104 FERC ¶ 61,108

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 2

(Docket No. PL03-4-000; Order No. 635)

Policy Statement on Consultation with Indian Tribes 

in Commission Proceedings

(Issued July 23, 2003)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Policy Statement.

SUMMARY: The Federal Energy Regulatory Commission (Commission) is issuing this

policy statement to articulate its commitment to promote a government-to-government

relationship between itself and federally-recognized Indian tribes. The policy statement

recognizes the sovereignty of tribal nations and the Commission’s trust responsibility to

Indian tribes. The policy statement also establishes a tribal liaison position. Finally, the

policy statement establishes certain actions specific to the hydroelectric program. 

EFFECTIVE DATE: The rule will become effective [insert 30 days after publication

in the FEDERAL REGISTER]. 

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FOR FURTHER INFORMATION CONTACT:

Elizabeth Molloy

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street, N.E.

Washington, D.C. 20426

202-502-8771

SUPPLEMENTARY INFORMATION:

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UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Pat Wood, III, Chairman;

 William L. Massey, and Nora Mead Brownell. 

Policy Statement on Consultation with Docket No. PL03-4-000

Indian Tribes in Commission Proceedings

ORDER NO. 635

POLICY STATEMENT

INTRODUCTION

1. To encourage and facilitate involvement by Indian tribes in the areas over which

the Commission has jurisdiction, the Commission is issuing this policy statement to

articulate its commitment to promote a government-to-government relationship between

itself and federally-recognized Indian tribes. The policy statement recognizes the

sovereignty of tribal nations and the Commission’s trust responsibility to Indian tribes. 

The policy statement also establishes a tribal liaison position. Finally, the policy

statement establishes certain actions specific to the hydroelectric program. Part 2 of the

Commission's regulations will be amended to implement the policy.

BACKGROUND

2. This policy statement evolved out of the recent rulemaking proceeding to develop

an improved process to prepare and review license applications for non-federal

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1

Hydroelectric Licensing under the Federal Power Act, RM02-16-000, 68 FR

13988 (Mar. 21, 2003); IV FERC Stats. & Regs. ¶ 32,568 (Feb. 20, 2003).

2

Letter dated January 10, 2003, to Tribal Leaders from Chairman Pat Wood, III.

3

These regional meetings were held in Portland, Oregon; Sacramento, California;

Charlotte, North Carolina; Manchester, New Hampshire; and Milwaukee, Wisconsin. 

4

Hydroelectric Licensing under the Federal Power Act, Docket No. RM02-16-

000; Final Rule.

5

A list of commenters and their abbreviations is attached as Appendix A. 

hydropower projects.1

 To ensure that tribal issues were addressed in the rulemaking, the

Commission held special tribal forums in October and November 2002. As a result of

several requests at those forums, the Chairman appointed a tribal liaison for the

rulemaking proceeding.2

3. After the Notice of Proposed Regulation (NOPR) was issued in February 2003,

Commission staff held regional public and tribal outreach meetings in March and April

2003 to discuss the NOPR.3

 The Commission also held drafting sessions, including a

special tribal session (Tribal Group), to attempt to reach consensus on a number of issues

raised in the NOPR. The final rule is being issued concurrently with this policy

statement.4

4. In written comments and meetings on the hydro rule,5 Indian tribes discussed the

Commission's trust responsibility as it relates to treaty rights, legislation, and executive

orders. Several tribes stated that as sovereign entities, they have government-togovernment consultation rights that differ from those applicable to agencies and the

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6

S-B, S-P, CRITFC, NW Indians, Nez Perce, Umatilla, GLIFWC, NF Rancheria.

7

Nez Perce, Menominee, NF Rancheria, S-B, Maidu, NW Indians, CRITFC, S-P,

NHA, and Interior agreed.

8

S-P, Nez Perce, NW Indians, CRITFC, Umatilla, GLIFWC, HRC, ACHP,

Menominee, Skokomish, Interior, NF Rancheria. 

9

NW Indians.

