▶ 0:16:13Chair Lee: Committee will come to order. Welcome. Today we will examine the consultation process that takes place pursuant to section 106, the nh pa. Congress enacted the statute in 1966 to make sure the federal government would give due consideration to reserving america's historical artifacts. With appropriate stakeholders.
▶ 0:16:38Chair Lee: This section of nh pa is itself purely procedural and as such requires government officials to undertake a specific process but doesn't mandate any specified outcome.
▶ 0:16:53Chair Lee: In that regard, it is similar to the national environmental policy act that directs a process, not a result, and which the supreme court recently in the seven county decision returned to a right sized role in federal policymaking. Today should consider the scope of section 106 to make sure it plays the role that congress intended to end was enacted.
▶ 0:17:21Chair Lee: We will be hearing from three witnesses today to better understand these issues. First, Dr. chris merritt, the state historic preservation officer for the state of utah. Second, Mr. andy mcdonald, the environmental compliance manager for on hannah, dakota utilities company. Finally, from Mr. steven concho, tribal historic preservation officer for pueblo of acoma. Welcome to each of you.
▶ 0:17:52Chair Lee: When a law written to protect our past starts to block our future, it can be worth examining where we are and how we got here and how we might find a better balance and way forward. The national historic preservation act was written in 1966 to prevent places of general's -- genuine historical value to be wiped out before anyone had a chance to speak up or identify relevant considerations.
▶ 0:18:20Chair Lee: Few if any would dispute that purpose. We ought to protect of the places that show where we came from, and we are. But over the years, a narrow procedural safeguard has evolved into a sprawling, unpredictable process that now delays the projects our country needs to build and maintain the story.
▶ 0:18:41Chair Lee: Section 106 has within it a consultation process that has become more like a maze without a map. Agencies, developers, even preservation officers often don't know where the boundaries lie or how long the path will be. That confusion is showing up all over the country. The uncertainty it sows has consequences for everyone.
▶ 0:19:10Chair Lee: The royal slope solar project in washington is now three years behind schedule. The bonanza solar project in nevada has been under construction for nearly three years. The cape wind and vineyard wind projects in massachusetts each faced long delays before they could move forward. The great lakes tunnel project in michigan that would improve an important energy link across the upper midwest has spent years caught in back and forth reviews.
▶ 0:19:40Chair Lee: Ironically, the project began because the state insisted that the existing pipeline was unsafe and needed to be buried for protection. Once the tunnel was proposed, the area of potential effects, as the statutory language directs us to inquire into, became so broad that every step triggered a new consultation. That in turn broadened the scope and the broadening scope has added roughly four years to the schedule of the project.
▶ 0:20:13Chair Lee: In oregon the department of forest reviews most of its planning phones on heritage surveys under 106 instead of the wildfire work it was meant to support. These are not just the priorities of one particular party over another that we are talking about. This affects projects all over the country, supported by people of many, many different backgrounds.
▶ 0:20:41Chair Lee: They include solar and wind projects that my friends on the other side of the aisle would very much like to move forward and we all run into the same consultation process that has grown so broad and at times inconsistent that it hinders that sometimes and outright blocks projects, even though they may enjoy support from both political parties and from people at every point along the ecological continuum.
▶ 0:21:06Chair Lee: My home state of utah has shown how we can recalibrate and achieve a balance acceptable to everyone. The state historic preservation office has digitized records, created clear expectations, and kept consultation moving efficiently. Utah protects what is genuinely historic while allowing much-needed projects that will benefit its citizens to move forward in a timely manner.
▶ 0:21:37Chair Lee: To safeguard -- safeguarding our national heritage should not become an instrument of paralysis. Congress can preserve what's worth remembering without turning every permit into an archaeological expedition. The purpose of the law is and was always to protect what matters, not to make action impossible. Preserving our heritage should help us to build wisely. But it should not and must not keep us from building at all.
▶ 0:22:06Chair Lee: That is the balance that this hearing is about. That's the type of balance we are hoping to be able to find, exploring ways to protect the story of where we have been without making it impossible to build what comes next. Now the chair recognizes that the ranking member, senator heinrich.
▶ 0:22:26Sen. Heinrich: Thank you, chairman. The national historic preservation act says something very simple. Before we build something, we should know if there is an important piece of our nation's history or culture in the area that we are planning to build. If there is, we should try to figure out how to avoid damaging it. Sometimes damage cannot be avoided.
▶ 0:22:53Sen. Heinrich: Sometimes a project being built is important enough that damage to a historic resource is a trade-off that we choose to make. The nh pa allows for that. But we should at least check before we do irreversible damage to national heritage. We can and must build the energy infrastructure our economy and climate need, while also preserving our history and our heritage. We can do both.
▶ 0:23:22Sen. Heinrich: Our kids and our grandchildren deserve to know where they come from. We cannot tell the story of our nation without protecting the places that literally tell those stories. Sometimes, those places are a historic building or a historic district. Sometimes those places are a valley or a mesa, or a mountain.
▶ 0:23:47Sen. Heinrich: In my state of new mexico, mount taylor dominates the horizon of central and western new mexico, rising 5000 feet from the desert below to a peak of the above 11,000 feet. It is visible from nearly 100 miles away and is sacred to at least eight tribes in new mexico and arizona.
▶ 0:24:08Sen. Heinrich: Mount taylor and its surrounding mesas are a traditional cultural property and the impact of development on it should be carefully considered before permits are issued. That is what the national historic preservation act requires. Without it, federal agencies could allow a new development on this mountain without ever considering its impact on the religious practices, traditions of neighboring tribal communities.
▶ 0:24:36Sen. Heinrich: Mount taylor is listed on the state register of historic places is a traditional cultural property, meeting the projects there get more scrutiny than other places in the state. That is as it should be. The significance of mount taylor to communities across the state. There is no perfect law on the books. We should always look for ways to make processes like section 106 consultation more efficient and effective.
▶ 0:25:06Sen. Heinrich: I am confident that we can do that while also protecting the places and stories that have forged our national heritage. I am equally confident that meats cannot do any of this without staff at the agencies that process the permits.
▶ 0:25:25Sen. Heinrich: Our public land agencies have already lost more than 20% of their staff to early retirements, buyouts, and we are expecting layoffs at the land management agency in the coming weeks that will make this even worse. It doesn't matter the kind of permit you are looking for. Oil, gas, grazing, road construction, or recreation. If the desks that your permit application has landed on doesn't have a human behind it, you won't get your permit.
▶ 0:25:55Sen. Heinrich: We can tweak and reform laws all we want, but fundamentally until we have adequate staff at the agencies that process permits, we will continue to see frustratingly long permitting times. As I have said a number of times now, we cannot do permitting reform if the administration persists in ignoring the fundamental laws. That's just as true for section 106 agreements as it is for oil and gas permits.
▶ 0:26:23Sen. Heinrich: We absolutely have to fix these issues alongside process improvements if we are serious about permitting reform. I would finally point out that there are three buildings in this city that the national historic preservation act does not apply to. The capital, the supreme court, and the white house. We have all seen what is going on at the white house right now.
▶ 0:26:54Sen. Heinrich: To our house. I look forward to hearing from today's witnesses about these issues and am incredibly pleased to introduce Mr. stephen concho, a member of the pueblo of acoma, located in the western part of our state, having served for nearly 15 years now in the office of historic preservation, including the past five years as
▶ 0:27:25Sen. Heinrich: The tribal historic preservation officer. 6 he also represents the four corners region on the board of directors for the national association for tribal historic preservation officers where he advocates for the protection of tribal cultural heritage in the advancement of tribal preservation programs nationwide.
▶ 0:27:47Sen. Heinrich: In his role, he is dedicated to ensuring the protection, preservation, and continued vitality of the ancestral lands and the broader cultural province for future generations. His work emphasizes both safeguarding sacred places and promoting meaningful tribal participation in federal and state preservation processes.
