    [Senate Hearing 119-209]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-209

                          THE SECTION 106 CONSULTATION
                           PROCESS UNDER THE NATIONAL
                           HISTORIC PRESERVATION ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENERGY AND NATURAL RESOURCES
                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                OCTOBER 29, 2025

                                   __________

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                           Printed for the use of the
                   Committee on Energy and Natural Resources

            Available via the World Wide Web: http://www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    61-931                    WASHINGTON : 2026

                   COMMITTEE ON ENERGY AND NATURAL RESOURCES

                            MIKE LEE, Utah, Chairman
    JOHN BARRASSO, Wyoming               MARTIN HEINRICH, New Mexico
    JAMES E. RISCH, Idaho                RON WYDEN, Oregon
    STEVE DAINES, Montana                MARIA CANTWELL, Washington
    TOM COTTON, Arkansas                 MAZIE K. HIRONO, Hawaii
    DAVID McCORMICK, Pennsylvania        ANGUS S. KING, JR., Maine
    JAMES C. JUSTICE, West Virginia      CATHERINE CORTEZ MASTO, Nevada
    BILL CASSIDY, Louisiana              JOHN W. HICKENLOOPER, Colorado
    CINDY HYDE-SMITH, Mississippi        ALEX PADILLA, California
    LISA MURKOWSKI, Alaska               RUBEN GALLEGO, Arizona
    JOHN HOEVEN, North Dakota

                      Wendy Baig, Majority Staff Director
                Patrick J. McCormick III, Majority Chief Counsel
               Jacey Albaugh, Majority Professional Staff Member
                     Jasmine Hunt, Minority Staff Director
                     Sam E. Fowler, Minority Chief Counsel
            Maya Hermann, Minority Natural Resources Policy Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page
    Lee, Hon. Mike, Chairman and a U.S. Senator from Utah............     1
    Heinrich, Hon. Martin, Ranking Member and a U.S. Senator from
      New Mexico.....................................................     3

                                   WITNESSES

    Merritt, Dr. Chris, Utah State Historic Preservation Officer.....     4
    McDonald, Andy, Environmental Compliance Manager, Montana-Dakota
      Utilities Company..............................................    14
    Concho, Steven, Tribal Historic Preservation Officer, Pueblo of
      Acoma, New Mexico; Board Member, National Association of Tribal
      Historic Preservation Officers.................................    21

              ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED

    ACHP Foundation:
        Statement for the Record.....................................    77
    Advisory Council on Historic Preservation:
        Article entitled ``Section 106 Success Story: Innovative
          Approach Is Model for Cultural Resource Management''.......    73
        Article entitled ``Section 106 Success Story: Spaceport
          America: Commitment to Balance 21st and 16th Centuries''...    75
    American Cultural Resources Association:
        Statement for the Record.....................................    80
    Andrascik, Hannah:
        Letter for the Record........................................    85
    Association of American Railroads:
        Statement for the Record.....................................    86
    Association of Oregon Archaeologists:
        Letter for the Record........................................    93
    Boston, Christine:
        Letter for the Record........................................    95
    Britt, Kelly:
        Letter for the Record........................................    96
    Brooks, Allyson:
        Statement for the Record.....................................    97
    Burke, Adrienne:
        Letter for the Record........................................   101
    Burke Williams, Amanda:
        Letter for the Record........................................   100
    Caldwell, Aaron:
        Letter for the Record........................................   102
    Chuipka, Jason:
        Letter for the Record........................................   105
    Click, Rosie:
        Letter for the Record........................................   106
    Concho, Steven:
        Opening Statement............................................    21
        Written Testimony............................................    23
        Responses to Questions for the Record........................    62
    Cowlitz Indian Tribe:
        Statement for the Record.....................................   107
    Ellyson, Laura:
        Letter for the Record........................................   110
    Evo, Julie:
        Statement for the Record.....................................   112
    Falls, Eva:
        Comments for the Record......................................   115
    Fort Belknap Indian Community:
        Statement for the Record.....................................   116
    Friedberg, Dara:
        Communication for the Record.................................   121
    Heinrich, Hon. Martin:
        Opening Statement............................................     3
    Higgins, Kelly:
        Letter for the Record........................................   122
    Hillen, Beth:
        Letter for the Record........................................   123
    Huddleston, Loren:
        Communication for the Record.................................   125
    Hynes, Johanna:
        Letter for the Record........................................   126
    Igiugig Village Council:
        Letter for the Record........................................   127
    Kannady, John:
        Communication for the Record.................................   130
    Kawerak, Inc.:
        Letter for the Record........................................   131
    Kear, Matthew:
        Letter for the Record........................................   133
    Kessler, Dean:
        Letter for the Record........................................   134
    Klamath Water Users Association:
        Statement for the Record.....................................   135
    Laguna Pueblo:
        Statement for the Record.....................................   140
    Lee, Hon. Mike:
        Opening Statement............................................     1
        Washington Post editorial entitled ``In Defense of the White
          House Ballroom'' published on October 25, 2025.............    47
    Little Traverse Bay Bands of Odawa Indians:
        Statement for the Record.....................................   143
    Martel, Mason:
        Letter for the Record........................................   146
    Mashpee Wampanoag Tribe:
        Letter for the Record from David Weeden, Tribal Historic
          Preservation Officer.......................................   147
        Statement for the Record from Brian Weeden, Chairman.........   153
    McDonald, Andy:
        Opening Statement............................................    14
        Written Testimony............................................    16
        Responses to Questions for the Record........................    57
    Merritt, Dr. Chris:
        Opening Statement............................................     4
        Written Testimony............................................     7
        Responses to Questions for the Record........................    51
    Meyers, Maureen:
        Letter for the Record........................................   156
    Mille Lacs Band of Ojibwe:
        Statement for the Record.....................................   157
    Miller, Derek:
        Communication for the Record.................................   162
    National Conference of State Historic Preservation Officers:
        Statement for the Record.....................................   163
    National Congress of American Indians:
        Statement for the Record.....................................   168
    National Trust for Historic Preservation:
        Statement for the Record.....................................   179
    Navajo Nation:
        Letter for the Record........................................   185
    Nietering, Nathan:
        Communication for the Record.................................   187
    Oregon Water Resources Congress:
        Statement for the Record.....................................   188
    Peresolak, Kate:
        Letter for the Record........................................   192
    Preservation Action:
        Statement for the Record.....................................   193
    Pueblo de Cochiti:
        Statement for the Record.....................................   197
    Quinault Indian Nation:
        Letter for the Record........................................   202
    Rathbone, Stuart:
        Letter for the Record........................................   204
    Receveur, Haley:
        Letter for the Record........................................   207
    Reid, Dawn:
        Letter for the Record........................................   208
    Slick, Katherine:
        Statement for the Record.....................................   210
    Snoqualmie Tribe:
        Letter for the Record........................................   212
    Society for American Archaeology:
        Statement for the Record.....................................   216
    Society for Historical Archaeology:
        Executive Summary of Statement for the Record................   223
        Full Statement for the Record................................   225
    Steel Manufacturers Association:
        Letter for the Record........................................   230
    Swanton, Kristin:
        Letter for the Record........................................   232
    Terry, Matthew:
        Letter for the Record........................................   233
    Tlingit and Haida Indian Tribes of Alaska:
        Letter for the Record........................................   234
    Tohono O'odham Nation:
        Statement for the Record.....................................   236
    United South and Eastern Tribes Sovereignty Protection Fund:
        Statement for the Record.....................................   239
    Village of Solomon (AK):
        Letter for the Record........................................   245
    Walzer, Mariah:
        Letter for the Record........................................   248
    Ward, Herbert Henry:
        Letter for the Record........................................   249
    Welch, Elizabeth L.:
        Letter for the Record........................................   250
    Wellman, Judith:
        Letter for the Record........................................   251
    Williams, Levi:
        Letter for the Record........................................   252
    Woods, Erin:
        Letter for the Record........................................   253
    Young, Jessica:
        Letter for the Record........................................   255
    Ysleta del Sur Pueblo:
        Letter for the Record........................................   257
    Zuercher, Shannon:
        Letter for the Record........................................   259

                          THE SECTION 106 CONSULTATION
                           PROCESS UNDER THE NATIONAL
                           HISTORIC PRESERVATION ACT

                                  ----------

                          WEDNESDAY, OCTOBER 29, 2025

                                           U.S. Senate,
                     Committee on Energy and Natural Resources,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:31 a.m. in Room
    SD-366, Dirksen Senate Office Building, Hon. Mike Lee, Chairman
    of the Committee, presiding.

