Tribal policy26 January 2006
As part of the hydroelectric licensing process, the US Federal Energy Regulatory Commission seeks to develop working relationships with Indian tribes by communicating its various regulatory processes and ensuring that tribes are in a position to best express their concerns. Rollie Wilson reports
In the Fall of 2003, the US Federal Energy Regulatory Commission (FERC) issued a ‘Policy Statement on Consultation with Indian Tribes in Commission Proceedings’ (Tribal Policy Statement) to encourage and facilitate involvement by Indian tribes in the areas over which FERC has jurisdiction.1 The Tribal Policy Statement also established a Tribal Liaison position within FERC to provide a point of contact and a resource for tribes for FERC proceedings.
While FERC’s Tribal Policy Statement was developed in the hydroelectric licensing context, it applies to all areas of FERC’s jurisdiction. Major areas of FERC jurisdiction include the licensing and administration of hydroelectric projects, the certification and siting of natural gas pipelines and liquefied natural gas facilities, the regulation of interstate natural gas markets, and the regulation of interstate energy markets.2 In addition, with the recent passage of the Energy Policy Act of 2005, FERC’s jurisdiction now includes some authority over the siting and reliability of interstate transmission lines.
In each of these areas, FERC seeks to involve affected tribes as early as possible and to assure that tribal issues are known and considered by FERC in making its decisions. FERC tries to meet directly with Indian tribes to discuss issues and explain the opportunities for tribes to participate in a FERC proceeding. These efforts help to ensure that tribal concerns and issues are timely and appropriately presented and addressed in FERC actions. Through increased communication with tribal governments and understanding of the issues raised by tribes, FERC strives to improve its ability to address issues affecting tribes in a proceeding.
Development of FERC’s Tribal Policy Statement
FERC’s Tribal Policy Statement evolved out of the development of the Integrated Licensing Process (ILP) for the licensing of hydroelectric projects pursuant to the Federal Power Act (FPA).3 In the late 1990’s, FERC was nearing the end of a period of extensive relicensing activity that involved the first relicensing of many of the original project licences FERC had issued 50 years earlier. Following this period of intense relicensing activity, FERC took the opportunity to assess and streamline its licensing process.
FERC looked at its existing Traditional Licensing Process (TLP) and Alternative Licensing Process (ALP) and found that participants often developed ways to increase collaboration between licence applicants and other participants working to develop licensing information. Collaborative efforts included shared decision-making on the conduct of licensing studies or negotiations that attempted to ‘settle’ licensing issues. While these efforts had the beneficial effect of increasing public participation, they also tended to be lengthy and could prolong the licensing process.
FERC determined that it could encourage the positive desire of parties to work together while improving the timeliness of licences. Specifically, by involving FERC earlier in the licensing process, creating a process to resolve disputes over study plan development, and improving coordination of parties’ licensing responsibilities, FERC was of the view that it could promote efficiency in the licensing process while improving the predictability of the process and ensuring appropriate resource protections.
Consequently, from 2002 to 2003, FERC engaged in a process to revise its regulations and develop the Integrated Licensing Process. The resulting ILP seeks to streamline aspects of hydroelectric licensing and improve the timeliness of information gathering. The ILP achieves these goals by early identification and participation of interested parties; early identification of issues, existing information, and additional information and study needs; and clarification of roles and responsibilities of some licensing participants.
In developing the ILP, FERC held regional and national workshops with the full range of hydroelectric licensing participants. Some of these workshops were specifically designed to allow FERC to work directly with Indian tribes on the new licensing process. In these tribal workshops, FERC found that Indian tribes raised concerns that went beyond the development of the ILP.
In addition to the ILP, tribes discussed FERC’s relationship with tribes and the federal government’s consultation with tribes.4 The discussions led to FERC’s determination that, in addition to the development of the ILP, it would be beneficial to articulate FERC’s relationship and consultation process with Indian tribes in a policy statement. FERC issued its Tribal Policy Statement in the Fall of 2003, concurrently with the new ILP.
The resulting Tribal Policy Statement is similar to the tribal policies of other federal government agencies.5 The Tribal Policy Statement establishes procedures for tribal consultation whenever tribal rights and resources may be affected,6 states that consultation should involve direct contact with tribes,7 and, that when needed, FERC will engage tribes in high-level meetings to discuss general matters of importance, such as those that uniquely affect the tribes.8 Essentially, FERC seeks to develop working relationships with tribes by communicating its various regulatory processes and ensuring that tribes are in a position to best express their concerns.
