Tribal Renewable
Energy Development
Literature Review
June 2023
Tribal Renewable Energy Development
Literature Review
ii
Table of Contents
Table of Contents ..................................................................................................................... ii
Table of Figures ......................................................................................................................... v
List of Tables ............................................................................................................................. v
Executive Summary ................................................................................................................... 1
Introduction .............................................................................................................................. 2
Sources Consulted ................................................................................................................. 2
Part I: Tribal Renewable Energy Resources ............................................................................. 3
Types of Renewable Energy Resources ................................................................................. 3
Types of Projects .................................................................................................................... 5
Tribal Roles and Options ..................................................................................................... 6
Project Ownership ................................................................................................................. 8
Current Market Conditions .................................................................................................. 8
Key Market Opportunities ................................................................................................................. 8
State Laws and Regulations: Barriers and Opportunities ............................................................ 9
Transmission and Distribution System Expansion and Upgrades ........................................... 10
Part II: Federal Laws, Regulations, Policies and Guidance .................................................... 11
Type I: Federal Indian Laws and Regulations ..................................................................... 11
Long-Term Leasing Act of 1955 .................................................................................................... 11
Long-Term Leasing Act Amendments—HEARTH Act .............................................................. 13
Right-of-Way Acts ........................................................................................................................... 14
Contracts Act.................................................................................................................................... 14
Indian Mineral Development Act of 1982 ..................................................................................... 14
Indian Tribal Energy Self-Determination Act (Title V of the Energy Policy Act of 2005) ...... 15
Tribal Energy Resource Agreements ................................................................................................ 16
Certified Tribal Energy Development Organizations ....................................................................... 16
Type II: Federal Environmental Laws ................................................................................. 16
The National Environmental Policy Act ........................................................................................ 17
National Historic Preservation Act ................................................................................................ 18
Species Protection Acts ................................................................................................................. 19
Clean Air Act .................................................................................................................................... 20
Clean Water Act .............................................................................................................................. 20
Type III: Federal Energy Regulatory Laws .......................................................................... 20
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Type IV. Federal Tax Laws ................................................................................................... 21
Inflation Reduction Act .................................................................................................................... 21
Other Federal Tax Benefits ............................................................................................................ 23
Part III. Renewable Energy Project Development ................................................................. 24
Federal Renewable Energy Information ............................................................................ 24
Tribal Energy Planning ...................................................................................................................... 24
Solar, Wind, Biomass, Storage Project Development Cycle .............................................. 25
Phase I: Project Potential ................................................................................................................. 26
Phase II. Project Options: Siting, Ownership, Technology ....................................................... 26
Phase III. Project Refinement: Development Agreements, NEPA, Approvals,
Funding/Financing ........................................................................................................................... 27
Phase IV. Project Implementation ................................................................................................ 27
Phase V. Project Operations/Maintenance ................................................................................. 28
EPA Onsite Solar + Storage Development .......................................................................... 28
Geothermal Project Development ...................................................................................... 29
Part IV. Federal Financial and Technical Assistance ............................................................. 30
Major Technical Assistance ................................................................................................. 30
Bipartisan Infrastructure Law ............................................................................................ 30
Inflation Reduction Act ........................................................................................................ 31
Tribal Specific Programs ................................................................................................................ 31
Tax Credits and Rebates ............................................................................................................... 32
Environmental and Energy Programs .......................................................................................... 32
Standing Federal Programs ................................................................................................. 33
Part V. Putting it all Together ................................................................................................ 33
Key Challenges .................................................................................................................... 33
Internal Barriers ................................................................................................................................ 34
External Barriers ............................................................................................................................... 34
Tribal Case Studies .............................................................................................................. 34
Blue Lake Rancheria (CA) Microgrid ................................................................................................ 34
Picuris Pueblo (NM) community solar .............................................................................................. 35
Spokane Housing Authority (WA) rooftop ........................................................................................ 35
Moapa Band of Paiute Indians (NV) Utility Scale Solar .................................................................. 35
Campo Band of Kumeyaay (CA) Commercial Wind ......................................................................... 36
Navajo Tribal Utility Authority Solar Projects ................................................................................... 37
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Development and Deployment Key Takeaways ................................................................. 37
Bibliography ............................................................................................................................ 38
General Resources ............................................................................................................... 38
Tribal Renewable Energy Resource Assessments .............................................................. 38
Biomass ................................................................................................................................ 38
Geothermal .......................................................................................................................... 38
Hydrogen ............................................................................................................................. 39
Hydropower ......................................................................................................................... 39
Solar ..................................................................................................................................... 39
Wind ..................................................................................................................................... 39
Market/Industry .................................................................................................................. 39
State Laws/Policies .............................................................................................................. 40
Transmission ....................................................................................................................... 40
Microgrids ............................................................................................................................ 40
Energy Planning .................................................................................................................. 40
Project Development .......................................................................................................... 41
Laws, Regulations, Related Guidance/Handbooks ........................................................... 41
Federal Financial and Technical Assistance....................................................................... 42
Law Articles .......................................................................................................................... 43
Index of Acronyms .................................................................................................................. 44
Appendices .............................................................................................................................. 46
Appendix A. Example of DOE descriptions of major “fatal flaws” in utility scale renewable
energy development ............................................................................................................ 46
Appendix B: Solar Resource Crosswalk .............................................................................. 47
Appendix C: Wind Resource Crosswalk .............................................................................. 49
Appendix D: Biomass Resource Crosswalk ........................................................................ 51
Appendix E: Geothermal Resource Crosswalk ................................................................... 52
Appendix F: Hydroelectric Resource Crosswalk ................................................................ 53
Appendix G: Hydrogen Resources Crosswalk .................................................................... 54
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Table of Figures
Figure 1. Example of a distributed energy system. .................................................................................... 6
Figure 2. NEPA and NHPA processes related to Section 106 ................................................................ 19
Figure 3. Project Development Cycle ....................................................................................................... 25
Figure 4. Phase I. Project Potential federal resources ........................................................................... 26
Figure 5. Phase II. Project Options federal resources ............................................................................ 27
Figure 6. Phase III. Project Refinement federal resources ..................................................................... 27
Figure 7. Phase IV. Project Implementation federal resources ............................................................. 28
Figure 8: Solar Project Development Pathway ........................................................................................ 28
Figure 9: Development and Approval Process ........................................................................................ 29
Figure 10. Blue Lake Rancheria microgrids. ........................................................................................... 35
Figure 11. Moapa Band of Paiute Indians utility scale solar project. .................................................... 36
Figure 12. Campo Band of Kumeyaay commercial wind project. .......................................................... 36
List of Tables
Table 1: Summary of Tribal Technical Potential by Capacity and Generation ......................................... 3
Table 2: Utility-Scale Technical Potential on Tribal Lands in Contiguous 48 States ............................... 4
Table 3: Tribal Roles and Options in Renewable Energy Development .................................................... 7
Table 4: Tribal Risks in Renewable Energy Development ......................................................................... 7
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Tribal Renewable Energy Development
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Executive Summary
The Tribal Renewable Energy Projects literature review is intended to provide a comprehensive, but
abbreviated, summary of the information and sources available to the Bureau of Indian Affairs (BIA)
Division of Energy and Mineral Development (DEMD) and Indian Energy Service Center (IESC), and to
Indian tribes related to renewable energy project development and deployment on Indian lands. The
sources reviewed include:
• federal laws, regulations, and guidebooks;
• federal agency websites, guidance, reports and other work products;
• industry information, reports and research;
• other state government information;
• academic information and
• law review articles.
This review covers major topic areas, including background information on tribal energy resources,
project options, market considerations, transmission and implications of state law and regulations.
Focus is placed on the complex federal legal scheme that influences, controls, and regulates
renewable energy projects on Indian lands. In addition, there is a more in-depth review of project
development phases and resources available to support project development. Further, the review
provides a summary of the major federal funding programs for financial assistance. Finally, the
document concludes with a discussion of challenges, success factors, examples of various tribal
projects, and an overall summary of the tribal renewable energy development process.
It is important to note that the renewable energy industry is a fast and ever moving industry in terms
of markets, incentives, tax benefits, and technologies. So, while this review attempts to capture a
summary of relevant information as of the date of this document, it is highly recommended that both
the BIA and Indian tribes continue to keep track of major developments in the industry.
Tribal Renewable Energy Development
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Introduction
The Department of the Interior BIA contracted with Kauffman and Associates, Inc., for consulting
services for the Renewable Energy Accelerated Deployment for Indian Country (READI). One task of
the services includes the completion of a literature review that will establish a baseline of current
statutes, regulations, standard operating procedures and handbooks, as well as current conditions for
renewable and distributed energy development in Indian Country. The report is intended to inform
topics and priorities for tribal engagement.
As defined in the scope of work, this report includes:
a) Renewable and distributed energy resources and applications including, but not limited to,
solar, wind, hydroelectric, geothermal, biofuel, microgrids, energy storage, hydrogen, and
supporting infrastructure.
b) An understanding of the development activities, including, but not limited to, planning,
permitting, financing, development agreements, construction, operation and maintenance,
and reclamation in relation to renewable and distributed energy resources and applications.
Further, the report is intended to assist the BIA, in its tribal engagement, with understanding what
tribes need from the BIA to promote renewable energy development opportunities, and what the BIA
can do to provide assistance to tribes. Many additional Federal Agencies have a role with energy
development on Indian land. The primary focus of READI is to improve BIA programs and procedures,
however the roles of other federal agencies are also considered regarding related programs and
coordination.
Sources Consulted
To identify resources that are most relevant to tribal energy development and address the BIA's
objectives and inform answers to the BIA's goals, a search strategy was developed that focused on
manual searches of:
• relevant federal laws, statutes, regulations, and standard operating procedures;
• all data available through BIA, including available programs and incentives;
• federal agency websites for published reports and information;
• known reliable sources of market information, such as nonprofits, foundations, industry
associations, and governmental associations;
• scholarly papers related to renewable and distributed energy programs; and
• conference proceedings and unpublished literature, including independent research studies
and dissertations.
A full bibliography of all sources reviewed for this report is included starting on page 38.
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Part I: Tribal Renewable Energy Resources
Part one of this document provides introductory information related to tribal renewable energy
resources. This includes types of renewable energy resources, types of projects, tribal roles and
options, project ownership and current market conditions. Altogether, this background information
provides a foundation for tribal renewable energy resource options offering definitions of key industry
terms, and an overview of tribal renewable energy development opportunities.
Types of Renewable Energy Resources
In 2013, the National Renewable Energy Laboratory (NREL) published the first Geospatial Analysis of
Renewable Energy Technical Potential on Tribal Lands. In this analysis, NREL reported that "the
technical potential on tribal lands is about 6% of the total national technical generation potential. This
is disproportionately larger than the 2% tribal lands in the United States, indicating an increased
potential density for renewable energy development on tribal lands." Table 1 summarizes the
estimated technical potential across several renewable energy resources.
Table 1: Summary of Tribal Technical Potential by Capacity and Generation
Technology
1
Tribal
Capacity
Potential
2
(MW)
National
Capacity
Potential
3
(MW)
Tribal
Generation
Potential
(MWh)
Generation
Potential
% of National
Capacity
% of National
Generation
Solar PV (Utility-Scale
Rural)
6,888,33
9
152,973,
829
14,322,522
,713
4.5% 5.1%
Solar PV (Utility-Scale
Urban)
8,199
1,217,69
9
17,578,618
2,231,693,7
0.7% 0.8%
Solar CSP
1,818,18
5
38,066,4
01
6,139,851,
743
4.8% 5.3%
Wind (80 m height,
>=30% GCF)
347,505
10,954,7
59
1,146,044,
229
32,784,004,
3.4% 3.5%
Geothermal (EGS)
763,252
3,975,73
5
6,017,487,
000
19.2% 19.2%
Geothermal
(Hydrothermal)
641 30,033 5,050,724 236,780,000 2.1% 2.1%
Biomass (Solid)
551
50,707
4,340,642
1.1%
Biomass (Gaseous)
85
11,232
673,465
0.8%
Hydropower
1,687
60,000
7,390,196
2.9%
Total
4
9,855,44
4
207,340,
394
27,660,939
,330
4.8% 6.0%
1
Each technology is evaluated separately; the same land area might be available for many technologies.
2
Lopez, A. et al. (2012). U.S. Renewable Energy Technical Potentials: A GIS-Based Analysis. NREL/TP-6A20-51946. Golden,
CO: National Renewable Energy Laboratory.
3
Lopez, A. et al. (2012). U.S. Renewable Energy Technical Potentials: A GIS-Based Analysis. NREL/TP-6A20-51946. Golden,
CO: National Renewable Energy Laboratory.
4
Technical potential calculated for each technology individually and does not account for overlap (i.e., the same land area
may be identified with potential for wind and solar and would be counted twice in the total). Some technologies may be
compatible with mutual development.
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In 2018, NREL updated its analysis to focus on utility scale applications. Table 2 shows the technical
potential of tribal lands in the contiguous 48 states.
Table 2: Utility-Scale Technical Potential on Tribal Lands in Contiguous 48 States
Technology
Tribal
Capacity
Potential
(GW)
National
Capacity
Potential
(GW)
National
Capacity
(%)
Tribal
Generation
Potential
(TWh)
National
Generation
Potential
(TWh)
National
Generation
(%)
Utility-scale PV
6,035
118,918
5%
10,689
197,087
5.4%
CSP
2,114
26,318
8%
7,701
92,994
8.3%
Wind
891
10,119
8.8%
2,394
30,781
7.8%
Geothermal
(hydrothermal)
0.033 5.7 0.6% 2 156 1.6%
Biomass (wood)
21
62
34.4%
124
342
36.4%
Total
9,063
155,457
5.8%
20,912
321,401
6.5%
Using the Techno-Economic Renewable Energy Potential on Tribal Lands report, NREL created the
Tribal Energy Atlas. This atlas is an interactive tool that allows individual Indian tribes to evaluate and
estimate the renewable energy resources within the tribe's lands. The atlas also includes important
energy infrastructure information, such as transmission line locations, pipeline locations, other energy
generation, and certain market information.
In both the geospatial and techno-economic analyses, NREL has defined the following renewable
energy resources in terms of both how they are generated and how they can be used or applied:
Biopower: Types of biomass include wood from various sources (beetle kill, slash, lumber waste),
agricultural residues, animal and human waste (methane), and municipal solid waste and landfill gas.
Most biopower plants use direct-fired systems to generate electricity from biomass. They burn
bioenergy feedstocks directly to produce steam. This steam drives a turbine, which turns a generator
that converts the power into electricity. In some biomass industries, the spent steam from the power
plant is also used for manufacturing processes or to heat buildings. Such combined heat and power
systems greatly increase overall energy efficiency. Anerobic digestion and waste to energy systems are
also included in biopower/biomass resources.
