Hydroelectric licensing and regulation

WARM SPRINGS TRIBAL CODE

CHAPTER 475

HYDROELECTRIC LICENSING AND REGULATION ORDINANCE (ORDINANCE 78 ADOPTED MARCH 11, 1998)

Table of Contents

I. GENERAL
475.001 Declaration of Purpose
475.005 Reservation Purposes
475.010 Definitions
475.015 Territory
475.20 Jurisdiction

II. HYDROELECTRIC PROJECT LICENSING
475.21 Responsible Tribal Official
475.025 Tribal Intervention in FERC Proceeding
475.030 Tribal Consultation Process
475.035 Clean Water Act §401 Certification
475.040 United States Trust Responsibility
475.050 Establishment of Section 4(e) Conditions for Protection of the Reservation
475.055 Establishment of Section 10(e) Compensation
475.060 Tribal Participation in §10(j) Process
475.065 Tribal Participation in Development of § 18 Fishway Prescriptions
475.070 Reservation Land Use Regulation
475.075 Applicable Plans for the Comprehensive Development of Waterways
475.080 Taxation of Hydroelectric Facilities and Energy
475.085 Regulation of Boating, Fishing, and other Activities in Tribal Waters
475.090 Resolution of Disputes
475.100 Separability of Provisions

WARM SPRINGS TRIBAL CODE

CHAPTER 475

HYDROELECTRIC LICENSING AND REGULATION ORDINANCE (ORDINANCE 78 ADOPTED MARCH 11, 1998)

I. GENERAL

475.001 Declaration of Purpose. The development and operation of hydroelectric projects affecting the Warm Springs Reservation and off-reservation reserved interests are of vital importance to the Tribe for two reasons.

First, hydroelectric projects have important natural resource impacts that can directly affect the interests of the Tribe. On-reservation impacts may occur when the project is 1) located on the Reservation, 2) affects upstream water quality, or 3) affects anadromous fish that should return to Reservation waters. Off-reservation impacts may occur when the project affects off-reservation treaty reserved rights, such as the rights to fish, hunt, gather roots and berries and pasture livestock off the Reservation. In addition, the projects may have significant impacts on archaeological sites or cultural resources located off the Reservation.

Second, the Tribe has a significant economic interest in on-reservation projects that must be protected.

The relicensing of a number of projects in the Columbia River Basin are scheduled in the decade following passage of this ordinance, including the Pelton-Round Butte Project located partially on the Reservation. This ordinance is intended to fully exercise the Tribe’s sovereign powers in connection with the relicensing of these projects as well as the licensing or relicensing of any other projects that may be impact tribal rights.

475.005 Reservation Purposes.

1. Two provisions of the Federal Power Act (“FPA”) expressly require a determination of the purposes of the Reservation. Section 4(e) of the FPA provides: “Provided, that licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired…” Section 15(a)(2)(D) of the FPA provides: “In the case of an applicant that is an Indian tribe applying for a license for a project located on the tribal reservation, a statement of the need for such tribe for electricity generated by the project to foster the purposes of the reservation may be included.” In addition, an examination of the purposes of the Reservation by the Secretary of the Interior is appropriate when establishing the conditions necessary for the adequate protection and utilization of the reservation pursuant to § 4(e) of the Federal Power Act.
2. The Reservation was created by the joint action of the Tribes and Bands of Middle Oregon and the United States when they entered into the Treaty of June 25, 1855.
3. The Tribe hereby declares that among the purposes for which the Reservation was established and for which it now exists are: (a) To provide a permanent homeland for the exclusive utilization by tribal members in perpetuity. (b) To ensure a permanent and adequate source of the natural resources which tribal members have always utilized and depended upon for their existence, including fish, water, game, roots, berries, medicines and cultural materials. (c) To protect and reserve to themselves the land and resources necessary to satisfy them culturally, spiritually, physically, and economically.