The Tribal Policy Statement also established a Tribal Liaison position within FERC.9 The Tribal Liaison serves as a point of contact for FERC and tribes regarding tribal involvement in FERC proceedings. The Tribal Liaison works with other FERC staff to introduce FERC to Indian tribes and inform tribes of FERC statutes and processes.
These efforts are further supported by the Tribal Policy Statement’s commitment to develop general information and educational materials about tribal involvement in FERC proceedings.10 To this end, FERC developed a staff training session on tribal consultation, a handbook for tribal governments involved in hydroelectric licensing, and a database that links hydroelectric projects with potentially-affected tribes. Development of other resources, such as content on FERC’s website that is tailored to Indian tribes, is planned for the future.
Hydroelectric licensing and tribal consultation
Pursuant to the Federal Power Act (FPA), as amended,11 FERC has the exclusive authority to license most nonfederal hydroelectric projects located in the US on navigable waterways, on federal lands, at government dams, or on other waters subject to congressional jurisdiction and connected to the interstate electric grid. Hydroelectric licensing is a comprehensive and multi-year process that involves the licence applicant, federal, state, and tribal governments, non-governmental organisations, and public participants. FERC’s central role in this process is to ensure that all parties to a proceeding have an opportunity to be heard, that statutory requirements are fulfilled, and that a FERC order is issued consistent with the public interest. This comprehensive process is intended to protect public waterways and resources while supporting beneficial hydroelectric resources.
FERC’s hydroelectric licensing processes, conducted pursuant to the FPA, include a pre-filing phase and a post-filing phase.12 The pre-filing phase is primarily led by a licence applicant who follows FERC’s regulatory process to gather information and prepare its application. In pre-filing, the licence applicant works with interested parties to develop the information that will be used in the licence application. The licence application and other information is then filed with FERC and the post-filing phase begins. In post-filing, the proceeding becomes more formal as FERC takes on its quasi-judicial role to assess the information submitted and develop a record that will be used to support a FERC decision.
There are many opportunities for Indian tribes to participate in both the pre-filing and post-filing phases of a licensing process. In pre-filing, FERC regulations direct the licence applicant to consult with interested participants, including Indian tribes, and begin efforts to identify issues and information that will be included in the licence application. Also during pre-filing, FERC seeks to contact potentially-affected tribes and engage in consultation with those tribes.
To initiate its consultation, FERC’s first step is to identify Indian tribes that may be interested in a proceeding.13 To determine which tribes have an interest in a project, FERC relies on its records, including maps of projects and tribal reservations, federal or state agencies that may be familiar with tribes in a project area, outreach by the licencee, and other tribes already identified in an area. These resources and contacts, however, may not reveal all potentially-affected tribes. For example, a tribe’s current reservation homeland may be a long way from its original territories where it may maintain an interest in resource protections. Likewise, effects on tribal resources downstream from a project may not be clear from a map or known by FERC contacts. Consequently, FERC’s efforts to notify tribes are typically over-inclusive.
The next step is to establish contact with those potentially-affected tribes.14 FERC begins by sending letters, and follows up with phone calls, if necessary. These letters identify the project, notify the tribes of the upcoming licensing proceeding, describe FERC’s role in licensing the project, and express FERC’s commitment to working with affected tribes.15
FERC then seeks to arrange a meeting with interested tribes.16 The primary purpose of these meetings, held in the earliest stages of pre-filing, is to begin discussions with a tribe about the project, the tribe’s interests in resources affected by the project, FERC procedures for licensing the project, and the variety of ways that tribes can be involved in the licensing process.
Over the course of these meetings, FERC also begins to learn about a tribe’s history, culture, and governing structure.17 These discussions can include identification of a tribe’s land base, including reservation lands, interests in its ceded lands or ancestral lands, and any off-reservation lands. FERC can also begin to understand a tribe’s economic and natural resources and how a tribe sustains those resources.
