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S. 245 - Indian Tribal Energy Development and Self-Determination Act Amendments of 2017

Sponsor: John Hoeven (R)
Introduced: 2017-11-30
Bill Status: Placed on the Union Calendar, Calendar No. 823.
 

(This measure has not been amended since it was introduced. The expanded summary of the Senate reported version is repeated here.)

Indian Tribal Energy Development and Self-Determination Act Amendments of 2017

TITLE I--INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF-DETERMINATION ACT AMENDMENTS

(Sec. 101) This bill amends the Energy Policy Act of 1992 to direct the Department of the Interior to provide Indian tribes with technical assistance in planning their energy resource development programs.

The Department of Energy (DOE) Indian energy education planning and management assistance program is expanded to make intertribal organizations eligible for grants and to allow grants to be used to increase the capacity of tribes to manage energy development and energy efficiency programs.

Eligibility for DOE energy development loan guarantees is expanded to include tribal energy development organizations.

(Sec. 103) This bill allows leases and business agreements that pool, unitize, or communitize a tribe's energy resources with other energy resources.

An energy-related tribal lease, business agreement, or right-of-way does not require Interior's approval if it complies with a tribal energy resource agreement or it is a lease with a tribal energy development organization that Interior has certified, and the term does not exceed specified limits.

The process and conditions for Interior's approval of tribal energy resource agreements are revised.

This bill revises the process for determining whether an interested party has a valid claim to be suffering an adverse environmental impact due to a tribe's noncompliance with such an agreement.

Interior must make available to a tribe the amount Interior would have expended to carry out an activity that the tribe is carrying out pursuant to a tribal energy resource agreement.

(Sec. 104) DOE must collaborate with the Directors of the National Laboratories in making the full array of DOE technical and scientific resources available for tribal energy activities and projects.

TITLE II--MISCELLANEOUS AMENDMENTS

(Sec. 201) This bill amends the Federal Power Act to require the Federal Energy Regulatory Commission to give tribes, in addition to states and municipalities, preference for the receipt of preliminary hydroelectric licenses.

(Sec. 202) This bill amends the Tribal Forest Protection Act of 2004 to direct Interior, for land under Bureau of Land Management jurisdiction, and the Department of Agriculture (USDA), for land under Forest Service jurisdiction, to enter into agreements with tribes to carry out demonstration projects to promote biomass energy production on Indian forest land and in nearby communities by providing them with reliable supplies of woody biomass from federal lands.

Interior and USDA must enter into agreements with tribal organizations to carry out additional biomass demonstration projects.

(Sec. 203) This bill amends the Energy Conservation and Production Act to revise requirements for direct home weatherization grants to tribes.

(Sec. 204) Interior, an affected tribe, or a certified third-party appraiser under contract with the tribe must appraise mineral or energy resources involved in a transaction requiring Interior's approval.

(Sec. 205) This bill amends the Long-Term Leasing Act to allow the Navajo Nation to enter into mineral resource leases on their restricted lands without Interior's approval. The maximum term of a Navajo Nation lease that does not require Interior's approval is extended for commercial and agricultural leases.

(Sec. 206) The Crow Tribe of Montana may enter into leases of their land held in trust for a term of up to 99 years.

(Sec. 207) This bill sets forth provisions for money held by Interior in connection with the review and approval of a sale, lease, permit, or other conveyance of Indian land.

Full Text

Union Calendar No. 823

115th CONGRESS
2d Session
S. 245

[Report No. 115–1057, Part I]


    To amend the Indian Tribal Energy Development and Self Determination Act of 2005, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

November 30, 2017

    Referred to the Committee on Natural Resources, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

November 30, 2018

    Reported from the Committee on Natural Resources

November 30, 2018

    Committee on Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed


AN ACT

    To amend the Indian Tribal Energy Development and Self Determination Act of 2005, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Indian Tribal Energy Development and Self-Determination Act Amendments of 2017”.

SEC. 2. Table of contents.

The table of contents for this Act is as follows:


TITLE I—INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF-DETERMINATION ACT AMENDMENTS


TITLE II—MISCELLANEOUS AMENDMENTS

TITLE IIndian tribal energy development and self-determination act amendments

SEC. 101. Indian tribal energy resource development.

(a) In general.—Section 2602(a) of the Energy Policy Act of 1992 (25 U.S.C. 3502(a)) is amended—

(1) in paragraph (2)—

(A) in subparagraph (C), by striking “and” after the semicolon;

(B) in subparagraph (D), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following:

“(E) consult with each applicable Indian tribe before adopting or approving a well spacing program or plan applicable to the energy resources of that Indian tribe or the members of that Indian tribe.”; and

(2) by adding at the end the following:

“(4) PLANNING.—

“(A) IN GENERAL.—In carrying out the program established by paragraph (1), the Secretary shall provide technical assistance to interested Indian tribes to develop energy plans, including—

“(i) plans for electrification;

“(ii) plans for oil and gas permitting, renewable energy permitting, energy efficiency, electricity generation, transmission planning, water planning, and other planning relating to energy issues;

“(iii) plans for the development of energy resources and to ensure the protection of natural, historic, and cultural resources; and

“(iv) any other plans that would assist an Indian tribe in the development or use of energy resources.

“(B) COOPERATION.—In establishing the program under paragraph (1), the Secretary shall work in cooperation with the Office of Indian Energy Policy and Programs of the Department of Energy.”.

