Tribes asked FERC to reject a proposal from Energy Secretary Chris Wright to reverse a 2024 rule change that required consultation with them over hydropower projects proposed on their lands (RM26-5).

FERC rejected some pumped hydro facility applications that were for projects in Navajo Nation territory after tribal authorities opposed them and said it would start denying other projects on native lands whenever tribes opposed them. (See FERC Rejects Pump Storage Projects Over Navajo Objections.)

Wright told the commission that eliminating the rule was needed “for America to continue dominating global energy markets.”

“The commission’s longstanding policy has been to grant applications for preliminary permits over the opposition of third parties, such as federal land managers, similarly affected agencies or tribes, as applicable,” Wright wrote in an Oct. 23 letter. “The reason is simple. The commission views preliminary permits as ‘encouraging hydroelectric development by affording its holder priority of application (i.e., guaranteed first-to-file status) with respect to the filing of development applications for the affected site.’”

The preliminary permit only lets holders investigate the feasibility of a project; it does not give them any land-disturbing or other property rights, he added.

Recent orders denying preliminary permit applications because of objections from the Navajo created “an untenable regime whereby it has effectively delegated its exclusive statutory authority to issue preliminary permits to third parties,” Wright said. The letter was accompanied by a Notice of Proposed Rulemaking the secretary filed under Section 403 of the Department of Energy Organization Act that, if approved, would return the rules to the status quo ante.

The National Hydropower Association told FERC in comments filed Nov. 12 that it supports the NOPR because it preserves the ability for developers to protect their early investment in a proposed project, while developers consult with regulators, tribes and other parties on their projects.

“Recognizing the importance of protecting a developer’s critical investments early in the project development phase, years before any revenue stream from the project is secured, the commission should adopt the proposed NOPR and return to its longstanding policy that preliminary permits should be denied only if there is a permanent legal barrier to licensing the project,” NHA said.

Objections raised early in the process lack information on the project’s design, operating parameters and environmental effects, and FERC should not defer to the sentiments of other entities, whether that is a federal land manager, another agency or a tribe, the group argued.

The Navajo urged FERC to reject the NOPR and asked for another month to file more substantive comments.

“The 2024 policy resulted in developers engaging with the Navajo Nation, its political subdivisions and the local communities where the project would be located; obtaining non-invasive access authorization and permission to survey from the Nation under Navajo law; and reapplying for preliminary permits without opposition,” it told FERC. “At least two proposed projects are in the feasibility stages of project development.”

The Choctaw Nation of Oklahoma and Chickasaw Nation filed joint comments opposing the NOPR, saying it directly implicates their sovereign authority over tribal lands, waters and other cultural resources. They also complained about the comment deadline, which gave parties just 12 days to respond to the secretary’s proposal and asked for a 60-day extension and initiation of government-to-government consultation with interested tribes before moving forward.

“Nothing in Section 403 requires the commission to undertake a rulemaking or to adopt the secretary’s suggested regulatory text,” they said.

The proposal conflicts with the Department of Energy’s own “trust responsibilities” to tribes, they argued. The federal trust responsibility applies to all executive agencies and requires that federal actions avoid harming tribal lands and waters, they said.

“By requesting rule changes that would restrict the commission’s ability to consider tribal consent or protect tribal rights in preliminary-permitting decisions, the secretary is advancing an action that is inconsistent with those responsibilities,” the tribes told FERC. “DOE should instead consult with tribes before proposing any regulatory changes that could impact tribal lands or waters.”

While the secretary argued the 2024 policy allows “third parties” to veto permits, the two tribes argued that framing ignores fundamental law.

“Tribal nations are not ‘third parties,’” they added. “They are sovereign governments with federally protected interests in land, water, cultural and other trust resources. These interests are not speculative; they are legally recognized and enforceable.”

Considering a tribe’s authority to control access to its lands or use of its waters is not an improper delegation, but rather FERC performing its duty under the Federal Power Act and other federal law, they said.

The Ute Mountain Ute Tribe also argued that tribes are not third parties, but rather sovereign governments whose lands and resources are held in trust by the U.S. The 2024 policy correctly applied the law, it said.

“DOE’s proposed rule would compel the commission to disregard that obligation by forcing the issuance of permits even when tribes have explicitly withheld consent,” the tribe said. “Tribal opposition is not a ‘veto’; it is the exercise of sovereign authority. By denying permits in those circumstances, the commission honors its trust duty and promotes orderly, cooperative energy development.”

While preliminary permits do not allow developers to disturb any land, they do block tribal governments from pursuing their own developments at sites, which has tangible economic and jurisdictional consequences, the tribe said.