Sec. 103. Tribal energy resource agreements
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Section 2604 of the Energy Policy Act of 1992 ( 25 U.S.C. 3504 ) is amended— in subsection (a)— in paragraph (1)— in subparagraph (A), by striking or after the semicolon at the end; in subparagraph (B)— by striking clause
(i)and inserting the following: an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; or ; and in clause (ii)— by inserting , at least a portion of which have been after energy resources ; by inserting or produced from after developed on ; and by striking and after the semicolon at the end and inserting or ; and by adding at the end the following: pooling, unitization, or communitization of the energy mineral resources of the Indian tribe located on tribal land with any other energy mineral resource (including energy mineral resources owned by the Indian tribe or an individual Indian in fee, trust, or restricted status or by any other persons or entities) if the owner of the resources has consented or consents to the pooling, unitization, or communitization of the other resources under any lease or agreement; and ; and by striking paragraph
(2)and inserting the following: a lease or business agreement described in paragraph
(1)shall not require review by, or the approval of, the Secretary under section 2103 of the Revised Statutes (25 U.S.C. 81), or any other provision of law, if the lease or business agreement— was executed— in accordance with the requirements of a tribal energy resource agreement in effect under subsection
(e)(including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs
(D)and
(E)of subsection (e)(2)); or by the Indian tribe and a tribal energy development organization— for which the Indian tribe has obtained certification pursuant to subsection (h); and the majority of the interest in which is, and continues to be throughout the full term or renewal term (if any) of the lease or business agreement, owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and has a term that does not exceed— 30 years; or in the case of a lease for the production of oil resources, gas resources, or both, 10 years and as long thereafter as oil or gas is produced in paying quantities. ; by striking subsection
(b)and inserting the following: An Indian tribe may grant a right-of-way over tribal land without review or approval by the Secretary if the right-of-way— serves— an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; a facility located on tribal land that extracts, produces, processes, or refines energy resources; or the purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land; and was executed— in accordance with the requirements of a tribal energy resource agreement in effect under subsection
(e)(including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs
(D)and
(E)of subsection (e)(2)); or by the Indian tribe and a tribal energy development organization— for which the Indian tribe has obtained certification pursuant to subsection (h); and the majority of the interest in which is, and continues to be throughout the full term or renewal term (if any) of the right-of-way, owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and has a term that does not exceed 30 years. ; by striking subsection
(d)and inserting the following: No lease or business agreement entered into, or right-of-way granted, pursuant to this section shall be valid unless the lease, business agreement, or right-of-way is authorized by subsection
(a)or (b). ; in subsection (e)— in paragraph (2)— by striking (2)(A) and all that follows through the end of subparagraph
(A)and inserting the following: On the date that is 271 days after the date on which the Secretary receives a tribal energy resource agreement from an Indian tribe under paragraph (1), the tribal energy resource agreement shall take effect, unless the Secretary disapproves the tribal energy resource agreement under subparagraph (B). On the date that is 91 days after the date on which the Secretary receives a revised tribal energy resource agreement from an Indian tribe under paragraph (4)(B), the revised tribal energy resource agreement shall take effect, unless the Secretary disapproves the revised tribal energy resource agreement under subparagraph (B). ; in subparagraph (B)— by striking
(B)and all that follows through if— and inserting the following: The Secretary shall disapprove a tribal energy resource agreement submitted pursuant to paragraph
(1)or (4)(B) only if— ; by striking clause
(i)and inserting the following: the Secretary determines that the Indian tribe has not demonstrated that the Indian tribe has sufficient capacity to regulate the development of the specific 1 or more energy resources identified for development under the tribal energy resource agreement submitted by the Indian tribe; ; by redesignating clause
(iii)as clause
(iv)and indenting appropriately; by striking clause
(ii)and inserting the following: a provision of the tribal energy resource agreement would violate applicable Federal law (including regulations) or a treaty applicable to the Indian tribe; the tribal energy resource agreement does not include 1 or more provisions required under subparagraph (D); or ; and in clause