Geothermal: Geothermal technologies use heat from the Earth. Geothermal is a highly efficient method
of providing electricity generation. High-temperature geothermal is ideal for power plant production
levels, but low-temperature heat pumps can provide heating and cooling energy in any part of the
United States. Lower-temperature resources are
best suited for heat applications. Geothermal
technologies exist commercially for either small-scale (distributed) or large-scale (central) electricity
generation.
Hydropower: Hydroelectricity refers to electricity generated using the gravitational force of falling or
flowing water, called hydropower. Both large and small-scale power producers can use hydropower
technologies to produce clean electricity.
Concentrating Solar Power: Concentrating solar power (CSP) technologies use mirrors to reflect and
concentrate sunlight onto receivers that collect solar energy and convert it to heat. This thermal energy
can then be used to produce electricity via a steam turbine or heat engine that drives a generator.
While CSP offers a utility-scale, firm, dispatchable renewable energy option that can help meet demand
Tribal Renewable Energy Development
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for electricity, it is most economical in the southwestern United States. Factors that influence project
economics are the cost of the technology, the quality of the solar resource, and the cost of the energy
being displaced. CSP systems can be successfully installed on landfills, brownfields, and greenfields,
with minimal disturbance to native vegetation and wildlife. Types of CSP systems include linear
concentrator, dish/engine, power tower, and thermal storage.
Solar PV: Photovoltaic (PV) technologies produce electricity directly from the energy of the sun. Small
PV can provide electricity for homes, businesses, and remote power needs. Larger PV systems provide
more electricity for contribution to the electric power system. PV technologies work in all parts of the
United States, but economics are dependent on technology cost, quality of solar resource, and cost of
energy being displaced. Flat plate is the most common PV array design, which uses flat-plate PV
modules or panels that can be fixed in place or designed to track the movement of the sun. An off-
grid, flat-plate solar PV system would be useful for remote locations or for self-sufficiency in the event
of a power interruption. Concentrator PV systems use less solar cell material than other PV systems
because they make use of relatively inexpensive materials such as plastic lenses and metal housings
to capture the solar energy shining on a large area and focus that energy onto a smaller area—the
solar cell.
Wind: Wind energy technologies use kinetic energy in wind for practical purposes such as generating
electricity, charging batteries, pumping water, and grinding grain. Most wind energy technologies can
be used as stand-alone applications, connected to a utility power grid, or even combined with a PV
system. Wind energy today is cost competitive in many locations throughout the United States. Utility-
scale wind consists of many turbines that are usually installed close together to form a wind farm that
provides grid power. Several electricity providers use wind farms to supply power to their customers.
Stand-alone turbines are typically used for water pumping or communications. However, homeowners
and farmers in windy areas can also use small wind systems to generate electricity.
Types of Projects
The literature is replete with definitions of the scale, uses and applications for renewable energy
resource projects. The following definitions are the more commonly used:
Commercial or Utility Scale: Commercial or utility scale renewable energy projects are typically greater
than 10 megawatts (MW, installed capacity). These projects typically sell power to utilities or other off
takers, which require interconnection to either the bulk transmission system or the "middle" grid.
Distributed Energy: Distributed energy generation projects are typically located within the distribution
grid, and can include rooftop solar, small wind, community solar or wind, energy storage, diesel/natural
gas generators, and microgrids (multiple generation technologies). Installed capacity for a project is
typically less than 10 MW and is intended to be used directly by single or multiple buildings (or homes).
These projects can be interconnected to the distribution system either "in front of" or "behind" the
customer’s meter(s). The following types of projects are considered "distributed energy" projects:
Community-Scale: Typically, a ground-mount system that serves multiple buildings, homes, or facilities.
Interconnection is typically "in front of" the meter but can be considered behind the meter if the utility
allows virtual or aggregate net metering.
Community Solar/Wind: Community solar (or solar gardens) or wind— sometimes referred to as shared
renewables—allows residents, small businesses, organizations, municipalities and others to "buy-in"
to the renewable energy project and receive credit on their electricity bills for the power produced from
their portion of a solar array, offsetting their electricity costs. While typically connected in front of the
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meter, virtual net metering or aggregate net metering are required to allow for the project to reduce
customers' electricity costs.
Microgrids: These systems are localized load and generation resources (such as solar, wind, storage,
fuel cell, diesel or natural gas gen set) which normally operate connected to and synchronous with the
traditional grid but can disconnect and function autonomously as an island within the grid.
Rooftop residential or commercial solar or wind: Unlike the previously discussed projects, these
projects are located on individual buildings, homes, and facilities (such as water treatment plans,
wastewater plants, cell towers, etc.). Projects can also be co-located, such as solar canopies or small
ground mount. Interconnection is through the customer's meter, and these are almost all behind the
meter projects to take advantage of net metering.
Figure 1 is an example of a distributed energy
system.
Figure 1. Example of a distributed energy system.
Tribal Roles and Options
In the DOE Office of Indian Energy training modules and workshops, there is considerable discussion
about the roles tribes can perform in renewable energy development. These roles include project
company, resource/landowner, sponsor/developer, EPC contractor, operator, feedstock supplier,
product off-taker, lender, and tribal host. Table 3 provides a description of each type of role.
Tribal Renewable Energy Development
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Table 3: Tribal Roles and Options in Renewable Energy Development
Title
Role
Project Company
Legal entity that owns the project, also called special purpose entity.
Resource/Landowner
Legal and/or beneficial owner of land and natural resources.
Sponsor/Developer
Organizes all the other parties and typically controls project development and
makes an
equity investment in the company or other entity that owns the
project.
EPC Contractor
Construction contractors provide design, engineering, and conduction of the
project.
Operator
Provides the day-to-day O&M of the project.
Feedstock Supplier
Provides the supply of feedstock (i.e., energy, raw materials) to the project
(e.g., for the power plant, the feedstock supplier will supply fuel)
Product Off-taker
Generally, enters into a long-term agreement with the project company for the
purchase of all energy.
Lender
A single financial institution or a group of financial institutions that provides a
loan to the project company to develop and construct the project and that takes
a security interest in all the project assets.
Tribal Host
Primary sovereign of project site.
Each role comes with its own set of benefits and risks. As a tribe undertakes its energy planning efforts,
one of the elements of such plans should include an assessment of the best and most appropriate
role for the tribe, given its circumstances, goals and objectives. One aspect of this evaluation should
also include the specific risks associated with the role and the type of project. These risks are outlined
in Table 4.
Table 4: Tribal Risks in Renewable Energy Development
Development Area
Risks
Development
• Poor or no renewable energy resource assessment
• Not identifying all possible costs
• Unrealistic estimation of all costs
• Community push-bask and completing land use
Site
• Site access and right of way
• Not in my backyard (NIMBY)/build absolutely nothing anywhere
(BANANA)
• Transmission constraints/siting new transmission
Permitting
• Tribe-adopted codes and permitting requirements
• Utility interconnection requirements
• Interconnection may require new transmission, possible NEPA
Finance
• Capital availability
• Incentive available risk
• Credit-worthy purchaser of generated energy
Construction/Completion
• EPC difficulties
• Cost overruns
• Schedule
Operating
• Output shortfall from expected
• Technology O&M
• Maintaining transmission access and possible curtailment
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Project Ownership
Another element of planning should include whether a tribe should own, co-own or have a third-party
own the renewable energy project. As identified in the DOE Renewable Energy Project Development
Basics, each option has its own set of benefits, risks, responsibilities, and legal considerations.
Tribal Ownership: Tribes, including tribal owned enterprises, utilities, and other instrumentalities, that
directly own renewable energy projects will enjoy the primary benefits generated by such projects, such
as revenue generation or cost savings. Furthermore, these projects will not be subject to state
jurisdiction, taxation, or regulation. Nor are these projects likely to invoke the federal regulatory
scheme for leases or right of ways, as there is no third-party involvement. With the passage of the
Inflation Reduction Act, there is new legal support for tribal ownership of renewable and clean energy
projects. Direct ownership, however, also entails taking on all the risk and responsibility of developing,
financing, constructing, operating, and maintaining such projects.
Partnerships: Tribes can mitigate some of the risk and responsibility through partnerships with
developers or other investors to develop and own projects. For example, tribes can negotiate co-
ownership (or co-development) agreements that allocate risk and responsibilities across parties.
Third-Party Ownership: Third-party ownership has been the norm for utility scale projects, as these
projects require, among other things, expertise in substantial development activities, capital and
financing, tax equity investment, utility, and off-taker negotiations, construction, and operations. Third-
party leases will be subject to BIA approval (unless the tribe has approved leasing regulations under
the Helping Expedite and Advance Responsible Tribal Home Ownership Act (HEARTH Act), thereby
invoking NEPA and other related environmental review requirements. But, with third-party ownership,
there is little risk to the tribe.
A note about tribal participation via tribal enterprises. As the BIA Handbook on Tribal Structures points
out, tribes can establish different types of enterprise structures—Section 17 federally chartered
companies, tribally chartered companies, or state-chartered companies. Tribes can also establish
other types of enterprises, such as tribal utilities, or leverage tribal housing authorities, to participate,
develop, own and or operate renewable energy projects. There are many legal and business reasons
to establish a separate tribal enterprise, including segregating legal and business risk, separating
business from politics, and being able to respond to market conditions and demands in a business
approach.
Current Market Conditions
Another major set of inputs or factors into renewable energy project planning is understanding and
incorporating market and industry information, including market opportunities and barriers,
technology opportunities and barriers, and access to transmission. Further, tribes should seek to
understand the role states and utilities play in tribal energy development projects, whether on or off
tribal lands.
Key Market Opportunities
Corporate Offtake Market: According to the Solar Energy Industries Association (SEIA), almost 19 GW
of solar has been installed through 2022 for corporate procurement of solar power. SEIA estimates
that over the next 3 years nearly 27 GW will be installed through off-site projects. The American Clean
Power Association reports that 326 companies have purchased a total of 77 GW of clean energy (solar,
wind and storage). These numbers are expected to rise with the Inflation Reduction Act and continuing
reduction in costs.
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Local Government Offtake Market: Like many corporations, local governments are also getting into
direct procurement to achieve their carbon reduction and other sustainability goals. In March 2020,
the World Resources Institute reported that U.S. local governments had signed 335 deals to procure
over 8 GW of renewable energy.
Federal Government Offtake Market: The federal government is the largest user of power in the
country. In December 2022, President Biden issued Executive Order 14057 "Catalyzing Clean Energy
Industries and Jobs Through Federal Sustainability." Under this EO, the federal government strives to
achieve 100 percent carbon pollution-free electricity by 2030. Carbon pollution-free is defined as
marine energy, solar, wind, hydrokinetic, geothermal, hydroelectric, nuclear, green hydrogen, and net
zero carbon produced fossil fuel resources. The Energy Policy Act of 2005 includes a preference
provision for tribal energy resources. In 2012, the DOE adopted a policy to implement this preference
provision and is now working with General Services Administration, and the Department of Defense to
update the preference policy to comport with the new EO.
Electrification of Energy—transportation and building decarbonization: Between the Bipartisan
Infrastructure Law (BIL) and the Inflation Reduction Act (IRA), tens of billions of federal dollars (and
billions of private dollars) will be invested in the electrification of buildings, housing, industry, and the
transportation sector through electric vehicle charging stations, electrification of cars, commercial
vehicles and buses. As these sectors become electrified, more electricity demand will result, and the
need for more renewable energy and clean energy projects will rise.
State Laws and Regulations: Barriers and Opportunities
As some law review articles included in this literature review have pointed out, state law and regulation
and utility policies and practices have a determinative impact on tribal renewable energy projects on
tribal lands. While states do not typically have jurisdictional or regulatory authority over energy
development on tribal lands, projects on Indian lands may be impacted by state and local policies,
laws, and regulations. States exercise legal and regulatory control over public utilities related to retail
sales of energy products, as expressed in the Federal Power Act.
This legal and regulatory control extends to:
• how energy rates are set;
• interconnection standards;
• net metering requirements (if any);
• renewable or clean energy portfolio requirements (if any);
• utility renewable energy procurement and resource planning;
• distributed energy programs (if any);
• tax incentives or imposition of certain taxes; and
• siting and permitting of energy projects and infrastructure, such as transmission.
For tribes served by state regulated utilities, these state laws, regulations and policies will apply to
energy projects that serve the utilities or ratepayer located on Indian lands. Further complicating this
issue for some tribes, some states do not regulate certain types of utilities—such as public power
agencies and rural electric cooperatives. These unregulated utilities are free to set their own
requirements for energy projects on tribal lands.
On the other hand, over the last decade, states, cities, and other local governments have made a
substantial and uncontroverted shift toward energy policies that promote renewable energy, energy
Tribal Renewable Energy Development
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efficiency, climate change mitigation, and sustainable adaptation to climate change impacts.
According to the Interstate Renewable Energy Council, many states have adopted laws or regulatory
policies related to distributed energy projects, such as net metering policies, interconnection rules and
standards, and community solar programs. The National Conference of State Legislatures reports that
over 35 states have now adopted renewable energy, or clean energy standards or goals. About half
of these states have also actively developed, promoted, and implemented greenhouse gas emissions
reduction plans, with an emphasis on market-based solutions. More states are also revisiting their
efforts to bring clean energy, energy efficiency, and sustainability programs to low-income and
vulnerable communities.
Moreover, many states may have tax incentives to build renewable energy projects, and other taxes
on business activities and income. The extent to which these taxes are applicable to projects located
on tribal lands will depend, among other things, on the type of tax, the project owner, and the buyer of
the power.
Finally, more specific information about state incentives, renewable energy programs, and utility
programs is maintained by the NC Clean Energy Center at North Carolina State, through the Database
of State Incentives for Renewables and Efficiency database.
Transmission and Distribution System Expansion and Upgrades
In the Energy Policy Act of 2005, Congress recognized the need to study, plan, and financially support
the expansion of the current bulk transmission system as a crucial ingredient to large scale
deployment of renewable energy utility scale projects. DOE is currently conducting two studies—the
National Transmission Needs Study and the National Transmission Planning Study—that seek to
identify opportunities and needs for transmission line expansion or capacity upgrades. In addition,
DOE is responsible to designate "National Interest electricity Transmission Corridors" throughout the
country. DOE is currently developing its process for such a designation.
Notwithstanding these major efforts to understand the transmission issues and identify potential
solutions, the renewable energy industry is still concerned about several related issues, including
permitting timeframes (it currently takes between 7 and 10 years to fully permit a new transmission
line) and interconnection processes and costs. FERC is currently undergoing transmission
interconnection reform efforts.
Because the distribution grid is the responsibility of retail electric utilities, sometimes subject to state
regulatory oversight, it is difficult to characterize the status of efforts to upgrade the distribution grid.
However, as discussed in the next section, the BIL has several billions of dollars for states, tribes, and
utilities to address distribution grid upgrades and resiliency efforts.
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Part II: Federal Laws, Regulations, Policies and Guidance
The review of relevant federal laws and regulations applicable to tribal renewable energy development,
and various law review articles, identify five types of federal laws:
I. Federal Indian Laws and Regulations—Title 25 of the U.S. Code
II. Federal Environmental Laws and Regulations
III. Federal Energy Policy and Regulatory Laws and Regulations
IV. Federal Tax Laws
V. Federal Energy Programs Laws
Types I through Type IV of federal laws and regulations are reviewed in this section.
