Randy Manion:           Good morning or good afternoon wherever you may be. And welcome to the eighth webinar of the 2016 DOE Tribal Renewable Energy Webinar Series. Today's webinar is Project Regulatory Considerations. I'm Randy Manion, today's webinar chair and manager of Western Area Power Administration's Renewable Resource Program. Let's go over some event details first. Today's webinar is being recorded and will be made available on DOE's Office of Indian Energy Policy and Programs website along with copies of today's PowerPoint presentations in about one week.

                                 Everyone will receive a post-webinar e-mail with the link to the page where the slides and recordings are located. Because we are recording this webinar all phones have been muted for this purpose and we'll answer all your questions at the end of all the presentations. However, you can submit a written question at any time by clicking on the question button icon in the webinar control box on your screen. And then you can type your question in. And you can do that at any time.

                                    At the end of the webinar when we go into the official Q&A period if you've entered your audio pin you can click the raise your hand icon and I will unmute you so you can ask our panel your question directly. And we'll try to keep the webinar to no more than 90 minutes today. We have several speakers so let's get started with our first with Doug MacCourt providing opening remarks

Doug is the senior policy advisor to the director and staff of the Office of Indian Energy Policy and Programs and works throughout DOE and with other federal and state agencies on policy, legislative and funding issues that are critical to the office's mission of developing and deploying clean energy and related economic development projects in Indian country. Doug has more than 25 years of experience working with tribes, Alaska Native corporations, and tribal business enterprises on all aspects of energy development and natural resource matters.

Doug published the Renewal Energy Development in Indian Country: A Handbook for Tribes and is listed in Chambers USA: America's Leading Lawyers for Business and Best Lawyers in America for Native American and natural resources law. Prior to joining DOE, Mr. MacCourt was a Partner in the Portland office of Ater Wynne, where he led the Land Use and Redevelopment Practice in the firm’s Business Group.

Prior to joining DOE he was a partner in the Portland office of Ater Wynne where he created the firm's Native American Group and led the Land Use and Redevelopment Practice in the firm's Business Group. And with that Doug the virtual floor is all yours.

Doug MacCourt:        Well thank you Randy and hello everyone. Again this is Doug MacCourt, senior policy advisor for the Department of Energy Office of Indian Energy. And I join Randy in welcoming all of you to the eighth webinar of this 2016 webinar series. The series is sponsored by two United States Department of Energy organizations: the Office of Indian Energy Policy and Programs and the Western Area Power Administration.

                                    It is really a key part of our deployment program but really crosses all of our initiatives in our innovation program policy because it is key to providing how we go about building capacity and providing our congressional mandate for education in promoting Indian energy. And in doing that and providing that assistance we work across the Department of Energy, across government agencies with all federally recognized tribes including Alaska Natives, Alaska Native Village, and regional corporations to promote Indian energy policies and initiatives and helping the tribes overcome the barriers to achieve more energy independence.

                                    And we do that through the Office of Indian Energy on what we call a fuel-neutral basis. Now this webinar series is focused on renewable energy. But many tribes also either purchase fossil fuel generated electricity or have some of those resources and want to find cleaner ways of developing them and primarily bringing down the cost of electricity and other energy. And that is squarely within our congressional mandate as well. So we try to cover the field again as what we call on a fuel-neutral basis.

                                    Getting back to this webinar series it's an example of the type of education and capacity building efforts we've developed with other partners. As most of you know the purpose of focusing on renewable energy is that there is a significant, yet largely untapped, opportunity estimated to be five percent of all US renewable energy generation potential on tribal lands. In addition to improving economic health and quality of life in tribal communities our real goal here is to foster economic sovereignty through tribal energy development that serves not only the community's demand for electricity and other energy services, whether they're designed to facilitate their water systems, their sewer systems, their communities.

                                    But also to provide them a potential revenue source and economic development opportunity both on the reservation and anywhere they plan to do business. So what are we doing today? Today we're focusing on the many permitting and project regulatory issues that need to be addressed in developing tribal energy projects. And to that I'd just like to say a few words about what regulation really means for tribal energy and you know at base energy in essence is deeply embedded in a heavy regulatory environment.

                                    And it's not just regulations relating to the use of tribal lands which has been the focus of a lot of attention and improvement both in current legislation and over the years looking specifically at tools to enhance clean energy and renewable energy development on tribal lands. But it's utility regulations which bring in a host of state and federal energy policies, not all of which apply on tribal lands. But as tribes consider larger projects or trying to at least integrate some of their smaller projects into net metering policies for example they interface with these state and federal policies and they're a critical component of the regulatory environment.

                                    We have an economic regulatory component to tribal energy which impacts financing of tribal energy projects. And we'll get into some of that today. And we'd be remiss not to note that the whole body of Indian law which weaves together legislation, treaty rights, executive orders, and all the case law that's been developed interpreting the Constitution since the early days of the nation impacts how tribes develop energy projects and really expresses the primacy of tribes in that process and the importance of tribal law as it governs the relationship of tribal and non-tribal participants in tribal energy projects whether those are government participants or private sector participants.

                                    So I'd just like to make one other comment about the importance of and how the regulatory environment affects this. And that is the tie-in to strategic energy planning. Strategic energy planning is a really important way in which to – for the tribe and the tribal organizations that are going to pursue energy development on tribal lands including their partners, whether they're tribal or non-tribal to focus on the best mechanisms and the best types of organizations and structure to make these projects a success.

                                    And for an example there are decisions that need to be made in pursuing certain tribal projects as how to put the tribes' policies and desires forward in the most feasible economic manner. So there are choices about which type of entity to pursue. And one of the things that I've actually worked with Stan Webb, one of our other presenters here on this webinar, in developing Section 17 corporations. And for those of you who haven't attended some of our prior webinars Section 17 is just a reference to the Indian Reorganization Act.

                                    It is a Congressionally-structured corporation that allows tribes to put land into the corporation through the tribes' normal legal processes under tribal law and in doing so creates a corporation that is somewhat on the level playing field with non-tribal corporations. The corporation can then go ahead and lease the land without BIA being involved or the federal government being involved in the leasing process. The tribal corporation is structured so and Congressionally-authorized to incur tax exempt debt financing.

                                    It can waive sovereign immunity on behalf of the corporation. And it has other mechanisms and structures that allow these tribal projects to really get an advantage and attract the kind of private capital and partners that you know other structures don't. So that's just one example of how regulation has effected this particular area even though the Section 17 corporation as an example wasn't ever designed with tribal energy in mind.

                                    So we're really excited today to have a conversation around tribal – or around regulation of tribal energy. I wanted just to note that we have three other webinars remaining this series. Each webinar hopes to build on the previous webinars. The Foundation of Strategic Energy Planning again, often the undervalued or overlooked benefits of economic development in that strategic planning process. So in each of the 2016 monthly webinars we've been trying to include tribal case studies and information, hands-on tools that you can use to progress towards self-determination, and energy independence.

                                    It's really critical that we get your feedback. So if you have the opportunity at the end of this webinar series to give us your thoughts on how we did and whether we met your needs and how we can do a better job in doing that going forward, that information is critical. So thank you for the opportunity to give some opening remarks. And with that I'll turn the virtual floor back over to Randy.

Randy Manion:           Thank you Doug. And we have three other speakers today: John Clancy, Tamera Dawes, and Stan Webb. And I'll provide a brief introduction about each of them now and then we'll get started. So John Clancy is a partner at the law firm of Godfrey & Kahn S.C. and heads the firm's Environmental and Energy Strategies Group. John has been fortunate to work with numerous tribes on environmental protection and clean energy initiatives.