475.010 Definitions.

1. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
2. “Tribal Council” means the 11 member governing body of the Tribe.
3. “Reservation” means the Warm Springs Indian Reservation established by the Treaty of June 25, 1855, between the Tribes and Bands of Middle Oregon and the United States.
4. “FERC” means the Federal Energy Regulatory Commission.
5. “Pelton-Round Butte Project” means the Pelton-Round Butte hydroelectric project licensed by the FERC as Project No. 2030 and consisting of the Pelton, Round Butte, and Reregulating Dams, their impoundments, power generating facilities, and other project lands.
6. “Tribal Tax Commission” means the body established by WSTC 700.100(l).
7. “Superintendent” means the superintendent of the Warm Springs Agency of the Bureau of Indian Affairs.
8. “Federal Power Act” means the provisions of 16 USC §§ 791 et. seg.
9. “Warm Springs Power Enterprise” means the tribal enterprise of that same name chartered pursuant to Section 12 of the Tribe’s federal corporate charter.
10. “Relicensing Working Group” means the body of tribal officials, attorneys and consultants directed by the Tribal Council to carry out the responsibilities of the Tribe with regard to relicensing of the Pelton-Round Butte Project, both as a government entity and as a competing applicant.

475.015 Territory. This Ordinance applies to govern the Tribe’s exercise of sovereign powers throughout the Columbia River Basin to the extent that activities in connection with hydroelectric projects affect the Treaty, cultural or other interests of the Tribe and its members.

475.020 Jurisdiction. It is the intent of the Tribe that the jurisdiction of the Tribe with regard to hydroelectric sites and development within the Columbia River Basin be invoked to the maximum extent possible under this ordinance. Within the exterior boundaries of the Reservation the Tribe has concurrent jurisdiction with the United States over hydroelectric sites and development. The Treaty of June 25, 1855 between the Tribes and Bands of Middle Oregon and the United States provides that the Tribe shall have exclusive use of the Reservation. The Tribal Constitution adopted in 1938 and approved by the Secretary of the Interior provides that the jurisdiction of the Tribe extends to all lands within the Reservation and to trust lands outside the Reservation. The Tribe generally exercises its jurisdiction off-reservation through government-to-government relations.

II. HYDROELECTRIC PROJECT LICENSING

475.021 Responsible Tribal Official.

1. Tribal Council. The Tribal Council shall have overall authority to implement and administer this ordinance.
2. Secretary-Treasurer. The Secretary-Treasurer is the Tribal Council appointee responsible for implementing legislative actions of the Tribal Council and carrying out the duties and responsibilities required by the Tribal Constitution and Bylaws.
3. Chief Operating Officer. The Chief Operating Officer is the Tribal Council Appointee responsible for managing day-to-day operations of programs and services provided by the tribal government.
4. Department of Natural Resources. The Department of Natural Resources shall be the primary tribal office responsible for ensuring that natural and cultural resources of interest to the Tribe are protected and preserved.
5. Warm Springs Power Enterprises. Warm Springs Power Enterprises shall be responsible for carrying out the directives of the Tribal Council with regard to tribal hydropower development and operation.
6. Tribal Council Committees. As directed by the Tribal Council, the following committees shall be responsible for monitoring and carrying out activities that are the subject of this ordinance: (a) On-reservation Fish Committee. (b) Off-reservation Fish Committee. (c) Water Board. (d) Culture and Heritage Committee. (e) Range Committee.
7. Relicensing Working Group. The Relicensing Working Group shall be responsible for overseeing and directing Tribal participation in the Pelton-Round Butte Hydroelectric Project relicensing proceeding and other licensing and relicensing proceedings in accordance with the direction of the Tribal Council.
8. Tribal Tax Commission. The Tribal Tax Commission shall establish appropriate taxes for hydroelectric projects located totally or partially within the exterior boundary of the Reservation in accordance with the provisions of WSTC Chapter 700.

475.025 Tribal Intervention in FERC Proceeding. The Secretary-Treasurer shall make recommendations to the Tribal Council with regard to whether or not tribal intervention in pending FERC proceedings is appropriate based upon the degree to which tribal interests are involved in the proceeding. The Tribal Council may authorize intervention by resolution in appropriate cases.

