Bureau of Indian Affairs- FERC License Conditions and Recommendations (7-FD-l)
The Bureau of Indian Affairs (BIA) provides services to 566 federally recognized tribes and assists in the management of 55 million surface acres and 57 million acres of subsurface minerals estates. Pursuant to section 4(e) of the Federal Power Act (FPA), the Federal Energy Regulatory Commission (FERC) may license a hydropower project on tribal lands within a reservation but only after it determines that license “will not interfere or be inconsistent with the purpose for which such reservation was created or acquired.” The BIA, in turn, may then condition a FERC licensed project on tribal lands within a reservation with measures it determines are “necessary for the adequate protection and utilization of such reservation.” The ultimate determination regarding the use of tribal lands for hydropower development, however, rests with FERC.
If the project is on tribal lands not located within a reservation, but may affect natural or cultural resources important to a tribe, the BIA may assist the affected tribe(s) throughout the licensing process, and post licensing for long-term management of tribal resources. BIA does this by providing technical, financial, and legal assistance to tribes and working with its federal partners to ensure tribal interests are considered through implementation of other federal authorities (e.g., sections 10(j) and 18 of the Federal Power Act, section 4(e) as applicable on other federal lands, through implementation of the Clean Water Act and the Endangered Species Act, etc.). All federal agencies have a trust responsibility to federally recognized tribes. The BIA may also file comments under Section 10(a) of the FPA in support of the land management agencies 4(e) conditions, the fish and wildlife agency’s 10(j) mitigation measures, or to recommend additional mitigation measures for FERC consideration.
Bureau of Indian Affairs- FERC License Conditions and Recommendations Process
7-FD-l.1 - Is the Project on Reservation Land?
If the project is located on tribal land within a reservation, the BIA will develop mandatory conditions under section 4(e) of the FPA. “Reservations” for purposes of the FPA include tribal lands embraced within Indian reservations (16 USC 796). The BIA does not typically issue rights-of-way for hydropower projects on tribal lands within a reservation, opting to use section 4(e) of the FPA to condition FERC licenses in lieu of its rights-of-way authorities. This allows BIA to capitalize on FERC’s NEPA review and thereby eliminate a layer of redundancy.
25 CFR Part 169.2(c) Rights of Way Over Indian Lands states:
“The regulations contained in this part 169 do not cover the granting of rights-of-way upon tribal lands within a reservation for the purpose of constructing, operating, or maintaining dams, water conduits, reservoirs, powerhouses, transmission lines or other works which shall constitute a part of any project for which a license is required by the Federal Power Act. The Federal Power Act provides that any license which shall be issued to use tribal lands within a reservation shall be subject to and contain such conditions as the Secretary of the Interior shall deem necessary for the adequate protection and utilization of such lands. (16 U.S.C. 797(e)). In the case of tribal lands belonging to a tribe organized under the Act of June 18, 1934 (48 Stat. 984), the Federal Power Act requires that annual charges for the use of such tribal lands under any license issued by the Federal Power Commission shall be subject to the approval of the tribe (16 U.S.C. 803(e)).”
7-FD-l.2 to 7-FD-l.4 - Is the Project on Land with a Tribal Interest?
If the project is not within a reservation, but a given tribe has an interest in the area where a project is located, the BIA may engage FERC’s licensing process in a number of ways. However, under the FPA, the role of the tribes and the BIA in managing the land and resources outside the reservation is relatively limited. Areas outside reservations in which tribes have an interest include ceded territories and historic areas. In addition, some treaties between tribes and the United States establish reserved rights to hunt and fish in usual and accustomed places. When a tribe has reserved rights such as these, the tribe has rights to access the land and its resources. Moreover, tribally owned lands not held in trust by the federal government are not protected by the FPA’s provision to condition hydropower licenses.
The BIA may engage FERC’s licensing process in the following ways:
- Through the relevant land management agency during that agency’s 4(e) process;
- Through the United States Fish and Wildlife Service (USFWS), or other applicable fish and wildlife agencies, during the 10(j) fish and wildlife protection, mitigation, and enhancement process; or
- By filing 10(a) comments in support of an agencies 4(e) conditions or 10(j) mitigation measures, as well as to recommend additional mitigation measures for FERC consideration.
Note, the BIA is less likely to submit 10(a) comments, given financial resource constraints, than to engage with the relevant agency in the 4(e) process or 10(j) process.
7-FD-l.5 to 7-FD-l.7 – Will the Project Interfere with the Purpose(s) of the Reservation?