As FERC completes these initial consultation efforts, or even before, tribes should begin to actively participate in the pre-filing process with the licence applicant, federal and state agencies, and other participants. The best way for a tribe to ensure that it obtains information about a hydroelectric project, and for participants in a licencing proceeding, as well as FERC, to gain an understanding of the tribe’s knowledge and concerns, is for the tribe to participate fully in all phases of the proceeding.
In this pre-filing forum, Indian tribes can work directly with the licence applicant and other parties. In either the Traditional or Integrated Licensing Processes, the licence applicant will develop a Pre-Application Document (PAD) at the beginning of the process.18 The PAD is an important document for tribes to review and provide comments on because it will form the basis for issue identification and scoping of issues. Next, depending on these issues and available information, tribes can have input into the development of studies needed for the project licensing.19 The Alternative Licensing Process also tends to follow similar processes for the development of issues and studies, although ALP’s are much more flexible and dependent upon the participants’ agreement of an appropriate process for developing information.
Regardless of the process used to licence a project, tribes should become familiar with the requirements and deadlines of the process in which they are involved so that they can be active participants in issue identification and study development. Involvement in the development of pre-filing information is important because eventually this information will be submitted to FERC for analysis in the post-filing phase.
As the licensing process moves from pre-filing into the more formal post-filing phase, the quasi-judicial nature of FERC proceedings places limitations on FERC’s tribal consultation.20 Pursuant to the Administrative Procedure Act21 and FERC’s ex parte rules,22 FERC must provide all parties to a proceeding with a fair hearing on the record and cannot discuss substantive issues with one party without involving all the parties to that proceeding.
In this post-filing period, recommendations and comments on the licence application are sought. In general, section 10(a)(2)(B) provides the most direct opportunity for tribes to make licensing recommendations.23 Pursuant to this section, Indian tribes affected by the project can submit recommendations – including fish and wildlife recommendations. A tribe’s use of a waterway or protections for tribal resources affected by a project are issues that could be covered by recommendations made pursuant to this section.
Tribes can also file comprehensive plans regarding a waterway with FERC. In specific proceedings to which a tribe believes the plan applies, the tribe should either file the plan in the proceeding or explicitly reference the previously-filed plan to ensure FERC knows to look at it. A plan filed by a tribe will be considered in any proceeding to which it applies pursuant to section 10(a)(2)(B).
Meanwhile, federal and state agencies will be working pursuant to Federal Power Act Section 4(e),24 Section 10(j),25 and Section 1826 to submit their own conditions or recommendations for a project licence. These provisions can directly or indirectly involve tribal resources and tribes can work with these agencies on these conditions or recommendations. In particular, pursuant to their individual agency responsibilities, federal agencies may seek to consult with tribes on the development of these conditions or recommendations.
To protect cultural resources in hydroelectric licensing, the National Historic Preservation Act’s (NHPA)27 Section 106 process28 requires that tribal representatives be involved and consulted in the development of plans to mitigate for any effects to tribal historic properties. In addition, if the impacts are on a reservation or the tribe has a Tribal Historic Preservation Officer, NHPA seeks official representation and decision-making by the tribe in the Section 106 process.
All of this hydroelectric licensing information, developed in pre-filing consultation and formalised in post-filing, is provided to FERC for analysis pursuant to the National Environmental Policy Act (NEPA).29 In its NEPA analysis, FERC develops an environmental document which might be an Environmental Assessment (EA) or draft and final Environmental Impact Statement (EIS). These documents provide another opportunity for a tribe to provide written comments or participate in public meetings, on issues of importance to the tribe. FERC’s environmental analysis as well as all other information in the record for a particular project is then used by FERC to make a decision on whether to issue a licence, and if so, what conditions to include in it. Finally, tribes that have formally intervened in a licensing proceeding can seek rehearing30 and later judicial review31 of a FERC order.
While tribes must ultimately represent their own interests in FERC proceedings, the Tribal Policy Statement helps support the foundation for tribal participation. Through early consultation with tribes and development of general information about tribal participation, FERC seeks to facilitate the ability of a tribe to represent its interests in FERC proceedings. This in turn helps FERC improve the results achieved in its hydroelectric licensing processes.
For further information, please contact Rollie Wilson, Tribal Liaison, Federal Energy Regulatory Commission. Email: [email protected]
Views expressed in this article do not necessarily represent the views of the Federal Energy Regulatory Commission or the US.