10S-P, Nez Perce, NW Indians, CRITFC, Umatilla, GLIFWC, Menominee, Tribal

Group.

general public, because they must be determined by mutual agreement between the

Commission and individual tribes in a case-specific and issue-specific context.6

However, the tribes also stated that the Commission should specifically establish its tribal

consultation process in its regulations.7

5. The Commission, in its NOPR, proposed to establish a tribal liaison for the

hydroelectric licensing program. This proposal was supported by all of the commenting

tribes and the Advisory Council on Historic Preservation.8

 One commenter

recommended that the liaison should be available not only for hydro matters, but also for

other Commission programs.9

 There was a consensus among the commenters that the

liaison should not be a clerical position, but should be a staff person with substantive

knowledge of the process that will be followed.10 

6. In addition, commenters suggested various roles and responsibilities for a Tribal

Liaison. These include facilitating government-to-government consultation by directing

tribes to the right person or persons to deal with substantive or policy issues; ensuring

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11NW Indians, Nez Perce, Umatilla, GLIFWC, Menominee. They indicate that

the correct person would depend on the issues under consideration; e.g., a technical issue

dealing with a fisheries study would be dealt with by a fishery biologist, while an issue

concerning the appropriate elements of government-to-government consultation with the

tribe might be directed to senior Commission staff. We agree.

12SCE.

13GLIFWC, Menominee.

14GLIFWC.

15Interior.

that communications are maintained between tribal representatives and Commission staff

throughout the proceeding;11 assisting tribal knowledge of and participation in the

Commission's processes;12 educating Commission staff about tribes and the trust

responsibility and treaty obligations,13 assisting tribes in learning how to access and

effectively use the informational resources of the Commission's website;14 and

informing tribes of activities at a project during licensing and throughout the term of a

license that may affect tribal resources on or off the reservation.15

7. GLIFWC and Menominee stated that, because the process for government-togovernment consultation needs to be developed in agreement with each tribe, the roles

and responsibilities of the tribal liaison cannot be fully determined at the outset, but must

evolve in response to the development of tribal-specific agreements. 

8. The Tribal Group essentially endorsed all of these proposed roles and added

several others, including: coordinating with tribal liaisons at other agencies; becoming

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educated about the rights of Indians; assisting tribes in making known their issues and

views on compliance with treaties; ensuring that tribes are informed of studies and

information with cultural-resource or treaty-rights implications; managing

communications between the Commission and tribes when the ex parte regulations are

applicable; facilitating communications between applicants and tribes; 

facilitating informal dispute resolution between applicants and tribes; helping to

determine which tribes may be affected by likely future hydropower relicensing

applications or original license applications; and informing potentially affected tribes

about potential future relicensing applications.

9. While most commenters recommended that the tribal liaison should be nondecisional staff, Skokomish and NW Indians proposed that the tribal liaison should play

an active role in the substantive resolution of licensing proceedings. NW Indians

recommended that the tribal liaison or liaisons should be educated about individual tribes

and their interests in specific proceedings and should act as their advocate within the

Commission. 

10. Various commenters indicated that there are too many tribes and too many tribespecific, case-specific, and interrelated regional or watershed issues for one person to

understand and act upon. Some suggested appointing multiple liaisons based on regions

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16Pacific Legacy, GLIFWC, Menominee, CRITFC, S-P, California, Interior.

17Executive Order 13175, Consultation and Coordination with Indian Tribal

Governments (issued November 6, 2000); Executive Order 13084, Consultation and

Coordination with Indian Tribal Governments (issued May 14, 1998); Presidential

Memorandum, Government-to-Government Relations with Native American Tribal

Governments (issued April 29, 1994), reprinted at 59 Fed. Reg. 22,951; Executive Order

12875, Enhancing the Intergovernmental Partnership (issued October 26, 1993).

of the country, watersheds or river basins, or sub-regions within a state.16 Pacific Legacy

suggested that the efforts of the Commission's liaison should be complemented by a

liaison from each tribe for each project, to be funded by the applicant. The Tribal Group

stated that the tribal liaison should be a regional position, with an overall coordinator

position at the Commission's headquarters. 

DISCUSSION

11. The Commission recognizes the unique relationship between the United States

and Indian tribes as defined by treaties, statutes, and judicial decisions. Indian tribes

have various sovereign authorities, including the power to make and enforce laws,

administer justice, and manage and control their lands and resources. Through several

Executive Orders and a Presidential Memorandum,17 departments and agencies of the

Executive Branch have been urged to consult with Federally-recognized Indian tribes in

a manner that recognizes the government-to-government relationship between these

agencies and tribes. In essence, this means that consultation should involve direct

contact between agencies and tribes and should recognize the status of the tribes as

governmental sovereigns.

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1818 CFR 2.1(c)(2003).