                                    He has worked with tribes and tribal housing authorities to successfully seek competitive federal and grant funding for projects and to combine that funding with tax credit financing and other sources or funds to help his clients develop renewable energy and other clean energy projects in a cost effective manner. In helping tribal entities to develop these energy projects John has worked with them to address and meet the various environmental and related standards that may apply to the projects.

                                    Following John is Stan Webb. Stan is the realty officer at the BIA's Western Regional Office in Phoenix, Arizona, a position that he has held for more than 25 years. He has also worked in the private practice of federal law at the BIA Central Office in Washington, DC and BIA agencies in Minnesota and Wisconsin. He received his undergraduate and law degrees from the University of Kansas. He also has a master's in public administration from Harvard University's Kennedy School of Government.

                                    He is a member of the State Bar of Arizona and the Cherokee Nation of Oklahoma. He holds a CCIM designation awarded from the Commercial Investment Real Estate Institution and was licensed by the Arizona Department of Real Estate in 2015. And then following Stan is Tamera Dawes. Ms. Dawes is the regional realty specialist at the Bureau of Indian Affairs Western Regional Office in Phoenix.

                                    She is the lead contact for rights of way, land use planning, and energy-related transactions and assists in environmental documentation, review, and project management. She has over 16 years of experience working in the nonprofit tribal private and federal arena with specific attention to environmental land use planning, economic development, and policy development and analysis. She is a graduate of Arizona State University.

                                    And so with that John, just give me a moment to get your slide deck teed up and we'll get started.

John Clancy:              Great. Thank you very much Randy. And I think Randy I'll indicate when it's next slide. Is that right I guess?

Randy Manion:           Yes, thank you.

John Clancy:              Perfect. As Randy indicated I head up Godfrey & Kahn's Environmental and Energy Strategies Group. And one of the areas of primary work for me, and I've been honored to do, is to work with tribes on both environmental protection initiatives but even more so now clean energy project development. And because of that well it's been exciting to work with tribes and tribal housing authorities and other tribal entities in pursuing these projects and helping to figure out how to make them both as effective as possible in providing the kind of energy they want and it's cost effective as possible.

                                    And then also kind of thinking through and working through the various environmental and other issues that apply, obviously even for clean energy projects. Even the cleanest of projects has environmental issues and related regulatory issues that need to be address. Randy if you'll give me my next slide.

                                    As you can imagine there are a number of federal laws and regulations that apply here. I think Doug gave a great overview of the kinds of areas in which both federal and state law can apply. Primarily typically these projects are on reservations and oftentimes on trust land. The laws that are most applicable tend to be either tribal law or federal laws, regulations, or Executive Orders. But I think it's very important as Doug noted to think about state laws and regulations as well.

                                    And typically obviously as those on the phone probably are aware there are at least arguments and usually actuality essentially that the state laws and regulations may not apply on the reservation. But as Doug noted because of the interconnection to the utility system and because of the fact there are oftentimes state or utility incentives that are often run through state programs there often are state requirements you need to think about. One thing is obviously there are a number of states that have in my mind very, very good incentive programs.

                                    It could be grants. They could be production credits. Or they could be other kinds of incentives. They could be feed-in tariffs, various programs that make energy projects more economic and help to drive down especially the upfront costs which could be very important to make these projects work. But typically then there are also state requirements that apply. So it's very important to be aware of those state requirements. For instance in New York they have their own version of NEPA called SEQR and they require an environmental analysis typically on top of the normal NEPA analysis that is done for a project because of federal funding or other reasons.

                                    So you'd have an additional environmental review there for those incentives. And there can be additional requirements. And obviously it typically is a contract you enter into to receive the incentives. And under that contract you obviously need to apply or follow the rules of the contract unless they are negotiated to be different under the program. Another key issue is thinking through from the state the net metering programs as Doug mentioned. And also kind of the related issue of interconnection.

                                    And there can be requirements because of the application for those programs to meet certain state requirements or kind of utility requirements that are enforced by the state. One key issue to think through on these projects is various states have different kinds of utility regulations. Some are more regulated than others. Some may have certain prohibitions on how energy is sold or provided. The key issue there then again is you know whether those state laws apply or not and whether it makes sense to think about the tribe developing its own energy ordinance or energy requirements that might supersede the state requirements in case there are any issues under the state law.

                                    For instance some states have requirements regarding who can be a public utility and who can sell energy to the public. Typically these projects are directly providing energy to the tribe. So there's a good position that that doesn't apply. But there could be additional protections put in place by having the tribe have its own ordinances for energy issues so that it can authorize whatever energy projects going forward and assert its jurisdictional authority that way. So that sometimes can be an important issue to think about as well.

                                    On a related issue these regulatory programs can either provide opportunities for the projects as I mentioned with these state incentive programs for example, and I'll talk about some federal programs too. But then they also obviously create requirements to be met. And we want to think about things from both sides of that issue. And then secondly I think it's important to be thinking about these issues in terms of requirements that apply because of a NEPA type review that occurs which usually requires looking at – meeting certain standards or actually checking out certain standards essentially.

                                    Reviewing to see what the impacts in different areas would be for air, water, et cetera, and oftentimes looking through the lens of the underlying regulatory program which may or may not trigger any real requirements. But then also you need to be careful to make sure that if there are subsequent requirements that apply to your project – For instance if it's a biomass project and it's going to emit air emissions then you need to make sure that it can be properly permitted under the air program. Next slide please.

                                    I first want to talk about some of the programs under the federal side that are important to think about mostly because they push the project forward from an economic point of view. They also then trigger certain regulatory considerations to think about in terms of requirements though as well. But there are two kind of key areas on the federal side I think in this area. One, there are federal funding programs. And the other one is the federal tax incentives, especially now for wind and solar. Next slide please.

                                    You know when you think about the federal regulatory grant programs that are available there are a number of very good grant programs that have been regularly made available to tribes and sometimes to others too that tribes may be competing against that could be used to make energy projects much more economic and really impossible to take away the need for direct tribal dollars to go into the projects. One is obviously the DOE Tribal Energy Program and the grants available under that, especially the granted or issued essentially every year or year and one-half or so for projects that would actually serve – you know provide energy to tribal buildings on reservations.

                                    There is also the Indian Housing Blok Grant that's available for Indian housing and the Indian Community Development Block grant, both of which HUD has confirmed can be used for energy projects. So it can be very valuable to make those projects work well. There are also DOI grants that are available. You've probably heard about the Indian Energy and Economic Development Program grants. Those are typically more for planning for projects but can be very, very helpful in bringing the project up to the point of being ready to be built.

                                    There is also the REAP program and the Rural Utilities and Community Facilities program under USDA which is available actually not directly to tribes but to basically business entities which can include Section 17 corporations though and can be very valuable to rural energy projects as well, providing up to 25 percent of the cost of those projects.

And there is also then the Federal Home Loan Bank – it should say Bank, not Band, sorry – Affordable Housing Program which can be very valuable especially for energy efficiency projects since you have low income tribal homes. So I think there are a whole set of programs to be aware of. These are all really regulatory programs which then have their own regulatory requirements that I'll talk about in a second as well. Next slide please.

Then on top of that there are Investment Tax Credits and actually very valuable depreciation benefits that can come with – especially with solar and wind projects but the tribes can't directly take advantage of. And because of that there's a need to think through structuring kind of like Doug indicated at the beginning. One way of going could be a Section 17 company or corporation. But one issue there is just making sure if you want to monetize the value of the tax credits and the depreciation.