▶ 0:28:13Sen. Heinrich: He is passionate about community education, strives to inspire younger generations to pursue careers in archaeology, anthropology, and cultural resource management, making sure the work of preservation continues under future leaders. Welcome and thank you for all, to all of our witnesses were lending us your expertise this morning on this incredibly salient topic.
▶ 0:28:44Dr. Merritt: -- chair lee: ok. We are now going to hear from our witnesses today. Let's go, we will hear from each of you in five-minute rounds. We will start with you, Dr. merritt, Mr. mcdonald, and then Mr. concho. You may proceed.
▶ 0:29:05Dr. Merritt: Thank you, chairman, committee. I'm honored to be here today. I am chris merritt Dr., state historic preservation officer for utah. I'm excited to talk to you today. I've been a professional archaeologist for 20 years with the last 13 serving the great state of utah. Every year I am -- every day I'm excited to go to work and let start with a small history lesson.
▶ 0:29:33Dr. Merritt: The 50's and 60's witnessed large federal initiatives like urban renewal and interstate highways. Few checks existed, so many historic downtowns and places of archaeological heritage were destroyed with little to no consideration. It changed in 1956 with the passage of the national preservation act mandating in part that federal agencies take in to consideration their actions on these properties.
▶ 0:29:58Dr. Merritt: As expressed in the preamble, congress found of the spirit and direction of the nation are founded upon and reflected in its historic heritage. The act established a federalist approach, empowering each state to create an office of board activities. The creation was a recognition that there needed to be a voice at the state level to review projects and offer advice and technical assistance.
▶ 0:30:25Dr. Merritt: The act created many programs and my focus today is on process 106. From the act emerged a process starting by determining that if an undertaking could cause harm, identifying historic properties in the area and assessing the effects of those while necessary, it can be broadly compared to the development of environmental analysis.
▶ 0:30:49Dr. Merritt: There are many technical aspects of this type of review but ultimately this law is procedural and meant to have a beginning and end. Utah knows that the process should be clear and predictable for not only the good of the agency and the proponent before the historic properties themselves.
▶ 0:31:08Dr. Merritt: Ambiguity within the process could endanger historic properties by dedicating insufficient time and resources to appropriately plan for the properties and needlessly make them a perceived roadblock when expectations could have been clear at the beginning. We have worked through the process but made sure that these processes are protected.
▶ 0:31:28Dr. Merritt: My team undertakes 1500 per year , ranging from mineral exploration to large-scale rehabilitation, but only 3.2% result in adverse effects, illustrating the vast majority of undertakings don't harm historic properties. They have 30 days to review and we have a goal to cut that in half. We regularly cut review times by over 75%.
▶ 0:31:54Dr. Merritt: We have accomplished the feat of obliterating review timelines through commitment and investment in digital workflow. With support from the governor and legislature, we have been paperless as 2017. One of the first to do so. This builds on our database containing 270,000 resources with another 5500 per year. The numbers are large but only 9% of utah has been inventoried.
▶ 0:32:24Dr. Merritt: We share this information with federal and state agencies and consultants. In my tenure we have focused on the reliability and critic ability of the section by working to create interagency uniformity like a standard-setting agreement with all five utah national forests and nearly one dozen programmatic agreements with federal agencies who streamline the process and we just signed a first of its kind agreement with the army corps of engineers last week. There are times of concern where you can go too far.
▶ 0:32:54Dr. Merritt: At the end of the last administration there was a proposal that would have weakened or removed state and public reviews of only the undertakings that fell underneath deeply politicized categories. Thankfully that did not carry over at the administration change but had the potential to destroy the federalist approach by making winners and losers based on the undertaking.
▶ 0:33:14Dr. Merritt: Other issues arise when regulations are stretched beyond reasonability, misinterpreted, or abusing statements to delay projects that receive concurrency. When we find that a planned restringing is the simple matter of a letter while the other finds that the allotment needs inventory and necessitates an agreement document that could take months.
▶ 0:33:37Dr. Merritt: There are always opportunities to do section 106 better and I'm personally hopeful that this model can demonstrate efficiencies in the streamlining of the process for all parties, empowering the states to be at the center of the process as a critical component to provide a check and balance on federal actions on resources and we are looking to work collaboratively in utah to determine our course of action.
▶ 0:34:05Dr. Merritt: The greatest strength is possibly recognizing that the process was meant to be pragmatic and solution focused, not a means of stopping projects. Thank you.
▶ 0:34:15Chair Lee: Thank you. Mr. mcdonald?
▶ 0:34:21Mr. Mcdonald: Chairman, ranking member, members of the committee, thank you for the opportunity to testify today. My name is andy mcdonald and I serve as the environmental compliance manager responsible for supporting montana dakota utility company. We are a small investor owned utility company.
▶ 0:34:46Mr. Mcdonald: It generates, transmits, and distributes electricity to 140 5000 customers across 185 communities in north dakota, south dakota, montana, and wyoming. Section 106 requires defined documentation of the areas of potential effect. Areas that must be assessed for impact on historic resources.
▶ 0:35:09Mr. Mcdonald: The implementing regulations for key terms over time, they have been expansive, creating unnecessarily confusing delays. We have experienced this recently. The montana dakota rebuilding of the three mile electric distribution line, where half the line crosses federal lands managed by two different agencies, involving underground ink wildfire mitigation for upgrading infrastructure.
▶ 0:35:38Mr. Mcdonald: One agency required the inclusion of only the land managed by the agency, however the other required entire three, including portions of land where federal approval is required. It's important to note the area of cultural significance here and we are working with the agency to find a path around that doesn't negatively affect those important resources. We are cognizant of the fact that these resources could extend to private lands.
▶ 0:36:10Mr. Mcdonald: There is a perception that the federal agencies don't have industry, industry dismisses environmental concerns. My experience paints a brighter picture of our efforts to provide reliable energy sources to our customers while respecting environment across the landscape.
▶ 0:36:27Mr. Mcdonald: There are plenty of examples across the country of voluntary efforts made by industry to preserve resources and in a situation such as described utilities have the ability to use consultants and work with the appropriate agencies to navigate a path around the area without negatively impacting historic resources, providing more certainty for industry and our federal counterparts. They know what they are responsible for and we know what we are responsible for.
▶ 0:36:56Mr. Mcdonald: If that's projects be timed out in a more economical manner and allows federal employees time to focus on other needs within the respective area. To be clear, the issue is not with the intent of 106 to implement it, but the absence of clear predicable boundaries about what constitutes the relevant ap and what affects must be considered.
▶ 0:37:19Mr. Mcdonald: As my example illuminates, the lack of clarity leads to inconsistent interpretations among staff, consultants, and even utility companies. Certain areas leave limited annual windows, sometimes as little as two months throughout the year. In order to sufficiently plan for more modern designs like building more infrastructure to serve rapidly expanding loan growth clarity.
▶ 0:37:48Mr. Mcdonald: Congress has the opportunity to enhance creditability and certainty in the review process for all parties involved, specifically for linear projects clarifying that agency shall review the area or areas in which the undertaking may directly cause alterations in the character or the use of historic properties, if any exist in the area, and that agencies may only consider recently casual relationships caused.
▶ 0:38:14Mr. Mcdonald: Clarifying that we are in the geographic areas of the undertaking including multiple jurisdictions, there must be consistent standards and working together regarding potential art -- potential alterations in hues, preserving its spirit while restoring predictability to the process.
▶ 0:38:37Mr. Mcdonald: I appreciate the attention to this critical issue and support congress making changes to achieve a more efficient, consistent, predictable process. Thank you for the opportunity to testify and I look forward to answering your questions chair
▶ 0:38:53Lee: . Mr. concho, we will hear from you next.