(b) Department of Energy Indian energy education planning and management assistance program.—Section 2602(b)(2) of the Energy Policy Act of 1992 (25 U.S.C. 3502(b)(2)) is amended—

(1) in the matter preceding subparagraph (A), by inserting “, intertribal organization,” after “Indian tribe”;

(2) by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively; and

(3) by inserting after subparagraph (B) the following:

“(C) activities to increase the capacity of Indian tribes to manage energy development and energy efficiency programs;”.

(c) Department of Energy loan guarantee program.—Section 2602(c) of the Energy Policy Act of 1992 (25 U.S.C. 3502(c)) is amended—

(1) in paragraph (1), by inserting “or a tribal energy development organization” after “Indian tribe”;

(2) in paragraph (3)—

(A) in the matter preceding subparagraph (A), by striking “guarantee” and inserting “guaranteed”;

(B) in subparagraph (A), by striking “or”;

(C) in subparagraph (B), by striking the period at the end and inserting “; or”; and

(D) by adding at the end the following:

“(C) a tribal energy development organization, from funds of the tribal energy development organization.”; and

(3) in paragraph (5), by striking “The Secretary of Energy may” and inserting “Not later than 1 year after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, the Secretary of Energy shall”.

SEC. 102. Indian tribal energy resource regulation.

Section 2603(c) of the Energy Policy Act of 1992 (25 U.S.C. 3503(c)) is amended—

(1) in paragraph (1), by striking “on the request of an Indian tribe, the Indian tribe” and inserting “on the request of an Indian tribe or a tribal energy development organization, the Indian tribe or tribal energy development organization”; and

(2) in paragraph (2)(B), by inserting “or tribal energy development organization” after “Indian tribe”.

SEC. 103. Tribal energy resource agreements.

(a) Amendment.—Section 2604 of the Energy Policy Act of 1992 (25 U.S.C. 3504) is amended—

(1) in subsection (a)—

(A) in paragraph (1)—

(i) in subparagraph (A), by striking “or” after the semicolon at the end;

(ii) in subparagraph (B)—

(I) by striking clause (i) and inserting the following:

“(i) an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; or”; and

(II) in clause (ii)—

(aa) by inserting “, at least a portion of which have been” after “energy resources”;

(bb) by inserting “or produced from” after “developed on”; and

(cc) by striking “and” after the semicolon at the end and inserting “or”; and

(iii) by adding at the end the following:

“(C) pooling, unitization, or communitization of the energy mineral resources of the Indian tribe located on tribal land with any other energy mineral resource (including energy mineral resources owned by the Indian tribe or an individual Indian in fee, trust, or restricted status or by any other persons or entities) if the owner, or, if appropriate, lessee, of the resources has consented or consents to the pooling, unitization, or communitization of the other resources under any lease or agreement; and”; and

(B) by striking paragraph (2) and inserting the following:

“(2) a lease or business agreement described in paragraph (1) shall not require review by, or the approval of, the Secretary under section 2103 of the Revised Statutes (25 U.S.C. 81), or any other provision of law (including regulations), if the lease or business agreement—

“(A) was executed—

“(i) in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs (D) and (E) of subsection (e)(2)); or

“(ii) by the Indian tribe and a tribal energy development organization for which the Indian tribe has obtained a certification pursuant to subsection (h); and

“(B) has a term that does not exceed—

“(i) 30 years; or

“(ii) in the case of a lease for the production of oil resources, gas resources, or both, 10 years and as long thereafter as oil or gas is produced in paying quantities.”;

(2) by striking subsection (b) and inserting the following:

“(b) Rights-of-Way.—An Indian tribe may grant a right-of-way over tribal land without review or approval by the Secretary if the right-of-way—

“(1) serves—

“(A) an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land;

“(B) a facility located on tribal land that extracts, produces, processes, or refines energy resources; or

“(C) the purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land;

“(2) was executed—

“(A) in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs (D) and (E) of subsection (e)(2)); or

“(B) by the Indian tribe and a tribal energy development organization for which the Indian tribe has obtained a certification pursuant to subsection (h); and

“(3) has a term that does not exceed 30 years.”;

(3) by striking subsection (d) and inserting the following:

“(d) Validity.—No lease or business agreement entered into, or right-of-way granted, pursuant to this section shall be valid unless the lease, business agreement, or right-of-way is authorized by subsection (a) or (b).”;

(4) in subsection (e)—

(A) by striking paragraph (1) and inserting the following:

“(1) IN GENERAL.—

“(A) AUTHORIZATION.—On or after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, a qualified Indian tribe may submit to the Secretary a tribal energy resource agreement governing leases, business agreements, and rights-of-way under this section.

“(B) NOTICE OF COMPLETE PROPOSED AGREEMENT.—Not later than 60 days after the date on which the tribal energy resource agreement is submitted under subparagraph (A), the Secretary shall—

“(i) notify the Indian tribe as to whether the agreement is complete or incomplete;

“(ii) if the agreement is incomplete, notify the Indian tribe of what information or documentation is needed to complete the submission; and

“(iii) identify and notify the Indian tribe of the financial assistance, if any, to be provided by the Secretary to the Indian tribe to assist in the implementation of the tribal energy resource agreement, including the environmental review of individual projects.

“(C) EFFECT.—Nothing in this paragraph precludes the Secretary from providing any financial assistance at any time to the Indian tribe to assist in the implementation of the tribal energy resource agreement.”;

(B) in paragraph (2)—

(i) by striking “(2)(A)” and all that follows through the end of subparagraph (A) and inserting the following:

“(2) PROCEDURE.—

“(A) EFFECTIVE DATE.—

“(i) IN GENERAL.—On the date that is 271 days after the date on which the Secretary receives a tribal energy resource agreement from a qualified Indian tribe under paragraph (1), the tribal energy resource agreement shall take effect, unless the Secretary disapproves the tribal energy resource agreement under subparagraph (B).