                  OPENING STATEMENT OF HON. MIKE LEE,
                         U.S. SENATOR FROM UTAH

        The Chairman. The Committee will come to order. Good
    morning and welcome.
        At today's hearing, we are going to examine the
    consultation process that takes place pursuant to Section 106
    of the National Historic Preservation Act (NHPA). Congress
    enacted the statute in 1966 to ensure that the Federal
    Government would give due consideration to preserving America's
    historical artifacts with appropriate stakeholders. This
    section of NHPA is itself purely procedural, and as such, it
    requires government officials to undertake a specific process,
    but doesn't mandate any specified outcome. In that regard, it's
    similar to the National Environmental Policy Act (NEPA), which
    directs a process, not a result, and which the Supreme Court
    recently, in its Seven County decision, returned to a right-
    sized role in federal policymaking. Today, we will consider the
    scope of Section 106 of NHPA to ensure that it plays the role
    that Congress intended when NHPA was enacted.
        We will be hearing from three witnesses today to better
    understand these issues. They are, first, Dr. Chris Merritt,
    the State Historic Preservation Officer for the State of Utah.
    Second, Mr. Andy McDonald, the Environmental Compliance Manager
    for Montana-Dakota Utilities Company. And finally, Mr. Steven
    Concho, the Tribal Historic Preservation Officer for the Pueblo
    of Acoma. Welcome to each of you.
        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 a better way
    forward. The National Historic Preservation Act was written in
    1966 to prevent places of genuine historical value from being
    wiped out before anyone even had the chance to speak up or to
    identify a relevant consideration. Few, if any, would dispute
    that purpose. We ought to protect the places that show where we
    came from and who we are. But over the years, a narrow
    procedural safeguard has evolved into a sprawling,
    unpredictable process that now delays some of the very projects
    our country needs to build and maintain that story. Section 106
    has within it a consultation process that has become more like
    a maze without a map. Agencies, developers, and even
    preservation officers often don't know where the boundaries lie
    or how long the path with be. That confusion is showing up all
    over the country and the uncertainty it sows has consequences
    for everyone.
        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, which would improve an important energy
    link across the Upper Midwest, has spent years caught in back-
    and-forth reviews. Ironically, this project began because the
    state insisted the existing pipeline was unsafe and that it
    needed to be buried for protection. But 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 broadened scope has added roughly four years to
    the schedule of the project. In Oregon, the Department of
    Forestry used most of its planning funds on heritage surveys
    required under Section 106 instead of the wildfire work those
    dollars were meant to support.
        These are not just the priorities of one particular
    political party or another that we are talking about. This
    affects projects all over the country, supported by people of
    many, many different backgrounds. They include solar and wind
    projects that my friends on the other side of the aisle would
    very much like to move forward. And yet, they all run into the
    same consultation process that has grown so broad--and at times
    inconsistent--that it hinders and in some cases outright blocks
    projects, even though they may enjoy support from both
    political parties and from people at every point along the
    ideological continuum.
        My home State of Utah has shown how we can recalibrate and
    achieve a balance acceptable to everyone. Our 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. A law meant to safeguard our shared national
    heritage should not become an instrument of paralysis. Congress
    can preserve what is worth remembering without turning every
    permit into an archeological expedition. The purpose of this
    law is and was always to protect what matters, not to make
    action impossible. Preserving our heritage should help us build
    wisely, but it should not and must not keep us from building at
    all. That is the balance 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.
        And now, the Chair recognizes the Ranking Member, Senator
    Heinrich.

              OPENGING STATEMENT OF HON. MARTIN HEINRICH,
                      U.S. SENATOR FROM NEW MEXICO

        Senator 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
    where we are planning to build. And if there is, we should try
    to figure out if we can avoid damaging it. Sometimes, damage
    can't be avoided, and sometimes, the project being built is
    important enough that damage to a historic resource is a trade-
    off that we choose to make. The NHPA allows for that, but we
    should at least check before we do irreversible damage to our
    national heritage. We can and must build the energy
    infrastructure our economy and our climate need while also
    preserving our history and our heritage. We can do both.
        Our kids and our grandkids deserve to know where they come
    from, and we can't 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. In my State of New Mexico, Mount Taylor dominates the
    horizon of central and western New Mexico, rising 5,000 feet
    from the desert below to a peak of above 11,000 feet. It is
    visible from nearly 100 miles away and it is sacred to at least
    eight tribes in New Mexico and Arizona.
        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. And that's
    what the National Historic Preservation Act requires. Without
    the NHPA, federal agencies could allow new development on this
    mountain without ever considering its impact on the religious
    practices and the traditions of neighboring tribal communities.
    Mount Taylor is listed on the State Register of Historic Places
    as a traditional cultural property, and that means that
    projects there get more scrutiny than other places in our
    state. But that's as it should be because of the significance
    of Mount Taylor to communities across our state.
        There is no perfect law on the books, and we should always
    look for ways to make processes like Section 106 consultation
    more efficient and more effective. I am confident we can do
    that while also protecting the places, even the stories, that
    have forged our national heritage. I am equally confident we
    can't do any of this without staff at the agencies that process
    permits for projects on federal lands. Our public land agencies
    have already lost more than 20 percent of their staff to early
    retirements, buyouts, and we are expecting layoffs at the land
    management agencies in the coming weeks that will make this
    even worse.
        It doesn't matter what kind of permit you are looking for,
    whether it's oil or gas, or grazing, or road construction, or
    recreation; if the desk your permit application has landed on
    doesn't have a human behind it, you are not going to get your
    permit. 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. And as I have said a number of times
    now, we can't do permitting reform if the administration
    persists in ignoring the fundamental laws. That is just as true
    for Section 106 agreements as it is for oil and gas permits. We
    absolutely have to fix these issues alongside process
    improvements if we are serious about permitting reform.
        And finally, I would point out that there are three
    buildings in this city that the National Historic Preservation
    Act does not apply to--the Capitol, the Supreme Court, and the
    White House--and we have all seen what is going on at the White
    House right now--to our house.
        I look forward to hearing from today's witnesses about
    these issues, and I am incredibly pleased to introduce Mr.
    Steven Concho from Acoma Pueblo, New Mexico. Mr. Concho is a
    member of the Pueblo of Acoma, located in the western part of
    our state. He has served for nearly 15 years now in the
    Pueblo's Office of Historic Preservation, including for the
    past five years as the Pueblo's Tribal Historic Preservation
    Officer, or THPO. Mr. Concho also represents the Four Corners
    Region on the Board of Directors for the National Association
    of Tribal Historic Preservation Officers, where he advocates
    for the protection of tribal cultural heritage and the
    advancement of tribal preservation programs nationwide.
        In his role as THPO, Mr. Concho is dedicated to ensuring
    the protection, preservation, and continued vitality of Acoma's
    ancestral lands and the broader Acoma cultural province for
    future generations. His work emphasizes both safeguarding
    sacred places and promoting meaningful tribal participation in
    federal and state preservation processes. He is passionate
    about community education, and strives to inspire younger
    generations to pursue careers in archaeology, anthropology, and
    cultural resource management, ensuring that the work of
    preservation continues under future Acoma leaders. Welcome, Mr.
    Concho, and thank you to all of our witnesses for lending us
    your expertise this morning on this incredibly salient topic.
        The Chairman. Okay, we are now going to hear from our
    witnesses today. We will hear from each of you in five-minute
    rounds. We will start with you, Dr. Merritt, and then go to Mr.
    McDonald, then Mr. Concho.
        You may proceed.