Even when a project is not inconsistent with the purposes for which a reservation was created it might still affect the reservation and resources held in trust by the federal government. If a project is determined by FERC to be consistent with the purposes of the reservation, the BIA will condition the FERC license with mitigation measures to address any effects.
In part, based upon the studies conducted by FERC, or by the Bureau of Indian Affairs (BIA), the BIA submits conditions to reduce the impact of a project on the purpose of the reservation. The developer is required to comply with these conditions to receive a license. The FPA grants the BIA the authority to impose these conditions for the “adequate protection and utilization of the reservation.”
The BIA may use these conditions only to mitigate project effects. For example, the BIA has previously used 4(e) conditioning authority to maintain minimum flow levels, address erosion, mitigate water quality impacts, improve fish passage mechanisms and populations, restore or maintain fish and wildlife habitat around the project, and protect cultural resources among others.
In the event a project does not interfere with the purpose of the reservation, the BIA may still utilize the 10(a) mitigation commenting process or the 10(j) fish and wildlife protection, mitigation, and enhancement process.
7-FD-l.8 to 7-FD-l.9 – Initiate 10(e) Fee Arrangement Process
The developer and the tribe negotiate a 10(e) fee arrangement in lieu of right-of-way charges pursuant to the Federal Power Act. Usually, the BIA engages in the 10(e) negotiation process only upon request from the tribe or if there are multiple competing interests.
When developing the 10(e) fee arrangement, FERC relies upon negotiations between the licensee (developer) and the tribe to determine appropriate charges. In most cases, FERC uses a least cost alternative approach to establish fees. The BIA reviews the final agreement to ensure the charges are reasonable. Section 10(e) states:
“That when licenses are issued involving the use of Government dams or other structures owned by the United States or tribal lands embraced within Indian reservations the Commission shall, subject to the approval of the Secretary of the Interior in the case of such dams or structures in reclamation projects and, in the case of such tribal lands, subject to the approval of the Indian tribe having jurisdiction of such lands as provided in section 16 of the Act of June 18, 1934 (48 Stat. 984), fix a reasonable annual charge for the use thereof, and such charges may with like approval be readjusted by the Commission at the end of the twenty years after the project is available for service and at periods of not less than ten years thereafter upon notice and opportunity for hearing.”
The BIA, a tribe, and developer may complete fee arrangement negotiations before or after FERC issues a license or exemption.
7-FD-l.10 to 7-FD-l.15 – Does the Developer Seek to Challenge a Disputed Issue of Material Fact?
Section 241 of Energy Policy Act of 2005 (EPAct 2005) amended section 4(e) of the Federal Power Act to provide that any party to a license proceeding may seek a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to any agency’s mandatory conditions (see 43 CFR 45.20 et seq.). To request a hearing, a written request must be filed within 30 days after the deadline for submitting preliminary conditions to FERC (43 CFR 45.21). Additional content requirements for written requests for a hearing can be found at 43 CFR 45.21.
After receiving a written request for a hearing, and within 45 days of the deadline for submitting preliminary conditions, the BIA will file an answer (43 CFR 45.24). Within 5 days of receipt of the answer, the Office of Environmental Policy and Compliance (OEPC) refers the case for hearing to either the Department of the Interior’s (DOI) Office of Hearing and Appeals or to the hearings component of another department (43 CFR 45.25). If the case is referred to the DOI, the hearing process will be governed by 43 CFR 45.1 et seq.; if OALJ, governed by 7 CFR 1.630 et seq.; and if DOC, governed by 50 CFR 221.1 et seq..
7-FD-l.16 to 7-FD-l.20 – Does the Developer Seek to Propose any Alternative Conditions?
Section 241 of EPAct 2005 added section 33 to the Federal Power Act allowing the license applicant or any other party to the licensing proceeding to propose an alternative condition. To propose an alternative, the developer must file a written proposal with the BIA within 30 days after the deadline for submitting preliminary conditions to FERC (43 CFR 45.71(a)(2)). Additional content requirements for written proposal can be found at 43 CFR 45.71(b).
After receiving a written proposal, and within 60 days of the deadline for filing comments to FERC’s NEPA document, the BIA must analyze proposed alternatives and file with FERC any adopted alternatives (43 CFR 45.72). The BIA must file with FERC a statement explaining the reasons for accepting or rejecting any alternatives and the basis for any modified conditions to be included in the license. The BIA must accept the proposed alternative if it determines, based on substantial evidence that, (a) the alternative condition provides for the adequate protection and utilization of the reservation, and (b) the alternative will either cost significantly less to implement or result in improved operation of the project works for electricity production (43 CFR 45.73).
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