“(ii) REVISED TRIBAL ENERGY RESOURCE AGREEMENT.—On the date that is 91 days after the date on which the Secretary receives a revised tribal energy resource agreement from a qualified Indian tribe under paragraph (4)(B), the revised tribal energy resource agreement shall take effect, unless the Secretary disapproves the revised tribal energy resource agreement under subparagraph (B).”;

(ii) in subparagraph (B)—

(I) by striking “(B)” and all that follows through clause (ii) and inserting the following:

“(B) DISAPPROVAL.—The Secretary shall disapprove a tribal energy resource agreement submitted pursuant to paragraph (1) or (4)(B) only if—

“(i) a provision of the tribal energy resource agreement violates applicable Federal law (including regulations) or a treaty applicable to the Indian tribe;

“(ii) the tribal energy resource agreement does not include one or more provisions required under subparagraph (D); or”; and

(II) in clause (iii)—

(aa) in the matter preceding subclause (I), by striking “includes” and all that follows through “section—” and inserting “does not include provisions that, with respect to any lease, business agreement, or right-of-way to which the tribal energy resource agreement applies—”;

(bb) by striking subclauses (I), (II), (V), (VIII), and (XV);

(cc) by redesignating clauses (III), (IV), (VI), (VII), (IX) through (XIV), and (XVI) as clauses (I), (II), (III), (IV), (V) through (X), and (XI), respectively;

(dd) in item (bb) of subclause (XI) (as redesignated by item (cc))—

(AA) by striking “or tribal”; and

(BB) by striking the period at the end and inserting a semicolon; and

(ee) by adding at the end the following:

“(XII) include a certification by the Indian tribe that the Indian tribe has—

“(aa) carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application without material audit exception (or without any material audit exceptions that were not corrected within the 3-year period) relating to the management of tribal land or natural resources; or

“(bb) substantial experience in the administration, review, or evaluation of energy resource leases or agreements or has otherwise substantially participated in the administration, management, or development of energy resources located on the tribal land of the Indian tribe; and

“(XIII) at the option of the Indian tribe, identify which functions, if any, authorizing any operational or development activities pursuant to a lease, right-of-way, or business agreement approved by the Indian tribe, that the Indian tribe intends to conduct.”;

(iii) in subparagraph (C)—

(I) by striking clauses (i) and (ii);

(II) by redesignating clauses (iii) through (v) as clauses (ii) through (iv), respectively; and

(III) by inserting before clause (ii) (as redesignated by subclause (II)) the following:

“(i) a process for ensuring that—

“(I) the public is informed of, and has reasonable opportunity to comment on, any significant environmental impacts of the proposed action; and

“(II) the Indian tribe provides responses to relevant and substantive public comments on any impacts described in subclause (I) before the Indian tribe approves the lease, business agreement, or right-of-way;”;

(iv) in subparagraph (D)(ii), by striking “subparagraph (B)(iii)(XVI)” and inserting “subparagraph (B)(iv)(XI)”; and

(v) by adding at the end the following:

“(F) EFFECTIVE PERIOD.—A tribal energy resource agreement that takes effect pursuant to this subsection shall remain in effect to the extent any provision of the tribal energy resource agreement is consistent with applicable Federal law (including regulations), unless the tribal energy resource agreement is—

“(i) rescinded by the Secretary pursuant to paragraph (7)(D)(iii)(II); or

“(ii) voluntarily rescinded by the Indian tribe pursuant to the regulations promulgated under paragraph (8)(B) (or successor regulations).”;

(C) in paragraph (4), by striking “date of disapproval” and all that follows through the end of subparagraph (C) and inserting the following: “date of disapproval, provide the Indian tribe with—

“(A) a detailed, written explanation of—

“(i) each reason for the disapproval; and

“(ii) the revisions or changes to the tribal energy resource agreement necessary to address each reason; and

“(B) an opportunity to revise and resubmit the tribal energy resource agreement.”;

(D) in paragraph (6)—

(i) in subparagraph (B)—

(I) by striking “(B) Subject to” and inserting the following:

“(B) Subject only to”; and

(II) by striking “subparagraph (D)” and inserting “subparagraphs (C) and (D)”;

(ii) in subparagraph (C), in the matter preceding clause (i), by inserting “to perform the obligations of the Secretary under this section and” before “to ensure”; and

(iii) in subparagraph (D), by adding at the end the following:

“(iii) Nothing in this section absolves, limits, or otherwise affects the liability, if any, of the United States for any—

“(I) term of any lease, business agreement, or right-of-way under this section that is not a negotiated term; or

“(II) losses that are not the result of a negotiated term, including losses resulting from the failure of the Secretary to perform an obligation of the Secretary under this section.”;

(E) in paragraph (7)—

(i) in subparagraph (A), by striking “has demonstrated” and inserting “the Secretary determines has demonstrated with substantial evidence”;

(ii) in subparagraph (B), by striking “any tribal remedy” and inserting “all remedies (if any) provided under the laws of the Indian tribe”;

(iii) in subparagraph (D)—

(I) in clause (i), by striking “determine” and all that follows through the end of the clause and inserting the following: “determine—

“(I) whether the petitioner is an interested party; and

“(II) if the petitioner is an interested party, whether the Indian tribe is not in compliance with the tribal energy resource agreement as alleged in the petition.”;