Type I: Federal Indian Laws and Regulations
The federal government regulates energy development on Indian lands in many ways and under
several federal statutes. Indian energy development statutes, such as the Indian Mineral Leasing Act
(IMLA), the Indian Mineral Development Act (IMDA), and the Indian Tribal Energy Self-Determination
Act (ITESDA), in addition to land development statutes, such as the General Right-of-Way (ROW) Act
and the Long Term Leasing Act (LTLA), are the more commonly known and invoked legal requirements
for the federal government and tribes to regulate and control renewable energy development on Indian
lands. The Secretary of the Interior is required to approve geothermal leases under the IMLA or the
IMDA. Leases for surface-based renewable energy projects, such as wind, solar, or biomass, are
approved under the LTLA, but may also need to receive mineral leases for the use of subsurface
minerals in the construction and operation of the surface project. And to the extent that transmission
lines, pipelines and or access roads are developed with the project, the Secretary is required to
approve ROWs for those facilities. Hydroelectric projects and associated transmission lines are
licensed and approved by the Federal Energy Regulatory Commission (FERC), as discussed in the next
section. Hydrogen pipelines will likely also be regulated by FERC.
These federal regulatory laws related to tribal lands and energy resources are grounded in the
Nonintercourse Act, which requires federal approval to convey interests in Indian lands. Courts have
regularly held that agreements to convey interests in lands that are not approved by the federal
government are invalid under federal law.
Long-Term Leasing Act of 1955
Under the LTLA, the Secretary is authorized to approve leases on tribal and allotted lands for certain
purposes, including agriculture, business, residential, public, religious, and educational. It is limited to
surface leasing, and thus is the federal law that controls leasing for solar, wind, and biomass energy
projects on tribal lands. While the default term for a lease is 25 years, plus two additional 25-year
renewal terms, many tribes have been authorized to enter in to leases up to 99 years. The LTLA
requires the Secretary to consider the following factors in approving a lease: (1) whether “adequate
consideration has been given to the relationship between the use of the leased lands and the use of
neighboring lands;” (2) “the height, quality, and safety of any structures or other facilities to be
constructed on such lands;” (3) “the availability of police and fire protection and other services;” (4)
“the availability of judicial forums for all criminal and civil causes arising on the leased lands;” and (5)
“the effect on the environment of the uses to which the leased lands will be subject.”
The LTLA is implemented through the BIA's surface leasing regulations. The regulations make the LTLA
applicable to “Indian land and government land, including any tract in which an individual Indian or
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Indian tribe owns an interest in trust or restricted status.” Unless controlled by other statutory
authority, a lease is required when a person or legal entity (including an independent legal entity owned
and operated by a tribe) that is not an owner of the Indian land wants to lease Indian lands. For
example, a “Section 17” corporate entity that manages or has the power to manage the tribal land
directly under its federal charter or under a tribal authorization is not required to obtain a lease
approval through the BIA. As explained further below, a certified tribal energy development
organization (TEDO) is also not required to receive BIA approval for leases with tribes. However, a lease
between a tribal-owned entity or a partnership will have to be approved by the BIA.
For energy development purposes, the LTLA regulations do not apply to, among other land rights,
ROWs (they have their own regulations); mineral leases, prospecting permits, or mineral development
agreements; leases of water rights associated with Indian land, except to the extent the use of water
rights is incorporated in a lease of the land itself; or permits. Further, while option agreements,
development agreements, or temporary use permits—common in energy development—are not
considered leases under the regulations, the BIA requests such agreements be submitted for their
records and evaluation of whether the agreement is subject to the regulations.
The LTLA regulations were amended in 2013 to clarify several important federal and tribal interests in
leases. The regulations now explain that tribal law applies to leases of Indian lands, and the BIA will
comply with tribal law (including environmental, land use, and cultural resource protection laws) unless
contrary to federal law. State law only applies to the extent the tribe consents or has adopted state
law, or the state has jurisdiction pursuant to federal law. Furthermore, the regulations now include
specific disclaimers of applicability of state taxation—both property taxes and transaction taxes.
According to the regulations, “permanent improvements on the leased land, without regard to
ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge
imposed by any state or political subdivision of a state. Improvements may be subject to taxation by
the Indian tribe with jurisdiction.” Additionally, activities under a lease conducted on the leased
premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use,
privilege, public utility, excise, gross revenue taxes) imposed by any state or political subdivision of a
state. Activities may be subject to taxation by the Indian tribe with jurisdiction.
A major innovation in the revised LTLA regulations was the inclusion of subpart E for wind and solar
leases. There are two types of leases covered by this subpart: (1) wind energy evaluation leases
(WEELs), and (2) wind and solar resource (WSR) leases. A WEEL is a short-term lease that authorizes
possession of Indian land for the purpose of installing, operating, and maintaining instrumentation,
and associated infrastructure, such as meteorological towers, to evaluate wind resources for electricity
generation. WSR leases are leases that authorize possession of Indian land for the purpose of
installing, operating, and maintaining instrumentation, facilities, and associated infrastructure, such
as wind turbines and solar panels, to harness wind and or solar energy to generate and supply
electricity for resale on a for-profit or non-profit basis to a utility grid serving the public generally; or to
users within the local community (e.g., on and adjacent to a reservation). However, if the tribe itself
will conduct wind and solar resource activities on its own tribal lands, then the tribe does not need a
WEEL or WSR lease. This subpart does not cover biomass or waste-to-energy projects as those projects
are subject to subpart D (business leases).
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In addition to the general provisions in the LTLA regulations, subpart E contains several requirements
for a WSR lease, including that the lease itself must include:
1. the tract or parcel of land being leased;
2. the purpose of the lease and authorized uses of the leased premises;
3. the parties to the lease;
4. the term of the lease;
5. the ownership of permanent improvements and the responsibility for constructing, operating,
maintaining, and managing WSR equipment, roads, transmission lines, and related facilities;
6. who is responsible for evaluating the leased premises for suitability, negotiating power
purchase agreements, transmission, and purchasing, installing, operating, and maintaining
WSR equipment;
7. payment requirements and late payment charges, including interest;
8. due diligence requirements;
9. insurance requirements;
10. bonding requirements; and
11. indemnification of the United States and the tribe.
Additional requirements include commencement of construction within two years, or the lessee must
provide a reason for delay and continue to make progress; submission and approval of a resource
development plan; ownership of improvements upon lease termination; fair market value
compensation or waiver by the tribe; and dispute resolution and remedies.
Because approval of a surface lease is considered a major federal action under the National
Environmental Policy Act (NEPA), it is subject to the regulatory review process required under NEPA
and other environmental review laws, listed here. Thus, the BIA cannot decide on the lease until the
environmental review process is complete. Another innovation in the LTLA regulations is related to
these environmental review requirements: per the regulations, the BIA “will adopt environmental
assessments and environmental impact statements prepared by another federal agency, Indian tribe,
entity, or person under 43 CFR 46.320 and 42 CFR 1506.3, including those prepared under 25 U.S.C.
4115 and 25 CFR part 1000, but may require a supplement.”
Prior to submitting a renewable energy project surface lease to the BIA for regulatory review and
approval, tribes should review the BIA checklist for approving leases so they have a sound
understanding of the information and steps the BIA requires. While not necessary under the
regulations, a tribe might want to request a certified appraisal through the Appraisal and Valuation
Services Office (AVSO). This appraised value may be able to assist both the tribe and the BIA with
verifying the fair market value of the compensation proposed in the lease.
Long-Term Leasing Act Amendments—HEARTH Act
The HEARTH Act, passed in 2012, also allows tribes to take control of leasing tribal lands for energy
development. The HEARTH Act amended the LTLA to allow tribes to petition the Secretary to approve
tribal leasing regulations for surface leases on tribal trust lands. If approved, the tribe no longer needs
secretarial approval of leases entered under the tribe’s leasing regulations. As with Tribal Energy
Resource Agreements (TERAs), the tribe does not need to meet any NEPA requirements for leases, but
the tribe’s leasing regulations do have to include an environmental review process that complies with
the statute. Unfortunately, the HEARTH Act does not apply to allotted lands or subsurface leasing.
The Secretary is required to approve tribal leasing regulations if those regulations are consistent with
the Secretary’s leasing regulations and incorporate an environmental review process that includes
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evaluation of significant environmental impact, notice and opportunity to comment, and response to
comments.
The BIA has not issued regulations for the implementation and administration of the HEARTH Act, but
it has published the requirements and process for approving HEARTH Act tribal regulations in its
department manual.
As of the date of this review, over 100 tribes have applied for and received
approval of their leasing regulations, including seven providing wind and solar leasing authority.
Right-of-Way Acts
The General Right-of-Way Act was enacted in 1948 to provide the Secretary with broad authority to
enter into ROWs on Indian lands for all purposes. Previously enacted in the early 1900s, specific
purpose ROW laws remained in place and there was no intent to repeal ROW authorities under the
Federal Power Act (FPA). The 1948 Act grants general authority to approve ROWs, subject to conditions
set by the Secretary and with consent and approval of the tribe. Just compensation is required. The
Secretary must also issue rules and regulations for the approval of ROWs.
The ROW regulations were updated in 2015 and seek to create uniform regulations to harmonize the
regulatory process for all the operative ROW laws. For energy development purposes, the ROW
regulations cover transmission and distribution lines, access roads, and pipelines. Like the LTLA
regulations, the ROW regulations contain provisions regarding the applicability of tribal law, tribal
jurisdiction, and tribal taxation, as well as the inapplicability of state jurisdiction and state taxation. As
with leasing approvals, tribes should review the BIA checklist for approving easements on Indian lands.
A tribe may request an appraisal from the AVSO to verify fair market value of the proposed
compensation for the easement.
Tribal consent is required before the Secretary can grant an ROW, and the common practice now is for
tribes to negotiate an easement agreement between the tribe and the grantee that contains provisions
related to compensation, tribal governing law, jurisdiction, taxation, dispute resolution, and other
terms and conditions related to the use of the easement area. These agreements also usually contain
a provision that the easement agreement will be incorporated into the ROW grant, thereby providing a
federal remedy and enforcement for the easement terms.
Contracts Act
A little known and often overlooked federal law that also requires the approval of certain agreements
related to Indian lands is the Contracts Act. Originally enacted in 1871, the Contracts Act was last
amended in 2000 to better clarify other types of agreements with Indian tribes that must be approved
by the Secretary. The Contracts Act requires that any agreement that encumbers Indian lands for a
term of more than seven years is subject to
the Secretary’s approval. The statute does not define the
term “encumber” or “encumbrance,” and the regulations define the types of
contracts terms by what
they are or are not. But in the context of energy projects, this law might apply when a mortgage or
security interest is placed on the energy leasehold interest.
Indian Mineral Development Act of 1982
For geothermal projects, the IMDA is the applicable federal law. The IMDA is intended to create
flexibility and give tribes more opportunity to participate directly in mineral mining and development
on tribal lands:
Any Indian tribe, subject to the approval of the Secretary and any limitation or provision
contained in its constitution or charter, may enter into any joint venture, operating, production
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sharing, service, managerial, lease or other agreement, or any amendment, supplement or
other modification of such agreement (hereinafter referred to as a “Minerals Agreement”)
providing for the exploration for, or extraction, processing, or other development of, oil, gas,
uranium, coal, geothermal, or other energy or nonenergy mineral resources (hereinafter
referred to as “mineral resources”) in which such Indian tribe owns a beneficial or restricted
interest, or providing for the sale or other disposition of the production or products of such
mineral resources.
In addition to the statutory leasing authorities, the IMDA regulations govern the approval of mineral
agreements to ensure tribal or individual Indian mineral owners enter into mineral agreements
consistent with the purposes of the IMDA. Key regulatory provisions include but are not limited to:
• making sure all environmental studies are completed under NEPA, the National Historic
Preservation Act (NHPA), the Archaeological and Historic Preservation Act, and the American
Indian Religious Freedom Act;
• due diligence related to corporate qualification of the lessee; and
• the multi-bureau responsibilities for the BIA, Bureau of Land Management (BLM), Office of
Surface Mining, Reclamation, and Enforcement, and Minerals Management Service (now the
Office of Natural Resources Revenue).
Even though mineral agreements are the product of negotiation between the tribe and potential
developer/lessee, the IMDA regulations nonetheless create requirements for the form of contract and
required elements. Every agreement is required to include (1) identification of parties; (2) duration and
term; (3) indemnification; (4) obligations; (5) disposition of production; (6) payment and compensation;
(7) accounting and valuation; (8) limitations on assignments; (9) bonding and insurance; (10) audits;
(11) dispute resolution; (12) force majeure; (13) termination or suspension; (14) nature and schedule
of activities; (15) reporting production; (16) abandonment, reclamation, and restoration; (17)
unitization; (18) protection from drainage and unauthorized taking; and (19) recordkeeping.
For geothermal leases and projects subject to the IMDA and its implementing regulations, the BIA
follows the Fluid Minerals Handbook and the BIA and BLM have segregated their regulatory and
oversight responsibilities through the “Onshore Energy and Mineral Lease Management Interagency
Standard Operating Procedures,” adopted in 2013. Furthermore, Section 3102 of the Energy Act of
2020 established a program to improve federal permit coordination through the creation of a national
Renewable Energy Coordination Office (RECO). The RECO is intended to encourage collaboration
between federal, state, and tribal authorities, with the BLM serving as the
lead. It is unclear, though,
whether the RECOs will cover geothermal projects on Indian lands.
Indian Tribal Energy Self-Determination Act (Title V of the Energy
Policy Act of 2005)
Title V of the Energy Policy Act of 2005 created several new programs and authorities to support tribal
energy development, including DOE’s Office of Indian Energy Policy and Programs, Department of the
Interior programs, and the ability for tribes to enter into Tribal Energy Resource Agreements (TERAs)
with DOI. Additional provisions promote tribal energy development, including a provision that allows
federal agencies to give preference to tribes in the purchase of electricity, energy products, and energy
byproducts; a provision granting authority to WAPA to buy firm power from tribal projects; a new tribal
energy loan guarantee program; other financial and technical assistance programs to promote energy
development; and a provision in Title II that creates a double credit for the federal renewable energy
standards for the purchase of renewable energy power from projects located on tribal lands.
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Tribal Energy Resource Agreements
The Energy Policy Act of 2005 was the first federal law to include true self-governance provisions over
tribal energy development. The Indian Tribal Energy Development and Self-Determination Act
authorized the formation of TERAs, defined as agreements between a tribe and the Secretary to
authorize the tribe or certified TEDO to enter into leases and business agreements for the exploration,
extraction, or processing of energy mineral resources; or the construction or operation of electricity
production, generation, transmission, or distribution facilities, or facilities to process or refine energy
resources. Congress intended to promote complete tribal control over leases, business agreements,
and ROWs for renewable energy and energy minerals, transmission and distribution lines, and
pipelines.