▶ 0:38:57Mr. Concho: Chairman, ranking member, members of the committee, thank you for the opportunity to testify today about this process under the national historic preservation act. I am a member of the pueblo of acoma and serve as a historic preservation officer for the pueblo. I sit on the board of directors for the national association of tribal historic preservation officers, representing the four corners region.
▶ 0:39:27Mr. Concho: Our mission, sky city, have been where we have lived for over 1000 years. Our culture, language, and way of life are tired -- tied to an ancestry that extends beyond our present day boundaries. Protecting these places is essential not only for our identity, but survival as people.
▶ 0:39:56Mr. Concho: This process is one of the few laws that requires the united states to listen to tribes for disturbing historic, cultural, in spiritual important areas. 100 six is not a courtesy. It is a legal duty that reflects the governmental relationship between federally recognized tribes in the united states.
▶ 0:40:21Mr. Concho: Section 106 requires agencies to take tribal input into account by consulting at every stage, but it does not dictate outcome or prevent development. Development may still proceed to put in a historic property is determined eligible for the national register of historic places, including as a traditional cultural property.
▶ 0:40:43Mr. Concho: The national historic preservation act requires that the federal agency consider the adverse effects of proposed development on historic property before approving the permit. The preference is to avoid diversity and adverse effects if that isn't possible, the wall requires mitigation. Consultation provides tribes like ours with a seat at the table and a say in what the effects would be and how to avoid or mitigate them.
▶ 0:41:14Mr. Concho: It does not hand tribes a veto. When tribes are consulted early and properly, in my experience almost all projects have moved forward efficiently and collaboratively in a way that protects cultural resources. That is why early and meaningful consultation matters.
▶ 0:41:35Mr. Concho: On the other hand when agencies engage only after the decisions have been made, projects can stall because of fights over planned resources, resulting in rising costs. When tribes are brought in from the start, projects move faster and cultural resources are preserved.
▶ 0:41:54Mr. Concho: At acoma we saw the positive effects of thoroughly meaningful consultation with the proposed cot -- co2 pipeline that would cross 14 miles our lands and developed a process to develop and address the project that we call the acoma model.
▶ 0:42:13Mr. Concho: From the beginning of this pipeline project, the bureau of land management, the energy company, worked directly with the pueblo, entering into a costs reimbursement commitment with the company so that experts can work alongside project archaeologists and engineers and in six weeks working with a team of knowledgeable acoma cultural practitioners to surveyed 14 miles of land, identified 150 cultural sites, including 90
▶ 0:42:46Mr. Concho: That never would have been recognized through standard archaeological methods, successfully rerouting the pipeline corridor to avoid them entirely. That collaboration saved time, avoided conflict, and protected cultural resources important to the people. This is what successful consultation looks like.
▶ 0:43:11Mr. Concho: Our office manages dozens of these requests across four states every month with minimal staff and limited short-term federal funding. Like my new trestle -- travel reservation offices, acoma operates on $100,000 per year, barely enough to cover travel, salaries, essential operations, funding triage and stretching limited capacity, which can lead
▶ 0:43:43Mr. Concho: Agencies misinterpret slower response as the legs. In reality, the fastest and most expected way to improve these consultations for everyone is to invest directly in typical capacity. Mr.
▶ 0:43:57Mr. Concho: Chairman, members of the committee, the pueblo acoma urges strengthening of 106, ensuring that early well-funded consultation remains a cornerstone of responsible federal decision-making. Thank you for your time, look forward to your questions.
▶ 0:44:17Chair Lee: Thank you so much. We will now begin five-minute rounds of questions, alternating between republicans and democrats in order of seniority. We will begin that now. Let's start with you, Dr. merritt.
▶ 0:44:40Chair Lee: The statutory text we are dealing with here, section 106 of thenhpa -- section 106 of the nhpa gives broad directions considering historic effects on properties. Some regulations spell out some of the details, and there is something of a process, they leave significant details open to interpretation.
▶ 0:45:07Chair Lee: As a result, the scope of what can be considered during the consultation process has ballooned dramatically. How do you determine the appropriate area of potential effect as you review? How do you keep that area proportionate and relevant to the direct impact on the project?
▶ 0:45:32Dr. Merritt: Thank you, chairman, for that question, and I will nerd out for everyone's sake for a second. The area is defined by the direct effect. Think about digging, trenching, physical impact. But there are portions of it that are dealt with in terms of visual, atmospheric, and auditory. Those indirect effects draw the a pe larger in many cases.
▶ 0:45:59Dr. Merritt: I will say that of the 1500 cases that we review every year in utah, only a few dozen, if not 1% of those cases, have what we would call a variable a pe on those resources. As you pointed out, it is ambiguous and vague. There are positives and negatives there. As mentioned. We work through a consultation process.
▶ 0:46:23Dr. Merritt: The agency for -- approaches us on a proposed area of effect and then other parties also have an opinion on what the a pe could look like. There is need in my opinion to better define one of these aspects to create reliability in establishing these effects. The other thing I want to say is I have a three stool approach. Practice, data, relationships.
▶ 0:46:49Dr. Merritt: To me that's an investment up front of setting up reliable standards. For a long time 106 was a reactive process. I would like to be proactive and come up with established rules as the projects come forward so that there is a rulebook for the proponents and other parties to play by as opposed to having every single sausage grinder process and up in a different place.
▶ 0:47:12Chair Lee: That makes a lot of sense. What determines the extent of indirect impact under the current process and how could those be objectively and reasonably quantified when determining adverse effects? Is that part of the difficulty, figuring out how to evaluate and quantify relative indirect impact?
▶ 0:47:33Dr. Merritt: Great question. When we talk about effects, I go to the parallel law, the national register of historic places. When we designate something eligible, we are supposed to say what other character designing features that make the site significant. When we go into the 106 process, that's how we assess the impact of the project. Are we changing the factors that make it eligible, those character defining features?
▶ 0:48:03Dr. Merritt: I have to say that I cannot quantify or come up with an objective measure of indirect effect, because it is so variable based on the resource itself. A small uranium mines in central utah will be a different assessment than a tribally important landscape in another part of the state, which is why it becomes tricky when you assess those to come up with a regular agreed-upon pattern. Again, go back.
▶ 0:48:32Dr. Merritt: I would like to invest early in a set of standards so that not every single project has a different outcome.
▶ 0:48:37Chair Lee: It would diminish subjectivity and when you have less subjectivity you will have a faster, more straightforward process.
▶ 0:48:46Dr. Merritt: Absolutely and I think the subjectivity creates frustration. Ambiguity is sometimes the big problem.
▶ 0:48:57Chair Lee: Mr. mcdonald, in your testimony you stated that the nhpa section 106, implementing regulations, defined key terms of and over time they have been interpreted inconsistently and sometimes expansively. This is a fundamental issue, isn't it?
▶ 0:49:19Chair Lee: One that we have faced with many permitting statutes, including this one, including nhpa, where there is a fairly simple residual requirement in a statute that has been weaponized or at least wandered beyond its original scope, the scope of its original understanding.
▶ 0:49:41Chair Lee: To what extent has this particular lack of clarity in the section 106 delayed distribution?
▶ 0:49:53Mr. Mcdonald: Senator, thank you for the question. In this particular project it has delayed it in terms of months, more than years, probably close to 18 months. It's also the line where we are dealing with going out the side of a mountain to a certain extent. Our timelines for construction on this one is a two month window from when the snowpack comes off to where we get to the question where it is to dry to work on.
▶ 0:50:22Mr. Mcdonald: It's not necessarily the consultation process that resulted in that lengthy delay. Because of the timing of those decisions and how that process has been held up because of the, kind of the misunderstanding of where we need to look at or don't look at for a project, state and tribal versus federal in the process, we miss the window in now wait on the construction season.