(II) in clause (ii), by striking “determination” and inserting “determinations”; and

(III) in clause (iii), in the matter preceding subclause (I) by striking “agreement” the first place it appears and all that follows through “, including” and inserting “agreement pursuant to clause (i), the Secretary shall only take such action as the Secretary determines necessary to address the claims of noncompliance made in the petition, including”;

(iv) in subparagraph (E)(i), by striking “the manner in which” and inserting “, with respect to each claim made in the petition, how”; and

(v) by adding at the end the following:

“(G) Notwithstanding any other provision of this paragraph, the Secretary shall dismiss any petition from an interested party that has agreed with the Indian tribe to a resolution of the claims presented in the petition of that party.”;

(F) in paragraph (8)—

(i) by striking subparagraph (A);

(ii) by redesignating subparagraphs (B) through (D) as subparagraphs (A) through (C), respectively; and

(iii) in subparagraph (A) (as redesignated by clause (ii))—

(I) in clause (i), by striking “and” at the end;

(II) in clause (ii), by adding “and” after the semicolon; and

(III) by adding at the end the following:

“(iii) amend an approved tribal energy resource agreement to assume authority for approving leases, business agreements, or rights-of-way for development of another energy resource that is not included in an approved tribal energy resource agreement without being required to apply for a new tribal energy resource agreement;” and

(G) by adding at the end the following:

“(9) EFFECT.—Nothing in this section authorizes the Secretary to deny a tribal energy resource agreement or any amendment to a tribal energy resource agreement, or to limit the effect or implementation of this section, due to lack of promulgated regulations.”;

(5) by redesignating subsection (g) as subsection (j); and

(6) by inserting after subsection (f) the following:

“(g) Financial assistance in lieu of activities by the Secretary.—

“(1) IN GENERAL.—Any amounts that the Secretary would otherwise expend to operate or carry out any program, function, service, or activity (or any portion of a program, function, service, or activity) of the Department that, as a result of an Indian tribe carrying out activities under a tribal energy resource agreement, the Secretary does not expend, the Secretary shall, at the request of the Indian tribe, make available to the Indian tribe in accordance with this subsection.

“(2) ANNUAL FUNDING AGREEMENTS.—The Secretary shall make the amounts described in paragraph (1) available to an Indian tribe through an annual written funding agreement that is negotiated and entered into with the Indian tribe that is separate from the tribal energy resource agreement.

“(3) EFFECT OF APPROPRIATIONS.—Notwithstanding paragraph (1)—

“(A) the provision of amounts to an Indian tribe under this subsection is subject to the availability of appropriations; and

“(B) the Secretary shall not be required to reduce amounts for programs, functions, services, or activities that serve any other Indian tribe to make amounts available to an Indian tribe under this subsection.

“(4) DETERMINATION.—

“(A) IN GENERAL.—The Secretary shall calculate the amounts under paragraph (1) in accordance with the regulations adopted under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017.

“(B) APPLICABILITY.—The effective date or implementation of a tribal energy resource agreement under this section shall not be delayed or otherwise affected by—

“(i) a delay in the promulgation of regulations under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017;

“(ii) the period of time needed by the Secretary to make the calculation required under paragraph (1); or

“(iii) the adoption of a funding agreement under paragraph (2).

“(h) Certification of tribal energy development organization.—

“(1) IN GENERAL.—Not later than 90 days after the date on which an Indian tribe submits an application for certification of a tribal energy development organization in accordance with regulations promulgated under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, the Secretary shall approve or disapprove the application.

“(2) REQUIREMENTS.—The Secretary shall approve an application for certification if—

“(A)(i) the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.); and

“(ii) for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application, the contract or compact—

“(I) has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and

“(II) has included programs or activities relating to the management of tribal land; and

“(B)(i) the tribal energy development organization is organized under the laws of the Indian tribe;

“(ii)(I) the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and one or more other Indian tribes) the tribal land of which is being developed; and

“(II) the organizing document of the tribal energy development organization requires that the Indian tribe with jurisdiction over the land maintain at all times the controlling interest in the tribal energy development organization;

“(iii) the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and one or more other Indian tribes) the tribal land of which is being developed own and control at all times a majority of the interest in the tribal energy development organization; and

“(iv) the organizing document of the tribal energy development organization includes a statement that the organization shall be subject to the jurisdiction, laws, and authority of the Indian tribe.

“(3) ACTION BY SECRETARY.—If the Secretary approves an application for certification pursuant to paragraph (2), the Secretary shall, not more than 10 days after making the determination—

“(A) issue a certification stating that—

“(i) the tribal energy development organization is organized under the laws of the Indian tribe and subject to the jurisdiction, laws, and authority of the Indian tribe;

“(ii) the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and one or more other Indian tribes) the tribal land of which is being developed;

“(iii) the organizing document of the tribal energy development organization requires that the Indian tribe with jurisdiction over the land maintain at all times the controlling interest in the tribal energy development organization;

“(iv) the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and one or more other Indian tribes the tribal land of which is being developed) own and control at all times a majority of the interest in the tribal energy development organization; and

“(v) the certification is issued pursuant this subsection;

“(B) deliver a copy of the certification to the Indian tribe; and

“(C) publish the certification in the Federal Register.

“(i) Sovereign immunity.—Nothing in this section waives the sovereign immunity of an Indian tribe.”.