The tax credits are typically 30 percent of the cost of these projects because they're all considered – All the equipment and the installation costs are typically eligible. The basic way to what they call monetize these credits is typically to have a partnership with investors that can utilize the tax credits and typically to have the partnership 99 percent owned for tax purposes. Not necessarily for how the income flows from the project or how the tribe receives credit for grant money or the funds it brings to the project.

You can typically get full credit for that. But on the other hand in order to monetize the tax credits we need to have as much of the ownership from the IRS's point of view be as tax investor as possible. So that's usually worked through that way. And then – But one thing to recognize about these kinds of situations is that they are a negotiated situation working with an outside investor typically that applies the tax benefits. So it's usually a negotiated agreement as to how the benefits are shared.

But oftentimes you can receive full or close to full value for the tax credits through these kinds of structures which if used properly can create essentially like another big grant for the project to really make it go forward. It's important to note that these tax credits though are going to phase out over time. They're going to work their way down in percentages. Solar takes a while to start working down. But wind starts kind of right away. So it's important to think about meeting the requirement to begin construction soon enough to get full credit for these tax credits. Next slide please.

And then if you're going to utilize these grants and the tax credits that raises a fair amount of issues on the regulatory side. One is that if you're going to bring a partner in typically we would create a separate entity. It would be an affiliate of the tribe but we'd have to think about how do we give access to that entity for the project. And that can trigger BIA review. And that's where things like the HEARTH Act becomes important and that'll be talked about later on in this webinar.

Another key issue I think is making sure that there's a good understanding of the federal procurement requirements that go along with the grants and the particular requirements for the grants that are received. And a big issue now has become – and this also is making sure folks are on top of it – but meeting the Part 200 Procurement regulations that apply to essentially every federal grant program now that are relatively new and making sure that the project complies with all those requirements.

If there are federal funds that apply to the project then there is also the issue of making sure that NEPA review is thought about since that typically triggers – If there are federal funds for a project the requirements for a need to review – which will be discussed later on in this webinar as well. That's how I think a lot of the NEPA stuff gets triggered as well. Next slide please.

Another thing to think about – This is typically more on the side though but for incentives that are basically based on regulatory programs, renewable energy credits, or other kinds of perhaps production credits or other incentives for renewable energy projection. These are typically driven by the fact that utilities in those states that have these programs are usually required to sell a certain amount of their energy, a certain percentage of their energy or amount of their energy as renewable energy.

And therefore they need to have a certain amount of renewable energy credits or other – so basically renewable energy credits to match up to show that they have sold that much renewable energy. So that can be an important driver for projects as well. Again then you need to make sure that the facility qualifies and it's certified in accordance with the state requirements to quality to produce the credits and then think about how those credits will be utilized, either internally by the tribe for the project or potentially sold to help make the project more economic. Next slide please.

And then there's another area of I think important at least potential regulations out there that are critical to be thinking about as you're thinking about – Especially for your overall strategy for your tribe or your tribal entities or renewable energy that there are now essentially on the books requirements for reductions of carbon dioxide from existing as well as new electric generating units. Especially things like coal plants and natural gas plants. There are standards that exist for new or modified facilities. But the big issues tends to be the standards that apply for existing facilities or that could apply for existing facilities basically that qualify as being electric generating units.

Those are typically again coal and natural gas facilities. Under the Clean Power Plan which I has been issued by EPA but has been staid by the Supreme Court because of litigation and is presently before the D.C. Circuit there are requirements for existing what they call EGUs to reduce their carbon dioxide emissions. But there is also on the flip side opportunity for those to facilities to meet the limits by being involved in or connected with renewable energy and energy efficiency projects.

And there are basically these state plans being developed now to implement the trading programs that could exist, at least in the states that are pursuing those programs. And there is also I think a critical opportunity for tribes under the Clean Energy Incentive Program which is set up to encourage early development, early action, on renewable energy and energy efficiency projects in low income areas. There are actually tribal groups that have been pushing for this to apply generally to all reservation based projects.

And there are going to be discussions with EPA about that. So assuming that the Clean Power Plan can withstand the judicial review that it's going under right now which I think it has at least shot of doing these programs could be very, very important to creating the additional incentives for clean energy projects to go forward on reservations.

Because they would essentially create additional credits that utilities would need with existing EGUs would need to purchase or become associated with tribal and other clean energy projects to allow them to meet their standards. So I think it's a very important issue to be tracking as you're pursuing your clean energy projects and strategies. Next slide please.

There are also a number of other regulatory requirements that could apply to a clean energy projects that you need to think about meeting as well. One is just the requirements for an air emissions permit if your facility emits criteria or hazardous pollutants. And basically this is most important if you're going to have like a biomass or biogas plant that will actually emit emissions or a natural gas facility. And to work through the issues it's key to know whether you're in an attainment area and whether the facility is a major source.

The attainment area determines kind of the level to which emissions can occur before you're a major source. And a major source versus a minor source determines the level of controls that are going to be applicable to your project. And I just gave a citation for the designated nonattainment areas. Next slide please.

Another key issue to be thinking about for projects is the National Historic Preservation Act in compliance with that. I think you know folks that work within tribes are aware probably of working through these issues, typically whenever work is done on a reservation because of the potential impact to historic and cultural resources. I just provided the statute and regulator sites for that.

And the key issue typically I think as you're aware is if it's on reservation having a THPO concurrence of the lack of effect on historic properties, and if there is an impact steps to mitigate those impacts. So that needs to be carefully considered for energy projects just like any other project on the reservation. Next slide please.

Another issue that typically we're working through or oftentimes comes up is if it's a bigger project and it might impact wetlands. Then there's a need potentially for Section 404 Permit under the Clean Water Act. So the key issue typically is: is this project going to be in a wetland area? And then secondly if it is, is there an alternative site to avoid that? That can also be very, very helpful, to not have to go through these issues and also to have lesser impacts from your project. So I just provided again the site for the National Wetland Inventory to help find out if there are wetlands in a particular area. Next slide please.

Another key issue: again if you're interested in a plant that will have any kind of water discharge – and that typically comes up again with like a biomass or biogas plant – where there might be discharges where there's contact water. So it has potential emissions in it. The need to typically then obtain either a permit for the discharge which would oftentimes be called an NPDES permit issues by the EPA if it's on reservation land.

And then it would need to make sure that those discharges don't cause problems with meeting water quality standards. Or if the discharge goes through let's say the tribe's or another's wastewater treatment facility then you need to make sure that the discharge meets the treatment facility's requirements. So it can comply with its own discharge permit. Next slide please.

Another area of regulatory concern that probably should be thought about – and this mostly depends if the project is built on what's oftentimes called a brownfields site is whether there is any contaminations on the site that may be impacted by the construction of the project. So I think one other key thing is just making sure there's good knowledge in terms of what's underground at the project site especially if there's going to be digging that's going to occur at the site.

This may not be as much of an issue for solar where there might just be poles in the ground or potentially foundations that are not very deep. But if you're talking about a big wind project or other projects where you have a large foundation this is an important issue to be thinking about as well. Next slide please.

The next two slides deal with impacts to species. I think you're all aware probably of the Endangered Species Act. And the key issue there is will there be an effect on federally protected listed or proposed Threatened or Endangered Species? So just as a resource I have the citations to the statutes and the regulations as well as the list of endangered animal and plant species to be thinking about if your project is going to have impacts on lands where there could be those species. Next slide.