475.030 Tribal Consultation Process.

1. The Secretary-Treasurer shall be responsible for coordination of the consultation process in instances in which state and/or federal agencies, or applicants are required to consult with Indian Tribes. The Secretary-Treasurer shall ensure that appropriate tribal officials are engaged in the consultation process.
2. The Relicensing Working Group shall be responsible for carrying out the responsibility of the Tribe to consult as a license applicant with other agencies and entities ‘pursuant to the Federal Power Act in the case of the Pelton-Round Butte Hydroelectric Project relicensing proceeding.

475.035 Clean Water Act §401 Certification.

1. The Tribe is eligible to administer the provisions of the Federal Water Pollution Control Act (“Clean Water Act”) pursuant to 33 USC §1377(e) as the Act relates to waters within the exterior boundaries of the Reservation.
2. Upon enactment of WSTC Chapter 479 “Clean Water Act §401 Certification” and water quality standards approved by the Environmental Protection Administration, each applicant for a license pursuant to §§10 or 15 of the Federal Power Act for a project encompassing waters within the exterior boundaries of the Reservation for which a certification pursuant to §401 of the Clean Water Act is required shall obtain such a certification from the Tribe in accordance with federal and. tribal law, including WSTC Chapter 479.

475.040 United States Trust Responsibility. The United States has a trust responsibility to the Tribe to protect important interests of the Tribe affected by hydroelectric projects. Although the Department of the Interior has the primary responsibility for carrying out the trust responsibility, all other federal agencies and entities are likewise obligated, including, but not limited to the FERC, the National Marine Fisheries Service, the Environmental Protection Agency and the Corps of Engineers to carry out their activities consistent with the federal trust responsibility. This Ordinance will set forth the procedures by which the Tribe will cooperate and coordinate with the United States in the exercise of its trust responsibility. It is the policy of the Tribe that the United States and its agencies comply with its trust responsibility while carrying out their duties pursuant to the Federal Power Act, the Federal Clean Water Act, the National Environmental Policy Act, and other applicable federal law.

475.050 Establishment of Section 4(e) Conditions for Protection of the Reservation.

1. Pursuant the Section 4(e) of the Federal Power Act the Secretary of the Interior has the authority to establish such conditions for inclusion in licenses issued under the Federal Power Act as are necessary for the adequate protection and utilization of the Reservation. This section is intended to set forth the mechanism by which the Tribe will participate in the development of these conditions.
2. The Chairman of the Tribal Council and the Secretary-Treasurer are designated as the Tribal officials to whom official correspondence and notifications with regard to the establishment of Section 4(e) conditions are to be delivered.
3. It is the policy of the Tribe that the Department of the Interior to begin developing at the earliest practical date Section 4(e) conditions and involve at each stage the appropriate representative of the Tribe.
4. It is the policy of the Tribe that Section 4(e) conditions should take into account and protect the full range of treaty, natural resources, cultural, religious, and economic interests of the Tribe.
5. Under the direction of the Tribal Council, the Secretary-Treasurer and the General Manager of Warm Springs Power Enterprise shall have joint responsibility for advising the Tribal Council with regard to appropriate Section 4(e) conditions.
6. The Tribal Council shall deal with the Secretary of the Interior, and his representatives, on a government-to-government basis in establishing Section 4(e) conditions.

475.55 Establishment of Section 10(e) Compensation.

1. Concurrent with the submission of an application for an original or new license with the FERC for a project encompassing tribal lands, each applicant shall submit to the Chairman of the Tribal Council and the Secretary of the Interior a draft agreement that includes the compensation that the applicant proposes to pay the Tribe for the use of its lands as well as any other proposed terms securing the right to use tribal lands in connection with the project. The proposal shall state with specificity the amount of compensation, and the factual basis upon which it was developed.
2. When submitting the draft agreement for compensation each applicant shall designate a responsible official to negotiate the final terms of the agreement.
3. Upon reaching final agreement for payment of annual charges to the Tribe, the Chairman of the Tribal Council and the Secretary of the Interior shall notify the FERC of the terms of the agreement and that the Tribe consents to the use of its lands in connection with the project as required by Section 10(e).

475.060 Tribal Participation in §10(j) Process. Section 10(j) of the Federal Power Act provides that state and federal fish and wildlife agencies may make protection, mitigation and enhancement’ recommendations to the FERC with regard to fish and wildlife. Under the direction of the Tribal Council, the Secretary-Treasurer shall be responsible for ensuring that appropriate tribal government-to-government consultation takes place with federal fish and wildlife agencies during the development of § 10(j) recommendations.