19The Commission’s program areas include hydroelectric, oil pipeline, electric

power, and natural gas programs. The Commission issues licenses and oversees

compliance with those licenses for non-federal hydroelectric projects pursuant to Part I

of the Federal Power Act (FPA), the Public Utility Regulatory Policies Act (PURPA),

and the Energy Policy Act of 1992 (EPAct). Under the Interstate Commerce Act and the

EPAct, the Commission regulates the rates and practices of oil pipeline companies

engaged in interstate transportation. The Commission's electric power authority is

outlined by Part II of the FPA, the PURPA, and the EPAct. The Commission's electric

power responsibilities include: approving rates for wholesale electric sales of electricity

and transmission in interstate commerce for private utilities, power marketers, power

pools, power exchanges and independent system operators; overseeing the issuance of

certain stock and debt securities, assumption of obligations and liabilities, and mergers;

reviewing the holding of officer and director positions between top officials in utilities

and certain other firms they do business with; reviewing rates set by the federal power

marketing administrations; conferring exempt wholesale generator status; and certifying

qualifying small power production and cogeneration facilities. The Natural Gas Act

(NGA) of 1938, the Natural Gas Policy Act of 1978, the Outer Continental Shelf Lands

Act, the Natural Gas Wellhead Decontrol Act of 1989, and the EPAct are the primary

laws the Commission administers to oversee the natural gas pipeline industry. Under the

NGA, the Commission regulates both the construction of pipeline facilities and the

transportation of natural gas in interstate commerce.

20We reviewed the policies of other independent agencies, including the Federal

(continued...)

12. We are including in Part 2 of the Commission's regulations, "General Policy and

Interpretations," a statement of our policy on these matters.18 It applies to all of the

Commission's program areas.19 For the hydroelectric licensing program, the policy 

applies to all licensing proceedings, regardless of which process is used. The policy

statement was developed from our review of the written policies of other Federal

agencies concerning the trust responsibility and government-to-government

consultation.20 

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20(...continued)

Communications Commission, FCC No. 00-207 (June 8, 2000), 16 FCC Rcd 4078; 2000

FCC LEXIS 3245; 20 Comm. Reg. (P&F) 1316; the Federal Emergency Management

Agency, "Final Agency Policy for Government-to-Government Relations with American

Indian and Alaska Native Tribal Government” (Sept. 25, 1998), 64 Fed. Reg. 2096 (Jan.

12, 1999); the Environmental Protection Agency, Memorandum to all EPA Employees

from Christine Todd Whitman, EPA Administrator, dated July 12, 2001; and the Nuclear

Regulatory Commission, Memorandum to NRC Commissioners from William D.

Travers, Executive Director for Operations, dated February 2, 2001. These documents

may be found on FERRIS in Docket No. RM02-16-000.

21These are primarily the Federal Power Act, the Natural Gas Act, the Public

Utilities Regulatory Policies Act of 1978, the Interstate Commerce Act, the Outer

Continental Shelf Lands Act, National Environmental Policy Act, and Section 106 of the

National Historic Preservation Act.

2218 CFR 385.2201 (2003).

13. The policy statement recognizes the unique relationship between the Federal

government and Indian tribes as defined by treaties, statutes, and judicial decisions. It

acknowledges the Commission's trust responsibilities. It states that the Commission will

endeavor to work with the tribes on a government-to-government basis and will seek to

address the effects of proposed projects on tribal rights and resources through

consultation pursuant to trust responsibilities, the statutes governing the Commission's

authority,21 and in the Commission's environmental and decisional documents. It notes

that the Commission functions as a neutral, quasi-judicial body and as such is bound by

the Administrative Procedure Act and Commission rules regarding off-the-record

communications.22 It states that the Commission will assure tribal issues and interests

are considered in making decisions. The policy statement also establishes a tribal liaison

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23National Environmental Policy Act, 42 U.S.C. 4321-4370a, 7101-7352.

2418 CFR 380.1, et seq.

position. For the hydroelectric program, it states that the Commission will notify tribes

before or at the time the licensee files its notice of intent, and will consider

comprehensive plans prepared by tribes or intertribal organizations. 

14. The tribal liaison will seek to educate Commission staff about tribal governments

and cultures and to educate tribes about the Commission's various statutory functions and

programs. The tribal liaison will work with the tribes during Commission proceedings,

to ensure that the tribes' views are appropriately considered at every step of the process. 

The tribal liaison will act as a guide for the tribes to Commission processes, and will

strive to ensure that consultation requirements are met.

