nations have often been forced to fight to maintain their
identities in the face of racist and assimilationist policies. In recent decades, the Commonwealth
has strengthened its relationship with Tribal Nations and now recognizes that Tribal Nations
have always been integral to the cultural and historic fabric of the Commonwealth.
Virginia first acknowledged Tribal Nations through a formalized state recognition
process in 1983. In 2015, the United States federal government finally formally acknowledged a
Virginia Tribe in the modern era. Since 2018, the federal government has recognized seven
Tribal Nations indigenous to the Commonwealth of Virginia.
Federal agencies are required to offer an opportunity for government-to-government
consultation with federally recognized Tribal Nations when taking actions that have tribal
implications.
This Order ensures the Commonwealth of Virginia provides similar opportunities for
consultation with federally recognized Tribal Nations when evaluating certain state permit
applications for potential impacts to environmental, cultural, and historic resources.
Consultation
The Department of Environmental Quality, the Department of Conservation and
Recreation, the Department of Historic Resources, and the Virginia Marine Resources
Commission shall develop policies and procedures to ensure an opportunity for meaningful and
culturally appropriate, written consultation with potentially impacted Indigenous tribes, nations
and communities acknowledged pursuant to the Federally Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479.
This order shall apply to the following permits and reviews to the extent permitted by law:
• Environmental Impact Reports for major state projects, prepared pursuant to Code of
Virginia §10.1-1188
• State Corporation Commission project reports, prepared pursuant to Code of Virginia
§ 56-46.1; 20 VAC 5-302-25
• Virginia Department of Aviation environmental reports, pursuant to Code of Virginia
§ 5.1-7
• Environmental Impact Assessments for Oil or Gas Well Drilling Operations in Tidewater
Virginia, pursuant to 9 VAC 15-20
• Federal Consistency Determinations pursuant to Section 307 of the “Coastal Zone
Management Act of 1972” (CZMA), 14 U.S.C. § 1456
• Ground water withdrawal permits for groundwater withdrawals greater than one million
gallons per day, issued pursuant to Code of Virginia § 62.1-266
• Designation of historic districts, buildings, structures, or sites as historic landmarks,
pursuant to Code of Virginia § 10.1-2206.1
• Burial Permits for Relocation of Human Remains, pursuant to Code of Virginia § 10.1-
2305
• Cave Collection Permits, pursuant to the Code of Virginia § 10.1-1000, for permit
applications pertaining to the study, extraction or removal of any archaeological or
historic feature in caves
• Local government notifications for new and existing impoundment structures or dams,
pursuant to 4 VAC 50-20-58
• Construction or Alteration of Virginia Regulated Impounding Structures Permit, pursuant
to 4 VAC 50-20-70 and 4 VAC 50-20-80
• Underwater Recovery Permits, pursuant to Code of Virginia § 10.1-2214
Federal Permitting
Major Air, Waste, and Water Permits
The Environmental Protection Agency (EPA) is required to consult on a government-to-
government basis with federally recognized Tribal governments when EPA actions and decisions
may affect tribal interests. The EPA provides an opportunity for consultation with federally
recognized Tribes for major air, waste, and water discharge permits issued pursuant to the federal
Clean Air Act, 42 U.S.C. § 7401 et seq. and the federal Clean Water Act, 33 U.S.C. § 1251 et
seq.
The Department of Environmental Quality shall continue to coordinate, as requested by
both the EPA and federally recognized Tribes, in the issuance or modification of these major
permits to ensure there is an opportunity for tribal input during the permit development process.
Joint Permit Applications for shoreline erosion control projects, piers, wharfs, dredging, and
construction related activities
As part of its regulatory duties, the Virginia Marine Resources Commission (VMRC)
coordinates with the Department of Environmental Quality and the U. S. Army Corps of
Engineers (Corps) in its review of local, state and federal Joint Permit Applications for shoreline
erosion control projects, piers, wharfs, dredging, and other marine and non-marine construction
related activities.
VMRC shall continue to coordinate with the Corps and federally recognized Tribal
Nations in the issuance or modification of Joint Permit Applications to ensure there is
opportunity for tribal input during the development process.
Ombudsman for Tribal Consultation
The Secretary of the Commonwealth, with advice from the Tribal Nations, shall designate
an Ombudsman for Tribal Consultation within the office of the Secretary of the Commonwealth.
The Ombudsman shall:
• Facilitate communication and consultation between federally recognized Tribal Nations
and the agencies identified in the Order to ensure an opportunity for meaningful
consultation on the permits and reviews listed in this Order.
• In consultation with Tribal Nations and within 60 days, develop a list of localities in which
federally recognized Tribal Nations should be consulted.
• In consultation with Tribal Nations, make recommendations to the Governor for additional
types of permits and reviews for which consultation shall be required.
• In consultation with Tribal Nations, make recommendations to the Governor regarding
circumstances under which Tribal consent should be required for issuance of certain
permits.
Implementation
Within 90 days of the effective date of this Executive Order, each impacted agency shall
establish a Tribal consultation policy to ensure an opportunity for meaningful and timely input by
Tribal representatives for the permits and reviews listed in this order.
An agency Tribal consultation policy shall, to the extent permitted by law, include
provisions that:
• Designate a consultation official who has the authority to define agency actions appropriate
for consultation, evaluate the adequacy of the consultation, and ensure that agency
programs consultation practices are consistent.
• Define appropriate means of notifying federally recognized Tribal Nations, which may be
dependent on tribal preferences.
• Establish procedures to ensure that sufficient information and time is provided for Tribal
officials to make an informed opinion.
• Establish procedures for the agency to provide feedback to the federally recognized Tribal
Nations involved in the consultation process to explain how their input was considered.
Effective Date of the Executive Order
This Executive Order shall be effective upon signing and shall remain in full force and
effect unless amended or rescinded by further Executive Order.
Given under my hand and under the Seal of the Commonwealth of Virginia this 18th day
of November, 2021.
Ralph S. Northam, Governor
Attest:
Kelly Thomasson, Secretary of the Commonwealth
