On November 15, 2018, the House Natural Resources Committee approved S 245, the “Indian Tribal Energy Development and Self-Determination Act Amendments of 2017”, clearing it for House Floor action. Sponsored by Senate Committee on Indian Affairs Chairman Hoeven (R-ND), S 245 was approved by the Senate by Unanimous Consent on November 29, 2017.
S 245 is composed of two Titles. Title I would amend the Indian Tribal Energy Development and Self-Determination Act (“the 2005 Act”) to address grants and technical assistance, loan guarantees, and tribal energy resources agreements (TERAs). Title II “Miscellaneous Amendments,” would amend several statutory provisions that were enacted in legislation other than the 2005 Act. S 245 is substantively identical to a bill with the same title that was introduced in the 114th Congress. See our General Memorandum 15-035 of May 11, 2015. Similar bills were also introduced in the 112th and 113th Congresses.
TITLE I
Grants and Technical Assistance. The 2005 Act authorizes the Secretary of the Interior and the Secretary of Energy to administer a variety of programs to assist tribes in developing energy resources. Section 101 of S 245 would amend the authorization for such assistance by adding a mandate that the Department of the Interior (DOI), in cooperation with the Office of Indian Energy Policy and Programs (OIPP) of the Department of Energy (DOE) provide technical assistance to tribes to develop energy plans, which could address the following activities: electrification; oil and gas permitting; renewable energy permitting; energy efficiency; electricity generation; transmission planning; water planning; development of energy resources; and protection of natural, historic, and cultural resources.
Section 101 would also amend the authorization for the competitive grant program administered by DOE OIPP (25 U.S.C. § 3502(b)) by adding intertribal organizations as eligible recipients and by adding tribal capacity building for managing energy development and energy efficiency as an authorized activity. In addition, a paragraph would be added to this subsection providing that “the Secretary shall collaborate with the Directors of the National Laboratories in making the full array of technical and scientific resources of the Department of Energy available for tribal energy activities and projects.”
Section 102 would amend the provision enacted by the 2005 Act (25 U.S.C. § 3503) that authorizes the Secretary of the Interior to provide grants and other assistance to tribes for resource inventories, feasibility studies, development and enforcement of tribal laws (including regulations), development of technical infrastructure to protect the environment, and staff training. The amendment would make tribal energy development organizations (TEDOs) eligible for the “scientific and technical information and expertise” provided by the Secretary “for use in the regulation, development, and management of energy resources.”
Loan Guarantees. The authorization for the DOE loan guarantee program would also be amended by section 101. In addition to loans made to tribes, loans made to, or by, TEDOs would also be eligible for the guarantee program, and the Secretary of Energy would be directed to promulgate implementing regulations within one year of the legislation’s enactment.
TERAs. Section 103 addresses TERAs. As authorized by the 2005 Act, a TERA is a mechanism through which tribes can eliminate the requirement for the Secretary’s designee (usually the Bureau of Indian Affairs) to approve leases, rights-of-way, and business agreements for the development of energy resources on tribal lands. Eliminating Secretarial approval renders inapplicable federal environmental laws that are triggered by federal action, such as the National Environmental Policy Act (NEPA) and National Historic Preservation Act.
The TERA mechanism, however, has not been used. As the Senate Committee Report on S 245 states, “implementation of Title V was more burdensome than Congress intended.” Title I of S 245 is concerned to a large extent with amendments relating to the TERA mechanism. Several of the amendments are intended to streamline the process for approval of such agreements. For example, section 103 would amend the statute to provide that if the Secretary does not disapprove a TERA in 270 days, it would be deemed approved. The requirement that a tribe demonstrate capacity to regulate energy resources would be eliminated for any tribe that certifies it has carried out a Self-Determination contract or Self-Governance compact that includes programs for managing tribal land for three years without material audit exceptions.
Environmental Review under a TERA. The bill would change the requirements for environmental review under tribal law for transactions to be approved by a tribe pursuant to a TERA. The intent appears to be to make the requirements under a TERA conform to the requirements under the HEARTH Act, in which the requirement to inform the public and respond to comments is limited to environmental impacts that would be significant.
Exemption from Secretarial Approval without a TERA. The bill would eliminate the requirement for Secretarial approval of leases, rights-of-way, and business agreements on tribal trust or restricted land when such transactions are between a tribe and a TEDO that is majority owned and controlled by the tribe and has been so certified by the Secretary. A tribe would not need to enter into a TERA to exercise this option. The Senate Committee Report’s rationale for exempting such transactions from Secretarial approval is that a certified TEDO would be, in effect, an agency or instrumentality of the tribe and a tribe’s decision “to develop its own resources (i.e., without relying on a lease or agreement with a third, non-tribal party) on its own tribal land does not require approval by the Secretary.”
TITLE II
Hydropower Licensing. Section 201 would amend the Federal Power Act (16 U.S.C. § 800(a)) to include Indian tribes in the preference that states and municipalities have for hydroelectric project licenses from the Federal Energy Regulatory Commission.
Biomass Demonstration Project. Section 202 would amend the Tribal Forest Protection Act of 2004 to establish a Tribal Biomass Demonstration Project “to promote biomass energy production (including biofuel, heat, and electricity generation) on Indian forest land and in nearby communities by providing reliable supplies of woody biomass from Federal land.” The Forest Service and Bureau of Land Management could enter into agreements with tribes to carry out demonstration projects, in accordance with selection criteria set out in the bill. A separate subsection would authorize an Alaska Native Biomass Demonstration Project.
Weatherization Assistance Program. Section 203 would amend the Energy Conservation and Production Act of 1976 (42 U.S.C. § 6863(d)) to change the process for tribes to seek direct funding from the DOE Weatherization Assistance Program. Tribes could receive direct funding on behalf of their low-income members if DOE makes a determination that the services to be provided through the tribe would be equal to or better than services through the state. For this determination, section 203 provides that if the tribal organization seeking the funding is a tribally designated housing entity that has operated without material audit exceptions for three years there would be a presumption that tribal members would be equally or better served.
Appraisals. Section 204 of the bill would add a new section to Title 26 of the Energy Policy Act of 1992 establishing revised standards and procedures for transactions that require Secretarial approval and involve mineral or energy resources.
Sections 205 and 206 would amend the statute commonly known as the Long-Term Leasing Act relating to the Navajo Nation and Crow Tribe, respectively. Section 207 would require the Secretary to hold in trust “any advance payments, bid deposits, or other earnest money received by the Secretary in connection with the review and Secretarial approval . . . of a sale, lease, permit, or other conveyance of any interest” in trust or restricted land.
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