▶ 0:50:47Chair Lee: Thank. Senator heinrich?
▶ 0:50:51Sen. Heinrich: Thank you, chairman. Mr. concho, to begin with, and then I want to hear Dr. merritt 's opinion as well -- in your experience, what would expedite the consultation and how much of it is ambiguity and how much of it is fundamental resourcing of the offices that evaluate the projects?
▶ 0:51:20Mr. Concho: Thank you for your question. As I stated, we are tracking the nhpa nh acoma model, forcing propones to consult and bring us in at an early stage, that way we can approach these projects together.
▶ 0:51:43Mr. Concho: It has worked and we have had very much success with that model. I think that just involving the tribes and bringing us in early at an early stage really expedites and often in the long run saves costs.
▶ 0:52:01Sen. Heinrich: Dr. merritt:
▶ 0:52:03Sen. Heinrich: Dr. merritt?
▶ 0:52:04Dr. Merritt: I feel I'm very lucky to work in utah. Our governor and legislature provide us the tools to do this efficiently. Always the knee-jerk answer is more money, more staff. In some cases, some states, for many tribes, that's true. In utah, that's not the case.
▶ 0:52:23Chair Lee: What's your overall budget?
▶ 0:52:26Dr. Merritt: We get 60% of our budget from the national parks service. I'm sitting up here 60% federally funded.
▶ 0:52:35Sen. Heinrich: What's the stateside?
▶ 0:52:38Dr. Merritt: 40%. One million from the feds, 700,000 to $800,000 from the state. So, your question about efficiencies, again, I think it goes towards early and often. You will hear that a lot.
▶ 0:52:56Dr. Merritt: A lot of the projects in utah that we see the go sideways, if we had had better integration early on in the process, if the -- proponent had been told this was an expectation, I think it all in the system.
▶ 0:53:12Sen. Heinrich: Say the last part one more time, that has been my experience with these big infrastructure projects. One of the fundamental challenges being when the agencies don't talk to each other early in the process. Absolutely. Mr. concho, what is your budget? $100,000?
▶ 0:53:32Mr. Concho: A little over that is the appropriations that we have received.
▶ 0:53:38Sen. Heinrich: Do you receive any federal funds as a part of that?
▶ 0:53:47Mr. Concho: It's mostly just grants and if there is, tribal funding to supplement.
▶ 0:53:53Sen. Heinrich: Dr. merritt, I want to ask you if there are tools we should use that are under used widely in this process. I'm thinking, you know, because people made the analogy to nhpa, where we have categorical exclusions that apply to things that are, for the fact pattern is demonstrably the same over and over and over again.
▶ 0:54:19Sen. Heinrich: So, you analyze those as a basket rather than every single individual time. Are there tools like that's within the national historic preservation act you think we should be utilizing more?
▶ 0:54:32Dr. Merritt: Thank you for that one, I'm really passionate about this. 13 years in the state, I've invested heavily in what we call programmatic agreements. In section 106 they give us the tool to create agreements that can make routine or even complex undertakings into an agreement document where you enter the sausage grinder and you know what you will end up with. Programmatic agreements have the ability to streamline, that is putting those things in buckets or baskets or whatever analogy.
▶ 0:55:06Dr. Merritt: That allows us efficiencies in the system. Because not every single fence restringing project or every single usda disbursement to a farmer for proper placement, it doesn't all need to go through a full process. We can use the programmatic agreement to analyze it at the agency level, do consultation, but we don't need to see it at that level. You send it to us at the end of the year.
▶ 0:55:32Dr. Merritt: That's where our caseload is probably higher than 1500 because we put so many of those cases into those buckets.
▶ 0:55:41Sen. Heinrich: Mr. concho:
▶ 0:55:44Sen. Heinrich: Mr. concho, given the history of our country and your pueblo, why is it important for us to hear your perspective considering historic preservation issues?
▶ 0:55:52Mr. Concho: Thank you for the question. It's important to hear our perspective because where I'm from, we have lived this life for almost a thousand years and I'm here in this capacity basically because I love what I do, I love my job, I do it for those folks yet to be born. To protect the area from.
▶ 0:56:21Mr. Concho: We have people across the southwest and we still continue to migrate, visit, and touch these places, protect these places through song, through prayers, and often we go and visit these places still today. These places, people refer to them as ruins or abandoned, but they are not. We still go to them, they are living places that still hold meaning to the people.
▶ 0:56:49Mr. Concho: This is kind of where I come from, from the southwest. One of the oldest continuously inhabited cities in the united states and we are happy to be that way because we still continue to have our traditions as they were given to us for 1000 years. Protecting all of these places in between keeps our tradition alive and growing.
▶ 0:57:14Sen. Heinrich: Living cultural landscape.
▶ 0:57:16Mr. Concho: Yes, sir.
▶ 0:57:18Chair Lee: Senator justice?
▶ 0:57:23Senator Justice: [inaudible] spoken guy, state of west virginia. Done a lotta, lotta stuff.
▶ 0:57:43Senator Justice: I would say just this, we should absolutely continue to ask ourselves, and I wrote it down, can we protect and move forward at the same time? It's just that simple. The next thing I would say is just what my dad has said many times, but I will never forget it.
▶ 0:58:06Senator Justice: You know, my dad was a graduate of purdue university, aeronautical engineer, enlisted in the air force after that. Lo and behold, they taught him how to fly and he was flying to b-29 bomber in world war ii. Just think about that guy. About how great all those folks were, the men and women at that time. The contribution they made to all of us, each and every one of us.
▶ 0:58:34Senator Justice: Back I stood at an engineering table with two or three engineers and the superintendent of a job trying to figure out exactly where to put the road. I will never forget this until I die. They went on and on for probably an hour and a half. And then at that time dad said to the superintendent he said -- curly, I don't know exactly what the right answer is, but this ain't it.
▶ 0:59:08Senator Justice: That's all there is to this whole situation here. We know. We know what all the red tape and all the problems are. For crying out loud. We know we want to protect. These folks are about the ruins and everything. The people who are caught. They speak to you, do they not? They do. We know we have to protect. We know that.
▶ 0:59:33Senator Justice: But at the same time, we've got to find a way to move forward, because really and truly, the red tape, the permitting process to do anything, and see I'm a business guy. The permitting process is so absolutely bogged down, it's unbelievable. Talk about sausage? For crying out loud, it's the most bizarre thing anybody could imagine at any time. So, we got to do something about it and got to fix it.
▶ 1:00:03Senator Justice: We are smart. We have the ability to fix it. Please, let's quit denying. Please, someway, somehow, quit denying that we have a problem or don't have a problem. I mean, it is preposterous to think just how bad the problem really is. I mean, we gotta live here, too. That's all there is to it. We gotta do things.
▶ 1:00:33Senator Justice: We gotta try to make things better. We have an energy meltdown on our doorstep. We gotta do something about that, too. If we don't watch out, we will spin around two or three times and in this great nation we will be saying -- we've got a real old dude. I really only got just one question. This would be to Mr. mcdonald. It's so obvious it's off the chart.
▶ 1:01:04Senator Justice: But, you know, what we have written here is -- can you provide an estimate of the direct costs, personnel, survey work, legal expenses, on and on that are solely attributable to section 106? But process for a multistate project and how that costs is ultimately passed down to the american energy consumers?
▶ 1:01:30Senator Justice: To put it plainly, can you give me an estimate of how much american taxpayers are paying for the federal government's over complicated process? Please, sir.
▶ 1:01:46Mr. Mcdonald: Thank you for the question. Our utility is in the largest, we are pretty small and the grand scheme of things. You can visit with our counterparts to get you a more reasonable estimate of that answer for the record if that's acceptable.
▶ 1:02:01Sen. Justice: Surely. Surely, acceptable. The bottom line of the whole thing on trying to say is the whole process here is not working. The process is ungodly expensive and absolutely a time consumer like nobody's business and we've got to do something about it. Mr. chairman, thank you.