There is also the Migratory Bird Treaty Act. I put this in here mostly because for wind projects this is going to be a big issue. So can the Endangered Species Act frankly. If you're in an area where there typically is migratory bird patterns there is criteria – There are legal requirements against essentially taking or capturing or impacting those species. So it's important to be aware of potential impacts to birds and migratory birds if you're going to pursue a wind project. And make sure you're complying with the Migratory Bird Treaty Act as well and thinking about that ahead of time. Next slide please.

Then the next slide mostly so you have the resources available to you are a number of areas where there is federal law that could impact the location of a project – and energy or other project. One is the Airport Runway Clear Zones and the Accident Potential Zones. And really the key issue tends to be confirming the location of your facility especially if it's going to be something like a wind tower and how far away it is from a civil or a military airfield and making sure you meet those criteria. Next slide please.

Then there is a series of acts that typically only apply in certain areas because there are areas that are essentially reserved for protection. There's a Coastal Zone Management Act which protects coastal areas. And if you go – There's information that can be obtained on the web of whether or not you're in a Coastal Zone Management area and making sure that you're not going to have impacts to that. Next slide please.

There is also the Coastal Barrier Resources Act. And I have a citation to the maps that are available to see if you're in one of those areas that need to be thought about. And these areas typically need to be thought about even if there's not a significant impact or a violation to the Act, just making sure for purposes of NEPA that you meet the NEPA review requirements. The next slide please.

Under the Safe Drinking Water Act there is a Sole Source Aquifer protection element. And so the key issue if your project is in one of those areas and what are the impacts of that? Typically I don't think that a wind or solar project would have the kind of impacts that would stop a project. But it's important to be aware of that and just making sure that you know your area is not in a Sole Source Aquifer area if possible. And the next slide.

There is the Wild and Scenic Rivers Act. Again this is a locational issue. So if you are near one of those areas it needs to be thought through on what the impacts are, and especially typically for a NEPA review, making sure that those issues are thought about. And then finally the Farmland Protection Policy Act, again a locational issue: are you in an area that has agricultural lands that are meant to be protection or meant to be protected under the Act.

And that's it. Thank you very much.

Randy Manion:           Thank you John. I know there's a lot of information to cover in 20 minutes but you did a great job so thanks. Stan you're next and let me get your slide deck pulled up.

Stan Webb:                 Okay thank you. Thanks Randy. Tamera and I would like to thank DOE for asking us to participate. My slides are going to focus on leasing by non-tribal developers and then Tamera will follow up by talking about how NEPA will apply to those types of projects. I'll begin with an overview and then talk briefly about the HEARTH Act and other no-approval scenarios. And then we'll conclude with a summary of the major changes in the BIA's long-term leasing regulations including a new _____ [sounds like set apart] on renewable energy leases. So we'll now go to the next slide.

                                    The HEARTH Act, the acronym stands for Helping Expedite and Advance Responsible Tribal Home ownership. The HEARTH Act was enacted in July of 2012 and potentially it streamlines the process for tribes wishing to enter into long-term surface leases of tribal land, not allotted land, for all types of community and economic development purposes. Not just housing. The HEARTH Act amends the Long-Term Leasing Act of 1955 to allow tribes to lease tribal land without bureau approval so long as they first have BIA-approved Tribal Regulations.

                                    That was followed up by January 2013; the long-term surface leasing regulations found at Title 25 of CFR Part 162 were revised substantially for the first time since the 1960s with new subparts for the first time on Residential Leases – that's Subpart C, Business Leases (Subpart D) and Renewable Energy Leases (Subpart E). Subpart E is similar to Subpart D but it applies only to wind and solar energy development projects at either the utility or commercial scale – or utility or community scale – I'm sorry. And it includes authorizations for short-term maximum six year wind evaluation leases.

                                    The implementation of the HEARTH Act and the other tribal empowerment provisions and the new Part 162 that I'll get to later are entirely dependent on the tribe and can be exercised tribe by tribe, lease, by lease. And in deciding whether to adopt Tribal Regulations under the HEARTH Act tribes may wish to fist consider whether their needs would be met if they leased under the new streamlines empowerment provisions in Part 162 or under some other leasing authority that doesn't require bureau approval. Next slide.

                                    Okay the threshold considerations for tribes in deciding how they want to structure their project. First they need to know the new Part 162 expressly defers to tribes on the economic terms of their leases. Rent, term and bond negotiations the BIA now will defer to tribes. It eliminates the approval requirement for any tribal lease where the tribe expressly requests a waiver of the appraisal. And that goes even with bureau approval is needed.

                                    Where bureau approval is needed the new Part 162 now also imposes strict timelines for BIA processing. Not just for leases but also what I'll call ancillary agreements, amendments, assignments, subleases, and leasehold financing instruments. And the new Part 162 also authorizes a new preliminary review of proposed forms and terms if the parties request. Another thing to keep in mind is where a HEARTH Act lease requires an access or utility easement a BIA grant of easement and NEPA documentation assessing the impact of the entire project will still be needed. There is no HEARTH Act counterpart for rights of way.

                                    And as John mentioned even where bureau approval is not needed certain federal and environmental laws will still apply including the Clean Air Act, Clean Water Act, and the Endangered Species Act. Standard time on survey requirements will still apply with the lease still needing to be recorded in the BIA's Land Titles and Records Office. Unlike Tribal Energy Resource Agreements which I'll talk about later tribal administrative capacity is not an issue to be considered by BIA in its review of tribal regulations under the HEARTH Act.

                                    Though some developers, lenders, and title companies may continue to see BIA approval as being needed to maximize certainty and minimize their risk. And the last thing for tribes to consider is if they utilize special leasing acts for their reservation and they have reservation-specific provisions that are key to development they need to seek special HEARTH Act-type amendments if they want to continue to use that authority, the HEARTH Act being a general authority.

                                    And they may also – Usually it'll be lender or OSC-driven but they may also need to take a look at their Constitution. IRA tribes may have provisions in their Constitutions which require bureau approval of tribal leases. And that would have to be modified. Next slide.

                                    The standard of review for HEARTH Act regulations is twofold. The regulations need to be consistent with Part 162. And the regulations must provide for a tribal environmental review process. So there won't be a bureau approval of the lease so NEPA won't strictly apply. But the HEARTH Act does require a tribal environmental review process which ensures the identification, evaluation, and mitigation of significant impacts.

                                    The guidance on this was issues in January 2013. It had a one year expiration date on it but it's still essentially being applied. The authority is held at our central office. The guidelines provide for a 120-day review period. Or that's mandated by the Act – I'm sorry. A 120-day review period to date or as of two weeks ago there were 29 sets of Tribal Regulations that had been approved for 25 tribes and there were 18 more in the pipeline. The Interim Guidance addresses the environmental review requirement by mandating that significant effects on the environment must be made subject to public notice and comment and tribal response and evaluation.

                                    And then it suggests that the tribal regulations also address the issues that I've set for there. Informally we've been told that HEARTH Act regulations should not be used to authorize gaming leases even for on reservation land and for tribal enterprises. But they certainly can be used for renewable energy leases. And we've been told that business leases as approved – business lease regulations – can be utilized for renewable energy leases even though Part 162 now separates those two. Next slide.

                                    Other no approval scenarios, just real quick – Doug mentioned Section 17 of the IRA allows tribal corporations with BIA-approved charters to enter into leases with third parties for up to 25 years with no tribal environmental review being strictly required. Tribal land can generally be developed by tribally-owned enterprises without leases including rooftop installations so long as leasehold financing is not required. But where all or part of the complete project is to be leased to a third party then a ground lease is almost certainly going to be needed to support the space sublease.