If a tribe enters into a TERA, then leases, business agreements, and ROWs that serve an energy project
on tribal lands will not require the Secretary’s approval as long as the lease, agreement, or ROW is for
less than 30 years. Because there is no federal approval of leases or ROWs, tribes also avoid NEPA
requirements, although tribes must have a substitute environmental review process compliant with
the statute’s requirements.
Notwithstanding this powerful tool for energy self-governance, no tribe has yet to negotiate and enter
into a TERA. This is in large part because prior to 2018, when the TERA provisions were amended, the
BIA’s regulations and process for applying for and receiving approval for a TERA were too onerous,
expensive, and lengthy. In addition, there were multiple unanswered—and unanswerable—questions
about the allowed scope of a TERA (whether it includes the BLM functions and the definition of
"inherent federal functions" that could not be delegated to tribes, for example), the cost to implement,
the tribal qualifications to administer the TERA, and the scope of the Secretary’s trust responsibility.
While some of these issues were resolved through the recent amendments, many important questions
still linger.
Certified Tribal Energy Development Organizations
The 2018 amendments did create a new provision, though, that would allow a “certified” TEDO to
obtain an energy resource lease or ROW from a tribe without a TERA or without the Secretary’s
approval. A “tribal energy development organization” is defined as “any … business organization that
is engaged in the development of energy resources and is wholly owned by an Indian tribe,” or “any
organization of two or more entities, at least one of which is an Indian tribe.” The BIA enacted new
regulations in 2019 to implement these new provisions. Under these regulations, a certified TEDO
meets certain requirements, including that the TEDO must be majority owned and controlled by one or
more tribes, is chartered under tribal law and subject to the tribe(s) jurisdiction, and the projects are
located on the lands of the tribe(s). Once certified by the BIA, the tribe and its TEDO can negotiate and
enter into energy resource agreements without BIA approval.
The TEDO designation is one of the few authorities that promote the partnership of tribes with each
other and with non-tribal energy companies. TEDO designation has multiple benefits, including, as
noted above, the ability to enter leases with a tribe (or tribes) without either BIA approval or the need
for TERA or HEARTH Act leasing regulations. Additional benefits include access to federal grant
programs and the tribal energy loan guarantee program. To date, one tribe has successfully been
approved for TEDO designation.
Type II: Federal Environmental Laws
Several other federal environmental statutes also apply to energy project development on Indian
lands. These laws range from overall environmental review to laws specific to air, water, waste, and
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endangered or protected species. These environmental laws are applicable to Indian tribes and tribal
lands either because of the federal approval of action related to the renewable energy project or
because of the generally applicable nature of the law.
The National Environmental Policy Act
When tribes must obtain the Secretary’s approval for leases or ROWs, or when tribes receive financial
assistance such as loans or grants, these approval requirements trigger NEPA, as they are considered
a “major federal action” under the Council on Environmental Quality’s (CEQ) NEPA regulations. Other
federal actions, such as Clean Air Act (CAA) or Clean Water Act (CWA) permitting, BLM or U.S. Forest
Service permitting or approvals, or other federal agency actions that may be required for a particular
tribal renewable energy project, will also of course trigger NEPA. Of particular interest, though, is the
appropriate role of NEPA on tribal lands and the role tribes can, and should, play in the federal NEPA
process.
The EPA has summarized the NEPA review process as follows:
Categorical Exclusion (CATEX). A federal action may be "categorically excluded" from a detailed
environmental analysis when the federal action normally does not have a significant effect on
the human environment (40 CFR 1508.1(d)). The reason for the exclusion is generally detailed
in NEPA procedures adopted by each federal agency.
Environmental Assessment/Finding of No Significant Impact. A federal agency can determine
that a CATEX does not apply to a proposed action. The federal agency may then prepare an
Environmental Assessment (EA). The EA determines whether or not a federal action has the
potential to cause significant environmental effects. Each federal agency has adopted its own
NEPA procedures for the preparation of EAs. See NEPA procedures adopted by each federal
agency.
If the agency determines that the action will not have significant environmental impacts, the
agency will issue a Finding of No Significant Impact (FONSI). A FONSI presents the reasons why
the agency concluded that there are no significant environmental impacts projected to occur
upon implementation of the action. If the EA determines that the environmental impacts of a
proposed federal action will be significant, an Environmental Impact Statement is prepared.
Environmental Impact Statements (EIS). Federal agencies prepare an EIS if a proposed major
federal action is determined to significantly affect the quality of the human environment. The
regulatory requirements for an EIS are more detailed and rigorous than the requirements for
an EA.
The EIS process starts with the agency publishing a notice of intent in the Federal Register.
The notice of intent informs the public of the upcoming environmental analysis and describes
how the public can become involved in the EIS preparation. This notice starts the scoping
process, which is the period in which the federal agency and the public collaborate to define
the range of issues and potential alternatives to be addressed in the EIS.
A draft EIS is published for public review and comment for a minimum of 45 days. Upon closing
of the comment period, agencies consider all substantive comments and, if necessary,
conduct further analyses. A final EIS is then published, which provides responses to
substantive comments. Publication of the final EIS begins the minimum 30-day wait period, in
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which agencies are generally required to wait 30 days before making a final decision on a
proposed action.
EPA publishes a notice of availability in the Federal Register, announcing the availability of
both draft and final EISs to the public.
The EIS process ends with the issuance of the Record of Decision (ROD). The ROD explains the
agency's decision, describes the alternatives the agency considered, and discusses the
agency's plans for mitigation and monitoring, if necessary.
As described next, there is no doubt tribes have the inherent authority to regulate and control
development on tribal lands. This control and regulation necessarily include the right, authority, and
presumably the obligation, to conduct a review of the potential impacts—environmental and
otherwise—of development occurring on tribal lands. In the context of a federal decision to approve
such development, and thus the federal requirement to comply with NEPA, federal agencies can, and
should, defer to tribes on environmental review and impacts analysis. This approach is almost certainly
necessary if the principles of respect for tribal sovereignty, not to mention expedited permitting and
improved efficiencies of federal approvals, are going to be accomplished.
Under current CEQ NEPA regulations, tribes can be designated as co-lead or cooperating agencies in
the NEPA process. To promote efficiencies, agencies are required to reduce excessive paperwork and
delay by eliminating duplication with state, tribal, and local procedures, by providing for joint
preparation of environmental documents where practicable per § 1506.2 of the CEQ NEPA
regulations. This language provides clear support for a federal agency to accept, adopt, or otherwise
use an environmental analysis prepared by a tribe as a co-lead or cooperating agency for a lease or
ROW that must be approved by the Secretary.
Consistent with the NEPA regulations, DOI’s own NEPA regulations also allow for the adoption of tribal
environmental review documentation. The regulations provide that “an existing environmental analysis
prepared pursuant to NEPA and [CEQ] regulations may be used in its entirety if the responsible official
determines, with appropriate supporting documentation, that it adequately assesses the
environmental effects of the proposed action and reasonable alternatives.”
For purposes of approving leases on tribal lands, the BIA has developed “other federal procedures”
for adopting tribal environmental documents. Under the Indian leasing regulations, the BIA will adopt
environmental assessments and environmental impact statements prepared by another federal
agency, Indian tribe, entity, or person under 43 CFR 46.320 and 42 CFR 1506.3, including those
prepared under 25 U.S.C. 4115 and 25 CFR part 1000, but may require a supplement.
National Historic Preservation Act
Every federal agency must consider the effect of any undertaking (a federally funded or assisted
project, such as lease or ROW approvals for projects on Indian lands) on historic properties. "Historic
property" is any district, building, structure, site, or object that is eligible for listing in the National
Register of Historic Places because the property is significant at the national, state, or local level in
American history, architecture, archeology, engineering, or culture. Tribal archaeological, historical,
cultural or sacred sites also typically meet the definition of a historic property.
Section 106 of the NHPA requires that, before approving or carrying out a federal, federally assisted,
or federally licensed undertaking, federal agencies must take into consideration the impact that the
action may have on historic properties. For projects located on tribal lands, and that could affect tribal
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historic properties, the federal agency must consult with and coordinate with the Tribal Historic
Preservation Officer (THPO) to identify historic properties that may be affected by the proposed project
and assess adverse effects of the actions. The federal agency must then obtain concurrence from the
THPO on the eligibility of the identified historic properties and the effects on them. If there are adverse
effects, the federal agency consults with the THPO on ways to avoid or treat adverse effects to historic
properties and develops a project-specific Memorandum of Agreement with the THPO that outlines the
agreed treatment measures.
While responsibility for compliance with NHPA lies with the federal agency taking the action, tribes may
assist the federal agency in carrying out its responsibilities under the act on tribal lands.
The NEPA and NHPA processes are interrelated, as shown Figure 2.
Figure 2. NEPA and NHPA processes related to Section 106
Species Protection Acts
There are three acts that address species protection. This includes the Endangered Species Act,
Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act. Each act is described below.
Endangered Species Act: According to the U.S. Fish and Wildlife Service (USFWS), "the Endangered
Species Act (ESA) establishes protections for fish, wildlife, and plants that are listed as threatened or
endangered; provides for adding species to and removing them from the list of threatened and
endangered species, and for preparing and implementing plans for their recovery; provides for
NEPA - EIS
Initiate the process and determine
that significant environnmental
effects may or will occur.
Public scoping and appropriate
public involvement. Publish Notice
of Intent.
Develop draft EIS
Public review and comment
Develop final EIS
EIS/ROD
Section 106
Initiate the process and establish
the undertaking with the potential
to affect historic properties
Identify historic properties
Assess adverse effects
Resolve adverse effects
Develop and execute
Memorandum of Agreement
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interagency cooperation to avoid take of listed species and for issuing permits for otherwise prohibited
activities …" The ESA, through regulations, prohibits the taking (harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) of endangered or
threatened species (plants, animals, fish) without a permit. For purposes of energy projects on Indian
lands, the ESA consultation process is typically invoked through the NEPA review process, where the
USFWS makes a biological determination or issues a biological opinion about the existence of covered
species, mitigation requirements and taking permit requirements.
Migratory Bird Treaty Act: Like the ESA, the Migratory Bird Treaty Act (MBTA)—which implements four
international treaties related to migratory birds—prohibits the take (including killing, capturing, selling,
trading, and transport) of protected migratory bird species without prior authorization by the
Department of Interior U.S. Fish and Wildlife Service.
Bald and Golden Eagle Protection Act: The BGEPA also prohibits the taking of bald or golden eagles
without permission from USFWS.
While some solar projects might involve the MBTA (such as CSP), typically wind projects will require
MBTA taking permits. The USFWS has issued voluntary guidelines for developing wind projects, which
follow a "tiered approach" to studying, evaluating, determining the impacts of a wind project on
protected species.
Clean Air Act
Title I of the Clean Air Act regulates the emission of pollutants from stationery and mobile sources. If
a renewable energy project will result in the emission of pollutants covered under air quality standards,
emission standards or emission permit requirements, the project will need to obtain the appropriate
permit from either the EPA (which has jurisdiction over all tribal lands) or the tribe (if the tribe has
treatment as state status under the CAA to issue permits). Pollutant emissions can result from biomass
projects, hydrogen projects, geothermal projects, and construction activities (such as dust emissions)
of all projects.
Clean Water Act
The Clean Water Act regulates the discharge of pollutants into the "waters of the U.S." and makes it
unlawful to discharge any pollutant from a point source into navigable waters, unless a permit is
obtained from the EPA or from a tribe (if it has treatment as state status) through the National Pollutant
Discharge Elimination System (NPDES) permit program. Typical project activities that may require a
NPDES permit are construction activities that may result in stormwater runoff.
In addition, the CWA covers underground injection activities, and may require permits or authorization
to reinject water or pollutants into underground wells or aquifers—if those pollutants could affect
waters of the U.S. These requirements may apply to geothermal projects.
Type III: Federal Energy Regulatory Laws
The Federal Power Act (FPA), as amended, the Public Utility Regulatory Policies Act of 1978 (PURPA),
as amended, and various Energy Policy Acts, among others, may also apply to energy development on
tribal lands. Under the FPA, the Federal Energy Regulatory Commission (FERC) regulates, among other
things, hydroelectric dams licensing and safety, public utility interstate electric transmission system
and electric wholesale sales rates and services, siting of public utility new interstate electric
transmission facilities, and natural gas (and maybe hydrogen) pipelines siting and rates. A public utility
is defined as any person who owns or operates facilities for the transmission of electric energy in
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interstate commerce and to the sale of electric energy at wholesale in interstate commerce. This can
include Indian tribes or tribal enterprises.
PURPA was implemented to encourage, among other things, the conservation of electric energy;
equitable retail rates for electric consumers; and expeditious development of hydroelectric potential
at existing small dams. PURPA also established qualifying facilities (QFs) as a new class of generating
facilities that receive special rates and regulatory treatment. QFs fall into two categories: qualifying
small power production facilities (between 1 MW and 80 MW capacity), and qualifying cogeneration
facilities. Under PURPA, QFs have the right to sell energy or capacity to a utility (the utility must buy
power from the QF) at avoided cost or negotiated rates. FERC does not have jurisdiction over the
following:
• local distribution of electric energy, including sales, rates, terms and conditions;
• rural electric cooperatives;
• Alaska, Hawaii, and Texas (not interstate);
• generation siting;
• transmission siting (except "backstop" siting authority under the IRA); or
• non jurisdictional entities such as the U.S. government and its agencies and
instrumentalities (including the federal Power Marketing Administrations, such as the
Western Area Power Administration (WAPA) and Bonneville Power Administration), and
states and their agencies and instrumentalities (including municipalities)—with certain
limited exceptions.
Because the FPA and PURPA are silent as to the jurisdictional status of Indian tribes, it is unclear
whether FERC has jurisdiction over tribal energy projects that may be QFs, tribal transmission projects,
tribal energy companies, or tribal utility authorities.
Type IV. Federal Tax Laws
Federal support for renewable energy projects includes substantial tax incentives, such as tax credits
and accelerated depreciation, for building renewable energy projects, hiring Indian employees, and
locating projects on certain Indian lands.
The newly enacted Inflation Reduction Act has created new
tax credit incentives and benefits that Tribes can use directly, or that can further benefit projects on
tribal lands.
Inflation Reduction Act
The recently enacted IRA extended these tax credits for another 10 years, creating credits that can
provide as much as 30 to 70 percent of the economic value of a project. Several law firms that support
tribes in clean energy development have published summary analysis of the IRA benefits for tribes,
which include:
Direct Pay: Most importantly for tribes, the IRA established the ability for applicable entities, including
tribal governments, to elect to receive a direct payment from the IRS for the full value of tax credits as
if they had paid taxes through a direct payment refund from the IRS (direct pay). Direct pay is available
for renewable energy projects (solar, wind, geothermal, storage, interconnection, microgrid
controllers), alternative fuel refueling property, clean hydrogen and carbon oxide sequestration
projects, qualified commercial vehicles, and advanced manufacturing facilities. To be eligible for direct
pay, projects must be placed into service after January 1, 2023, and before December 31, 2033.