▶ 1:02:24Chair Lee: Thank you. Senator cortez masto?
▶ 1:02:30Senator Cortez Masto: Thank you. Do any of you agree that we should eliminate entirely section 106? Anyone agree with that? Mr. mcdonald, Mr. merritt? Mr. concho? I appreciate you all coming here, but obviously this is necessary and it works in some fashion and what we are trying to figure out is how to streamline it. All of you here are important in helping us make that determination.
▶ 1:03:03Senator Cortez Masto: Mr. merritt, thank you for being here in the work you are doing for the state of utah. As a neighbor in nevada, we appreciate that. Spent a lot of time in utah. You talked about ave needing to be for early -- further to further defined. How would we define it at a federal level without implicating, like you said, the uniqueness of each project in every other state?
▶ 1:03:27Dr. Merritt: Senator, thank you for working -- thank you for that, and it's good to see you today, I've enjoyed working with nevada for many years. That's tricky. I've asked myself that. Where in the regulations can we make this more clear? I don't know how to do it at a broad level. This is why utah is different than nevada and is different than wyoming in different than main. Which is why again I go back to that federalist approach.
▶ 1:03:56Dr. Merritt: The problems I have seen with national agreements from other places is this one-size-fits-all . I am not indiana. I can see things on the latest state for very long distances out here in the west. It's hard to put a pinpoint on a regulatory level. I think that there are ways, and we can be creative looking at the language of how the regulations are written to better define and limit, like landscape, landform or something .
▶ 1:04:25Dr. Merritt: Because there are points in the state where we have had a 10 mile buffer for a power line. Irregardless of if there is a mountain between it and the 10 mile buffer. So, there are smarter ways to do it, but coming back to that federalist approach, I want a seat at that table helping to find that for the people of utah.
▶ 1:04:44Sen. Cortez Masto: I agree and I think it's so important to have local stakeholders there and I think that was the intent, having them involved. You know the land and no better what's going on and the challenges we are facing to address the concerns we looking at. Can I ask one final thing? You get federal funding from the
▶ 1:05:05Federal Government Mr. Concho: . , the tribes do not get federal funding dedicated. You have to get it through grant funding, correct?
▶ 1:05:15Mr. Concho: In our department, we do have two submit our grants yearly.
▶ 1:05:22Sen. Cortez Masto: Do you get directed federal funding like a state office would?
▶ 1:05:29Mr. Concho: No. It comes from national parks service funding.
▶ 1:05:34Dr. Merritt: It's also a grant for us as well. Historic preservation. A grant process that we all apply for. The appropriation that comes from the historic preservation fund comes from offshore oil royalties. It's not taxpayer money in that sense.
▶ 1:05:57Dr. Merritt: The problem we have is that there are 59 shipos and over 200 tipos, but the pied is necessarily growth. We don't and states but we are adding tipos, so that smaller every time a new one it created versus mine has expanded a bit because of features of part dynamics. We are both applying for grants to support our office.
▶ 1:06:23Sen. Cortez Masto: Would you recommend that as an area for us to look at, how to provide equitable funding? Seems to me that they are key to the process. If we are looking at ensuring that you are there at the table helping to make these decisions. Or should we not look at that formula?
▶ 1:06:44Dr. Merritt: From the questions I'm hearing today, everyone seems to want to find solutions so I think that every step of these questions, there are solutions to be found. Maybe it is funding, procedural, regulatory, but I think it all needs to be looked at because not every state is as lucky as utah.
▶ 1:07:02Sen. Cortez Masto: You have that dedicated staff and I appreciate that. One more question as I'm running out of time, the department of interior is planning on laying off 2000 individuals. How important is it for them to have staff who are funded and working on this process?
▶ 1:07:18Dr. Merritt: To answer that question is will mainly, shipos feel that employee turnover at the federal government and lack of staffing at the federal government puts more pressure on us to do the work and more pressure, I won't speak from the tribes but I have heard from tribes that they have heard -- they have felt the pressure as those positions dry up and people retire it puts more pressure on us to carry the load for these federal agencies and I can't imagine a world where the
▶ 1:07:49Dr. Merritt: Lack of federal employees won't hurt permitting and review processes.
▶ 1:07:52Sen. Cortez Masto: Thank you to all three of you.
▶ 1:07:54Chair Lee: Senator cotton?
▶ 1:07:59Senator Cotton: [inaudible] consulting firm mckinsey estimates the average proposed project subject to environmental review takes four or five years to move through the permitting process with four additional years spent litigating.
▶ 1:08:20Senator Cotton: According to the breakthrough institute, 75% of environmental litigation, it's driven by a handful of environmental ngos. 10 organizations are responsible for more than one third of often frivolous lawsuits. Agencies win approximately 80% of these cases.
▶ 1:08:43Senator Cotton: Nevertheless, litigation by them demonstrably slows and kills necessary projects that could have lowered costs for consumers and increased reliability. Mr.
▶ 1:08:58Senator Cotton: Mcdonald, radical environmentalists have abused our system and weaponized statutes, like the national historic preservation act, national environmental policy act, and clean water act to slow or kill projects to increase supply and lower costs. Given this legal landscape, what reforms in your opinion are needed to stop this kind of radical law fair and lower electricity prices for consumers?
▶ 1:09:26Mr. Mcdonald: Senator, thinking of the question. As was described in the testimony, I really think that the certainty provided with the regulations we are asking for here will eliminate some of that.
▶ 1:09:41Mr. Mcdonald: I'm not naïve enough to think it will eliminate all of that, but I certainly think that we have clear direction on what our responsibility is in the statute that provides for less uncertainty and less kind of ambiguity in what our responsibilities are and those issues.
▶ 1:10:00Sen. Cotton: If one of these radical groups unsuccessfully sues, are they barred from suing under other statutes or are they free to proceed?
▶ 1:10:10Mr. Mcdonald: I'm not aware of the answer to that question. Perhaps someone else with a better legal background would understand that.
▶ 1:10:17Sen. Cotton: I think they have many other statutes they can proceed under so that they get multiple bites at the apple. When a project is shuttered under such lawsuits, our construction worker operators still paid?
▶ 1:10:34Mr. Mcdonald: Thanks for the question. Again, senator, I would have to get back to you on that one as well. I'm not aware of the answer.
▶ 1:10:43Sen. Cotton: Given that most workers are paid by the hour, we can guess they are not being paid, meaning that this kind of law fair is not just causing electricity supplied to go down and prices to go up, but hard-working construction workers not to be paid. How does the threat of such open-ended lawsuits affect your decision-making for projects?
▶ 1:11:14Mr. Mcdonald: With all projects, lawsuit or not, we strive to do the best job possible, working with our partners and in the instances where we work on tribal land, you know, we always try to do the right thing. The clearer the statute is, the easier it is for us to plan for these projects, to execute these projects in an efficient manner.
▶ 1:11:38Sen. Cotton: Thank you. I go back my time.
▶ 1:11:41Chair Lee: Senator gallego?
▶ 1:11:46Senator Gallego: Like many of the states on this committee, my home state of arizona has widespread resources to teach about our past honorable tribal heritage with a lot of tourism. And there is high energy demand growth meaning we have to grow quickly and responsibly. I've been a vocal supporter of building out energy resources as fast as possible and been vocal that we cannot do so in a way that hurts the community.
▶ 1:12:17Senator Gallego: For example, arizona state historic office has reviewed more than 3000 federal projects for consultation in the past three years with the average turnaround time being less than 30 days in the average rate at less than 2%, meaning they are following the law while keeping things moving and improving economic investment and community relationships with ways to streamline the review without bypassing community input. I look forward to hearing your thoughts on all of this. Dr.