                                    Another no approval scenario is the TERA that I alluded to before – Tribal Energy Resource Agreements. In 2005 the Energy Policy Act Congress authorized power generation leases for terms of up to 30 years. But no TERA has yet been approved in part due to the regulations adopted a few years later, and the Title 25 Part 224 relating to tribal administrative capacity. So I would assume for now the tribes that wish to avoid the strict application of NEPA will look at the HEARTH Act rather than the TERA alternative, although the current Congress has been taking a look at amendments to the TERA authority.

                                    Tribes can also now issue permits for predevelopment low impact type work: geotechnical work, land survey, appraisal with a BIA approval being required. And Section 81 that some of you may be familiar with was amended in 2000 so that options to lease which we typically see on these types of projects can be entered into without bureau approval so long as the term would not run for seven years or more. Next slide.

                                    Now we'll pick up with a summary of what's in the Part 162 revision. We'll start with rent and term requirements. So these are the new federal leasing regulations that will apply if a tribe is not entering into the lease under the HEARTH Act to approved regulations. So the standard requirement now for rent and term is the Part 162 will defer to tribal negotiations on rent and term otherwise anything for not a public purpose is generally going to require a minimum rent that would have to be adjusted at least every fifth year either by reappraisal, fixed increase, or a reference to an outside index.

                                    Additional consideration is typically required for any amendment that would extend the original term or a renewal option that would take it beyond a reasonable primary term additional consideration would be needed. Holdovers are generally treated as trespasses under the regulations. For certain types of business leases an additional or percentage participation rent may be required. But for renewable energy leases the BIA has not established or required a BLM-type rent and capacity fee. So basically the rent structure is entirely negotiable by the tribe.

                                    But there are certain standard requirements of the tribe we'll usually look to. Water charges and tribal taxes are not recognized as rent substitutes, but other types of structures may be. That would include bonus, advance payments, in-kind contribution, due on sale payments or tribal ownership options. As far as term business leases may run longer than 50 years if their tribe has statutory 99 year leasing authority.

But regardless how long the term runs only one renewal option of not more than 25 years is permitted under the Long-Term Leasing Act – the general authority. Compare that to the HEARTH Act which for these types of leases allows a maximum term of I think it says 25 plus 25 plus 25 – So two options maximum 75 year term. Next slide.

Okay supporting documents on the front end: plan of development for business leases or what the rural calls a resource development plan for renewable energy lease. Typically I think we'd expect that to include a site plan and a construction schedule. Unlike BLM we don't have programmatic EISs. So a project EIS is generally going to be required rather than an EA. An EA would work for a wind evaluation lease. But based on the acreage requirements we've typically required an EIS for the solar energy project.

To support best interest determinations with respect to the negotiated terms the proponent may be asked to provide a lot of financing information as well as organizational and authorization documents, references, third party agreements, and assurance of its ability to perform. Also need a survey and unless waived by the tribe would also need an appraisal or some other type of economic analysis. It should be noted that the new Part 162 requires that the lease package also document the parties' consideration of the five factors listed in the 1970 amendment to the Long-Term Leasing Act.

Those have never been in the regulations before. They are now in there even though they duplicate what's in NEPA. The 1970 amendment was enacted about six months after NEPA but that's something that you need to be aware of. Next slide.

Okay the BIA standard of review for a negotiated lease must technically comply with all the legal requirements, including the regulations. And we must make a determination that the current lease terms are in the Indian owner's best interest. Again the rule now defers to the tribes. So if there's anything nonstandard that the tribe wishes to be sure is included they need to put that in their resolution.

The new Part 162 as I said authorized deference to the tribe. It also imposes strict timelines on the bureau's review. And that may, but it's not required – It's recommended but not required that the BIA document when it receives with an acknowledgement letter when the clock will start running on the date of receipt. So an acknowledgement letter to document that date. And then if we don't acknowledge but we say that it's not a "complete package" then we would send out a deficiency letter.

Again that's not required but recommended. And it's recommended that that occur within ten days of the date of receipt. The timeline for approval of these types of leases is 60 days from date of receipt. If it's not approved or it's not acted on within that 60 days it's not deemed approved. The original lease is never deemed approved. But if not acted on there will be an expedited appeal either to the Regional Office if the superintendent has the approval authority or to the Washington Office if the Regional Office has the approval authority.

And those expedited appeals are supposed to be acted on within 15 days. So the whole intent here is to drive the process. And you'll see that other types of follow on documents may be deemed approved. Next slide.

Post-approval documentation – we'll just go real fast here – insurance, financial assurance of ability to perform. Typically we don't require guarantees but upon approval a rental bond will be required until the rents have stabilized. And a performance bond to secure ventilation or restoration of the property to its original condition may also be required. And that will be left to the tribe in most cases.

Construction contracts with payments bonds are usually sufficient for construction obligations. With regard to renewable energy leases we don't need to see the copies of the interconnection or the power purchase agreements although tribes may wish to monitor those negotiations. Lots of times there will be option agreements with leases attached. And the lease itself won't be submitted for approval until these other third part agreements have been completed.

As far as related easements are concerned the tribe may consent to the easement in the lease so that further owner consent wouldn't be needed. Usually those easements within the premises – Usually you're going to want those separately documented whether they are within the lease premises or outside. If outside the lease premises the easement will need to be separately documented. Next slide.

Okay again ancillary agreements – by that I'm referring to amendments, assignments, subleases, and leasehold financing instruments. The owner consent requirement can be delegated to a tribal official or can even be negotiated away. But BIA approval is generally required for all of those except subleases. So amendments, assignments, and leasehold financing will require bureau approval. Subleases won't unless the lease provides for it.

The standard of review here is different. There has to be a compelling reason for disapproval. And that's not defined anywhere. Amendments may be deemed approved under some circumstances. I would argue that that shouldn't be interpreted to including replacement leases or amended and restated leases or termination agreements. But other amendments can be deeded approved if not acted on by BIA within 30 days of receipt or a 30 day extension period if BIA requests that during the initial 30 day period.

The effective date of any deemed approved amendment is 45 days and that will still need to be reported with a cover page showing that it's deemed approved. Land owner representatives or agents may not generally be delegated the power to consent to changes in rent, term, lease premises, or remedies provision unless specifically authorized in the lease or through a power of attorney or a court document. All types of subleases may be made exempt from approval by the underlying lease and typically we'll see that.

Those that do require approval will be deemed approved if the BIA fails to then act within that initial 30 day period or with a 30 day extension period if requested during the first 30 days. And even if a sublease needs to be approved any follow on documents, sublease amendments, subleasehold financing – Those will only need to be approved if the sublease says so. Next slide.

A little bit more about assignments; they will generally require bureau approval with a couple of exceptions. If it's being required through foreclosure or trustee sale or where made to a named in the lease "Qualified Transferee" or to a wholly-owned subsidiary; otherwise assignments will need to be approved. So there are some exceptions in the rule. I think most parties that I've talked to believe that other exceptions can be negotiated if they're definitional and they don't amount to a change in control.

Those are things we typically have seen in our pre-rule change leases. And so I think those definitional exceptions of "assignments" that wouldn't need approval would still be permitted. Assignments and leasehold financing transactions will never be deemed approved. So amendments in some cases where approval is required in the case subleases are not acted on and within 30 days in the case of – 30 days you need to act on assignments. This is the review period.

Assignments 30 days, leasehold financing is 20 days. And as we said amendments and subleases where they do need approval – those also have 30 day review periods. Unlike the previous Part 162 there is now no question that leasehold financing instruments can be used to secure not just construction financing but also permanent refinancing and purchase financing. And the standard review for that does not require underwriting on the loan transaction or the sale transaction.