(b) Regulations.—Not later than 1 year after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, the Secretary shall promulgate or update any regulations that are necessary to implement this section, including provisions to implement—

(1) section 2604(e)(8) of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)(8)), including the process to be followed by an Indian tribe amending an existing tribal energy resource agreement to assume authority for approving leases, business agreements, or rights-of-way for development of an energy resource that is not included in the tribal energy resource agreement;

(2) section 2604(g) of the Energy Policy Act of 1992 (25 U.S.C. 3504(g)) including the manner in which the Secretary, at the request of an Indian tribe, shall—

(A) identify the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) that the Secretary will not have to operate or carry out as a result of the Indian tribe carrying out activities under a tribal energy resource agreement;

(B) identify the amounts that the Secretary would have otherwise expended to operate or carry out each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (A); and

(C) provide to the Indian tribe a list of the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) identified pursuant subparagraph (A) and the amounts associated with each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (B); and

(3) section 2604(h) of the Energy Policy Act of 1992 (25 U.S.C. 3504(h)), including the process to be followed by, and any applicable criteria and documentation required for, an Indian tribe to request and obtain the certification described in that section.

SEC. 104. Technical assistance for Indian tribal governments.

Section 2602(b) of the Energy Policy Act of 1992 (25 U.S.C. 3502(b)) is amended—

(1) by redesignating paragraphs (3) through (6) as paragraphs (4) through (7), respectively; and

(2) by inserting after paragraph (2) the following:

“(3) TECHNICAL AND SCIENTIFIC RESOURCES.—In addition to providing grants to Indian tribes under this subsection, 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.”.

SEC. 105. Conforming amendments.

(a) Definition of tribal energy development organization.—Section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501) is amended—

(1) by redesignating paragraphs (9) through (12) as paragraphs (10) through (13), respectively;

(2) by inserting after paragraph (8) the following:

“(9) The term ‘qualified Indian tribe’ means an Indian tribe that has—

“(A) carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application without material audit exception (or without any material audit exceptions that were not corrected within the 3-year period) relating to the management of tribal land or natural resources; or

“(B) substantial experience in the administration, review, or evaluation of energy resource leases or agreements or has otherwise substantially participated in the administration, management, or development of energy resources located on the tribal land of the Indian tribe.”; and

(3) by striking paragraph (12) (as redesignated by paragraph (1)) and inserting the following:

“(12) The term ‘tribal energy development organization’ means—

“(A) any enterprise, partnership, consortium, corporation, or other type of business organization that is engaged in the development of energy resources and is wholly owned by an Indian tribe (including an organization incorporated pursuant to section 17 of the Act of June 18, 1934 (25 U.S.C. 5124) (commonly known as the “Indian Reorganization Act”) or section 3 of the Act of June 26, 1936 (49 Stat. 1967, chapter 831) (commonly known as the ‘Oklahoma Indian Welfare Act’)); and

“(B) any organization of two or more entities, at least one of which is an Indian tribe, that has the written consent of the governing bodies of all Indian tribes participating in the organization to apply for a grant, loan, or other assistance under section 2602 or to enter into a lease or business agreement with, or acquire a right-of-way from, an Indian tribe pursuant to subsection (a)(2)(A)(ii) or (b)(2)(B) of section 2604.”.

(b) Indian tribal energy resource development.—Section 2602 of the Energy Policy Act of 1992 (25 U.S.C. 3502) is amended—

(1) in subsection (a)—

(A) in paragraph (1), by striking “tribal energy resource development organizations” and inserting “tribal energy development organizations”; and

(B) in paragraph (2), by striking “tribal energy resource development organizations” each place the term appears and inserting “tribal energy development organizations”; and

(2) in subsection (b)(2), by striking “tribal energy resource development organization” and inserting “tribal energy development organization”.

(c) Wind and hydropower feasibility study.—Section 2606(c)(3) of the Energy Policy Act of 1992 (25 U.S.C. 3506(c)(3)) is amended by striking “energy resource development” and inserting “energy development”.

(d) Conforming amendments.—Section 2604(e) of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)) is amended—

(1) in paragraph (3)—

(A) by striking “(3) The Secretary” and inserting the following:

“(3) NOTICE AND COMMENT; SECRETARIAL REVIEW.—The Secretary”; and

(B) by striking “for approval”;

(2) in paragraph (4), by striking “(4) If the Secretary” and inserting the following:

“(4) ACTION IN CASE OF DISAPPROVAL.—If the Secretary”;

(3) in paragraph (5)—

(A) by striking “(5) If an Indian tribe” and inserting the following:

“(5) PROVISION OF DOCUMENTS TO SECRETARY.—If an Indian tribe”; and

(B) in the matter preceding subparagraph (A), by striking “approved” and inserting “in effect”;

(4) in paragraph (6)—

(A) by striking “(6)(A) In carrying out” and inserting the following:

“(6) SECRETARIAL OBLIGATIONS AND EFFECT OF SECTION.—

“(A) In carrying out”;

(B) in subparagraph (A), by indenting clauses (i) and (ii) appropriately;

(C) in subparagraph (B), by striking “approved” and inserting “in effect”; and

(D) in subparagraph (D)—

(i) in clause (i), by striking “an approved tribal energy resource agreement” and inserting “a tribal energy resource agreement in effect under this section”; and

(ii) in clause (ii), by striking “approved by the Secretary” and inserting “in effect”; and

(5) in paragraph (7)—

(A) by striking “(7)(A) In this paragraph” and inserting the following:

“(7) PETITIONS BY INTERESTED PARTIES.—

“(A) In this paragraph”;

(B) in subparagraph (A), by striking “approved by the Secretary” and inserting “in effect”;

(C) in subparagraph (B), by striking “approved by the Secretary” and inserting “in effect”; and

(D) in subparagraph (D)(iii)—

(i) in subclause (I), by striking “approved”; and

(ii) in subclause (II)—

(I) by striking “approval of” in the first place it appears; and

(II) by striking “subsection (a) or (b)” and inserting “subsection (a)(2)(A)(i) or (b)(2)(A)”.