475.065 Tribal Participation in Development of § 18 Fishway Prescriptions. Section 18 of the Federal Power Act authorizes the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service to establish fishway prescriptions in licensing proceedings. Under the direction of the Tribal Council, the Secretary-Treasurer shall be responsible for ensuring that appropriate tribal government-to-government consultation takes place with the appropriate federal fish and wildlife agency during the development of § 18 fishway prescriptions.

475.70 Reservation Land Use Regulation.

1. License applicants are required to comply with the requirements of all tribal land use regulations, including, but not limited to, WSTC Chapter 460 “Zoning and Land Use Code.” WSTC Chapter 490 “Protection and Management of Archaeological, Historical and Cultural Resources” and IRMP I and II.
2. Other than on public highways and premises otherwise open to the public, the Warm Springs Reservation is closed to entry to other than members of the Tribe and authorized officials of the United States or their designees in the exercise of their official duties except as may be specifically authorized by the Tribes or federal law. Access to the closed portions of the Reservation is generally governed by the provisions of WSTC Chapter 306 “Trespass.” Requests for access to tribal lands that are not clearly open to the public for purposes of carrying out studies or other similar activities shall be presented to the Secretary- Treasurer. Such requests shall set forth the purpose of the request, the individuals that will enter tribal lands, the time of entry and the duration of the entry, and the specific activities that will take place. The request should be submitted at least 30 days prior to the proposed entry date. The Tribal Council will instruct the Secretary-Treasurer to either deny entry, or permit entry with any necessary conditions attached to such permission that are necessary. Those conditions may include, but are not limited to the payment of actual and reasonable expenses of the Tribe in issuing the permit, monitoring the activity conducted pursuant to the permit and enforcing the terms of the permit, and the requirement that the Tribe receive any information and data developed pursuant to the permit.
3. Any modification of project boundaries within the Reservation must be approved by the Tribal Council. Any proposed changes must be submitted to the Tribal Council together with a proposed agreement providing for protection and utilization of the lands and proposed compensation pursuant to § 10(e) of the Federal Power Act.

475.75 Applicable Plans for the Comprehensive Development of Waterways. Pursuant to Section 10 of the Federal Power Act the FERC will award hydroelectric licenses to the applicant with the application that is best adapted to the comprehensive development of waterways. The tribal plans that shall be submitted to FERC for consideration as comprehensive plans are:

1. The Tribal Integrated Resource Management Plan – Forest Resources (IRMP I).
2. The Tribal Integrated Resource Management Plan – Range Resources (IRMP II).
3. The Tribal Comprehensive Plan.
4. The Tribal Lower Deschutes River Wild and Scenic River Plan.
5. The Tribal Upper Deschutes River Wild and Scenic River Plan:
6. The Tribal Metolius River Wild and Scenic River Plan.
7. The Tribal Squaw Creek Wild and Scenic River Plan. (to be developed)
8. Warm Springs Tribal Code Chapter 475 “Hydroelectric Licensing and Regulation Ordinance”

475.080 Taxation of Hydroelectric Facilities and Energy. It is the policy of the Tribe to establish appropriate taxes in accordance with WSTC Chapter 700 “Business Privilege Tax” in connection with the operation of hydroelectric facilities within, the Reservation by nonmembers.

475.085 Regulation of Boating, Fishing, and other Activities in Tribal Waters. The Tribe, by ordinance, may regulate the conduct of both Indians and non-Indians in waters within the exterior boundaries of the Reservation and may regulate fishing activity in off-reservation areas in which the Tribes have reserved fishing rights.

475.090 Resolution of Disputes. Applicants affected by the terms of this ordinance may seek appropriate review through the tribal administrative or judicial processes. The Tribal Court shall have jurisdiction over such cases.

475.100 Separability of Provisions. If any of the provisions of this Ordinance or the application thereof to any person, State agency, entity or circumstance is held invalid, neither the remainder of the ordinance, nor the application of the remainder of the ordinance to other persons. States, agencies or entities, or circumstances shall be affected thereby.