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Investment Tax Credit/Clean Energy Investment Tax Credit. The IRA extends the current investment
tax credit (ITC)—which is calculated as a percentage of the cost to construct or fair market value of the
project—for solar, small wind, and geothermal by another 2 years, and creates the clean energy
investment tax credit (CEITC) which is available from 2025 through 2033. Projects must begin
construction by 2033. Certain technologies are also added, such as thermal solar and wind,
standalone energy storage, geothermal heat pumps, and qualified biogas. For projects less than 5
MW, interconnection costs and microgrid controllers are also eligible for the tax credit. The ITC
percentage is based on the following projects conditions:
• Thirty percent tax credit if the project meets prevailing wage and apprenticeship requirements.
Prevailing wage is based on Davis-Bacon Act wage scales, set at the state and county level.
Apprenticeships must be qualified through a registered apprenticeship program, with a certain
percentage of hours performed by apprentices and at least one apprentice for every four
positions hired. The IRS published guidance in late November 2022 for implementing the
prevailing wage and apprenticeship requirements.
• Ten percent additional tax credit for meeting domestic content requirements. Domestic
content requirements apply to steel, iron, and manufactured products used in the project. At
least 40 percent of the total cost of the project must be attributable to these components that
are mined, produced, assembled, or manufactured in the United States. The IRS published
guidance in May 2023 for implementing the domestic content requirements.
• Ten percent additional tax credit if the project is in an energy community. Energy communities
are defined as: brownfield sites, as defined in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA); areas with significant employment or tax revenue
generated from coal, oil or natural gas and has high unemployment; or a census tract where a
coal mine has closed or coal-fired electric generating unit has been removed from service or
adjacent census tracts. The IRS published guidance in April 2023 on implementing the energy
community bonus and provided a list of census tracts that qualify.
• Low Income Community Bonus Credit. For solar and wind projects that are less than 5 MW,
the Secretary will allocate "environmental justice solar and wind capacity limitations" (EJ
Credits) to eligible ITC/CEITC projects. The allocations are limited to 1,800 MW capacity in
each of 2023 and 2024 (for ITC) and 1,800 MW each year for CEITC. For projects that receive
the EJ credits, in addition to the above-listed ITC percentages, the projects can receive an
additional:
o Ten percent for projects on Indian lands, or
o Twenty percent for projects that benefit low-income residents or low-income economic
development
The IRS issued guidance in February 2023, and just published proposed rules to implement this bonus
credit program. This includes a 200 MW (from the 1,800 MW total allocation) for projects located on
tribal lands.
Production Tax Credit: The IRA also extends the Production Tax Credit (PTC) through 2024 and creates
a new clean energy production credit" for 2025 through 2033. Solar projects are now eligible for the
PTC. Unlike the ITC, which is calculated based on a percentage of the cost basis, the PTC is calculated
based on the amount of power produced from a qualifying facility. The PTC is equal to a set amount
per kilowatt hour (kWh) produced. Today, that number is approximately $0.026/kWh. But, like the ITC,
the amount of the PTC will be based on the size of the project (less than 1 MW, less than 5 MW) and
whether the project meets prevailing wage requirements, domestic content requirements and energy
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community location. For projects less than 1 MW, the PTC will be $0.033/kWh. For projects greater
than 1 MW, if all three requirements are met, the PTC will be $0.026/kWh.
Electric Vehicles and Charging Stations: The IRA creates new tax credits for electric commercial
vehicles and electric vehicle charging stations.
• If the commercial vehicle is all electric, then the tax credit is 30 percent with a maximum
amount based on the vehicle's weight. For electric commercial vehicles that weigh less than
14,000 pounds, the maximum tax credit is $7,500. If the electric commercial vehicle weighs
more than 14,000 pounds, the maximum tax credit is $40,000.
• Electric vehicle charging stations are also eligible for a 30 percent tax credit, with a maximum
tax credit of $100,000 per charging station. If a tribe installs 10 charging stations, then each
one is eligible for the tax credit (which the tribe receives through its election for direct pay).
Other Federal Tax Benefits
While Indian tribes and tribal enterprises are not taxable entities, several specific federal tax benefits
apply that can support renewable energy project deployment. The Indian employment tax credit allows
employers who employ Indians on tribal lands to receive a tax credit against those employees’ salaries
and wages to offset the cost of hiring and employment. This tax benefit promotes Indian employment
and supports the preference hiring of tribal members and Indians. The accelerated depreciation
provision for Indian lands allows businesses that construct facilities and other permanent
improvements on tribal lands to accelerate the depreciation deduction on their investment. A 2017
tax law created “opportunity zones,” which allows investors in projects or businesses located within
opportunity zones to reduce and delay the payment of capital gains taxes. Because opportunity zones
are coincident to low-income census tracts, many tribal lands are included.
The best tax benefit of all is that tribes are treated as states under the tax code for certain purposes.
One key purpose is for issuing tax-exempt bonds to finance government services (including operating
a utility) and economic development (such as an energy project) (TED) bonds. This low-cost way to
finance energy infrastructure, combined with a tribe’s lack of tax liability, can provide a financial
competitive advantage for tribes and their partners in energy development efforts. According to the
IRS, in 2010 at least 16 tribes applied for an allocation for TED bonds to use for renewable energy
projects.
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Part III. Renewable Energy Project Development
Part three of this literature review focuses on renewable energy project development and provides an
overview of federal renewable energy information and describes the five phases of the solar, wind,
biomass, storage project development cycle. The five phases include:
1. Project potential
2. Projection options
3. Project refinement
4. Project implementation
5. Project operations/maintenance
Federal Renewable Energy Information
DOE Office of Indian Energy has created or provided over 200 articles, webinars, presentations, studies
or reports on renewable energy development activities which are accessible on the program's website.
More than 50 percent of those are specific to Indian Country. Starting with the Handbook on
Renewable Energy first published in 2010, the Office of Indian Energy has continued to expand its
written resources for tribes to consult as they work to determine their options for renewable energy
project opportunities. Additional training and presentation materials also include online learning
modules and workshops focused on energy planning, commercial, community and facility scale
projects.
The DOI BIA DEMD also provides important resource information for tribes. Specific summary
information is available on solar, wind, geothermal, biomass and hydrogen resources, and provides
outlines of project development processes and considerations. This information is generally limited to
technical assistance support, but the website provides additional links and references to other federal
resources for certain projects.
EPA has similarly established the Green Power Markets website that provides additional information
on accessing green energy markets. Topics include project development toolkits, market information,
financing information, and government leadership principles. Multiple other federal agencies have
developed, and published information related to renewable energy or clean energy development in
general, although none has created tribal specific information.
Tribal Energy Planning
DOE has also suggested that before a tribe begins the development process for any project, the tribe
should conduct and develop a strategic or community energy plan. DOE has created two guidebooks
for Alaska Native villages and lower 48 tribes to engage in an energy planning process. The primary
benefits of a strategic energy plan include political leadership buy-in, community support, roadmap for
project assessment and value to the community, and a structured, disciplined, and holistic approach
to renewable energy project development.
Federal resources to support energy planning include the DOE Community Energy Planning
Guidebooks, DOI Resource Assessment and Capacity Building Grants, ANA Community Economic
Development Grants, Commerce EDA Comprehensive Economic Development Strategy (CEDS) grants,
and the Federal Emergency Management Agency (FEMA) Resiliency and Analysis Planning Tool and
BRIC grant program.
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Solar, Wind, Biomass, Storage Project Development Cycle
To standardize the approach to tribal renewable energy project development for solar, wind, and
biomass, in 2012 DOE crafted a project development cycle model describing the major phases of
development, the major actions and outcomes of each phase, and the critical decision points for tribal
leadership. The project development process is also very iterative; that is while the phases typically go
in the same order, the actions within each phase may not and will vary, based on the type of resource,
technology and project size, the main phases are the same for most projects. The DOE Office of Indian
Energy Online Learning Tool presents webinars that can be viewed on demand that cover basic project
development for utility, community, and facility scale projects. There are also webinars for more
advanced discussions of project development and project financing.
DOE has also suggested that before a tribe begins the development process for any project, the tribe
should conduct and develop a strategic or community energy plan. DOE has created two guidebooks
for Alaska Native villages and lower 48 tribes to engage in an energy planning process. The primary
benefits of a strategic energy plan include political leadership buy-in, community support, roadmap for
project assessment and value to the community, and a structured, disciplined, and holistic approach
to renewable energy project development.
Federal resources to support energy planning include the DOE Community Energy Planning
Guidebooks, DOI Resource Assessment and Capacity Building Grants, ANA Community Economic
Development Grants, Commerce EDA Comprehensive Economic Development Strategy (CEDS) grants,
and FEMA Resiliency and Analysis Planning Tool and BRIC grant program. Figure 3 shows the project
development cycle.
Figure 3. Project Development Cycle
Phase 1. Project
Potential
Data collection and
opportunity assessment
Phase 2. Project Options
Strategy and detail
Phase 3. Project
Refinement
Planning and
development
Phase 4. Project
Implementation
Financing and
construction
Phase 5. Project
Operations and
Maintenance
Comprehensive energy
plan
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Phase I: Project Potential
The purpose of this phase is to determine whether the basic elements for a successful project are in
place. Minimum tasks include:
a) identify possible sites for project location;
b) confirm renewable energy resource;
c) review tribal facility electric cost data, regulations, and transmission and interconnection
requirements;
d) evaluate potential markets and paths for renewable sales;
e) identify potential partners/off-takers to sell the project’s power;
f) assemble or communicate with the right team, those in positions or with knowledge to
facilitate, approve, champion the project.
Key risks to begin analyzing include financing, permitting, construction costs, and utility rules related
to interconnection and transmission. Appendix A. shows an example of the DOE’s description of major
“fatal flaws” in utility scale renewable energy development. Figure 4 lists available federal resources
for this phase.
Figure 4. Phase I. Project Potential federal resources
Phase II. Project Options: Siting, Ownership, Technology
The purpose of this phase is to determine ownership structure, permitting considerations, and sources
of development capital. Figure 5 lists available federal resources for this phase. Key tasks during this
phase include:
a) identify final resource and project location;
b) understand ownership structure/tribal role and risk allocations;
c) narrow financing options:
d) clarify tax-equity structures, if applicable;
e) initiate environmental review process and related studies;
f) understand and plan for permitting, interconnection (and transmission);
g) negotiate land use agreements (leases, ROW, options, development, site control).
DOI Resource
Assessment and
Capacity Grants
DOE Online
Webinars
EPA Renewable
Energy
Development
Toolkit
EDA Feasibility
Studies
USDA REAP
Feasibility Studies
DOE FEMP
Guidance on
Microgrids
DOE Solar in Your
Community Guide
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Figure 5. Phase II. Project Options federal resources
Phase III. Project Refinement: Development Agreements, NEPA,
Approvals, Funding/Financing
The purpose of this phase is to validate decisions and finalize project structure. Figure 6 lists available
federal resources for this phase.
Other tasks include:
a) finalize ownership structure;
b) finalize permitting, if applicable;
c) finalize environmental reviews and receive record of decision;
d) finalize technology, financing, and development costs;
e) complete financing/commitments and organization structure;
f) create detailed economic models;
g) select vendors; and
h) negotiate off-take and interconnection agreements.
Figure 6. Phase III. Project Refinement federal resources
Phase IV. Project Implementation
The purpose of this phase is to contract for and implement the physical construction of the project.
Figure 7 lists available federal resources for this phase. Tasks include:
a) finalize preconstruction tasks;
b) finalize construction and other project agreements;
c) complete construction and equipment installation;
d) complete interconnection installation;
e) commission project.
DOE Online
Training
Modules
DOE Community
Solar Guidebook
EPA On-Site
Solar Project
Toolkit
DOE FEMP
Financing
Microgrids
DOE Developer
Due Diligence
NREL RAPID
Permitting Tool
Kit
BIA NEPA
Guidebook
BIA Guidebook
and Checklists
on Lease and
ROW approvals
USFWS Land
Based Wind
Energy
Guidelines
FERC
Interconnection
Pro Formas
(LGIA and SGIA)
DOI Onshore
Energy and
Mineral Leasing
SOP
DOE or EPA
Federal
Financial
Assistance Tool
DOE Tribal
Energy Loan
Guarantee
Program
DOE Model Solar
RFP
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Figure 7. Phase IV. Project Implementation federal resources
Phase V. Project Operations/Maintenance
This phase, project operations and maintenance involves ongoing operations, maintenance, repair,
and replacement (OMR&R). This includes: a) equipment maintenance and upkeep; b) gearbox/inverter
replacement; c) insurance; d) labor and staffing; and e) extended warranty agreements.
EPA Onsite Solar + Storage Development
EPA has taken a different approach with local government distributed solar energy development. This
approach assumes the government will not play an active role in developing a distributed solar energy
project, but still has many steps to follow and information to gather. The underlying assumption is that
a selected vendor will deliver a "turnkey" system to the customer. This model is more appropriate for
community scale or distributed energy projects on tribal lands. It reduces the development risk and
provides more opportunities for tribes with limited capacity to develop projects. These types of projects
can also be owned directly by the tribe or a third party. Figure 8 shows the solar power development
pathway.
Figure 8: Solar Project Development Pathway
NREL Best
Practices in PV
Installation
USFWS Land-
Based Wind
Guidance
1. Establish solar project
• Establish a solar
project development
and/or renewable
energy usage goal
2. Develop plan
•Develop a project
development plan
3. Assess opportunities
•Assess your solar site
opportunities, catalog
site information, and
collect your utility data
4. Issue RFP
•Develop and issue a
solar request for
proposals (RFP)
5. Evaluate proposals
•Review and evaluate
your project proposals
6. Select developer
•Select a project
proposal and sign a
contract
7. Build project
•Build and commission
your project
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Geothermal Project Development
DOE has also supported efforts to promote geothermal development. However, geothermal, which is
regulated and permitted by the BLM, has a much more complicated development and approval
process, as shown in Figure 9.
Figure 9: Development and Approval Process
DOE has supported DOI (BLM and BIA) in identifying certain non-technical barriers to geothermal
development. In addition, DOE published GeoVision: Harnessing the Heat Beneath Our Feet, which
covers various aspects of geothermal development, including permitting, non-technical barriers,
stakeholder engagement, and commercial and market opportunities. The DOI oversees geothermal
development through several internal policies and procedures, including the Onshore Energy and
Mineral Lease Management Interagency Standard Operating Procedures, the Fluid Mineral Estate
Procedural Handbook, and the recently created Renewable Energy Coordination Office which is
responsible for DOI's responsibilities under the federal agency permitting MOU.