Equity financing agreements generally do not need to be approved. And separate limited recourse financing can be used for phased developments. And the last slide.

Just sort of a summary slide of what I would call the top ten takeaways. Part 162 covers only tribal land and only surface leases. Part 162 does not mention the HEARTH Act but tribal regulations under the HEARTH Act have to be consistent with Part 162. Part 162 says that leases may be enforced by BIA on behalf of but not against Indian owners with deference to negotiated lease remedies. So that's different. BIA cancellation is no longer required if the lease provides for tribal self-help remedies. Deference is also required on jurisdictional issues with tribal laws and taxes being broadly applicable unless the lease provides otherwise.

Part 162 defers as I said to tribal negotiations on all the economic terms. As I said Part 162 imposes mandatory timeframes for bureau review and approval of not just leases but also ancillary agreements. It also provides for preliminary review prior to submittal of the original lease. It provides for certain amendments and subleases to be deemed approved if not acted on. Subleases only need to be approved if the lease so requires. And there are some exceptions for assignments.

As I said qualified transferees, wholly-owned subsidiaries and perhaps other defined exceptions. The statutory rules on the five factors to be considered are not incorporated in the Part 162 for the first time. And there are other new default rules that apply if the lease doesn't provide otherwise that you need to be familiar with and other things that have to be addressed in the lease under the new Part 162.

That takes care of the leasing and I'll let Tamera pick up with the environmental.

Randy Manion:           Thank you Stan – excellent. Tamera just give me a moment to get your slide deck pulled up here. Okay Tamera it's all yours. You may be on mute Tamera.

Tamera Dawes:          Okay. Randy can you hear me now?

Randy Manion:           Yes.

Tamera Dawes:          Okay. Hi everybody. This is Tamera Dawes. Welcome to today's session. And as Stan had mentioned we'd like to thank the DOE for bringing us aboard to give you guys a quick overview of some of the things that we have gone through recently. I was asked to actually in the beginning of this presentation to present on leases and rights of way. And our regional environmental specialist was supposed to do the presentation on the NEPA considerations.

But unfortunately he was pulled to go do something else with another project. So I am in turn filling in for him. So this is his presentation and I will do my best to give you the information in terms of what we went through in working through the NEPA process on some of the tribal solar projects that we have done within our region. Next slide.

In consideration of NEPA compliance my presentation will briefly go over some of the applicable statutes, executive orders, memos, the process and the coordination of NEPA and how to do that. Next slide.

As you all are aware the National Environmental Policy Act was originally made into law in 1970. And as you can see through the timeframes here the regulations were finally posted in 1978 with the Department of Interior posting their implementing procedures on how to abide and comply with NEPA and what we needed to do in the 1980s and later in 2008.

The Bureau of Indian Affairs had a NEPA handbook available but recently updated it in 2012 to include several of the new analysis and procedures, but also to include an updated Categorical Exclusion checklist which included the new family home site lease up to five acres. But it also included more discussion on the tribal government to government consultation policy back in 2000 and later in 2011 which was later updated. Next slide.

The handbook was developed really to address several things. The BIA does have to consider that environmental effects account for the review that we're processing on those potential environmental effects. Look to potentially mitigating negative environmental impacts but also looking at those mitigation strategies throughout the project itself but looking at well at reviewing the current list of the Categorical Exclusions and updating those that are necessary to help move things along in Indian country. But also we recently had updated – included the Categorical Exclusion for fractional interest acquisition when it comes to land owners within Indian country. Next slide.

Not only does the NEPA have specific processes in different laws and memos and Executive Orders that we have to abide by and analyze at potential action, we do also have to look at other key federal laws that would need to be incorporated into our analysis of that proposed action. And John and Stan had mentioned these in their presentation so I won't go into detail with these. And these are the Endangered Species Act, Clean Water Act, National Historic Preservation Act, Clean Air Act, and certain Executive Orders and Secretarial Orders as well. And those are discussed and described in your environmental documentation. Next slide.

Further we also need to address and include the different Indian policies as well that we continue to consult and coordinate with the Indian Tribal Government but also to make sure that all the agencies involved in the NEPA process engages with the tribes on a government to government consultation. But also to make sure that each of the departments are aware of their responsibilities for protecting Indian Trust resource. But also to analyze a proposed action under Executive Order 12898 which discusses environmental justice. Next slide.

So really why is NEPA important? Or why is NEPA documentation required? It's because of a federal action. And this federal nexus is what you may hear most often. It's potentially or is – can be – the BIA funding or approval action. This federal nexus such as approval action basically allows the BIA to potentially be able to document that we make decisions projects of concerns or issues and if necessary mitigate any impacts to the human environment. Next slide.

And some of the other forms of NEPA activities and actions that are subject to NEPA include different policies, plans, programs, and projects that not only the tribe has but also the different agencies. But the federal approvals is really what we see often that come through our offices such as approval of realty leases, rights of way permits, fee-to-trust acquisitions, different types of forestry activities, leasing of home sites, roads, ditches and canals with the irrigation projects, but also agricultural leases occurring within the reservations.

But also different federal funding actions and approvals are coming through the agencies but to the tribes as well from different federal agencies. Further legislative proposals also need to be analyzed and comply with NEPA. Next slide.

So how do we begin or start with NEPA? Typically our office would begin officially reviewing and discussing with a potential applicant when a tribe or a tribal member or a third party applicant submits documents to BIA for review and approval such as a lease document. But also will need to include a tribal notification or consent. And this normal tribal consent typically comes in the form of a tribal resolution or letter. We want to make sure that the tribe is aware of the potential development.

And mostly likely it has but historically because of lack of communication between the agency and the tribes it's been our policy at our region to make sure that we do have written documentation that we can move forward in providing and beginning the process of NEPA analysis and compliance with that particular document.

I do suggest that you sit down and talk with your regional or local BIA agency to discuss the coordination efforts and how they should be communicated with in terms of initiating their NEPA process. If we find that there is a federal approval required then the level of NEPA documentation then is determined and discussed further. Next slide.

The three levels of NEPA documentation can be one of these three: Categorical Exclusion, Environmental Assessment, or Environmental Impact. Each of these specific documents will be discussed a little bit further in the next slides but typically the Categorical Exclusion can generally prepared and signed off with all the supporting documentation quite quickly within days.

With the Environmental Assessment depending on the nature of the action the timeframe for the review, and the staffing and funding available for environmental assessments generally can be done between six months to a year and one-half. Environmental Impact Statement depending again on the activity, the timeframe for these types of documents can range from two years to a multitude of six to eight years depending on the resources that are being analyzed. Next slide.

And specifically when we are talking about Environmental Impact Statements our region looks to – We know already automatically when we're going to prepare an EIS when it comes to these particular projects. If it's going to be a proposed large, utility-scale development project, if there's a proposed mining contract or new mines of 640 acres or more, if there's a proposed water development project that would inundate more than 1,000 acres or storing more than 30,000 acre feet of water.

But also if the project is proposing to construct hazardous or solid waste disposal facilities for commercial purposes. So in our region we've set these specific guidelines that say this is automatically going to trigger an EIS and let's prepare to identify the resources to get us through this analysis. Next slide.

But specifically for Environmental Assessments most of the projects that we are able to analyze this project at an Environmental Assessment level would be those projects that are not on the EIS list that I just mentioned. And those are not written or currently on the Categorical Exclusion list found in the BIA NEPA handbook but also the types of projects which we do not know the extent of the impacts. So these are the three things that we look to in terms of generally identifying potentially if this is going to be an EA or EIS level analysis. Next slide.