(iv)(as redesignated by subclause (III))— in the matter preceding subclause (I), by striking includes and all that follows through section— and inserting does not include provisions that, with respect to any lease, business agreement, or right-of-way to which the tribal energy resource agreement applies— ; and in subclause (XVI)(bb), by striking or tribal ; in subparagraph (C)— in the matter preceding clause (i), by inserting the approval of after with respect to ; by striking clause
(ii)and inserting the following: the identification of mitigation measures, if any, that, in the discretion of the Indian tribe, the Indian tribe might propose for incorporation into the lease, business agreement, or right-of-way; ; in clause (iii)(I), by striking proposed action and inserting approval of the lease, business agreement, or right-of-way ; in clause (iv), by striking and at the end; in clause (v), by striking the period at the end and inserting ; and ; and by adding at the end the following: the identification of specific classes or categories of actions, if any, determined by the Indian tribe not to have significant environmental effects. ; in subparagraph (D)(ii), by striking subparagraph (B)(iii)(XVI) and inserting subparagraph (B)(iv)(XV) ; and by adding at the end the following: A tribal energy resource agreement that takes effect pursuant to this subsection shall remain in effect to the extent any provision of the tribal energy resource agreement is consistent with applicable Federal law (including regulations), unless the tribal energy resource agreement is— rescinded by the Secretary pursuant to paragraph (7)(D)(iii)(II); or voluntarily rescinded by the Indian tribe pursuant to the regulations promulgated under paragraph (8)(B) (or successor regulations). The Secretary shall make a capacity determination under subparagraph (B)(i) not later than 120 days after the date on which the Indian tribe submits to the Secretary the tribal energy resource agreement of the Indian tribe pursuant to paragraph (1), unless the Secretary and the Indian tribe mutually agree to an extension of the time period for making the determination. Any determination that the Indian tribe lacks the requisite capacity shall be treated as a disapproval under paragraph
(4)and, not later than 10 days after the date of the determination, the Secretary shall provide to the Indian tribe— a detailed, written explanation of each reason for the determination; and a description of the steps that the Indian tribe should take to demonstrate sufficient capacity. Notwithstanding any other provision of this section, an Indian tribe shall be considered to have demonstrated sufficient capacity under subparagraph (B)(i) to regulate the development of the specific 1 or more energy resources of the Indian tribe identified for development under the tribal energy resource agreement submitted by the Indian tribe pursuant to paragraph
(1)if— the Secretary determines that— the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); and for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the tribal energy resource agreement of the Indian tribe pursuant to paragraph
(1)or (4)(B), the contract or compact— has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and has included programs or activities relating to the management of tribal land; or the Secretary fails to make the determination within the time allowed under subparagraph (G)(i) (including any extension of time agreed to under that subparagraph). ; in paragraph (4), by striking date of disapproval and all that follows through the end of subparagraph
(C)and inserting the following: date of disapproval, provide the Indian tribe with— a detailed, written explanation of— each reason for the disapproval; and the revisions or changes to the tribal energy resource agreement necessary to address each reason; and an opportunity to revise and resubmit the tribal energy resource agreement. ; in paragraph (6)— in subparagraph (B)— by striking
(B)Subject to and inserting the following: Subject only to ; and by striking subparagraph
(D)and inserting subparagraphs
(C)and
(D); in subparagraph (C), in the matter preceding clause (i), by inserting to perform the obligations of the Secretary under this section and before to ensure ; and in subparagraph (D), by adding at the end the following: Nothing in this section absolves, limits, or otherwise affects the liability, if any, of the United States for any— term of any lease, business agreement, or right-of-way under this section that is not a negotiated term; or losses that are not the result of a negotiated term, including losses resulting from the failure of the Secretary to perform an obligation of the Secretary under this section. ; and in paragraph (7)— in subparagraph (A), by striking has demonstrated and inserting the Secretary determines has demonstrated with substantial evidence ; in subparagraph (B), by striking any tribal remedy and inserting all remedies (if any) provided under the laws of the Indian tribe ; in subparagraph (D)— in clause (i), by striking determine and all that follows through the end of the clause and inserting the following: determine— whether the petitioner is an interested party; and if the petitioner is an interested party, whether the Indian tribe is not in compliance with the tribal energy resource agreement as alleged in the petition. ; in clause (ii), by striking determination and inserting determinations ; and in clause (iii), in the matter preceding subclause