SEC. 106. Report.

(a) In general.—Not later than 18 months after the date of enactment of this Act, the Secretary of the Interior shall submit to the Committee on Indian Affairs of the Senate and the Committee on Natural Resources of the House of Representatives a report that details with respect to activities for energy development on Indian land, how the Department of the Interior—

(1) processes and completes the reviews of energy-related documents in a timely and transparent manner;

(2) monitors the timeliness of agency review for all energy-related documents;

(3) maintains databases to track and monitor the review and approval process for energy-related documents associated with conventional and renewable Indian energy resources that require Secretarial approval prior to development, including—

(A) any seismic exploration permits;

(B) permission to survey;

(C) archeological and cultural surveys;

(D) access permits;

(E) environmental assessments;

(F) oil and gas leases;

(G) surface leases;

(H) rights-of-way agreements; and

(I) communitization agreements;

(4) identifies in the databases—

(A) the date lease applications and permits are received by the agency;

(B) the status of the review;

(C) the date the application or permit is considered complete and ready for review;

(D) the date of approval; and

(E) the start and end dates for any significant delays in the review process;

(5) tracks in the databases, for all energy-related leases, agreements, applications, and permits that involve multiple agency review—

(A) the dates documents are transferred between agencies;

(B) the status of the review;

(C) the date the required reviews are completed; and

(D) the date interim or final decisions are issued.

(b) Inclusions.—The report under subsection (a) shall include—

(1) a description of any intermediate and final deadlines for agency action on any Secretarial review and approval required for Indian conventional and renewable energy exploration and development activities;

(2) a description of the existing geographic database established by the Bureau of Indian Affairs, explaining—

(A) how the database identifies—

(i) the location and ownership of all Indian oil and gas resources held in trust;

(ii) resources available for lease; and

(iii) the location of—

(I) any lease of land held in trust or restricted fee on behalf of any Indian tribe or individual Indian; and

(II) any rights-of-way on that land in effect;

(B) how the information from the database is made available to—

(i) the officials of the Bureau of Indian Affairs with responsibility over the management and development of Indian resources; and

(ii) resource owners; and

(C) any barriers to identifying the information described in subparagraphs (A) and (B) or any deficiencies in that information; and

(3) an evaluation of—

(A) the ability of each applicable agency to track and monitor the review and approval process of the agency for Indian energy development; and

(B) the extent to which each applicable agency complies with any intermediate and final deadlines.

TITLE IIMiscellaneous amendments

SEC. 201. Issuance of preliminary permits or licenses.

(a) In general.—Section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) is amended by striking “States and municipalities” and inserting “States, Indian tribes, and municipalities”.

(b) Applicability.—The amendment made by subsection (a) shall not affect—

(1) any preliminary permit or original license issued before the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017; or

(2) an application for an original license, if the Commission has issued a notice accepting that application for filing pursuant to section 4.32(d) of title 18, Code of Federal Regulations (or successor regulations), before the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017.

(c) Definition of Indian tribe.—For purposes of section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) (as amended by subsection (a)), the term “Indian tribe” has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

SEC. 202. Tribal biomass demonstration project.

(a) Purpose.—The purpose of this section is to establish a biomass demonstration project for federally recognized Indian tribes and Alaska Native corporations to promote biomass energy production.

(b) Tribal biomass demonstration project.—The Tribal Forest Protection Act of 2004 (25 U.S.C. 3115a et seq.) is amended—

(1) in section 2(a), by striking “In this section” and inserting “In this Act”; and

(2) by adding at the end the following:

“SEC. 3. Tribal biomass demonstration project.

“(a) Stewardship contracts or similar agreements.—For each of fiscal years 2017 through 2021, the Secretary shall enter into stewardship contracts or similar agreements (excluding direct service contracts) with Indian tribes to carry out demonstration projects 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.

“(b) Demonstration projects.—In each fiscal year for which projects are authorized, at least 4 new demonstration projects that meet the eligibility criteria described in subsection (c) shall be carried out under contracts or agreements described in subsection (a).

“(c) Eligibility criteria.—To be eligible to enter into a contract or agreement under this section, an Indian tribe shall submit to the Secretary an application—

“(1) containing such information as the Secretary may require; and

“(2) that includes a description of—

“(A) the Indian forest land or rangeland under the jurisdiction of the Indian tribe; and

“(B) the demonstration project proposed to be carried out by the Indian tribe.

“(d) Selection.—In evaluating the applications submitted under subsection (c), the Secretary shall—

“(1) take into consideration—

“(A) the factors set forth in paragraphs (1) and (2) of section 2(e); and

“(B) whether a proposed project would—

“(i) increase the availability or reliability of local or regional energy;

“(ii) enhance the economic development of the Indian tribe;

“(iii) result in or improve the connection of electric power transmission facilities serving the Indian tribe with other electric transmission facilities;

“(iv) improve the forest health or watersheds of Federal land or Indian forest land or rangeland;

“(v) demonstrate new investments in infrastructure; or

“(vi) otherwise promote the use of woody biomass; and

“(2) exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.