IV. ENVIRONMENTAL ANALYSIS

15. The Commission is required to prepare an Environmental Assessment or an

Environmental Impact Statement for any action that may have significant adverse effect

on the human environment.23 The Commission has categorically excluded certain

actions from this requirement because they would have no significant effect on the

human environment.24 Included among the exclusions are rules that are clarifying,

corrective, or procedural, or that do not substantively change the effect of the regulations

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2518 CFR 380.4(a)(2)(ii).

265 U.S.C. 601-612 (2000).

27Section 601(c) of the RFA defines a "small entity" as a small business, a small

not-for-profit enterprise, or a small governmental jurisdiction. A "small business" is

defined by reference to Section 3 of the Small Business Act as an enterprise which is

"independently owned and operated and which is not dominant in its field of operation" 

15 U.S.C. 632(a). 

285 CFR 1320.

being amended.25 This policy statement is procedural in nature and therefore falls under

this exception. Consequently, no environmental analysis is necessary.

V. REGULATORY FLEXIBILITY ACT

16. The Regulatory Flexibility Act of 1980 (RFA)26 generally requires a description

and analysis of final rules that will have a significant economic impact on a substantial

number of small entities.27 Pursuant to section 605(b) of the RFA, the Commission

hereby certifies that this policy statement will not have a significant economic impact on

a substantial number of small entities. 

VI. INFORMATION COLLECTION STATEMENT

17. The OMB requirements require that OMB approve certain information collection

requirements imposed by agency rules.28 However, this policy statement contains no

information reporting requirements, and therefore is not subject to OMB approval.

VII. DOCUMENT AVAILABILITY

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18. In addition to publishing the full text of this document in the Federal Register, the

Commission also provides all interested persons an opportunity to view and/or print the

contents of this document via the Internet through the Commission's Home Page

(www.ferc.gov) and in the Commission's Public Reference Room during regular

business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE, Room 2A,

Washington, DC 20426.

19. From the Commission's Home Page on the Internet, this information is available

in the Federal Energy Regulatory Records Information System (FERRIS). The full text

of this document is available on FERRIS in PDF and WordPerfect format for viewing,

printing, and/or downloading. To access this document in FERRIS, type the docket

number of this docket, excluding the last three digits, in the docket number field.

User assistance is available for FERRIS and the Commission's website during regular

business hours. For assistance, contact FERC Online Support at

FERCOnlineSupport@ferc.gov or toll-free at (866) 208-3676, or for TTY, contact (202)

502-8659. 

VIII. EFFECTIVE DATE

20. These regulations are effective [insert date 30 days after publication in the

FEDERAL REGISTER].

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The provisions of 5 U.S.C. § 801 regarding Congressional review of Final Rules does

not apply to this Final Rule, because the rule concerns agency procedure and practice and

will not substantially affect the rights of non-agency parties.

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List of subjects in 18 CFR Part 2

General policy and interpretation.

By the Commission.

( S E A L )

Magalie R. Salas,

 Secretary.

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In consideration of the foregoing, the Commission amends part 2, Chapter I,

Title 18, Code of Federal Regulations, as follows:

PART 2-GENERAL POLICY AND INTERPRETATIONS

The authority citation for part 2 continues to read as follows:

Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C.792-825y, 2601-

2645; 42 U.S.C. 4321-4361, 7101-7352.

Section 2.1c is added to read as follows:

§ 2.1c Policy statement on consultation with indian tribes in Commission

proceedings

(a) The Commission recognizes the unique relationship between the United States

and Indian tribes as defined by treaties, statutes, and judicial decisions. Indian tribes

have various sovereign authorities, including the power to make and enforce laws,

administer justice, and manage and control their lands and resources. Through several

Executive Orders and a Presidential Memorandum, departments and agencies of the

Executive Branch have been urged to consult with federally-recognized Indian tribes in a

manner that recognizes the government-to-government relationship between these

agencies and tribes. In essence, this means that consultation should involve direct

contact between agencies and tribes and should recognize the status of the tribes as

governmental sovereigns.

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(b) The Commission acknowledges that, as an independent agency of the federal

government, it has a trust responsibility to Indian tribes and this historic relationship

requires it to adhere to certain fiduciary standards in its dealings with Indian tribes.