▶ 1:12:46Senator Gallego: Merritt, last week an officer sent a letter to the superintendent of the grand canyon highlighting ways they can streamline construction of a new lodge after it was destroyed in the dragon bravo fire this summer. Lodge reconstruction will require significant energy and water infrastructure.
▶ 1:13:08Senator Gallego: Highlighting ways that section 106 can be streamlined under existing authorities, including synchronous reviews, exemptions of certain activities, and real-time on the ground decision-making. Do you think that most states currently use the authorities like those outlined here to there greatest extent? Is there room for improvement under existing authorities?
▶ 1:13:30Dr. Merritt: Thank you for the question and that was sad to lose that facility.
▶ 1:13:35Sen. Gallego: Tearjerker for all of us.
▶ 1:13:37Dr. Merritt: I think it is always variable. I do think that most shipos employee agreements to streamlined efficiency. This comes back to my third leg of this relationship building.
▶ 1:13:54Dr. Merritt: Programmatic agreements are not nearly as good as they have been performed between the shipo in the agency and I'm glad that we have that relationship that agrees to allow things to move streamlined as structured and am applauding arizona being proactive working with the parks service to plan for this versus waiting.
▶ 1:14:16Dr. Merritt: The long answer is yes, I think that many do use the agreements but I think that we can expand that utility and instead of perhaps what I'm advocating is perhaps rather than having project specific agreement, be more programmatic in the sense of projects by the park service in arizona as a whole or other agencies. With those we find a lot of embedded inefficiencies.
▶ 1:14:38Sen. Gallego: Mr. concho:
▶ 1:14:41Sen. Gallego: Mr. concho, many have noted that tribal consultation under historic preservation act is not only required, but extremely valuable for wildfire rehabilitation, trail can he speak more about the value of tribal historic preservation officer's? What will be lost if the opportunity for tribal consultation is narrowed or reduced?
▶ 1:15:02Mr. Concho: Thank you for the question. Tribal historic preservation officer's are important to the communities and states we live in. Especially in the southwest, whether there is a high concentration of sites in the areas there. Without tribal historic preservation officer's that all could be lost or not protected further from, you know, from telling us our history.
▶ 1:15:29Mr. Concho: As I mentioned earlier, our history stems a long time and we are here to protect that history. You know, one thing to keep in mind when talking about shpo and thpo's, we did take on those responsibilities from the shpo and brought them home from my example, tack him up. -- two akamai. -- to acama.
▶ 1:15:59Mr. Concho: With the staff of only maybe one or two. You can see how that mounts up and how we had to prioritize what we have to do it. I think additional funding to help us hire additional staff would help streamline those decisions we have to make as tribal historic preservation officer's, to protect our cultural identity.
▶ 1:16:23Sen. Gallego: In 2024 -- my commentary -- a shpo officer -- state projects with an average turnaround time of 21 days. That is pretty efficient in my opinion. It is my understanding that the national parks used to collect metrics like this but no one ever does. How much section 106 is holding up projects if we are not sharing the data around it?
▶ 1:16:54Sen. Gallego: Sides anecdotal?
▶ 1:16:57Mr. Merritt: Thank you for that. The reporting mechanisms for us to receive our grant, I think that is another place for accountability for our offices. I have relationships with the government -- governor and legislature to report efficiency and I've already told many, many folks here, like, if a complaint of a 106 project makes it to a legislator or congress, I have screwed up. Because that is how sometimes the measurement of success of section 106 is measured, is how many people are complaining about it.
▶ 1:17:29Mr. Merritt: I don't want that. I want to work to make this function and smooth, and I don't want people finding problems with that, because that is the true accountability. The more people that are finding errors with it, the more I'm not doing my job.
▶ 1:17:42Sen. Gallego: Thank you, I yield back.
▶ 1:17:44Chair Lee: Senator murkowski.
▶ 1:17:47Sen. Murkowski: Think you for the hearing. As we are focusing on permitting reform, more broadly I think it is very important that we are doing a more focused review of section 106 compliance and how this all works. Thank you for being here before the committee today. My colleagues know that I often start my comments by saying alaska is unique, our situation is just a little bit different.
▶ 1:18:16Sen. Murkowski: I think in this situation, again, it underscores we are big, we are a young state, we have a lot of properties that may have impact to traditional religious or cultural significance, given the fact that we have 40% of the tribes in the country.
▶ 1:18:33Sen. Murkowski: We want to make sure -- we must make sure that the consultation process is coordinated, it is efficient, but honors that government to government consultation and that that travel voices are meaningfully heard. Not just, this is what is going on and we will check in with you later, being there at the beginning. We also recognize in my state -- again, I mentioned we are big.
▶ 1:19:02Sen. Murkowski: We have about 80% of the state that has never been surveyed for historic or cultural properties. So, this presents its own set of problems when you have even very small or low impact projects that may trigger section 106 reviews across huge areas. So, I'm going to put this out to Dr. merritt, but, gentlemen, any of you can apply to this.
▶ 1:19:30Sen. Murkowski: Just a couple of concrete examples of how this is playing out. In southeast alaska we had our telephone company, power and telephone company, they are trying to bring broadband to a very small community. The national park service required 500 and-doug -- hand-dug test pits. This is going to be more ground disturbance then laying the fiber itself.
▶ 1:20:00Sen. Murkowski: The project was delayed and the community basically lost out on that. It is an example of project risk that is very small, but you have essential infrastructure that is effectively being halted. And we want to do all we can to protect historic sites.
▶ 1:20:20Sen. Murkowski: We understand that, but again, just looking at the scope of this -- another project is in northwest alaska, two mineral exploration projects. 30 months of review, seven ea extensions, conflicting findings . Ultimately halts the construction, despite extensive consultation there.
▶ 1:20:51Sen. Murkowski: So, the question to you all is, when you have -- again, projects that are very small, project risk so small, these repeated re-evaluations that effectively do nothing but delay projects -- and, again, I'm coming from the state where our construction seasons are limited. It is truly a season. It is not 365 days.
▶ 1:21:22Sen. Murkowski: Might have four months at best to advance your projects. So, Dr. mary -- Dr. merritt, let's start with you.
▶ 1:21:32Mr. Merritt: I can see the ground in utah or alaska, but I can see the ground in utah. That is why there are methods each state employees. It goes back to relationships and finding common sense solutions to get to these projects. Is sometimes doing shovel probes make sense? Other times it has become perfunctory. We always do them because we always have done them.
▶ 1:22:01Mr. Merritt: I can't speak to the alaska shpo and why they moved forward on that, but I can speak to the issue of having multiple agencies not working well together. I have seen that time and time again. Not because the solution is bad for anybody, but because the coordination stank at the onset. His the army corps not coordinating with an agency?
▶ 1:22:30Mr. Merritt: So, we get multiple steps, multiple horses in the race that don't even know they are racing each other. I've seen that happen multiple times in the implementation of this law. Because we do have ourselves tied to dnieper -- neepa. But I have worked for the fourth service and I remember examples of working under nepa and the shop not telling the archaeologist what is coming.
▶ 1:22:57Mr. Merritt: We are now the bottleneck because most nepa's desktop -- is desktop. I have seen delays in can -- endemic medication and every time thinking, are we doing this the smartest for the people this project is trying to serve? I never separate myself from the point of the project. I don't care about what the project is from a regulatory standpoint. My job is to make it move as quickly as possible.
▶ 1:23:25Sen. Murkowski: It sounds like you are not satisfied that we have a process that is efficient, does allow for -- whether it is a multi-track, but just recognizing that understanding what this process may look like, timelines that are realistic could help us with our efficiency.
▶ 1:23:45Dr. Merritt: 100%. When a proponent calls me because they have to enter into a consultation to get a permit, I try to walk them through as clearly as I can, expect this, expect this. You meet with the blm let me know and we can communicate to move the project along. It is communication and sometimes we stink at it.