                    STATEMENT OF DR. CHRIS MERRITT,
                UTAH STATE HISTORIC PRESERVATION OFFICER

        Dr. Merritt. Thank you, Chairman. Thank you, Committee. I
    am honored to be here today.
        I am Dr. Chris Merritt, the State Historic Preservation
    Officer for Utah. I am excited today to talk briefly about the
    National Historic Preservation Act. I have been a professional
    archeologist for over 20 years, with the last 13 serving the
    great State of Utah. Every day I am excited to go to work and
    share my passion for history.
        But let's first start with a small history review. The
    1950s and 60s witnessed large federal initiatives, such as
    interstate highways and urban renewal. Few checks existed, and
    because of this, many historic downtowns, neighborhoods, and
    places of archeological heritage were unnecessarily destroyed
    with little to no consideration. This changed in 1966 with the
    passage of the National Historic Preservation Act, which, in
    part, mandated that federal agencies take into account their
    actions on historic properties. As expressed in the preamble of
    the Act, Congress found that, ``The spirit and direction of the
    nation are founded upon and reflected in its historic
    heritage.''
        The Act established a federalist approach to historic
    preservation, empowering each state to create its own office to
    coordinate federal reviews and activities. The State Historic
    Preservation Office, or SHPO, and later THPOs. Creation of
    SHPOs was recognition that there needed to be a voice at the
    state level to review projects and offer local advice and
    technical assistance. While the Act created many programs, my
    comments today focus on the legal compliance process, known as
    106. From the Act emerged a regulatory process that starts by
    determining if an undertaking has a potential to cause harm,
    then identifying historic properties within the area, assessing
    those effects to historic properties, and finally resolving
    effects, when necessary. This process can be broadly compared
    to the development of environmental analysis under NEPA. There
    are many technical aspects of this type of review, but
    ultimately, this is a procedural law meant to have a beginning
    and an end.
        The Utah SHPO knows that this process should be clear,
    reasonable, and as predictable as possible, for not only the
    good of the agency and proponent, but also for historic
    properties themselves. Ambiguity in the scope, procedures, and
    timeline in a Section 106 process could endanger historic
    properties by dedicating insufficient time and resources to
    appropriately plan for these properties, and could needlessly
    make them a perceived roadblock when expectations could have
    been clear at the beginning. We work through the process and
    move forward undertakings while still ensuring that historic
    properties are protected. My team reviews about 1,500 federal
    undertakings per year, ranging from mineral exploration
    programs to large-scale post wildland fire rehabilitation. But
    only 3.2 percent of those result in adverse effects,
    illustrating that the vast majority of undertakings do not harm
    historic properties. SHPOs have 30 days to review projects, but
    we have a goal with our governor's office and legislature to
    cut that in half. We regularly cut review times by over 75
    percent. We have accomplished the feat of obliterating
    regulatory review timelines by not just commitment of dedicated
    staff, but investment in digital workflows.
        With support from the governor and the legislature, we have
    been paperless since 2017, and are one of the first SHPOs to do
    so. This builds on our comprehensive digital database
    containing 270,000 historic resources, nearly 50,000
    inventories, and adding another 5,500 resources per year. And
    while those numbers are large, only about nine percent of Utah
    has been inventoried. We share this comprehensive information
    with all federal and state agencies and consultants. In my
    tenure with the SHPO, we have focused on the reliability and
    predictability of Section 106 by working to create interagency
    uniformity, such as a standard-setting agreement with all five
    Utah national forests. We also have nearly a dozen programmatic
    agreements with federal agencies that streamline the process,
    and we signed a first-of-its-kind agreement with the Army Corps
    of Engineers just last week.
        There are times of concern, however, where national-level
    streamlining agreements can go too far. At the end of the last
    administration, the Advisory Council on Historic Preservation
    proposed a program comment that would have weakened or removed
    state and public reviews of only those types of undertakings
    that fell underneath deeply politicized categories. Thankfully,
    that proposed program comment didn't carry over at the
    administration change, but it had the potential to destroy the
    federalist approach to preservation by picking winners and
    losers based solely on the undertaking. Other issues with
    Section 106 can arise when the regulations are stretched beyond
    reasonability or misinterpreted, or by abusing procedural
    regulatory statements to unduly delay projects that receive
    SHPO concurrence. For example, one SHPO finds that a grazing
    allotment fence restringing is a simple matter of a letter,
    while another finds that the entire adjoining 100,000-acre
    allotment needs inventory and necessitates creation of an
    agreement document that could take months.
        There are always opportunities to do Section 106 better. I
    am personally hopeful that the model we employ in Utah can
    demonstrate where efficiencies and streamlining improve the
    process for all involved parties. Empowering the states to be
    at the center of this process is a critical component of the
    law to provide a check and balance on federal actions and their
    impacts on cultural resources. In Utah, we are committed to
    working collaboratively to keep the process moving and to never
    allow a ``we can't'' mindset to determine our course of action.
    Perhaps our greatest strength is that we recognize that the
    Section 106 process was meant to be pragmatic and solution-
    focused, not a means of stopping projects.
        Thank you.
        [The prepared statement of Dr. Merritt follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you, Dr. Merritt.
        Mr. McDonald.