(c) The Commission will endeavor to work with Indian tribes on a governmentto-government basis, and will seek to address the effects of proposed projects on tribal

rights and resources through consultation pursuant to the Commission's trust

responsibility, the Federal Power Act, the Natural Gas Act, the Public Utility Regulatory

Policies Act, Section 32 of the Public Utility Holding Company Act, the Interstate

Commerce Act, the Outer Continental Shelf Lands Act, Section 106 of the National

Historic Preservation Act, and in the Commission's environmental and decisional

documents. 

(d) As an independent regulatory agency, the Commission functions as a neutral,

quasi-judicial body, rendering decisions on applications filed with it, and resolving issues

among parties appearing before it, including Indian tribes. Therefore, the provisions of

the Administrative Procedure Act and the Commission's rules concerning off-the-record

communications, as well as the nature of the Commission's licensing and certificating

processes and of the Commission’s review of jurisdictional rates, terms and conditions,

place some limitations on the nature and type of consultation that the Commission may

engage in with any party in a contested case. Nevertheless, the Commission will

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endeavor, to the extent authorized by law, to reduce procedural impediments to working

directly and effectively with tribal governments.

(e) The Commission, in keeping with its trust responsibility, will assure that tribal

concerns and interests are considered whenever the Commission's actions or decisions

have the potential to adversely affect Indian tribes or Indian trust resources. 

(f) The Commission will seek to engage tribes in high-level meetings to discuss

general matters of importance, such as those that uniquely affect the tribes. Where

appropriate, these meetings may be arranged for particular tribes, by region, or in some

proceedings involving hydroelectric projects, by river basins. 

(g) The Commission will strive to develop working relationships with tribes and

will seek to establish procedures to educate Commission staff about tribal governments

and cultures and to educate tribes about the Commission's various statutory functions and

programs. To assist in this effort, the Commission is establishing the position of tribal

liaison. The tribal liaison will provide a point of contact and a resource for tribes for any

proceeding at the Commission.

(h) Concurrently with this policy statement, the Commission is issuing certain

new regulations regarding the licensing of hydroelectric projects. In this connection, the

Commission sets forth the following additional policies for the hydroelectric licensing

process. 

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(i) The Commission believes that the hydroelectric licensing process will benefit

by more direct and substantial consultation between the Commission staff and Indian

tribes. Because of the unique status of Indian tribes in relation to the Federal

government, the Commission will endeavor to increase direct communications with tribal

representatives in appropriate circumstances, recognizing that different issues and stages

of a proceeding may call for different approaches, and there are some limitations that

must be observed. 

(j) The Commission will seek to notify potentially-affected tribes about upcoming

hydroelectric licensing processes, to discuss the consultation process and the importance

of tribal participation, to learn more about each tribe's culture, and to establish case-bycase consultation procedures consistent with our ex parte rules.

(k) In evaluating a proposed hydroelectric project, the Commission will consider

any comprehensive plans prepared by Indian tribes or inter-tribal organizations for

improving, developing, or conserving a waterway or waterways affected by a proposed

project. The Commission will treat as a comprehensive plan, a plan that: (1) is a

comprehensive study of one or more of the beneficial uses of a waterway or waterways;

(2) includes a description of the standards applied, the data relied upon, and the

methodology used in preparing the plan; and (3) is filed with the Secretary of the

Commission. See generally 18 C.F.R. 2.19.

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Note: the following Appendix will not be published in the Code of Federal Regulations.

APPENDIX A

List of Commenters

Indian Tribes

Affiliated Tribes of Northwest Indians - Economic Development Corporation (NW 

Indians)

Confederated Tribes of the Umatilla Indian Reservation (Umatilla)

Columbia River Inter-Tribal Fish Commission (CRITFC)

Shoshone-Paiute Tribes of Nevada and Idaho, Duck Valley Reservation (S-P)

Shoshone-Bannock (S-B)

Great Lakes Indian Fish and Wildlife Commission (GLIFWC)

Maidu-Enterprise Tribe (Maidu)

Menominee Tribe of Wisconsin (Menominee)

Nez Perce Tribe 

North Fork Rancheria of Mono Indians of California (NF Rancheria)

Skokomish Indian Tribe (Skokomish)

Licensees

National Hydropower Association (NHA)

Southern California Edison Company (SCE)

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Non-governmental Organizations

Hydropower Reform Coalition (HRC)

Federal Agencies

Advisory Council on Historic Preservation (Advisory Council)

Dept. of the Interior (Interior)

States/State Agencies

California Resources Agency, California EPA, State Water Resources Control Board,

Department of Fish and Game, State of California Office of the Attorney General

(California)

Other

Pacific Legacy

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