This slide shows a diagram of our Categorical Exclusion Process. In the BIA handbook under exhibit or attachment 516 DM 10.5 we look to the listing of Categorical Exclusions. There's a list of them. A variety of them that can be used and it's really generally written in the interpretation of your environmental specialist at your local agency or region who can help you work through these to determine the applicability of those exclusions.

We do have a standard what we call a CR form which is the Categorical Exclusion Exception Review Form which discusses certain – It's a checklist which has certain questions that you will have to reply yes or no. And if you're able to with supporting documentation show that the entire checklist is no we'd be able to move forward and get that Categorical Exclusion signed and approved. If there are any extraordinary circumstances we may have to look to preparing an EA and potentially moving forward if the impacts are greater than what was found in an Environmental Assessment.

Then having to work through and develop and analyze under an Environmental Impact Statement. So in going through that CEER list make sure that you do have your supporting documentation for your cultural and biological reports that are applicable to the project and meet the needs of your local or regional environmental office. Next Slide.

Specifically for solar related Categorical Exclusions we found that under rights of way – the exclusions for rights of way and service line agreements where there is one particular line that services an individual residence or building or an existing facility where there the insulation will involve no clearance of vegetation from the right of way other than of the place of poles – that Categorical Exclusion can be used for a service line agreement. Under the new right of way rule the service line agreements no longer require BIA –

Well they never really required BIA approval, just filing. But in the new rule it does ask that the service line agreement can be not only filed but recorded as well as the BIA's Land Titles and Records Office. So this potentially could be something that for your energy projects if it services the one structure or the one building you could use a Categorical Exclusion for your service line agreement. Next slide.

More exclusion categories that could be used for the development of a solar project would be surveying type of activities which include land surveying and environmental studies. But if there is an existing renewal of a transmission line – could potentially be – Only if there was an existing NEPA that was previously done, utility encroachment permits that are within an existing road if the road specifically allows utilities to be placed. But other Categorical Exclusion we could use is for administrative actions which for example is the management of trust funds. Next slide.

So when you're looking at NEPA or beginning the whole entire NEPA process some of the things that you'll be looking at are the management of the entire process. Who is going to be the lead agency? Who is going to do the coordination and consultation? Who is going to lead and management meetings, conference calls? When are site visits going to be scheduled?

Who is going to be handling the MOUs and developing of those between not only the tribe but the cooperating agencies and interested parties? So some of the things that would need to be led not only by the lead agency but also including the tribe – tribal staff – if they feel that that's a role they would like to take on. Next slide.

So when you're doing your NEPA analysis and doing this entire process you want to make sure you have and invite not only interested parties but identify potential agencies who may want to be cooperating agencies. And those agencies may be those that have actions before them because of this project. And such actions for example as BLM – They may be a cooperating agency because they have to approve a right of way of a transmission line that leads to your current renewable energy lease on tribal land.

We need to inform and involve the tribes and allottees but also possibly bringing onboard third party contractors or consultants to help with the need for process, but also looking to the applicants themselves and their particular interested parties and other federal, state, and local, and the general public. All these individuals and groups would need to be invited. And if you needed additional information on who potentially your interested parties are your local office should be able to provide you a list of typically who've they've notified of a potential NEPA compliant process. Next slide.

When we have to do NEPA the BIA will be the lead federal agency for any renewable energy projects occurring on tribal lands. Another federal agency may be a cooperating agency that has a connect agency action such as US Fish and Wildlife. They may have to issue a permit in which they may decide to become a cooperating agency. Another thing of discussion that would need to be made between the cooperating agency and the lead agency and all the other federal agencies if they decide to become cooperating agencies is there will be only one NEPA document.

But the decision will be prepared separately. So you'll have a decision written for the BIA and the examples I had given for BLM and US Fish and Wildlife Service. They would have their own separate decision issued based on that one NEPA documents. Unless you're in California, then rules become a little different. So I'm going to leave that to the BIA's Regional Office in California to give more specifics on that. Next slide.

The role of the cooperating agencies is to participate in scoping and public meetings, to review and provide comments on the administrative draft and final NEPA documents and to prepare certain sections of NEPA documents. And also to help prepare and issue decision documents for the agency. Next slide.

When we're working not only with the cooperating agencies we're going to have to develop – We do develop partnerships with others who help us get through this NEPA compliance and that we're addressing all the potential impacts to the environment and public that we may not be familiar with that may be impacted by the project.

And those partnerships are going to occur with different federal agencies, state, local, tribes, NGOs, general public, and contractors and consultants of nearby developments as well. So working with these individuals and these groups really does help move the NEPA process along faster and quicker when they are involved from the very beginning. Next slide.

Some of the things that you're going to have to look at that we've seen that we've looked at in our projects and will be included in your NEPA documents will have to address the biological, cultural, and water resources, air resources, environmental justice, Indian Trust Assets, socio-economic conditions and the Human Health and Public Safety. These are specific sections of the NEPA analysis that will need to occur and discussed appropriately. Next slide.

In terms of NEPA compliance other than the environmental issues that could potentially – that are addressed – we look at mitigation measures. As a reminder in the beginning of the presentation I had talked about the policy of the BIA to mitigate negative environmental impacts. And specifically examples of mitigation measures for biological resources are fences, buffer zones, relocations of species, monitoring and establishment and tribal escrow accounts. For cultural resources, an example of those are monitoring, data recovery, testing and excavations. But for water resources another example is monitoring as well for water quality and quantity. Next slide.

As you are all aware NEPA is quite a lengthy process depending on the proposed action and the impact to their resources that we have identified. Now we've been asked quite often how can I avoid NEPA? And Stan had talked a little bit about the no approval scenarios and so had John in terms of what the federal nexus is of federal approval and federal funding. Stan had talked about the corporate charter as well as the HEARTH Act in determining having a potential lease on tribal land for a specific project. Next slide.

Now if we don't have any of these federal approvals then potentially NEPA can be removed. However there are those other federal environmental statutes that John and I had discussed earlier that may trigger another agency's NEPA compliance requirement. And some of these I've listed are: the Clean Air Act, the Endangered Species Act, the Clean Water Act, as well as the Migratory Bird Act.

These are some of the things that they would have to discuss to see if there are any potential actions that would trigger the agencies having to analyze the impact from your project. So make sure that you do look over all of the project. And if you plan to have a tribal development on tribal land to see if there are any other actions regarding your resources on tribal land. Next slide.

As I mentioned in the beginning of the presentation we were looking more or less in development of the presentation was from one of the solar projects we had done within our region. Originally this project was analyzed for a project that was over 2,153 acres. It was proposed to be a 350 megawatt solar project that was going to provide energy to California. However with different changes to the renewable energy field and the need for renewable energy had reduced. The project had changed slightly. The number of acres had gone down.

But also instead of 350 megawatts it went down to 250 megawatts. But the project was quickly – It was done very quickly through the NEPA process and the resources that were identified specifically had to do – We concentrated a lot of time and effort and resources – monetary resources into two species that were listed: the desert tortoise and the Moapa dace. In having to deal with those two species and how the impact of that project would occur on these species nonetheless it took us only a year and one-half to get through this Environmental Impact Statement and have the ROD signed by the Secretary of Interior in June of 2012.

The original project of how this was moved forward was that the tribe had originally wanted to get this renewable energy project done under their corporate charter. But because of the desert tortoise and the potential of the US Fish and Wildlife having to issue a permit under Section 10 and the time it would take to develop a habitat conservation plan the tribe and the proponent had opted to go through the BIA leasing process and the NEPA process to get this project completed. So depending on the resources that you have and EIS could potentially be done quickly if needed. Next slide.