     STATEMENT OF ANDY MCDONALD, ENVIRONMENTAL COMPLIANCE MANAGER,
                    MONTANA-DAKOTA UTILITIES COMPANY

        Mr. McDonald. Chairman Lee, Ranking Member Heinrich, and
    members of the Committee, thank you for the opportunity to
    testify today on the need to improve predictability and
    certainty in the Section 106 review process under the National
    Historic Preservation Act. My name is Andy McDonald, and I
    serve as the Environmental Compliance Manager responsible for
    supporting Montana-Dakota Utilities Company's electric
    operations. Montana-Dakota is a small investor-owned utility
    company that generates, transmits, and distributes electricity
    to more than 145,000 customers across 185 communities and
    adjacent rural areas in North Dakota, South Dakota, Montana,
    and Wyoming.
        Section 106 of the NHPA requires federal agencies to define
    and document the area of potential effects (APE) of a proposed
    project--in other words, the area that must be assessed for
    impacts to historic resources. The implementing regulations
    define key terms broadly, and over time these terms have been
    interpreted inconsistently and sometimes expansively, creating
    confusion and unnecessary delays. Montana-Dakota has
    experienced this issue on recent projects. In the example I
    would like to discuss today, Montana-Dakota is rebuilding a
    three-mile electric distribution line where approximately half
    of the line crosses federal lands managed by two different
    federal agencies. The project involves undergrounding lines for
    wildfire risk mitigation and upgrading aging infrastructure.
    One agency required the APE to include only the portion of land
    managed by that agency. However, the other agency required the
    APE to include the entire three miles, including portions on
    private land where no federal approval is required. It's
    important to note that there is an area of cultural
    significance on federal land in this area that we are working
    with the agency to find a path around that does not negatively
    affect those important resources.
        We are cognizant of the fact that these resources could
    extend onto neighboring private lands. Unfortunately, there is
    a perception among some that if the federal agencies don't have
    oversight over projects, that industry disregards any and all
    aspects of environmental concern. My experience over the last
    ten years paints a brighter picture about our efforts to
    provide a reliable energy source to our customers, while
    respecting the environmental and cultural resources that exist
    across our landscape. There are plenty of examples across the
    country of voluntary efforts made by industry to preserve our
    landscape and resources. In a situation such as the one I have
    described, utilities still have the ability to use consultants
    and work with the appropriate state and tribal agencies and
    private landowners to navigate a path around these areas
    without negatively impacting historic resources. This approach
    provides more certainty for industry and our federal
    counterparts. They know which areas they are responsible for,
    and we know which areas we are responsible for. This allows
    projects to be planned and executed in a more timely and
    economical manner. It will also allow federal employees more
    time to focus on other management needs within their respective
    areas.
        To be clear, our issue is not with the intent of Section
    106 or the federal employees' efforts to interpret and
    implement it, but rather, the absence of clear, predictable
    boundaries around what constitutes the relevant APE and what
    effects must be considered. As my example illuminates, this
    lack of clarity leads to inconsistent interpretations among
    agencies, regions, individual staff, consultants, and even
    utility companies.
        In certain areas, environmental conditions and wildlife
    restrictions leave extremely limited annual windows for
    construction to be completed--sometimes as little as two months
    during the year. In order to efficiently plan for rebuilding
    our existing infrastructure to more modern designs, as well as
    building new infrastructure to serve the rapidly expanding load
    growth, clarity is needed in the NHPA. Congress has an
    opportunity to enhance predictability and certainty to the
    Section 106 review process for all parties involved,
    specifically for linear projects, clarifying that agencies
    shall review the geographic area or areas within which an
    undertaking may directly cause alterations in the character or
    use of historic properties if any such properties exist in that
    area, and that agencies may only consider effects that share a
    reasonably close causal relationship to and are proximately
    caused by the undertaking. Lastly, clarifying that where the
    geographic area or areas of an undertaking include multiple
    agency jurisdictions, agencies must work together to apply
    consistent standards with regard to reviewing potential
    alterations in the character or use of historic properties.
    This preserves the spirit of the NHPA while restoring
    predictability and adding certainty to the Section 106 process.
        On behalf of Montana-Dakota Utilities Company and EEI, I
    appreciate the Committee's attention to this critical issue,
    and I support Congress making changes to the NHPA to achieve a
    more efficient, consistent, predictable, and effective Section
    106 process. Thank you for the opportunity to testify, and I
    look forward to answering any questions you may have.
        [The prepared statement of Mr. McDonald follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thanks, Mr. McDonald.
        Mr. Concho, we will hear from you next.

       STATEMENT OF STEVEN CONCHO, TRIBAL HISTORIC PRESERVATION
     OFFICER, PUEBLO OF ACOMA, NEW MEXICO; BOARD MEMBER, NATIONAL
          ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS

        Mr. Concho. Chairman Lee, Ranking Member Heinrich, and
    members of the Committee, thank you for the opportunity to
    testify today about the Section 106 process under the National
    Historic Preservation Act. My name is Steven Concho, and I am a
    member of the Pueblo of Acoma, and I serve as the Tribal
    Historic Preservation Officer for the pueblo. I also sit on the
    Board of Directors for the National Association of Tribal
    Historic Preservation Officers, representing the Four Corners
    region.
        Our mesa-top home at Acoma, also known as Sky City, has
    been where Acoma people have lived for more than a 1,000 years.
    Our culture, language, and way of life are tied to an ancestral
    landscape that extends far beyond our present-day boundaries.
    Protecting these places is essential not only for our identity,
    but for our survival as Acoma people. The Section 106 process
    is one of a few laws that require the United States to listen
    to tribes before federal actions disturb places of historic,
    cultural, and often spiritual importance. Consultation under
    Section 106 is not a courtesy. It is a legal duty that reflects
    the government-to-government relationship between federally
    recognized tribes and the United States and a trust
    responsibility.
        Section 106 requires agencies to take tribal input into
    account by consulting at every stage, but it does not dictate
    an outcome or prevent development. Development may still
    proceed when a historic property is determined eligible for the
    National Register of Historic Places, including as a
    traditional cultural property. The National Historic
    Preservation Act simply requires that the federal agency
    consider the adverse effects a proposed development would have
    on a historic property before approving the permit. The
    preference is to avoid the adverse effects, and if that is not
    at all possible, the law requires mitigation. Consultation
    provides the 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. 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's why early and meaningful consultation matters. On
    the other hand, when the agencies engage tribes only after
    decisions have been made, projects can stall because of fights
    over threatened resources, resulting in rising costs. When
    tribes are brought in from the start, projects move faster and
    cultural resources are preserved. At Acoma, we saw firsthand
    the positive effects of early and meaningful consultation with
    a proposed CO2 pipeline that was going to cross 14
    miles of Acoma lands. We developed a process to address this
    project that we call the ``Acoma Model.''
        From the very beginning of this pipeline project, the
    Bureau of Land Management and the energy company worked
    directly with the Pueblo of Acoma. The Pueblo entered into a
    cost reimbursement agreement with the company so our cultural
    experts could work alongside the project archeologist and
    engineers. Together, in six weeks, working with a team of
    knowledgeable Acoma cultural practitioners, the project team
    surveyed 14 miles of Acoma trust land, identified more than 150
    cultural sites, including 90 that would have never been
    recognized through standard archeological methods, and
    successfully rerouted the pipeline corridor to avoid them
    entirely. That collaboration saved time, avoided conflict, and
    protected cultural resources that are important to the Acoma
    people. This is what successful consultation looks like.
        Our office manages dozens of consultation requests across
    four states every month with minimal staff and limited short-
    term federal funding. Like many tribal historic preservation
    offices, Acoma operates on roughly $100,000 a year, barely
    enough to cover salaries, travel, and essential operations.
    This level of funding forces all THPOs, including ours, to
    triage projects and stretch limited capacity, which can lead
    agencies to misinterpret slower response as delays. In reality,
    the fastest and most effective way to improve consultations for
    everyone--tribes, agencies, and industry--is to invest directly
    in THPO capacity.
        Mr. Chairman, members of the Committee, the Pueblo of Acoma
    urges Congress to reaffirm support of Section 106, strengthen
    support for Tribal Historic Preservation Offices, and ensure
    that early, well-funded consultation remains a cornerstone of
    responsible federal decision-making.
        Thank you for your time, and I look forward to your
    questions.
        [The prepared statement of Mr. Concho follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you so much.
        We will now begin five-minute rounds of questions,
    alternating between Republicans and Democrats, in order of
    seniority, subject to the early bird rule, and we will begin
    that now.
        We will start with you, Dr. Merritt.
        Now, the statutory text that we are dealing with here,
    Section 106 of NHPA, is ambiguous. It provides simple, broad
    directions suggesting that federal agencies need to consider
    effects on historic properties. Now, while there are
    regulations that spell out some of the details, and something
    of a process, they also leave significant details open to
    interpretation. As a result, the scope of what can be
    considered during the consultation process has ballooned rather
    dramatically. How do you determine the appropriate area of
    potential effects as you are reviewing? How do you keep that
    area proportionate and relevant to the direct impacts on the
    project?
        Dr. Merritt. Thank you, Chairman, for that question, and I
    will nerd out for a second for everybody's sake. So the area of
    potential effect in 36 CFR 800 is defined by the direct
    effects. So, think about digging, trenching, et cetera--
    physical impacts. But there are portions of the APE that deal
    with visual, atmospheric, and auditory. It is those parts,
    those indirect effects, that do draw the APE larger in many
    cases. I will say, of the 1,500 cases that we review a year in
    Utah, only a few dozen, if not one percent of those cases, have
    what we would call a variable APE based on those resources.
        And so, as you point out, it is ambiguous, it is vague. And
    there are positives for that and there are also very negatives,
    as Mr. McDonald has mentioned. And so, we work through a
    consultation process. The agency approaches us on a proposed
    area of potential effects at the SHPO or the THPO, and then
    other parties also have an opinion on what that APE could look
    like. There is need, in my opinion, to better define some of
    these aspects to create reliability in establishing APEs and
    other effects.
        The other thing I want to say is, I have a three-stool
    approach in Utah--practice, data, and relationships. Practice,
    to me, is an investment up front of setting up reliable
    standards. And so, for a long time, Section 106 has been a very
    reactive process. I would like to be proactive and come up with
    established rules, so that as projects come forward, there is a
    rule book for these proponents and other parties to play by
    versus having every single process through the sausage grinder
    end up in a different place.
        The Chairman. Yes, and that makes a lot of sense.
        Now, under the current process, what determines the extent
    of indirect impacts when you see them, and how can those
    indirect impacts be objectively and reasonably quantified when
    determining the adverse effects? Is that part of the difficulty
    here, figuring out how to quantify, how to evaluate relative
    indirect impacts?
        Dr. Merritt. Yes, that's a great question.
        So, when we talk about effects, I will go to the parallel
    law, the National Register of Historic Places. When we
    designate something eligible for the National Register, we are
    supposed to say what are those character-defining features that
    make that site significant. When we go into the 106 process,
    that's how we assess the impact of the project. Are we changing
    those factors that make it eligible for the National Register--
    those character-defining features? And I have to say, I cannot
    quantify and I cannot come up with an objective measure of
    indirect effects because it is so variable based on the
    resource itself. A small uranium mine in central Utah is going
    to be a different assessment than perhaps a tribally important
    landscape in another part of our state.
        And so, that's why it becomes very tricky when you are
    assessing those visual and atmospheric and auditory effects to
    come up with a regular agreed-upon pattern. And that's why,
    again, I go back--I would like to invest early and set up
    standards so not every single project has a different outcome.
        The Chairman. Right. It would diminish the subjectivity
    inherent in it, and when you have less subjectivity, you are
    probably going to have a faster, more straightforward process.
        Dr. Merritt. Absolutely, sir. And I think the subjectivity
    creates frustration from agencies, tribal members, nations, and
    proponents. So, I think ambiguity is sometimes the big problem.
        The Chairman. Now, Mr. McDonald, in your testimony, you
    state that ``the NHPA Section 106 implementing regulations
    define key terms broadly, and over time these terms have been
    interpreted inconsistently and sometimes expansively.''
        This is a fundamental issue, isn't it? One that we face
    with many permitting statutes, including this one, including
    NEPA, wherein there is a fairly simple procedural requirement
    in a statute that has been weaponized, or it has at least
    wandered beyond its original scope, the scope of its original
    understanding. To what extent has this particular lack of
    clarity in Section 106 delayed MDU's distribution line?
        Mr. McDonald. Senator, thank you for the question.
        In this particular project, it has delayed it on the terms
    of months, more than years, you know, probably about 12 to 18
    months in the process. This also is a line where we are dealing
    with kind of going up the side of a mountain to a certain
    extent, so our timeline for construction for this one is about
    a two-month window from when the snowpack comes off to when we
    are getting into the portion where it's too dry to work on. So,
    it's not necessarily the consultation process that resulted in
    that length of delay, but because of the timing of those
    decisions and how that process has kind of been held up because