▶ 1:24:07Sen. Murkowski: Thank you, Mr. chairman.
▶ 1:24:09Chair Lee: Senator hickenlooper, you are up next.
▶ 1:24:13Sen. Hickenlooper: Thank you, Mr. chair. And thank all of you for being here. Thanks for your work. Expanding and updating our electrical grid is critical to ensure reliable, affordable, dependable electricity. Many of us up here have sponsored a number of bills in that direction.
▶ 1:24:36Sen. Hickenlooper: In colorado we have seen how valuable it is when energy developers and agencies consider cultural and historic context and the resources upfront in the processes of great expansion. I think you all touched on this. Let me start with Mr. merritt and Mr. concho.
▶ 1:24:58Sen. Hickenlooper: What are your ideas for how we can minimize the impacts to historic and cultural resources while at the same time being more efficient or speaking up, the buildout of transmission, which the country depends upon? Mr. concho, why don't you start?
▶ 1:25:17Mr. Concho: Thank you for the question. I believe, like you mentioned, first and foremost the bringing on the tribes that belong to the areas that are being affected with the project proponent, bringing them together at the table as the project is being -- at its inception -- is the most important part in this whole thing, because you get the input from tribal representatives, plus tribal knowledge, the elders, the people that have
▶ 1:25:47Mr. Concho: Lived there know where certain things are at, no about certain historic and sacred sites. Coming from the native american perspective and the southwest, it is very important. Especially in the southwest, because you can't walk at least, maybe a mile and not run into a place of cultural significance. That is how important it is.
▶ 1:26:16Mr. Concho: Just to come to the table early and involve the tribes at an early point.
▶ 1:26:22Sen. Hickenlooper: Ok.
▶ 1:26:24Dr. Merritt: I struggle with being pithy, but I will try my best. [laughter] in you till we have spent most of this year working on a draft agreement to look at geothermal. We are getting an increase of geothermal projects in utah, and I want to be ahead of it. I want to be ahead of the gold rush for this new energy source that could redefine our nation's dependence on other energy sources. But we are investing upfront. Let's set up a process for any geothermal company. What are the expectations?
▶ 1:26:56Dr. Merritt: Where can you find and move quickly? Do you need to slow down? That is one big piece, is being proactive ahead of the game. We have established similars for solar, to make solar projects simple when they come in. The second thing, historic context. Nerd out again for you. Everybody says the national register of historic places urges everyone to create context.
▶ 1:27:22Dr. Merritt: You find the temple -- the type of building, you go to this pull together resource to determine what makes that resource important or not important in the eyes of the law. I'm a proponent of these because it does help standardize when people are going to the field. I find I look at the document, I conclude. Versus every resource winging it. That does offer another place of structure.
▶ 1:27:49Dr. Merritt: We invested in utah with partnership with the bureau of land management historic context in our oil, looking at,-discovered sites. Sheepherder cans, native american open campsites. So, we just wanted to invest a lot early.
▶ 1:28:04Sen. Hickenlooper: I think that is crucially important, making sure we reach out. A relatively unknown part of my past is my business would renovate old historic links. I spent a lot of time working with historic preservation in local communities around the western united states. 1997i was proud that the national historic trust preservation gave me their award.
▶ 1:28:31Sen. Hickenlooper: Much ado about nothing, is what my wife said, but I do think, Mr. merritt, I think it is incredibly valuable that we take into consideration exactly what you're working on and making sure we are out in front. The trump administration removed three members of the advisory council on historic preservation earlier this we are -- year, and then two more resigned.
▶ 1:28:53Sen. Hickenlooper: This is in addition to the staffing cuts we have seen for federal land management agencies and other agencies, projects throughout the entire 106 process. Can you speak to the impact of these vacancies and staffing cuts? Especially among energy projects?
▶ 1:29:17Dr. Merritt: In you till we have not seen as many of the federal layoffs as in other states. The vacancies at the advisory council of historic preservation could hurt us in the long run, putting forward program comments that could help expedite nationally some of these agreements. But increased vacancies at federal agencies in utah will slow the federal government's response to permitting applications and reviews. While we are not seeing it yet in utah I know other places are.
▶ 1:29:43Dr. Merritt: It is a concern of ours, because the more that the federal agencies don't do their job because of staffing, the work falls to us.
▶ 1:29:50Sen. Hickenlooper: Got it loud and clear. I yield back to the chair.
▶ 1:29:54Chair Lee: Thank you. Senator mccormick.
▶ 1:30:02Sen. Mccormick: I'm grateful this panel of witnesses has come here to discuss an important issue for our permitting process and jobs pipeline in pennsylvania. The reality is that regulatory inconsistency and duplication across federal agencies are unnecessarily hindering vital infrastructure projects across the country, including in my state, pennsylvania.
▶ 1:30:24Sen. Mccormick: That is why I'm committed to streamlining the permit process and examining the rules put in place such as the section 106 consultation process under the national historic preservation act. The nhpa process currently slows down our ability to update and modernize due to several specific failures that impact our state's economy.
▶ 1:30:46Sen. Mccormick: This includes the regulatory inconsistency across how different -- different agencies apply the rule, often resulting in duplicative and expensive consultations by agencies like the national park service. We also faced challenges from the bureau of land management, deference to tribes, which creates crippling uncertainty for developers.
▶ 1:31:08Sen. Mccormick: Compounding all of this the reliance on subjective and difficult concepts like the traditional cultural properties tcp allows for decisions to go beyond clear statutory requirements, treating big concepts with the same significance as clearly-delineated historic sites.
▶ 1:31:25Sen. Mccormick: For pennsylvania to secure our lead in manufacturing we need deadlines to clarify the scope of review to the projects actual disturbance and exempt critical infrastructure like utility poles and transmission lines from being unnecessarily flagged as historic. That context, Mr. mcdonald, in pennsylvania we hosted the inaugural energy and innovation summit, which convened president trump leading ceos from energy and technology sectors.
▶ 1:31:53Sen. Mccormick: Throughout the day participants raised our urgent need to build new energy infrastructure quickly and efficiently to meet the growing demands for energy. In your testimony you discussed the unexpected delays you faced when rebuilding an electric redistribution line due to section 106. Given that U.S.
▶ 1:32:13Sen. Mccormick: Electricity demand is projected to increase by nearly 80% 2050, how do you expect of the current 106 process to significantly hinder critical energy development?
▶ 1:32:27Mr. Mcdonald: Thanks for the question, senator. I think the answer is, it varies. That gets back to the point in my testimony about the clarity needed in the statute. Pending on which federal agency you are talking to, which consultant, which utility company, there has just been a lot of different interpretations of, how do you define that area of potential effects?
▶ 1:32:55Mr. Mcdonald: Potentially there are projects that will go on as planned and everybody will agree upon the same interpretation, but without that clarity in the statute it is still a bit of a guessing game how these projects are going to run and how efficient they are going to be planned and executed. As I spoke to with that example, again, we are dealing with a two point five-month window for construction.
▶ 1:33:16Mr. Mcdonald: We have -- even a delay of a month or two, depending on the timing of when we get to that point in the process, can lead to a further delay, depending on what your construction season delays are.
▶ 1:33:27Sen. Mccormick: Advice on what changes policymakers should pursue to address delays caused by section 106?
▶ 1:33:37Mr. Mcdonald: We can get you more definitive language on what that looks like. I think it is really just for linear projects in particular if we are not receiving federal funding, which we typically don't -- we are an investor-owned company. It is pretty rare, anyways. If we are not receiving federal funding than our thought is that the jurisdiction for the federal agencies in the consultation process is the land they manage. That would be our suggestion, but we can follow-up up with more distinct language there.
▶ 1:34:08Sen. Mccormick: Sen. mccormick: Mr. contract, I have a question for you, but I will submit that for the record. Thank you.