So really if you want to avoid NEPA compliance it really depends on the type of project and the resources that exist on your lands. Currently we have done most utility scale commercial solar projects with an EIS. We have not yet had a small utility solar project that was not as extent as a commercial scale project. And we're hoping to have one and do that under and Environment Assessment here shortly with one of the tribes in Nevada. So we'll have a little bit more experience and what analysis has come back in terms of a smaller project under an Environmental Assessment.

Stan had mentioned most of the BLM is programmatic. Environment Impact Statements have helped a lot of the solar projects off Indian lands to excel and move forward quickly because of the existing programmatic EIS whereas we have not had the opportunity on Indian lands to do so. So we're really hoping that we're able to accomplish this next smaller solar project under an EA and we'll hopefully have great results on that. Next slide.

So with that you know it has been quite challenging. There are definitely a lot of lessons learned in the solar energy field in terms of NEPA compliance. We've had in our region multiple commercial scale projects that had continued not only to tier off of but we had to really start over with the whole EIS process for projects that were in the same area. It was challenging but we were able to get through that. It just depends on the resources that are placed into the project and how fast we need to get that through.

But the department has been quite supportive of all the renewable energy projects on Indian lands and we were able to move those forward. So with that I thank you for listening to me jabber for the last 20 minutes. And I'll turn it back over to you Randy.

Randy Manion:           Thank you Tamera. We only have a few minutes for Q&A. So with that let me see what questions we have and then we'll conclude the webinar. Stan a question for you: are there any advantages for energy projects using a Section 17 IRA corporation over a tribally chartered corporation with legal assets and liabilities separate from the tribal government?
 

Stan Webb:                 You know I should probably defer on that one to Doug or John. I think one of them mentioned the fact that Section 17 has enacted in the IRA specifically connotes the eligibility of those corporations for bond. Federally chartered corporations for bond financing which I'm not sure would be available to tribal corporation on the same type of project but I'm really not qualified to answer that question.

Doug MacCourt:        This is Doug MacCourt from the Office of Indian Energy and thanks Stan. I think the question highlights one of the key issues and I think Stan put his finger on it which is depending upon the type of tribally chartered – or whether it's a tribal enterprise, tribally chartered LLC or some other type of tribally-authorized entity the IRS may or may not approve for not only tax exempt financing. But they may not approve that entity's participation in certain types of transactions.

                                    And it could foul up some of the tax status of the project development company or some of the other taxable entities that are going to participate, assuming there are taxable entities that are going to participate in the project. That is one key reason that a Section 17 is such a flexible entity. Now that doesn't mean that a tribe can't set up – and many tribes have done this – a tribally chartered enterprise to you know run energy projects or kind of manage energy issues like a strategic energy plan and deal with that at the governmental level.

                                    But when it comes to the actual project development the Section 17 corporation which Tamera and Stan have both worked their way through and BIA has a very straightforward process which we can talk about if people are interested. It is well-established, doesn't take a lot of heartache to go through. It does require the tribe to propose a charter and have a tribally-approved resolution going forward for that charter to BIA. But the negotiation process is very straightforward.

                                    There are great draft charters out there that have been used specifically for energy projects. So again that's one of the – There are other reasons and other flexibilities including the fact that Congress specifically took the federal government out of the leasing role in the Section 17 corporation. That is not the case with tribally chartered corporations. So again there are a lot of reasons why you want to compare those two entities.

                                    Now the flip side is if the tribe and the tribal government really want to control the project, make the decisions. And some tribes are in that position. Then it may make sense to keep it in a closely held wholly-owned tribal organization. So again it's just comparing what you're trying to accomplish and what you get out of both entities.

Randy Manion:           Thank you Doug. What role and jurisdiction would state and local agencies have on projects on tribal lands?

John Clancy:              This is John. Maybe a couple of things to think about there would be – Well I guess first of all with respect to a lot of environmental and other issues there may not be any role they have if it's on a reservation and especially on trust land to the reservation. But as I mentioned earlier there are a number of avenues through which the state may have some regulatory authority based upon the interconnection agreements the tribe may have or the project may have that may be under state law.

                                    Since the utility system that is on a reservation typically is still part of a statewide system and subject to PSC or PUC – you know Public Service Commission or Public Utility Commission jurisdiction. If there's net metering involved too that will typically be under a state-approved program and therefore subject to the rules that apply to that. But with respect to a lot of the environmental and other issues typically there is at least a good argument that the state jurisdiction may not apply.

Randy Manion:           Thank you John. Is there a breakpoint with regards to the size of project where NEPA can be avoided?

John Clancy:              I don't think you could say there's an acreage breakpoint. Again if there's not the federal nexus that Tamera talked about then NEPA can be avoided unless it's brought in through one of those other circumstances that we discussed. As far as an EIS versus an EA that's something that certainly the smaller projects – the community scale projects I'm sure – we'd do an EA. We haven't actually seen one of those here in our region but I'm sure those would qualify for an EA.

                                    And as I mentioned when the evaluation lease is expressly – The rule expressly says an EA was sufficient on those.

Tamera Dawes:          And you know those – The thing on that would be really what are the resources that are on that potential track how large or how small it is would really depend on what those impacts are to existing resources. Your biological, cultural, water resources and if there is any potential impact. So if we can find to see that we could do this under an Environmental Assessment then that's what the point would be at. It really would have to depend on looking at those impacts to determine if it would trigger moving forward doing more analysis under the Environmental Impact Statement rather than an Environmental Assessment.

                                    So there's not really an acreage limit and then we would automatically go into Environmental Impact Analysis. We would have to first analyze the impacts under an Environmental Assessment. And then if needed move onto an Environmental Impact Statement.

Doug MacCourt:        Randy this is Doug from the Office of Indian Energy and I concur with everything Stan and Tamera said. And I think it's a really important question because prior to coming back to the department here working on tribal energy projects I'll give you an example. I won't name it but one tribal project in the Southwest, 35 megawatt solar project, total leasehold area of 500 acres impacting at least in the initial phase at least half of that was done in 8 months under an EA.

You know we carefully looked at the risks of that and we also made sure that you know now only did we check the boxes that Tamera just talked about from the other potential triggers that might put it into the EIS category.        But we made sure that anyone who might be thinking of complaining about that was also consulted. And you know there's a lot of case law out there and you can see who is very active in the litigation on EAs versus EISs. But what we have found is that that has not occurred in the area of tribal renewable energy projects that are well thought through.

And the EA is well-supported. So again we ran an EA on this 35 megawatt project in 8 months start to finish with BIA. And that is critical because it saved a huge amount of time.

Randy Manion:           Excellent. Thank you Doug. And I know that you and Lisana have another appointment that you need to get to and Tamera also has to sign off here in a few minutes. So we do have many more questions. Stan and Tamera if you're okay a lot of them are related to the BIA. We'll get that filed over to you over the next week or so and the e-mail addresses to the folks asking those BIA-related questions and if you could respond to them directly that would be great.

                                    I'm going to pull up just real quickly here the upcoming webinars that we have. September 28th is the next: Strategic Partnerships for Clean Energy and Economic Development. I hope to see you all there. Also this recording will be made available in the Office of Indian Energy Policy and Programs website in about one week along with the PowerPoints. And you all will receive a confirmation e-mail with the link to that recording.

                                    And so with that, my apologies that we have to sign off before answering all the questions. But we have other priorities and we hope to see you all next week. And thanks again to all our speakers: Doug, John, Stan, and Tamera. Have a great day. Bye.

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