    of the misunderstanding of where we need to look at and where
    we don't need to look at for projects, or where we need to work
    with state or tribal partners versus the federal partners in
    that process. We have missed that window and now we are waiting
    another construction season to address that line.
        The Chairman. Thank you.
        Senator Heinrich.
        Senator Heinrich. Thank you, Chairman.
        For Mr. Concho to begin with, and then I want to hear Dr.
    Merritt's opinion as well. In your experience, what would
    expedite consultation with states and tribes, and how much of
    this is ambiguity and how much of it is fundamental resourcing
    of the offices that evaluate these projects? To Mr. Concho.
        Mr. Concho. Yes, thank you for your question. I think, and
    as I have stated, what works for Acoma is the Acoma Model,
    which does force the project proponents to consult with the
    tribe and bring us in at an early stage. That way, we know
    exactly what is going on and how we can approach the projects
    together. And it has worked. And we have had very much success
    with that model. And so, I think just involving the tribes and
    bringing us in at an early stage really expedites, and often,
    in the long run, saves costs.
        Senator Heinrich. Right.
        Dr. Merritt.
        Dr. Merritt. I feel I am very lucky to work in Utah because
    our governor and our legislature provide us the tools to do
    this efficiently. So always the knee-jerk answer is, like, more
    money, more staff. And in some cases, in some states and many
    tribes, that is very, very true. In Utah, that is not the case.
        Senator Heinrich. What is your overall budget in Utah?
        Dr. Merritt. This is a good question. We receive 60 percent
    of our budget from the National Park Service through the
    Historic Preservation Fund. So, I am sitting up here 60 percent
    federally funded. That's just a tad under----
        Senator Heinrich. What is the stateside piece?
        Dr. Merritt. So, the state side is at 40 percent match.
        Senator Heinrich. Yes.
        Dr. Merritt. So, it's about a million dollars from the feds
    and then, you know, $700,000 to $800,000 from the state.
        And so, your question towards efficiencies--I think, again,
    it goes towards early and often. I think you are going to hear
    that a lot--lot of the projects we see in Utah that go
    sideways, if we had better integration very early on in the
    process, if the proponent had been told, like this is an
    expectation, if the agencies talked to each other, I think all
    of those embed efficiencies in the system.
        Senator Heinrich. Say that last part one more time, because
    that has been my experience as to many of these big
    infrastructure projects. One of the fundamental challenges is
    when the agencies----
        Dr. Merritt. Don't integrate themselves and they don't----
        Senator Heinrich [continuing]. Don't talk to each other
    early in the process. Absolutely.
        Mr. Concho, what is your budget again? Did you say
    $100,000?
        Mr. Concho. Yes, a little over $100,000 is the
    appropriations that we have received.
        Senator Heinrich. And do you receive any federal funds as
    part of that?
        Mr. Concho. We don't have--it's mostly just grants, and
    then if there is some tribal funding to supplement.
        Senator Heinrich. Dr. Merritt, I want to ask you if there
    are tools that we should be using that are underused widely in
    this process, and I am thinking, you know, because people made
    the analogy to NEPA. In NEPA, we have categorical exclusions,
    and those apply to things where the fact pattern is
    demonstrably the same over and over and over again, and so, you
    analyze those as a basket, rather than every single individual
    time. Are there tools like that within the National Historic
    Preservation Act that you think we should be utilizing more?
        Dr. Merritt. Thank you, Senator, for that one, because this
    is one I am really passionate about. In my 13 years at the
    state, I have invested heavily in what we call programmatic
    agreements. So, in the 800 regulations that implement Section
    106, they give us the tool to create agreements that can make
    routine or even complex undertakings into an agreement document
    that you enter the sausage grinder and you know what you are
    going to end up with. Programmatic agreements have the ability
    to do what we call streamline. And that is putting those things
    in buckets, or baskets, or whatever analogy we would like. And
    that allows us efficiencies in the system, because not every
    single fence restringing project or every single USDA
    disbursement to a farmer for a crop replacement, that doesn't
    need to go through a full four-step process. And so, we can use
    a programmatic agreement to say, analyze it at the agency
    level, do your tribal consultation, but we don't need to see
    the project at the state SHPO. You send that to us at the end
    of the year.
        And so, that's where our caseload is probably higher than
    1,500, because we have put so many of those cases into large
    buckets.
        Senator Heinrich. Into those buckets, yes.
        Mr. Concho, given the history of our country, the history
    of your pueblo, why is it important for us to hear your
    perspective when we consider historic preservation issues?
        Mr. Concho. Thank you for that question. Yes, it's very
    important that you hear the pueblo's perspective because from
    where I am from, we have lived this life for almost a thousand
    years, and I am here as a THPO in this capacity, basically
    because I love what I do. I love my job. And I do this for
    those folks yet to be born, to protect the area where I am
    from, because it has been our--we have footsteps all over the
    Southwest, and we still continue to migrate and visit and touch
    these places, like Mesa Verde, Chaco Canyon, and protect these
    places through song, through prayers, and also, 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
    these places. They are living places that still hold meaning to
    the pueblo people. And this is where I come from, from the
    Southwest, from the Pueblo of Acoma, 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 a thousand years. And
    protecting all these places in between keeps our tradition
    alive, keeps our tradition growing.
        Senator Heinrich. It's a living cultural landscape.
        Mr. Concho. Yes, living cultural.
        The Chairman. Senator Justice.
        Senator Justice. Thank you, Mr. Chairman, Ranking Member--
    and I am just a plain-spoken guy from the State of West
    Virginia, very proud of it, done a lot, a lot, a lot of stuff,
    and I would just say just this--we absolutely should always
    continue to ask ourselves, and I wrote it down, is, can we
    protect and move forward at the same time? It's just that
    simple. And the next thing that I would say is just what my dad
    has said many times, but I will never forget this. You know, my
    dad was a graduate as an aeronautical engineer from Purdue
    University. And right after he came out of that, he enlisted in
    the Air Force, and lo and behold, they taught him how to fly,
    and he was flying a B-29 bomber, World War II. Now, you just
    think about that guy and how great all those folks were, men
    and women at that time, and the contribution that they made to
    all of us, to each and every one of us. That guy stood at an
    engineering table with two or three engineers and a
    superintendent of a job and they were trying to figure out
    exactly where to put the road. And 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,
    ``Kirby, I don't know exactly what the right answer is, but
    this damn well ain't it.''
        Now, that's all there is to this whole situation here. We
    know what all the red tape and all the problems are, for crying
    out loud. We know that we want to protect. You spoke, sir,
    about the ruins and everything that people call it, but they
    speak to you, do they not? They do. We know we have to protect.
    We know that. But at the same time, we have got to find a way
    to move forward because really and truly, the red tape, the
    permitting process, to do anything--you see, I am a business
    guy. The permitting process is so absolutely bogged down, it's
    unbelievable. And you talk about sausage, I mean, for crying
    out loud, it's the most bizarre things at times that anybody
    could ever imagine.
        So, we have got to do something about it, and we have got
    to fix it. And we are smart. And we have the ability to fix it.
    Please, let's quit denying, please, someway, somehow, let's
    quit denying that we have a problem. I mean, it's preposterous
    to think just how bad the problem really is. You know, we have
    got to live here, too. That's all there is to it. And we have
    got to do things. And we have got to try to make things better.
    We have an energy meltdown right on our doorstep and we have
    got to do something about that, too. If we don't watch out, we
    are going to spin around two or three times in this great,
    great, great nation, and we are going to say, uh oh, we have
    got to a real, real--moment.
        And so, with all that being said, I have really only got
    just one question, and this would be to Mr. McDonald, and it's
    so obvious, it's off the chart, but you know, what we have read
    in here is, can you provide an estimate of the direct cost--
    personnel, survey work, legal expenses, on and on and on--that
    are solely attributable to Section 106, a process for a multi-
    state project and how that cost is ultimately passed down to
    the American energy consumers? To put it plainly, can you give
    me an estimate of how much American taxpayers are paying for
    the Federal Government's overcomplicated process? Please, sir.
        Mr. McDonald. Thank you for the question, Senator. So, our
    utility isn't quite the largest utility. We are, in fact,
    pretty small in the grand scheme of things. We can certainly
    visit with some of our counterparts and I can get you a more
    reasonable estimate for that answer for the record, if that is
    acceptable?
        Senator Justice. Well, surely--surely, it's acceptable. But
    the bottom line to the whole thing of what I am trying to say
    is, the whole process here is not working. The process is
    ungodly expensive and it is absolutely a time consumer like
    nobody's business. We have just got to do something about it.