▶ 1:34:14Chair Lee: Senator padilla.
▶ 1:34:19Sen. Padilla: I want to echo what -- the sentiment that has been shared from several members already. That is the importance of truly meaningful travel consultation. Consultation through section 106 at the national historic preservation act is a critical tool within california. We have a state historic preservation officer.
▶ 1:34:45Sen. Padilla: In 2024 alone the shpo completed roughly 4100 reviews under section 106. So, it is not a slow, sleepy office. It is a very busy one, in addition to being an important one. This has included individual consultations for efforts such as road projects, solar installations, and hazardous fuels projects in our forests. California is home to 109 federally-recognized tribes.
▶ 1:35:15Sen. Padilla: More than any other state. More than 50 of them have tribal historic preservation officer's. And we value this, because tribes have traditional knowledge of the land and resources that have been significant to their people since time immemorial. That is why it is critical for the federal government to meaningfully engage with tribes while pursuing projects that could impact their cultural resources.
▶ 1:35:45Sen. Padilla: And the keyword I want to emphasize here is meaningful. Travel consultation is not just a quick call, an email, whether or not that gets reply to, simply for the purposes of checking a box. Reading full means meaningful. Mr. conger, in your testimony and some of the q&a with other members you have talked about not just a quality of engagement, how important that is, but the importance and value of early engagement as well.
▶ 1:36:16Sen. Padilla: For the benefit of some of the members of the committee, can you give some examples of how early engagement can lead to either reduced costs down the road, less risk of a project getting to the finish line, and the long-term viability of some of these projects?
▶ 1:36:33Mr. Concho: Thank you for that question. Back in acama, what I refer to as the acama way, we did meet with one of the projects coming to our area. We did meet with them from the outset and we partnered with them and we met with them and brought in our tribal, knowledgeable people that know the land and know my elders.
▶ 1:37:06Mr. Concho: We, with the governor, along with the council, we sat and talked about this project and how it is going to go and, where is he going to go and how it is going to affect the land. We met with them. We worked with them to agree on specific area we are going to survey. That way we have enough room to say, this is a cultural property, there is something significant here.
▶ 1:37:35Mr. Concho: That way that pipeline, we can say, we are good with this project, let's move forward. Doing so early, it allows the proponent to say, we sat with them, this is where it is going to go, the monitors are there with us, and so they got done with the project in six weeks. There are other projects ongoing currently, such as a fiber-optic project that we are working alongside proponents with the project.
▶ 1:38:00Mr. Concho: We are not saying that this stops or gives the tribes permission to halt a project, but as long as we work together we can see outcomes and look at these projects through and see that they don't affect any of our cultural resources.
▶ 1:38:17Sen. Mccormick: It's -- Sen.
▶ 1:38:20Padilla: It seems to be an elegant evolution of what is referred to as the carpenter's role. Measure twice, cut once. If you are thoughtful on the front end you are not having to redesign and accommodate for things you learned later in the process, because you consider them much earlier. Dr. merritt, a quick follow-up for you. What are some of the best practices that have allowed responsible development in utah without undermining tribal resources?
▶ 1:38:48Dr. Merritt: Thank you, senator, for that question. I will refer back to my talking points. It is focusing on the process, data, and relationships. In utah our department of transportation has set up consultation agreements with tribes. So, the tribes are not being inundated with projects they are not typically concerned about as a way to limit down the workload for our tribal partners.
▶ 1:39:13Dr. Merritt: We also focus on the digital workflows and we provide data sharing to state and federal partners to provide that information in real-time. All of these efficiencies allow us, much like Mr. concho is saying, who invest upfront to make the best decision. The better data we have, the better process, the better way we can plan for project to not impact utah' is 13,000 years of human history.
▶ 1:39:38Dr. Merritt: You have done that in such a way that projects can move forward without the concerns and impacting resources without due diligence.
▶ 1:39:44Sen. Padilla: Thank you very much p know my time is up. Mr. chairman, I want to end on two quick notes. I will summit questions afterwards. Some of my colleagues spoke to some of the funding and staffing , general resource concerns as opposed to cuts and reductions we seem to be fending off. Alaska specifically about th po's.
▶ 1:40:16Sen. Padilla: Especially the value of additional investment for this process. Lastly, Mr. chairman, while the conversation has been centered around consultations for specific projects on a project by project basis, I know california is not the only state -- maybe one of the first states -- to grow these relationships and partnerships beyond just consultation for purposes of specific projects, but genuine partnerships and shared management responsibilities of
▶ 1:40:47Sen. Padilla: Public lands and stewardship for the long term. There is a lot of experience and historical knowledge to be gained here, whether it is management, whether it is environmental, species protection. Whether it is wildfire mitigation. On and on. We hope these are great examples that other states can be inspired by, learn from, and replicate. Thank you, Mr. chairman.
▶ 1:41:15Chair Lee: I'm going to just put a fine point on what senator padilla mentioned, that a couple of the things that we clearly heard in this hearing today is that we need better coordination between federal agencies, and that has been my personal experience. I think that is something that probably is shared across the aisle. But we also need people at the desks.
▶ 1:41:42Chair Lee: Like, there is talk of his -- of extensional layoffs in our public land agencies. I think there is no question that will further slow the certainty that -- whether you care about this flavor of energy or that flavor of energy, if there is no one at the desk you can't get a permit. And we need to make sure that is not the case. That is not responsible management. It is not responsible stewardship of our public lands.
▶ 1:42:11Chair Lee: And hopefully we can find some common ground around that for the entire energy spectrum. Thank you, chairman.
▶ 1:42:18Chair Lee: Thanks. And I appreciate that inside. That nobody wants to see a process that has resulted in a lot of delays produce more delays. I will note that these relatively recent efforts within the trump administration to streamline the federal workforce is almost mathematically impossible and could cause delays we were talking about here.
▶ 1:42:39Chair Lee: The examples I mentioned, each of the examples I mentioned in my opening statement have been going on for many years and each of them encountered significant delays either under the biden administration for the obama administration.
▶ 1:42:54Chair Lee: A lot of what we're talking about here today has -- as we have discussed at length, is the fact that we have some ambiguous text that has left shpo's, among others, with a lot of subjective -- there is a lot of subjectivity involved, and that has resulted in delays. To the extent that we can clarify those standards, we will be better off.
▶ 1:43:21Chair Lee: I want to also enter into the record a piece by the washington post editorial board from a couple of days ago talking about the ballroom and placing it in a historical context. Those will be admitted without objection. Before we conclude today's hearing I want to take a moment of personal privilege to recognize our chief counsel, pat mccormick.
▶ 1:43:47Chair Lee: Who will soon be departing, sadly, after 14 years with this committee and the united states senate. Pat is an extraordinary human being. No one who has interacted with him knows that. His mind is an encyclopedia that knows the work of this committee backwards and forwards and upside down.
▶ 1:44:08Chair Lee: His judgment and deep knowledge of all the laws touching on the subject matter of the energy and national -- natural resources committee have anchored this committee's work for many of its most complex and consequential debates over the last decade and a half. We will be introducing a resolution to honor that service, but for now just thank you for your many years of service.
▶ 1:44:40Chair Lee: [applause] we wish you the very best of service. Best of luck in all of your future endeavors, and thanks for your service. Thank you so much. All right, so that willing -- will conclude today's hearing. I think michael asked for their contributions. I think the witnesses, we have traveled a great distance to offer great insights today.
▶ 1:45:10Chair Lee: Any senator who wishes to submit official questions for the record may do so. The deadline for that will be 6:00 p.m. Tomorrow. That is thursday, the 30th of october. Senators will have until 6:00 p.m. Next wednesday, november 5, to add any statements for the record to today's hearing. Thanks, again, for being here, and the committee stands adjourned.