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Part IV. Federal Financial and Technical Assistance
Part IV addresses and catalogues major federal financial and technical assistance programs that are
specifically designed to promote clean energy deployment, some of which are focused on Indian tribes
or are general programs that tribes can access. Both the Bipartisan Infrastructure Law and the Inflation
Reduction Act have funded hundreds of billions in new programs (or existing programs), most of which
are listed in this Part.
Major Technical Assistance
DOI DEMD Branch of Renewables and Distributed Generation. Per the Indian Affairs Manual, this
branch "provides assistance to tribes and Indian landowners in evaluating and developing their
renewable energy resource potential. Assistance begins at the project's conception, continues through
the resource assessment, and ends with agreement negotiation."
DOE Office of Indian Energy. This office offers technical assistance to tribes as requested and at
various stages of project development.
DOE Clean Energy to Communities. The C2C technical assistance offers three types of support to
communities: in-depth partnerships (3 years), peer-learning cohorts (4-6 months), and expert match
(40-60 hours).
EPA Environmental Justice Thriving Communities Technical Assistance. The EPA EJ TCTAC program is
a selected national organization to remove barriers and improve accessibility for communities with
environmental justice concerns. These organizations will provide training and other assistance to build
capacity for navigating federal grant application systems, writing strong grant proposals, and
effectively managing grant funding.
U.S. Department of Agriculture (USDA) Rural Development Rural Partner Network. According to the
USDA, the Rural Partner Network (RPN) is "an alliance of federal agencies and commissions working
directly with rural communities to expand rural prosperity through job creation, infrastructure
development, and community improvement. Led by USDA Rural Development, RPN members
collaborate to identify resources to help people who live in rural areas. The RPN maintains a website
with multiple resources listed, including an interactive financial assistance portal, technical assistance
support and collaborative opportunities.
Bipartisan Infrastructure Law
The recently enacted BIL contains over $70 billion for energy programs, energy infrastructure
(including electric vehicle infrastructure), and energy research and development. The White House
published the BIL Tribal Playbook with more information about all programs relevant to tribes. The
major renewable energy related programs in the act include:
DOE Rural and Remote Community Program. One billion dollars is appropriated for federal financial
assistance to rural or remote areas (cities, towns, and unincorporated areas with a population of less
than 10,000) for the purpose of overall cost-effectiveness of energy generation, transmission, or
distribution systems; siting or upgrading transmission and distribution lines; reducing greenhouse gas
emissions from energy generation by rural or remote areas; providing or modernizing electric
generation facilities; developing microgrids; and increasing energy efficiency.
DOE Grid Resiliency. Ten billion in federal financial assistance is provided to eligible entities to
coordinate and collaborate with electric sector owners and operators to demonstrate innovative
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approaches to transmission, storage, and distribution infrastructure to harden and enhance resilience
and reliability; to demonstrate new approaches to enhance regional grid resilience, implemented
through states by public and rural electric cooperative entities on a cost-shared basis; to supplement
existing hardening efforts of the eligible entity planned for any given year; and to reduce the risk of a
wildfire caused by any power lines owned or operated by the eligible entity; or to increase the ability of
the eligible entity to reduce the likelihood and consequences of disruptive events.
WAPA power purchase funds. Five hundred million dollars is provided for WAPA to purchase power and
transmission services, recover purchase power and wheeling services, and transfer lost revenues to
the Colorado River Basins Power Marketing Fund.
Transmission line financing. A $2.5 billion lending authority is created to construct a new or replace
an existing eligible electric power transmission line; to increase the transmission capacity of an existing
eligible electric power transmission line; or to connect an isolated microgrid to an existing
transmission, transportation, or telecommunications infrastructure corridor located in Alaska, Hawaii,
or a territory of the United States.
Clean hydrogen manufacturing and pumped storage hydropower. New programs are established to
support the advancement of clean hydrogen and pumped storage
hydropower projects, with
prioritization or preference given for projects with tribes or on tribal lands.
Inflation Reduction Act
The IRA provides three major types of funding for tribes, tribal enterprises, and tribal members. The
White House published the Inflation Reduction Act Tribal Handbook, which provides more information
about these, and other IRA programs.
Tribal Specific Programs
Grant and loan guarantee programs to implement energy projects for electrification, climate resiliency
and energy generation.
DOE High Efficiency Electric Home Rebate program. Provides $225 million in grants directly to tribes
for rebates for electric appliance upgrades (e.g., replace fossil fuel furnaces, boilers, water heaters,
stoves), energy efficiency, electric heat pumps and electric wiring upgrades. Rebate amounts are
based on type of upgrade, with a maximum of $14,000 per home. Tribal member eligibility is based
on income, with rebates only available to tribal member households that make less than 150 percent
of area median income.
DOE Tribal Energy Loan Guarantee Program. Increases the loan authority from $2 billion to $20 billion,
increases the loan guarantee from 90 to 100 percent and appropriates $75 million for loan guarantee
credit support.
DOI Tribal Home Electrification program. One hundred and forty-five million dollars will be available to:
• Provide electricity to unelectrified tribal homes through zero-emissions energy systems;
• Transition electrified tribal homes to zero-emissions energy systems; and
• Make home repairs and retrofitting necessary to install the zero-emissions energy systems.
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Tax Credits and Rebates
Discussed in the previous section, allows for direct payments available to tribes and tribal members
to implement clean energy (solar, wind, geothermal, storage), electric vehicles and charging stations,
and energy efficiency projects.
Environmental and Energy Programs
Expanded funding and new programs and funding to address greenhouse gas emission reductions,
environmental and climate justice, and rural renewable energy projects.
EPA Greenhouse Gas Reduction Fund. The IRA amends the Clean Air Act to give EPA authority to make
grants to states, tribes, nonprofits and invest in nonprofit, state, and local financing institutions to
deploy low-zero emission technologies. Total funding is $27 billion and is available until September
30, 2024. The EPA will implement three competitions:
• The $14 billion National Clean Investment Fund competition will fund two to three national
nonprofits that will partner with private capital providers to deliver financing at scale to
businesses, communities, community lenders, and others, catalyzing tens of thousands of
clean technology projects to accelerate our progress towards energy independence and a net-
zero economic future.
• The $6 billion Clean Communities Investment Accelerator competition will fund two to seven
hub nonprofits with the plans and capabilities to rapidly build the clean financing capacity of
specific networks of public, quasi-public and nonprofit community lenders—
including community development financial institutions (including Native CDFIs), credit unions,
green banks, housing finance agencies, and minority depository institutions—to ensure that
households, small businesses, schools, and community institutions in low-income and
disadvantaged communities have access to financing for cost-saving and pollution-reducing
clean technology projects.
• The $7 billion Solar for All competition will provide up to 60 grants to states, tribal
governments, municipalities, and nonprofits to expand the number of low-income and
disadvantaged communities that are primed for residential and community solar investment—
enabling millions of families to access affordable, resilient, and clean solar energy.
EPA Climate Pollution Reduction Grants. The EPA will receive $9 billion to achieve or facilitate GHG
emission reduction. Funds can be used for planning and implementation grants. Tribes received a
$25 million allocation for planning.
EPA Environmental and Climate Justice Block Grant. The EPA will also provide $3 billion for the block
grant program that will provide funding to community led partnerships between tribes and nonprofits.
Funds can be used for climate resiliency efforts, low-zero emission/resiliency technologies, and
environmental and climate education efforts in disadvantaged communities to address environmental
and public health harms.
USDA Rural Utility Services. The RUS provides direct loans and loan guarantees for energy generation,
transmission and distribution and related facilities to eligible borrowers, including tribes or tribal
utilities. The IRA authorizes an additional $1 billion for loans for electricity and transmission projects,
and allows for loan forgiveness up to 50 percent, unless a different amount is authorized by the
Secretary of Agriculture. According to a recent USDA announcement, tribes will be eligible for up to 60
percent loan forgiveness.
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USDA Rural Energy for America Program (REAP). The REAP program provides loans and or grants to
agricultural producers and rural small businesses for distributed energy and energy efficiency projects.
The IRA provides $2.2 billion and increased the federal share up to 50 percent. USDA recently
announced a quarterly application and award schedule to grant $1 billion through September 2024.
USDA has also clarified that tribal-owned small businesses and tribal utilities are eligible to apply.
Standing Federal Programs
There are several other "standing" programs that provide financial assistance to tribes for renewable
energy and clean energy programs. The EPA and DOE Office of Indian Energy have interactive,
searchable databases of these federal financial assistance programs.
DOI—BIA Loan Guarantee Program. This program provides loan guarantees for tribes or tribal member
loans that will support economic development, business startup, and business operations.
HUD—Indian Community Development Block Grant. This is a competitive grant program offered by the
Office of Native American Programs under Native American Housing Assistance and Self
Determination Act (NAHASDA), which funds can be used to improve tribal housing or construct
community facilities. Approved uses also include energy efficiency and rooftop solar projects for tribal
housing.
DOE—Weatherization Assistance Program. A state grant program, with funding based on specific
weather (cooling and heating days), that is used to provide weatherization and distributed energy
generation technologies for low-income households. Tribes and tribal housing authorities are eligible
for direct grants from the DOE.
EPA—Clean Diesel (Diesel Emissions Reduction Act). EPA has a set-aside program for tribes to apply
for funds to replace or repower diesel engines, both mobile and stationary. Funds can also be used
to replace diesel with renewable energy generation or battery energy storage technologies.
Commerce—EDA Public Works Program. This competitive grant program can be used for feasibility
studies, business planning, pre-construction activities (such as design and engineering) or
construction costs for economic development projects, including renewable energy projects.
Part V. Putting it all Together
Developing and deploying even the simplest clean energy projects can be daunting, with unique
challenges – especially for smaller tribes with less resources and internal capacity. However, several
tribes – including very small tribes - have successfully completed projects of different scales and type.
The Midwest Tribal Energy Resources Association (MTERA) and NREL have conducted a study to
address some of these challenges. This Part provides an overview of key challenges, examples of
successful tribal projects and key takeaways for tribal leaders.
Key Challenges
The MTERA study identified twelve (12) major barriers to deploying solar energy on tribal lands, all of
which apply to most tribal clean energy development efforts. These barriers are both internal and
external in nature. The internal barriers can be addressed directly by tribes, while the external barriers
require engagement with, and further action by, utilities, states and the federal government.
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Internal Barriers
1. Lack of Tribal representation in utility, state, or federal energy policy decision-making
processes. This barrier is related to tribal participation in utility, state or federal regulatory or
legislative processes that impact tribal ability to develop energy projects.
2. Tribal Government or enterprise leadership and staff energy-related technical capacity. This
barrier is related to a tribe’s internal capacity to engage in project development activities.
3. Distributed solar program incompatibility with Tribal facility circumstances. This barrier is
related to the physical condition of residential, government, school, enterprise, and other
building stock.
4. Lack of land-use planning or land entitlement procedures. This barrier is related to the legal
infrastructure of tribal law to support and regulate project deployment.
External Barriers
1. Tribe served by multiple utilities.
2. Net metering limits or lack of net metering.
3. Tribal utility formation conflicts
4. Limit of third-party ownership.
5. Interconnection requirements.
6. Rural electric cooperatives that serve tribes are not state regulated.
7. Development steps can impact the economics of utility-scale projects.
8. State double taxation.
Tribal Case Studies
Notwithstanding these identified barriers—and others encountered by tribes seeking to develop clean
energy projects—over 200 tribes have leveraged federal and state funding or market participants to
develop and deploy renewable energy projects. A good resource for a list of specific projects is the DOE
Office of Indian Energy project database. The DOE Office of Indian Energy also conducts an annual
program review, which includes presentations from tribes on their efforts to deploy projects. Those
presentations can be accessed through the DOE Office of Indian Energy website as well.
Blue Lake Rancheria (CA) Microgrid
The first tribe in the lower 48 to develop and install two operating microgrids—500 kilowatt (kW) solar,
300kW battery storage and diesel engine backup—the Blue Lake Rancheria (BLR) has had a
dedicated effort to create a cleaner and more resilient energy system on the Rancheria, as shown in
Figure 10. The BLR microgrid was funded in part with a grant from the California Energy Commission,
in-kind donations from equipment suppliers, and substantial technical assistance from the Schatz
Energy Center at Cal State-Humboldt. Key success factors included dedicated and committed tribal
leadership, a good working relationship with the incumbent utility, and a technical team that supported
the tribe.
Tribal Renewable Energy Development
Literature Review
35
Figure 10. Blue Lake Rancheria microgrids.
Picuris Pueblo (NM) community solar
The Picuris Pueblo in New Mexico leveraged technical assistance and federal funding to develop and
deploy a 1MW community solar project. The Pueblo negotiated for almost a year with its rural electric
cooperative to interconnect the system and devise a virtual net metering arrangement to offset the
electric bills for tribal members.
Spokane Housing Authority (WA) rooftop
The Spokane Tribe’s Housing Authority Children of the Sun Solar Initiative (COSSI) will add 650 kW of
solar capacity to tribal buildings and homes, saving the community an estimated $2.8 million over the
next 30 years. The COSSI will both increase resilience to environmental threats and promote
sovereignty for the Tribe in the form of energy independence.
Moapa Band of Paiute Indians (NV) Utility Scale Solar
The Moapa Band was the first tribe to host a utility scale solar project on tribal lands as shown in
Figure 11. The Moapa Southern Paiute solar project, which is currently owned by a third-party, is
250MW and leases over 2000 acres from the tribe. The project sells its power to Los Angeles
Department of Water and Power,and produces enough power for 93,000 homes. The tribe benefits
from lease payments, taxes, water supply agreement and jobs.
Tribal Renewable Energy Development
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Figure 11. Moapa Band of Paiute Indians utility scale solar project.
Campo Band of Kumeyaay (CA) Commercial Wind
The Campo Band is the only tribe to host a commercial -sale wind project on tribal lands (Figure 12).
The Band leases its lands along a ridgeline to a third party. The project is 55 MW installed capacity
and sells its power to San Diego Gas and Electric. As with all third-party owned projects, the Band
receives lease payments, but due to double taxation in California it cannot collect taxes. The Band is
also developing another 160MW expansion, which the Band seeks to own.
Figure 12. Campo Band of Kumeyaay commercial wind project.
Tribal Renewable Energy Development
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37
Navajo Tribal Utility Authority Solar Projects
The Navajo Tribal Utility Authority (NTUA) is one of the first tribal entities to develop and own a
commercial scale solar project. The Kayenta Solar Project is 55 MW, located near Monument Valley,
and provides enough power for 23,000 homes on the Navajo Reservation. NTUA leveraged USDA RUS
loans, and tax credits (through the formation of a new company) to finance the project. NTUA is now
developing a 70 MW project in Utah, and a 250 MW project near Cameron.
Development and Deployment Key Takeaways
A consistent theme in this literature review is that Indian tribes and their federal partners benefit from
continuous education and awareness of the complexities in clean energy development. While there
are multiple barriers and challenges to overcome—both internal and external—the opportunities to
deploy clean energy for the benefit of tribal communities are now more abundant than ever.