        Mr. Chairman, thank you, sir.
        The Chairman. Thank you very much.
        Senator Cortez Masto.
        Senator Cortez Masto. Thank you, Mr. Chairman and the
    Ranking Member.
        Can I just ask all the panel members--do any of you agree
    that we should eliminate entirely the Section 106? Anybody that
    agrees with that?
        Mr. McDonald.
        Mr. McDonald. No.
        Senator Cortez Masto. Dr. Merritt.
        Dr. Merritt. No.
        Senator Cortez Masto. Mr. Concho.
        Mr. Concho. No.
        Senator Cortez Masto. Thank you.
        I appreciate it, and I think there is opportunity to
    streamline, and it makes sense, and I appreciate all of you
    coming here. Obviously, this is necessary and it does work, in
    some fashion, and what we are trying to figure out is where we
    can streamline it. And all of you here are important in helping
    us make that determination.
        Dr. Merritt, thank you for being here and for the work that
    you are doing for the State of Utah. As a neighbor in Nevada,
    we appreciate that. I have spent a lot of time in Utah.
        Let me ask you this: you talked about how APE should be
    further defined--atmospheric, visual, auditory. How would we
    define that at a federal level without implicating what you
    said, the uniqueness of each project in every other state?
        Dr. Merritt. Thank you, Senator, for that, and I have
    enjoyed working with the Nevada SHPO for many years. So, it's
    good to see you today.
        That's tricky. I have asked myself that, like, where in the
    regulations can we make this more clear because I do feel there
    are points of it. I don't know how to do it at a broad level.
    This is why Utah is different than Nevada is different than
    Wyoming is different than Maine. And that's why, again, I go
    back to that federalist approach, as the problems that I have
    sometimes seen with national agreements from the Advisory
    Council or other places is that it's a one-size-fits-all, and I
    am not Indiana. I can see things on the landscape for very long
    distances out here in the West. And so, it's very hard to put a
    pinpoint at a regulatory level. I think there are ways, and we
    can be creative looking at the language of how the 36 CFR 800
    regulations are written to better define and limit by
    landscape, by landform, or something, because there are points
    in the state where we have had a ten-mile buffer for a power
    line.
        Senator Cortez Masto. Right.
        Dr. Merritt. Regardless of if there is a mountain between
    it and that ten-mile buffer. So, there are smarter ways we can
    do it, but I always come back to the federalist approach, as I
    want to have a seat at that table helping to find that for the
    best for the people of Utah.
        Senator Cortez Masto. Yes, and I agree, and I think it is
    so important that we have local stakeholders there. I think
    that was the intent, right, is to have the local stakeholders
    involved because you know the land, you know better what is
    going on and the challenges that we are facing to address the
    concerns that we are looking at.
        Can I also ask one final thing? You get federal funding
    from the Federal Government, but Mr. Concho, the tribes don't
    get federal funding dedicated. Do you have to fight for it
    through grant funding? Is that correct?
        Mr. Concho. If you are a THPO department, we do have to
    submit our grants yearly.
        Senator Cortez Masto. But you don't get federal--directed
    federal funding, like a state office would?
        Mr. Concho. No, we have to go through the National Park
    Service funding for THPO.
        Senator Cortez Masto. Is it the same process----
        Dr. Merritt. It's also a grant for us as well. The Historic
    Preservation Fund provides the funding for both SHPOs and
    THPOs.
        Senator Cortez Masto. And it's a grant process that you all
    apply for?
        Dr. Merritt. Can I answer?
        Senator Cortez Masto. Yes, please.
        Dr. Merritt. So, the appropriation that comes from the
    Historic Preservation Fund comes from offshore oil leasing
    royalties. And so, it's not really taxpayer money in that
    sense. The problem that we have is there are 59 SHPOs. There
    are over 200 THPOs. But the pie doesn't necessarily grow,
    right? So we are not adding states every single day, but we are
    adding THPOs. And so, the pie for a THPO is smaller every time
    there is a new THPO created versus my pie has expanded a little
    bit because of population dynamics and other features that the
    National Park Service uses to apportion our grant. But we are
    both applying for grants to support our offices.
        Senator Cortez Masto. So, would you recommend this as
    another area for us to look at, how we provide equitable
    funding, because it seems to me that SHPOs and THPOs are key to
    this process, if we are looking at ensuring that they are at
    the table helping to make these decisions, or should we not
    look at that formula?
        Dr. Merritt. I would say, from the questions I am hearing
    today, everyone wants to find solutions. And so, I think at
    every step of these questions there are solutions to be found.
    Maybe it's funding, maybe it's procedural, maybe it's
    regulatory, but I think all of it needs to be looked at because
    not every state is as lucky as we are in Utah.
        Senator Cortez Masto. Yes.
        Dr. Merritt. To do as good as we can because we have the
    support.
        Senator Cortez Masto. And you have the dedicated staff, and
    I appreciate that.
        Let me ask you one final question, and I am running out of
    time. The Department of the Interior is planning on laying off
    2,000 individuals. How important is it for the Department of
    the Interior to have staff that are funding and working on this
    106 process?
        Dr. Merritt. So, to answer that question, overwhelmingly
    SHPOs feel that with employee turnover at the Federal
    Government, lack of staffing at the Federal Government, it puts
    more pressure on us to do the work and more pressure--I won't
    speak for the tribes, but I have heard from tribes that they
    feel more pressure. As those positions dry up or people are
    retiring, it does put more weight on us to carry the load for
    these federal agencies. And I cannot imagine a world where the
    lack of federal employees is not going to hurt permitting and
    not hurt review processes.
        Senator Cortez Masto. Thank you. Thank you again, all three
    of you.
        The Chairman. Senator Cotton.
        Senator Cotton. The consulting firm McKinsey estimates that
    the average proposed project subject to environmental review
    takes four to five years to move through the permitting
    process, with an average of four additional years spent
    litigating the project. According to the Breakthrough
    Institute, 75 percent of environmental litigation, like NHPA,
    is driven by a handful of environmental NGOs. Of the
    challenges, ten organizations are responsible for more than
    one-third of often frivolous lawsuits. Agencies win
    approximately 80 percent of these cases. Nevertheless,
    litigation by these NGOs demonstrably slows and even kills
    necessary projects that could have lowered costs for consumers
    and increased reliability.
        Mr. McDonald, radical environmentalists have abused our
    court system and weaponized statutes such as the National
    Historic Preservation Act, the National Environmental Policy
    Act, and the Clean Water Act to slow or kill needful projects
    to increase supply and lower costs. Given this legal landscape,
    what reforms, in your opinion, are needed to stop this kind of
    radical lawfare and lower electricity prices for consumers?
        Mr. McDonald. Senator, thanks for the question.
        As was described in the testimony, I really think that the
    certainty that is provided with the regulations that we are
    asking for here will eliminate some of that. I am not naive to
    think it's going to eliminate all of that, but I certainly
    think that, you know, if we have clear direction on what our
    responsibility is in the statute, it provides for less
    uncertainty and less ambiguity in what our responsibilities are
    in those issues.
        Senator Cotton. And if one of these radical groups
    unsuccessfully sues on a project, are they barred from suing
    under other statutes or are they free to proceed under other
    statutes?
        Mr. McDonald. Senator, I am not aware of the answer to that
    question, but perhaps somebody else with a better legal
    background would understand that.
        Senator Cotton. I think they have many other statutes that
    they can proceed under, so they get multiple bites at the
    apple. When a project is shuttered because of such lawsuits,
    are construction workers and operators still paid?
        Mr. McDonald. Thanks for the question. Again, Senator, I
    would have to get back to you on that one as well. I am not
    aware of the answer to that question.
        Senator Cotton. Well, given that most workers are being
    paid by the hour, I think it's probably fair to guess that they
    are not being paid, which means this kind of lawfare is not
    just causing electricity supply to go down and prices to go up,
    but hardworking construction workers not to be paid.
        How does the threat of such open-ended lawsuits affect your
    decision-making for projects at MDU?
        Mr. McDonald. I think with all projects, lawsuits or not,
    you know, we always strive to do the best job possible. We work
    with our state, local, and federal partners, and tribal
    partners in instances where we are working on tribal land, you
    know, we always try and do the right thing. And again, the
    clearer the statute is, the easier it is for us to plan for
    these projects, to execute these projects in an efficient and
    predictable manner.
        Senator Cotton. Okay, thank you.
        I yield back my time.
        The Chairman. Senator Gallego.
        Senator Gallego. Thank you, Chairman Lee and Ranking Member
    Heinrich, and thank you to our witnesses for your attendance
    today.
        Like many of the states represented on this Committee, my
    home State of Arizona has widespread historic resources that
    teach about our past, honor tribal heritage, and drive tourism
    to our state--a lot of tourism. We are also experiencing
    tremendous population energy demand growth, meaning we have to
    find ways to both grow quickly and responsibly. I have been a
    vocal supporter of building out housing, energy, and
