At the February 15, 2024, FERC open meeting and in four orders issued the same day, FERC established a new policy governing its issuance of preliminary permits under section 4(f) of the Federal Power Act (“FPA”), pursuant to which it will not issue preliminary permits for projects located on Tribal lands if the Tribe on whose land the project is proposed to be located opposes the permit. FERC explained that this policy change is based on the agency’s commitment to ensuring that Tribal concerns and interests are considered whenever FERC’s actions or decisions have the potential to adversely affect Tribes or Tribal trust resources. To avoid future permit denials, FERC emphasized that potential applicants should fully inform Tribes about proposed projects on their lands before filing the permit application.

Pursuant to section 4(f) of the FPA, FERC issues preliminary permits to allow prospective applicants for hydropower licenses to study the potential site and develop its application for a license. Prior to its February orders, FERC has followed the general rule that it will grant a preliminary permit, even where third parties raise concerns about potential impacts of the proposed project, because those issues are more appropriately addressed during the subsequent licensing proceeding. FERC’s order explains that in recent years, the Commission has begun denying preliminary permits for projects at federal facilities or on federal lands where the federal agency in question opposes the proposed permit. However, it had not extended this policy change for Tribal opposition in the past.

At its February 15 meeting, FERC issued four separate orders in which it denied seven individual applications for preliminary permits. Each of the permit applications proposed to develop hydroelectric projects entirely on Navajo Nation land in the southwestern United States, including in Arizona and New Mexico. In each of the proceedings, the Navajo Nation filed its opposition for the permit application, arguing that the project would impact the Nation’s water rights, natural resources, rare and endangered species, and cultural resources. The Navajo Nation also expressed concern that it was unclear whether the applicants consulted the Tribe and the appropriate Tribal offices for wildlife resources, land- and water-use permitting, cultural resources, and other environmental clearances.

In establishing its new policy, FERC denied the preliminary permit applications because the proposed projects would be sited entirely on Navajo Nation land and the Tribe had stated its opposition to the permits. As a rationale for its policy change, FERC highlighted the unique “tribal trust” relationship between the United States and Tribes and explained its commitment to furthering Tribal concerns and interests. FERC also explained that this policy change is consistent with its recent policy change for permits opposed by federal land managers or similarly affected federal agencies. Although FERC denied the applications, FERC explained that permit denials are discretionary and without prejudice and suggested that the applicants are free to continue consulting with the Tribes and resubmit their applications for the projects after resolving the Tribes’ concerns.

A copy of the orders can be found here in Dockets P-15233-000, P-15234-000, and P-15235-000; P-15293-001; P-15309-000; and P-15314-000 and P-15315-000.