“(e) Implementation.—The Secretary shall—

“(1) ensure that the criteria described in subsection (c) are publicly available by not later than 120 days after the date of enactment of this section; and

“(2) to the maximum extent practicable, consult with Indian tribes and appropriate intertribal organizations likely to be affected in developing the application and otherwise carrying out this section.

“(f) Report.—Not later than September 20, 2019, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—

“(1) each individual tribal application received under this section; and

“(2) each contract and agreement entered into pursuant to this section.

“(g) Incorporation of management plans.—In carrying out a contract or agreement under this section, on receipt of a request from an Indian tribe, the Secretary shall incorporate into the contract or agreement, to the maximum extent practicable, management plans (including forest management and integrated resource management plans) in effect on the Indian forest land or rangeland of the respective Indian tribe.

“(h) Term.—A contract or agreement entered into under this section—

“(1) shall be for a term of not more than 20 years; and

“(2) may be renewed in accordance with this section for not more than an additional 10 years.”.

(c) Alaska Native biomass demonstration project.—

(1) DEFINITIONS.—In this subsection:

(A) FEDERAL LAND.—The term “Federal land” means—

(i) land of the National Forest System (as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)) administered by the Secretary of Agriculture, acting through the Chief of the Forest Service; and

(ii) public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)), the surface of which is administered by the Secretary of the Interior, acting through the Director of the Bureau of Land Management.

(B) INDIAN TRIBE.—The term “Indian tribe” has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

(C) SECRETARY.—The term “Secretary” means—

(i) the Secretary of Agriculture, with respect to land under the jurisdiction of the Forest Service; and

(ii) the Secretary of the Interior, with respect to land under the jurisdiction of the Bureau of Land Management.

(D) TRIBAL ORGANIZATION.—The term “tribal organization” has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

(2) AGREEMENTS.—For each of fiscal years 2017 through 2021, the Secretary shall enter into an agreement or contract with an Indian tribe or a tribal organization to carry out a demonstration project to promote biomass energy production (including biofuel, heat, and electricity generation) by providing reliable supplies of woody biomass from Federal land.

(3) DEMONSTRATION PROJECTS.—In each fiscal year for which projects are authorized, at least 1 new demonstration project that meets the eligibility criteria described in paragraph (4) shall be carried out under contracts or agreements described in paragraph (2).

(4) ELIGIBILITY CRITERIA.—To be eligible to enter into a contract or agreement under this subsection, an Indian tribe or tribal organization shall submit to the Secretary an application—

(A) containing such information as the Secretary may require; and

(B) that includes a description of the demonstration project proposed to be carried out by the Indian tribe or tribal organization.

(5) SELECTION.—In evaluating the applications submitted under paragraph (4), the Secretary shall—

(A) take into consideration whether a proposed project would—

(i) increase the availability or reliability of local or regional energy;

(ii) enhance the economic development of the Indian tribe;

(iii) result in or improve the connection of electric power transmission facilities serving the Indian tribe with other electric transmission facilities;

(iv) improve the forest health or watersheds of Federal land or non-Federal land;

(v) demonstrate new investments in infrastructure; or

(vi) otherwise promote the use of woody biomass; and

(B) exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.

(6) IMPLEMENTATION.—The Secretary shall—

(A) ensure that the criteria described in paragraph (4) are publicly available by not later than 120 days after the date of enactment of this subsection; and

(B) to the maximum extent practicable, consult with Indian tribes and appropriate tribal organizations likely to be affected in developing the application and otherwise carrying out this subsection.

(7) REPORT.—Not later than September 20, 2019, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—

(A) each individual application received under this subsection; and

(B) each contract and agreement entered into pursuant to this subsection.

(8) TERM.—A contract or agreement entered into under this subsection—

(A) shall be for a term of not more than 20 years; and

(B) may be renewed in accordance with this subsection for not more than an additional 10 years.

SEC. 203. Weatherization program.

Section 413(d) of the Energy Conservation and Production Act (42 U.S.C. 6863(d)) is amended—

(1) by striking paragraph (1) and inserting the following:

“(1) RESERVATION OF AMOUNTS.—

“(A) IN GENERAL.—Subject to subparagraph (B) and notwithstanding any other provision of this part, the Secretary shall reserve from amounts that would otherwise be allocated to a State under this part not less than 100 percent, but not more than 150 percent, of an amount which bears the same proportion to the allocation of that State for the applicable fiscal year as the population of all low-income members of an Indian tribe in that State bears to the population of all low-income individuals in that State.

“(B) RESTRICTIONS.—Subparagraph (A) shall apply only if—

“(i) the tribal organization serving the low-income members of the applicable Indian tribe requests that the Secretary make a grant directly; and

“(ii) the Secretary determines that the low-income members of the applicable Indian tribe would be equally or better served by making a grant directly than a grant made to the State in which the low-income members reside.

“(C) PRESUMPTION.—If the tribal organization requesting the grant is a tribally designated housing entity (as defined in section 4 of the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4103)) that has operated without material audit exceptions (or without any material audit exceptions that were not corrected within a 3-year period), the Secretary shall presume that the low-income members of the applicable Indian tribe would be equally or better served by making a grant directly to the tribal organization than by a grant made to the State in which the low-income members reside.”;

(2) in paragraph (2)—

(A) by striking “The sums” and inserting “Administration.—The amounts”;

(B) by striking “on the basis of his determination”;

(C) by striking “individuals for whom such a determination has been made” and inserting “low-income members of the Indian tribe”; and

(D) by striking “he” and inserting “the Secretary”; and

(3) in paragraph (3), by striking “In order” and inserting “Application.—In order”.