Project opportunities include utility scale projects and distributed energy projects. First steps for tribal
renewable energy development may often include planning and project identification focused on tribal
goals and realistic opportunities. Utility scale projects, while technically and financially viable for some
tribes, present high complexity levels as they are dependent on access to markets and major
transmission, they are subject to federal and state laws, and require extensive tribal development
experience and access to substantial funding and capital. Conversely, smaller distributed energy
projects are achievable by most tribes because upfront capital costs and required tribal development
resources are attainable. Smaller projects also lend themselves to being developed in manageable
phases that align with the tribal goals and objectives of energy self-sufficiency and climate resiliency.
Additional key takeaways include:
• Energy Planning. Developing a community or strategic energy plan to guide a tribe’s renewable
energy efforts will provide internal guidance and political support for those development
efforts. Further, planning offers the opportunity to identify and overcome key project
development barriers.
• Build Capacity/Technical Assistance. While difficult for tribes that are short on resources,
developing capacity in the areas of technical, project, legal, and financial expertise is critical
to success in developing tribal energy projects. Tribes may best benefit from developing this
expertise directly within the tribal organization or through procurement of these resources.
Tribes can also access some of this expertise through federal (or state) technical assistance
programs or funding.
• Starting Small. Most tribes that have deployed projects have focused on smaller scale projects
that directly benefit tribal communities. While these projects can still be complex, and require
in-depth technical knowledge and capabilities, they don’t tend to implicate the full federal legal
and regulatory regime or market mechanisms. But smaller projects offer a good training
ground to develop the tribal capacity needed to undertake larger project development efforts
and to assist tribal leadership with education and familiarity that maintains political support.
• Say Informed and Participate. A subset of building capacity, continuous education and
participation in renewable activities supports tribes’ critical needs to stay informed of current
trends, technology, regulatory, policy and legislative efforts. Tribal leadership may benefit from
extending this approach to participating in state and federal efforts, including commenting on
consultations related to tribal interests, regulatory development, and other engagement
efforts. This could also be a key technical assistance opportunity for federal agencies that want
to assist tribes.
Tribal Renewable Energy Development
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38
Bibliography
General Resources
DOI DEMD, Energy Resource Primers
DOE Office of Indian Energy, Resource Library
DOI Office of Indian Energy and Economic Development, Tribal Business Structures Handbook,
K. Atkinson, K. Nilles (2008)
Tribal Renewable Energy Resource Assessments
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and D. Beckley, National Renewable Energy Laboratory (DOE/IE-0013, February 2013)
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Schwabe, National Renewable Energy Laboratory (NREL/TP-6A20-70807, July 2018)
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Biomass
DOI DEMD, Energy Resource Primers
DOE Office of Indian Energy, Foundational Courses Renewable Energy Technologies: Biomass
Kip Funk, Jana Milford, Travis Simpkins, Waste Not, Want Not: Analyzing the Economic
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Optimization of Renewable Energy Options, Technical Report, NREL/TP-6A50-52829,
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Geothermal
DOI Division of Energy and Mineral Development, Energy Resource Primers
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F. Flores-Espino, W. Pettitt, B. Schmidt, K. Beckers, H. Pauling, B. Anderson (NREL 2022)
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Onshore Energy and Mineral Lease Management Interagency Standard Operating Procedures
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Tribal Renewable Energy Development
Literature Review
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Hydrogen
DOI DEMD, Energy Resources Primers
Hydropower
DOE Office of Energy Efficiency and Renewable Energy, New Stream-reach Development: A
Comprehensive Assessment of Hydropower Energy Potential in the United States, S. Kao, R.
McManamay, K. Stewart, N. Samu, B. Hadjerioua, S. DeNeale, D. Yeasmin, M. Pasha, A.
Oubeidillah, and B. Smith (Oak Ridge National Laboratory, 2014)
DOE ORNL, Hydropower Development Opportunities for Alaska Native Villages (ORNL/TM-
2018/772) (2018)
Solar
DOI DEMD, Energy Resource Primers
DOE Office of Indian Energy, Foundational Courses Renewable Energy Technologies: Solar
Interstate Renewable Energy Council, Community Solar Basics
DOE Solar Power in Your Community, a guide for local governments
DOE Solar Energy Technologies Office, A Guide to Community Shared Solar: Utility, Private and
Nonprofit Project Development (May 2012)
Laura Beshilas, Scott Belding, Karin Wadsack, Elizabeth Weber, M.J. Anderson, Kelsey
Dillon, Sara Drescher, Jake Glavin and Reuben Martinez 2023 Addressing Regulatory
Challenges to Tribal Solar Deployment, National Renewable Energy Laboratory,
NREL/TP-7A40-85741
Wind
DOI DEMD, Energy Resource Primers
DOE Office of Indian Energy, Tribal Renewable Energy Curriculum Foundational Course: Wind
DOE Office of Energy Efficiency and Renewable Energy, Land-Based Wind Energy Economic
Development Guide (2022)
DOE FEMP On-Site Wind Energy Project Feasibility Checklist
Market/Industry
Wood Mackenzie, Market Insights/ Power and Renewables
Solar Means Business, Solar Energy Industries Association, 2022
Clean Energy Powers American Business, American Clean Power Association, 2023
Press Release, World Res. Inst., “US Local Governments Lead the Way in the Clean Energy
Transition” (June 24, 2020).
Tribal Renewable Energy Development
Literature Review
40
State Laws/Policies
National Conference of State Legislatures: State Renewable Portfolio Standards and Goals,
National Conference of State Legislatures (Apr. 17, 2020)
Greenhouse Gas Emissions Reduction Targets and Market-Based Policies, National Conference
of State Legislatures (Dec. 17, 2019).
State Policies for Low- and Moderate-Income Customer Access to Renewable Energy and Energy
Efficiency (Nov. 16, 2016)
Interstate Renewable Energy Council, Shared Renewables Policy Database (2020)
An Overview of Distributed Energy Resource (DER) Interconnection: Current Practices and
Emerging Solutions, National Renewable Energy Laboratory (2019)
NC Clean Energy Technology Center, Database of State Incentives for Renewables and
Efficiency
Transmission
DOE Office of Indian Energy, Tribal Renewable Energy Foundational Course: Electricity Grid
Basics (2012)
An Overview of the Federal Energy Regulatory Commission and Federal Regulations of Public
Utilities, Lawrence Greenfield (FERC, 2022)
FERC Order No. 842 (Feb. 15, 2018); Order No. 845 (April 19, 2018) Large Generators
FERC Order No. 842 (Feb. 15, 2018) Small Generators
Microgrids
DOI DEMD, Energy Resource Primer
DOE Office of Energy Efficiency and Renewable Energy, FEMP Financing Microgrids in the
Federal Sector (Aug. 2020)
NARUC Private, State and Federal Funding and Financing Options to Enable Resilient, Affordable
and Clean Microgrids (January 2021)
Microgrid Knowledge Resources
Dulau, Lucian, Abrudean, Mihail, Bica, Dorin, 2014/09/01, Distributed generation and virtual
power plants, 10.1109/UPEC.2014.6934630, Proceedings of the Universities Power Engineering
Conference
Energy Planning
DOE Office of Indian Energy, Alaska Strategic Energy Plan and Planning Handbook (2013)
DOE Office of Indian Energy, Tribal Strategic Energy Plan and Planning Handbook (2013)
DOE Office of Indian Energy, Tribal Energy Project Successes
Tribal Renewable Energy Development
Literature Review
41
Project Development
Renewable Energy Development in Indian Country: A Handbook for Tribes, D. MacCourt
(NREL/48078, June 2010)
DOE Office of Indian Energy, Renewable Energy Project Development and Finance Framework:
the 5 Step Process
DOE Office of Indian Energy, Renewable Energy Project Development and Financing:
Commercial Scale
DOE Office of Indian Energy, Utility Scale Step 1: Identifying Project Potential
DOE Office of Indian Energy, Utility Scale Step 2: Project Options
DOE Office of Indian Energy, Utility Scale Step 3: Project Refinement
DOE Office of Indian Energy, Utility Scale Step 4: Project Implementation
DOE Office of Indian Energy, Utility Scale Step 5: Project Operations
DOE Office of Indian Energy, Key Project Development and Financing Concepts
DOE Office of Indian Energy, Renewable Energy Project Development and Financing:
Community Scale
DOE Office of Indian Energy, Renewable Energy Project Development and Financing: Facility
Scale
DOE Office of Indian Energy, Tribal Energy Projects Database
EPA On-Site Renewable Energy Generation: A Guide to Developing and Implementing
Greenhouse Gas Reduction Programs (2014)
EPA Green Power Markets, Site Project Development Process
EPA Green Power Markets, Renewable Energy Project Development Toolbox
DOE Office of Indian Energy, Developer Due Diligence (2015)
DOE Office of Indian Solar RFP Template (August 2015)
NREL SAPC Best Practices in PV Installation (March 2015)
NREL Regulatory and Permitting Information Desktop (RAPID) ToolKit
NREL Best Practices at the End of the Photovoltaic System Performance Period (February 2021)
Laws, Regulations, Related Guidance/Handbooks
Long Term Leasing Act of 1955, 25 USC § 415; 25 CFR Part 162
General Right of Way Act of 1948, 25 USC §§ 321-328; 25 CFR Part 169
Indian Mineral Development Act of 1982, 25 USC §§ 2101 - 2108; 25 CFR Part 225; 43 CFR part
3260; 43 CFR part 3280
Tribal Renewable Energy Development
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42
Contracts Act, 25 USC § 81; 25 CFR Part 84
Indian Tribal Energy Self-Determination Act of 2005, 25 USC §§ 3501 - 3501; 25 CFR Part 224
National Environmental Policy Act, 42 USC §§ 4321 - 4370m-12; 40 CFR Parts 1500 - 1508
(2020); 43 CFR Part 46
National Historic Preservation Act, 54 U.S.C. § 100101 et. seq.; 36 CFR Part 800
Endangered Species Act, 16 USC § 1531 et. seq.; 50 CFR Parts 13, 17
Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712; 50 CFR Part 10
Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d; 50 CFR Part 22
Clean Air Act, 42 U.S.C. § 7401 et seq.; 40 CFR Parts 50, 56, 60, 71, 72
Clean Water Act, 33 USC § 1151 et seq.; 40 CFR Parts 120, 122; 33 CFR Parts 320 - 332
Federal Power Act, 16 USC § 791a et. seq.; 18 CFR Parts 4 - 50
Public Utility Regulatory Policies Act, 16 USC § 2601 et. seq. 31 U.S.C. 9701; 42 U.S.C. 7101–
7352; 18 CFR Part 292
Internal Revenue Code, 26 USC §§ 45, 45V, 45Y, 48, 48E
DOI Onshore Federal and Indian Energy and Mineral Lease Management Standard Operating
Procedures (2013)
Indian Affairs National Environmental Policy Act (NEPA) Guidebook, 59 IAM 3-H (Aug. 2012)
BIA Guidebook and Checklists on Lease and ROW approvals
U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines (2012)
Council on Environmental Quality and Advisory Council on Historic Preservations, NEPA
and NHPA, A Handbook for Integrating NEPA and Section 106 (2013)
Federal Financial and Technical Assistance
DOI DEMD Technical Assistance Program
DOI DEMD Resource Assessment Grants
DOI DEMD Tribal Energy Capacity Building Grants
DOI Office of Indian Economic Development Tribal Loan Guarantee Program
DOE Office of Indian Energy Technical Assistance
DOE Office of Indian Energy, Current Funding Opportunities
DOE Tribal Energy Loan Guarantee Program
DOE Weatherization Assistance Program
Commerce EDA Comprehensive Economic Development Strategy Grant Program
Tribal Renewable Energy Development
Literature Review
43
Commerce EDA Public Works Grants
EPA Environmental Justice Thriving Communities
EPA Diesel Emission Reduction Grants (DERA)
HHS ANA Social and Economic Development Strategies Grant
HHS Low Income Household Energy Assistance Program (LIHEAP)
DHS FEMA Building Resilient Infrastructure and Communities
HUD ONAP Indian Community Development Block Grant Program (ICDBG)
USDA Rural Partners Network
USDA Rural Energy for America Program (REAP)
USDA Rural Utility Service Electricity and Transmission Infrastructure Loan Program
White House, Bipartisan Infrastructure Law Tribal Playbook: A roadmap for delivering opportunity
and investments in Indian Country (May 2022)
White House, Guidebook to the Inflation Reduction Act's Clean Energy and Climate Investments
in Indian Country (April 2023)
Harvard's Environmental and Energy Law Program
Law Articles
Pilar M. Thomas, Renewable Energy Development on Indian Lands, 68 Nat. Resources & Energy
L. Inst., Paper 23 (2022)
John Clancy, Opportunities for on-Reservation Sustainable Development, 2022 Wis. L. REV. 375
(2022)
Michael Maruca, From Exploitation to Equality: Building Native-Owned Renewable Energy
Generation in Indian Country, 43 WM. & MARY ENVTL. L. & POL'y REV. 391 (2019)
Nicholas M. Ravotti, Access to Energy in Indian Country: The Difficulties of Self-Determination in
Renewable Energy Development, 41 Am. Indian L. Rev. 279 (2017)
Elizabeth Ann Kronk Warner, Tribal Renewable Energy Development under the Hearth Act: An
Independently Rational, but Collectively Deficient, Option, 55 ARIZ. L. REV. 1031 (2013)
Elizabeth Ann Kronk, Tribal Energy Resource Agreements: The Unintended Great Mischief for
Indian Energy Development and the Resulting Need for Reform, 29 Pace Envtl L. Rev. 811 (2012)
Kathleen R. Unger, Change is in the Wind: Self-Determination and Wind Power through Tribal
Energy Resource Agreements, 43 LOY. L. A. L. REV. 329 (2009).
Tribal Renewable Energy Development
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Index of Acronyms
Appraisal and Valuation Services Office (AVSO) ............................................................................... 13, 14
Bald and Golden Eagle Protection Act (BGEPA) ......................................................................... 20, 49, 50
Bureau of Indian Affairs (BIA) ............................... vi, 1, 2, 8, 11, 12, 13, 14, 15, 16, 18, 24, 29, 33, 42
Bipartisan Infrastructure Law (BIL) ............................................................................................... 9, 10, 30
Bureau of Land Management (BLM) ............................................................................. 15, 16, 17, 29, 38
Clean Air Act (CAA) ................................................................................................... 17, 20, 48, 50, 51, 54
Comprehensive Economic Development Strategy (CEDS) ............................................................... 24, 25
Clean Energy Investment Tax Credit (CEITC) ........................................................................................... 22
Council on Environmental Quality (CEQ) ............................................................................................ 17, 18
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) ....................... 22
Concentrating solar power (CSP) ..................................................................................................... 3, 4, 20
Clean Water Act (CWA) .......................................................................................................... 17, 20, 52, 54
Division of Energy and Mineral Development (DEMD) ................................................................................