(I)by striking agreement the first place it appears and all that follows through , including and inserting agreement pursuant to clause (i), the Secretary shall only take such action as the Secretary determines necessary to address the claims of noncompliance made in the petition, including ; in subparagraph (E)(i), by striking the manner in which and inserting , with respect to each claim made in the petition, how ; and by adding at the end the following: Notwithstanding any other provision of this paragraph, the Secretary shall dismiss any petition from an interested party that has agreed with the Indian tribe to a resolution of the claims presented in the petition of that party. ; by redesignating subsection
(g)as subsection (j); and by inserting after subsection
(f)the following: Any amounts that the Secretary would otherwise expend to operate or carry out any program, function, service, or activity (or any portion of a program, function, service, or activity) of the Department that, as a result of an Indian tribe carrying out activities under a tribal energy resource agreement, the Secretary does not expend, the Secretary shall, at the request of the Indian tribe, make available to the Indian tribe in accordance with this subsection. The Secretary shall make the amounts described in paragraph
(1)available to an Indian tribe through an annual written funding agreement that is negotiated and entered into with the Indian tribe that is separate from the tribal energy resource agreement. Notwithstanding paragraph (1)— the provision of amounts to an Indian tribe under this subsection is subject to the availability of appropriations; and the Secretary shall not be required to reduce amounts for programs, functions, services, or activities that serve any other Indian tribe to make amounts available to an Indian tribe under this subsection. The Secretary shall calculate the amounts under paragraph
(1)in accordance with the regulations adopted under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 . The effective date or implementation of a tribal energy resource agreement under this section shall not be delayed or otherwise affected by— a delay in the promulgation of regulations under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 ; the period of time needed by the Secretary to make the calculation required under paragraph (1); or the adoption of a funding agreement under paragraph (2). Not later than 90 days after the date on which an Indian tribe submits an application for certification of a tribal energy development organization in accordance with regulations promulgated under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 , the Secretary shall approve or disapprove the application. The Secretary shall approve an application for certification if— the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); and for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application, the contract or compact— has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and has included programs or activities relating to the management of tribal land; and the tribal energy development organization is organized under the laws of the Indian tribe and subject to the jurisdiction and authority of the Indian tribe; the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and 1 or more other Indian tribes) own and control at all times a majority of the interest in the tribal energy development organization. If the Secretary approves an application for certification pursuant to paragraph (2), the Secretary shall, not more than 10 days after making the determination— issue a certification stating that— the tribal energy development organization is organized under the laws of the Indian tribe and subject to the jurisdiction and authority of the Indian tribe; the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and 1 or more other Indian tribes) own and control at all times a majority of the interest in the tribal energy development organization; and the certification is issued pursuant this subsection; deliver a copy of the certification to the Indian tribe; and publish the certification in the Federal Register. Nothing in this section waives the sovereign immunity of an Indian tribe. . Not later than 1 year after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 , the Secretary shall promulgate or update any regulations that are necessary to implement this section, including provisions to implement— section 2604(g) of the Energy Policy Act of 1992 ( 25 U.S.C. 3504(g) ) including the manner in which the Secretary, at the request of an Indian tribe, shall— identify the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) that the Secretary will not have to operate or carry out as a result of the Indian tribe carrying out activities under a tribal energy resource agreement; identify the amounts that the Secretary would have otherwise expended to operate or carry out each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (A); and provide to the Indian tribe a list of the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) identified pursuant subparagraph
(A)and the amounts associated with each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (B); and section 2604(h) of the Energy Policy Act of 1992 ( 25 U.S.C. 3504(h) ), including the process to be followed by, and any applicable criteria and documentation required for, an Indian tribe to request and obtain the certification described in that section.
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