SEC. 204. Appraisals.

(a) In general.—Title XXVI of the Energy Policy Act of 1992 (25 U.S.C. 3501 et seq.) is amended by adding at the end the following:

“SEC. 2607. Appraisals.

“(a) In general.—For any transaction that requires approval of the Secretary and involves mineral or energy resources held in trust by the United States for the benefit of an Indian tribe or by an Indian tribe subject to Federal restrictions against alienation, any appraisal relating to fair market value of those resources required to be prepared under applicable law may be prepared by—

“(1) the Secretary;

“(2) the affected Indian tribe; or

“(3) a certified, third-party appraiser pursuant to a contract with the Indian tribe.

“(b) Secretarial review and approval.—Not later than 45 days after the date on which the Secretary receives an appraisal prepared by or for an Indian tribe under paragraph (2) or (3) of subsection (a), the Secretary shall—

“(1) review the appraisal; and

“(2) approve the appraisal unless the Secretary determines that the appraisal fails to meet the standards set forth in regulations promulgated under subsection (d).

“(c) Notice of Disapproval.—If the Secretary determines that an appraisal submitted for approval under subsection (b) should be disapproved, the Secretary shall give written notice of the disapproval to the Indian tribe and a description of—

“(1) each reason for the disapproval; and

“(2) how the appraisal should be corrected or otherwise cured to meet the applicable standards set forth in the regulations promulgated under subsection (d).

“(d) Regulations.—The Secretary shall promulgate regulations to carry out this section, including standards the Secretary shall use for approving or disapproving the appraisal described in subsection (a).”.

SEC. 205. Leases of restricted lands for Navajo Nation.

(a) In general.—Subsection (e)(1) of the first section of the Act of August 9, 1955 (commonly known as the “Long-Term Leasing Act”) (25 U.S.C. 415(e)(1)), is amended—

(1) by striking “, except a lease for” and inserting “, including a lease for”;

(2) by striking subparagraph (A) and inserting the following:

“(A) in the case of a business or agricultural lease, 99 years;”;

(3) in subparagraph (B), by striking the period at the end and inserting “; and”; and

(4) by adding at the end the following:

“(C) in the case of a lease for the exploration, development, or extraction of any mineral resource (including geothermal resources), 25 years, except that—

“(i) any such lease may include an option to renew for 1 additional term of not to exceed 25 years; and

“(ii) any such lease for the exploration, development, or extraction of an oil or gas resource shall be for a term of not to exceed 10 years, plus such additional period as the Navajo Nation determines to be appropriate in any case in which an oil or gas resource is produced in a paying quantity.”.

(b) GAO report.—Not later than 5 years after the date of enactment of this Act, the Comptroller General of the United States shall prepare and submit to Congress a report describing the progress made in carrying out the amendment made by subsection (a).

SEC. 206. Extension of tribal lease period for the Crow Tribe of Montana.

Subsection (a) of the first section of the Act of August 9, 1955 (25 U.S.C. 415(a)), is amended in the second sentence by inserting “, land held in trust for the Crow Tribe of Montana” after “Devils Lake Sioux Reservation”.

SEC. 207. Trust status of lease payments.

(a) Definition of Secretary.—In this section, the term “Secretary” means the Secretary of the Interior.

(b) Treatment of lease payments.—

(1) IN GENERAL.—Except as provided in paragraph (2) and at the request of the Indian tribe or individual Indian, any advance payments, bid deposits, or other earnest money received by the Secretary in connection with the review and Secretarial approval under any other Federal law (including regulations) of a sale, lease, permit, or any other conveyance of any interest in any trust or restricted land of any Indian tribe or individual Indian shall, upon receipt and prior to Secretarial approval of the contract or conveyance instrument, be held in the trust fund system for the benefit of the Indian tribe and individual Indian from whose land the funds were generated.

(2) RESTRICTION.—If the advance payment, bid deposit, or other earnest money received by the Secretary results from competitive bidding, upon selection of the successful bidder, only the funds paid by the successful bidder shall be held in the trust fund system.

(c) Use of funds.—

(1) IN GENERAL.—On the approval of the Secretary of a contract or other instrument for a sale, lease, permit, or any other conveyance described in subsection (b)(1), the funds held in the trust fund system and described in subsection (b), along with all income generated from the investment of those funds, shall be disbursed to the Indian tribe or individual Indian landowners.

(2) ADMINISTRATION.—If a contract or other instrument for a sale, lease, permit, or any other conveyance described in subsection (b)(1) is not approved by the Secretary, the funds held in the trust fund system and described in subsection (b), along with all income generated from the investment of those funds, shall be paid to the party identified in, and in such amount and on such terms as set out in, the applicable regulations, advertisement, or other notice governing the proposed conveyance of the interest in the land at issue.

(d) Applicability.—This section shall apply to any advance payment, bid deposit, or other earnest money received by the Secretary in connection with the review and Secretarial approval under any other Federal law (including regulations) of a sale, lease, permit, or any other conveyance of any interest in any trust or restricted land of any Indian tribe or individual Indian on or after the date of enactment of this Act.


Union Calendar No. 823

115th CONGRESS
     2d Session
S. 245
[Report No. 115–1057, Part I]

AN ACT
    To amend the Indian Tribal Energy Development and Self Determination Act of 2005, and for other purposes.

November 30, 2018
    Reported from the Committee on Natural Resources
November 30, 2018
    Committee on Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

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