........................................................................................ 1, 30, 38, 39, 40, 42, 47, 48, 49, 51, 52, 54
Department of Energy (DOE) 6, 8, 9, 10, 15, 24, 25, 26, 29, 30, 31, 33, 34, 38, 39, 40, 41, 42, 46,
47, 48, 49, 50, 51, 52, 53, 54
Department of Interior (DOI) 15, 18, 24, 25, 29, 30, 31, 33, 38, 39, 40, 42, 47, 48, 49, 50, 51, 52,
54
Environmental Assessment (EA) .............................................................................................................. 17
Environmental Impact Statements (EIS) .................................................................................... 17, 18, 46
Environmental Justice (EJ).................................................................................................... 22, 30, 48, 49
Environmental Protection Agency (EPA) ..... 17, 18, 20, 24, 28, 30, 32, 33, 41, 43, 47, 48, 49, 50, 52
Endangered Species Act (ESA) ..................................................... 19, 20, 47, 48, 49, 50, 51, 52, 53, 54
Federal Emergency Management Agency (FEMA) ..................................................................... 24, 25, 43
Federal Energy Regulatory Commission (FERC) ............................................................ 10, 11, 20, 21, 40
Finding of No Significant Impact (FONSI) ................................................................................................ 17
Federal Power Act (FPA) ...................................................................... 14, 20, 21, 47, 49, 50, 51, 52, 53
Green Power Markets ......................................................................................................................... 24, 41
Helping Expedite and Advance Responsible Tribal Home Ownership (HEARTH) ................. 8, 13, 14, 16
Integrated Energy Service Center (IESC) .................................................................................................... 1
Indian Mineral Development Act (IMDA) ....................................................................... 11, 14, 15, 52, 54
Indian Mineral Leasing Act (IMLA) ........................................................................................................... 11
Inflation Reduction Act (IRA)................................................................................ 9, 21, 22, 23, 31, 32, 33
Internal Revenue Service (IRS) ................................................................................................... 21, 22, 23
Indian Tribal Energy Self-Determination Act (ITESDA) .............................. 11, 47, 48, 49, 50, 51, 52, 54
Long Term Leasing Act (LTLA) ...................................................... 11, 12, 13, 14, 47, 48, 49, 50, 51, 54
Migratory Bird Treaty Act (MBTA) ................................................................................................ 20, 49, 50
Midwest Tribal Energy Resources Association (MTERA) ......................................................................... 33
Native American Housing Assistance and Self Determination Act (NAHASDA) .................................... 33
National Environmental Policy Act (NEPA) 7, 8, 13, 15, 16, 17, 18, 19, 20, 27, 42, 46, 47, 48, 49,
50, 51, 52, 53, 54
National Historic Preservation Act (NHPA) ..................... 15, 18, 19, 42, 47, 48, 49, 50, 51, 52, 53, 54
Natinoal Pollutant Discharge Elimination System (NPDES) ................................................................... 20
National Renewable Energy Laboratory (NREL) ............................................ 3, 4, 33, 38, 39, 41, 47, 52
Navajo Tribal Utility Authority (NTUA) ....................................................................................................... 37
Operations, maintenance, repair, and replacement (OMR&R) .............................................................. 28
Production Tax Credit (PTC)....................................................................................................................... 22
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Public Utility Regulatory Policy Act (PURPA) .............................................. 20, 21, 47, 48, 49, 50, 51, 52
Photovoltaic technologies (PV) .................................................................................................... 3, 4, 5, 41
Qualifying facilities (QF) ............................................................................................................................ 21
Renewable Energy Accelerated Deployment Initiative for Indian Country (READI) .................................. 2
Rural Energy for America Program (REAP) ................................................ 33, 43, 47, 48, 49, 50, 51, 52
Renewable Energy Coordination Office (RECO) ................................................................................ 15, 38
Record of Decision (ROD) ......................................................................................................................... 18
General Right-of-Way Act (ROW) ................. 11, 14, 16, 18, 26, 42, 46, 47, 48, 49, 50, 51, 52, 53, 54
Rural Partner Network (RPN) ...................................................................................................... 30, 48, 49
USDA Rural Utility Services (RUS) .............................................................. 32, 37, 47, 48, 49, 50, 51, 52
National Historic Preservation Act, Section 106 (Section 106) ....................................................... 18, 42
Solar Energy Industries Association (SEIA) ................................................................................................. 8
Thriving Communities Technical Assistance (TCTAC) ................................................................ 30, 48, 49
Tribal Energy Development (TED) ............................................................................................................ 23
Tribal Energy Development Organization (TEDO) .............................................................................. 12, 16
Tribal Energy Resource Agreements (TERA) ...................................................................................... 13, 16
Tribal Historica Preservation Officer (THPO) ............................................................................................ 19
U.S. Department of Agriculture (USDA) .................................. 30, 32, 33, 37, 43, 47, 48, 49, 50, 51, 52
U.S. Fish and Wildlife Service (USFWS) ...................................................................................... 19, 20, 49
Wind Energy Evaluation Leases (WEEL) .................................................................................................. 12
Wind and Solar Resource Leases (WSR) ........................................................................................... 12, 13
Tribal Renewable Energy Development
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Appendices
Appendix A. Example of DOE descriptions of major “fatal flaws” in utility scale renewable
energy development
Site Resource Off-Take Permits Technology Team Capital
Securing site:
No site, no
project
Engineering
assessment (input)
Power
purchases: off-
take contract-
(revenue)
Anything that
can stop a
project if not in
place
Engineered
systems
(output)
Professional
experienced,
diverse
Financing
structure
Site control
Size and shape
Location to load
and T&D
Long-term
control
Financial Control
Clear title
Lease terms
Collateral
concerns
Environmental
Access
O&M access
Upgradable
Volume/Frequency
Variability
Characteristics
(power/speed)
24-hour profile
Monthly, seasonal,
and annual
Weather dependence
Data history
Std. deviation
Technology suitability
Credit of
counterparty
Length of contract
Terms and
conditions
Reps and
warranties
Assignment
Curtailment
Interconnection
Performance
Enforcement
Take or pay
Pricing and terms
Permitting/
Entitlements
Land distribution
Environmental
and cultural
impacts
Resource
assessment
Wildlife impacts
Habitat
NEPA. EIS
Utility
interconnection
Other utility or
PUC approvals
Lease and/or
ROW approvals
Engineering
design plans
Construction
plans
Not generic solar
panel and
inverter
Engineered
resource/
conversion
technology/
balance of
systems designs
Specifications
Bid set
Business
management
Technical
expertise
Financial
expertise
(inclusion tax)
Transmission
interconnections
expertise
Construction
contract
management
Operations
Power marketing/
sales
Development
equity
Project equity
Nonrecourse
project debt
Tax equity
Grants, rebates,
other incentives
Environmental
attributes sales
contracts (RECs)
Bond finance
Tribal Renewable Energy Development
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Appendix B: Solar Resource Crosswalk
Appendix B provides a cross walk between solar renewable energy resource, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information
Technical Assistance
Financial Assistance
Utility Scale
Long Term Leasing Act
(LTLA)
General Right Of Way Act
(ROW)
CONTRACTS
Indian Tribal Energy Self
Determination Act
(ITESDA), Federal Power
Act (FPA), Public Utility
Regulatory Policy Act
(PURPA)
National Environmental
Policy Act (NEPA)
National Historic
Preservation Act (NHPA)
Endangered Species Act
(ESA)
DOE Foundation/Basics - Solar;
DOE Professional - Project Dev;
DOE Professional - Project Finance
DOI DEMD; DOE IE
DOI DEMD; USDA RUS; DOE
RURAL; DOE TELGP Tax
Credits
Community Scale
LTLA, ROW, CONTRACTS,
ITESDA, PURPA, NEPA,
NHPA, ESA
DOE Foundation/Basics -
Community Scale Solar; DOE
Professional - Project Dev; DOE
Professional - Project Finance;
DOE Local Government Guide to
Community Solar
DOI DEMD; DOE IE; EPA
Thriving Communities
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL; DOE TELGP;
Tax Credits
Shared Solar
LTLA, ROW, CONTRACTS,
ITESDA, PURPA, NEPA,
NHPA, ESA
DOE Foundation/Basics -
Community Scale Solar; DOE
Professional - Project Dev; DOE
Professional - Project Finance;
DOE Guide to Community Solar;
NREL Community Solar Guide
DOE IE; DOE FEMP; DOE
Clean Communities
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL;
COMMERCE EDA; DOE TELGP;
Tax Credits
Tribal Renewable Energy Development
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Project Type
Relevant Laws &
Regulations
Education / Information
Technical Assistance
Financial Assistance
Rooftop CONTRACTS, ROW, ESA
DOE Foundation/Basic - Facility
Scale; EPA On-Site Solar
Development
DOI DEMD; DOE IE; USDA
RPN; EPA EJ TCTAC
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL; HUD
ICDBG; EPA DERA; Tax Credits
Microgrids
LTLA, ROW, CONTRACTS,
ITESDA, PURPA, NEPA,
NHPA, ESA, CAA
DOE FEMP Microgrid Deployment
DOI DEMD; DOE IE; DOE
FEMP
DOI DEMD; DOE IE; EPA
GGRF; DOE GRID; USDA REAP;
USDA RUS; DOE RURAL;
COMMERCE EDA; EPA DERA;
DOE TELGP; Tax Credits
Tribal Renewable Energy Development
Literature Review
49
Appendix C: Wind Resource Crosswalk
Appendix C provides a cross walk between wind renewable energy resource, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Utility Scale
LTLA, ROW,
CONTRACTS, ITESDA,
PURPA, FPA, NEPA,
NHPA, ESA, MBTA,
BGEPA
DOE Foundation/Basics - Wind;
DOE Professional - Project Dev;
DOE Professional - Project
Finance; USFWS Land Based
Wind Guidelines; DOE Land-
Based Wind Energy Economic
Development Guide
DOI DEMD; DOE IE
DOI DEMD; USDA RUS;
DOE RURAL; DOE TELGP
Tax Credits
Community Scale
LTLA, ROW,
CONTRACTS, ITESDA,
PURPA, FPA, NEPA,
NHPA, ESA, MBTA,
BGEPA
DOE Distributed Wind Report;
USFWS Land Based Wind
Guidelines; DOE Land-Based
Wind Energy Economic
Development Guide
DOI DEMD; DOE IE
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL;
COMMERCE EDA; DOE
TELGP; Tax Credits
Shared Wind
LTLA, ROW,
CONTRACTS, ITESDA,
PURPA, FPA, NEPA,
NHPA, ESA, MBTA,
BGEPA
DOE Distributed Wind Report;
USFWS Land Based Wind
Guidelines
DOI DEMD; DOE IE
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL;
COMMERCE EDA; DOE
TELGP; Tax Credits
Distributed/Rooftop
CONTRACTS, ROW,
ITESDA, NEPA, ESA,
MBTA, BGEPA
DOE Foundation/Basic - Facility
Scale; DOE On-Site Wind
Checklist
DOI DEMD; DOE IE; EPA
EJ TCTAC; USDA RPN
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS; DOE RURAL; Tax
Credits
Tribal Renewable Energy Development
Literature Review
50
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Microgrids
LTLA, ROW,
CONTRACTS, ITESDA,
PURPA, FPA, NEPA,
NHPA, ESA, MBTA,
BGEPA, CAA
DOE
FEMP Microgrid
Deployment
DOI DEMD; DOE Clean
Communities
DOI DEMD; DOE IE; EPA
GGRF; USDA REAP; USDA
RUS
; DOE RURAL;
COMMERCE EDA; DOE
TELGP; Tax Credits
Tribal Renewable Energy Development
Literature Review
51
Appendix D: Biomass Resource Crosswalk
Appendix D provides a cross walk between biomass renewable energy resource, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Utility Scale
LTLA, ROW,
CONTRACTS,
ITESDA, PURPA, FPA,
NEPA, NHPA, ESA,
CAA
DOE Foundation/Basics -
Biomass; DOE Professional-
Project Dev; DOE Professional
- Project Finance
DOI DEMD; USDA FS
DOI DEMD; USDA RUS;
DOE RURAL; DOE TELGP
Tax Credits
Community Scale
LTLA, ROW,
CONTRACTS,
ITESDA, PURPA, FPA,
NEPA, NHPA, ESA,
CAA
DOE Foundation/Basics -
Biomass; DOE Professional-
Project Dev; DOE Professional
- Project Finance
DOI DEMD; USDA FS
DOI DEMD; DOE IE; USDA
REAP; USDA RUS; DOE
RURAL; DOE TELGP Tax
Credits
Tribal Renewable Energy Development
Literature Review
52
Appendix E: Geothermal Resource Crosswalk
Appendix E provides a cross walk between geothermal renewable energy resource, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Utility Scale
IMDA, ROW,
CONTRACTS,
ITESDA, PURPA, FPA,
NEPA, NHPA, ESA,
CWA
DOI DEMD Energy Resource
Primer; DOE Tribal Renewable
Energy Foundational Course:
Geothermal; DOE Energy 101:
Geothermal Energy; DOE 2021
Geothermal Report; NREL
RAPID
DOI DEMD; DOE IE;
DOI DEMD; USDA RUS;
DOE RURAL; DOE TELGP
Tax Credits
Community Scale
IMDA, ROW,
CONTRACTS,
ITESDA, PURPA, FPA,
NEPA, NHPA, ESA,
CWA
DOI DEMD; DOE IE;
DOI DEMD; USDA REAP;
USDA RUS; DOE RURAL;
DOE TELGP; DOI IE; Tax
Credits
Facility Scale
ROW, CONTRACTS,
ITESDA, PURPA,
NEPA, NHPA, ESA,
CWA
DOI DEMD; DOE IE;
DOI DEMD; DOE IE; DOE
RURAL; HUD ICDBG; USDA
REAP; EPA GGRF; Tax
Credits
Tribal Renewable Energy Development
Literature Review
53
Appendix F: Hydroelectric Resource Crosswalk
Appendix F provides a cross walk between hydroelectric renewable energy resources, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Utility Scale
ROW, FPA, NEPA,
NHPA, ESA
DOE A Comprehensive
Assessment of Hydropower
Energy Potential in the US; DOE
ORNL, Hydropower
Development Opportunities for
Alaska Native Villages
DOI DEMD; DOE ORNL
DOI DEMD; DOE HYDRO
INCENTIVE PAYMENTS;
Tax Credits
Tribal Renewable Energy Development
Literature Review
54
Appendix G: Hydrogen Resources Crosswalk
Appendix G provides a cross walk between hydrogen renewable energy resources, project type, and relevant laws and regulations,
education/information, available technical assistance, and available financial assistance.
Project Type
Relevant Laws &
Regulations
Education / Information Technical Assistance Financial Assistance
Utility scale
IMDA, LTLA, ROW,
CONTRACTS,
ITESDA, NGA, NEPA,
NHPA, ESA, CAA,
CWA
DOI DEMD, Energy Resources
Primers
DOI DEMD; DOE
REGIONAL HUBS
DOI DEMD; DOE
HYDROGEN; Tax Credits