    transmission resources as fast as possible, but I have also
    been vocal that we can't do so in a way that hurts and cuts our
    community and tribal input. You know, for example, Arizona
    State Historic--our SHPO office--has reviewed more than 3,000
    federal projects and consultations in the past three years.
    Their average turnaround time is less than 30 days and their
    adverse effect rate is below two percent. This means they are
    following the law while keeping things moving and even
    improving economic investment and community relationships. I
    believe there are ways to streamline though and improve Section
    106 review without bypassing community input, and I look
    forward to hearing your thoughts on all of this.
        My first question is for Dr. Merritt. Last week, Arizona's
    SHPO officer sent a letter to the Superintendent of the Grand
    Canyon, highlighting ways that they can work together to
    streamline construction of a new Grand Canyon lodge after it
    was destroyed in the Dragon Bravo fire this summer.
    Reconstruction of the lodge will require significant buildout
    of energy and water infrastructure, as well as the building
    itself. The letter highlights ways that Section 106 can be
    streamlined under existing authorities, including synchronized
    reviews, exemptions of certain activities from 106 review, and
    real-time, on-the-ground decision-making. Do you think that
    most states currently use streamlining authorities like those
    outlined by the Arizona SHPO officer to the greatest extent,
    and is there room for improvement under existing authorities?
        Dr. Merritt. Thank you for that question, Senator, and that
    was sad to lose that facility.
        Senator Gallego. I know, trust me, it's a tearjerker for
    all of us.
        Dr. Merritt. I think it's always variable, and I do think
    most SHPOs employ programmatic agreements to find ways of
    streamlining and efficiency. This comes back to my third leg of
    the stool--the relationship building. These programmatic
    agreements are only as good as the relationship we forge
    between the SHPO and a federal agency. And I am very happy that
    the Arizona SHPO has that relationship with the National Park
    Service to agree to allow things to move streamlined in a way
    that is structured. I am also applauding the Arizona SHPO for
    being proactive, working with the Park Service to plan for this
    versus waiting.
        The long answer is yes, I think many SHPOs use these
    agreements, but I think we can expand their utility, and
    instead of--perhaps what I am advocating is, instead of having
    project-specific agreements, to be programmatic in the sense of
    projects by the Park Service in Arizona as a whole, or other
    agencies, because I think in those we find a lot of embedded
    efficiencies that can help.
        Senator Gallego. Got you.
        My next question is to Mr. Concho. Many Arizona
    stakeholders have highlighted that tribal consultation under
    the Historic Preservation Act is not only required under
    federal trust responsibility, but is extremely valuable for
    wildfire rehabilitation, trail construction, and much more. Can
    you speak more about if the value of tribal historic
    preservation officers were to be lost if the opportunity for
    tribal consultation is narrowed or reduced?
        Mr. Concho. Yes, thank you for that question. Tribal
    Historic Preservation Officers are very important to the
    communities and the states that we live in, especially in a
    southwestern state where there is a high concentration of sites
    in the areas there. Without Tribal Historic Preservation
    Officers, that all could be lost or not protected further from,
    you know, from being counted as our history. As I mentioned
    earlier, our history stems for a long time, and we are still,
    we are here to protect that history. You know, one thing to
    keep in mind when talking about SHPOs and THPOs is that being a
    Tribal Historic Preservation Officer, we did take on those
    responsibilities from the SHPO and brought them home--like for
    my example, to Acoma. And there is where I see these projects
    come through my office. And by the same token, we have
    thousands of requests that come in through my office yearly and
    with a staff of only maybe one or two. And so, you can see how
    that mounts up and how we have to prioritize what we have to
    do.
        Senator Gallego. Close down things, too.
        Mr. Concho. So, I think additional funding to help us maybe
    hire additional staff would help streamline those decisions
    that we have to make as Tribal Historic Preservation Officers
    to protect our cultural identity.
        Senator Gallego. Great.
        Back to Dr. Merritt. In FY24, Arizona SHPO Officers
    reviewed 1,451 federal and state projects, with an average
    turnaround time of just 20 days, flagging only two percent for
    adverse impacts requiring mitigation. That's pretty efficient,
    in my opinion. It's my understanding that the National Park
    Service used to collect performance metrics like this for all
    states, but no longer does. How can we know how much Section
    106 is holding up projects if we aren't collecting and sharing
    that data around it? Besides anecdotal?
        Dr. Merritt. Yes, thank you, Senator, for that. And I do
    think that there are the reporting mechanisms for us to receive
    our grant. I think that is another place for accountability for
    our offices and what we are doing. You know, I have
    relationships with the governor and the legislature to report
    those statistics as well, of how efficiency, and I have already
    told many, many folks here, like, if a complaint of a 106
    project makes it to a legislator or to a congress, I have
    screwed up because that's how sometimes the measurement of
    success of Section 106 is measured, is how many people are
    complaining about it.
        And so, I don't want that. I want to work to make this
    function and smooth and I don't want people finding problems
    with it, because that's the true accountability--the more
    people that are finding errors with it, the more I am not doing
    my job.
        Senator Gallego. Thank you.
        I yield back.
        The Chairman. Senator Murkowski.
        Senator Murkowski. Thank you, Mr. Chairman.
        Mr. Chairman, Ranking Member, thank you for the hearing.
    You know, as we are focusing on permitting reform, and more
    broadly, I think it's 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. And I
    think in this situation, again, it just underscores--we are
    big, we are a young state, we've got a lot of properties that
    may have impact to traditional, religious, or cultural
    significance given the fact that we have 40 percent of the
    tribes in the country. 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
    tribal voices are meaningfully heard--not just ``this is what
    is going on and we will check in with you later,'' but being
    there at the beginning.
        We also recognize in my state, again, I mention we are
    big--we've got about 80 percent of the state that has never
    been surveyed for historic or cultural properties. And so, this
    presents its own set of problems when you have even very
    smaller, low-impact projects that may then trigger Section 106
    reviews across huge areas. So, I am going to put this out to
    Dr. Merritt, but gentlemen, any of you can reply to this. Just
    a couple concrete examples of how this is playing out. In
    Southeast Alaska, we had our power and telephone company--they
    are trying to bring broadband to a very small community, Dyea,
    and the National Park Service required 500 hand-dug test pits
    along a 1.7-mile route. So, this was going to be more ground
    disturbance than laying the fiber itself. The project was
    delayed and the community basically lost out on that. And so,
    it's an example of project risk that is very small, but you
    have essential infrastructure that's effectively being halted.
    And we want to do all we can to protect historic sites. We
    understand that, but again, just looking at the scope of this.
        Another project is in Northwest Alaska. Two mineral
    exploration projects, Anarraaq and Aktigiruq--30 months of
    review, seven EA extensions, conflicting findings between the
    Corps, SHPO and the IRA Council ultimately halts the
    construction despite extensive consultation there. So, the
    question to you all is, when you have, again, projects that are
    very small, a project risk so small, these repeated
    reevaluations that effectively do nothing but delay projects.
    And again, I am coming from a state where our construction
    seasons are limited. It's truly a season. It's not 365 days.
    You might have four months at best to advance your project.
        So, Dr. Merritt, let's just start with you here.
        Dr. Merritt. Thank you for that question, Senator. I can't
    see the ground in Alaska, but I can see the ground very well in
    Utah. And so, that's why there are different methods that each
    state employs. And that goes back to the state-by-state
    solution. But I think, again, it goes back to relationships and
    finding common-sense solutions to get through these projects.
    Sometimes doing shovel probes--shovel tests is what we call
    those--makes sense. Other times, it has become perfunctory. We
    always do them because we always have done them.
        I can't speak to the Alaska SHPO and why they moved forward
    on that, but I can speak to the other issue of having multiple
    agencies not working well together. And I have seen that time
    and time again, not because the solution is bad for anybody,
    but because the coordination stank at the very onset. Is the
    Army Corps maybe not coordinating with another agency early on,
    or the other agency not knowing there would be another agency's
    involvement, and so we get multiple steps, multiple horses in
    the race that don't even know they are racing each other. I
    have seen that happen multiple times in the implementation of
    this law because we do have ourselves tied to NEPA. We have to
    complete the 106 process before a NEPA decision can be reached.
        I have worked for the Federal Government, I have worked for
    the Forest Service, and I remember examples of working under
    NEPA, and the NEPA shop not telling the archeologists what's
    coming, and so, we're now the bottleneck because most NEPA is
    desktop, you know, looking at stuff from computers and books
    versus most archeology being on-the-ground type of work. So, I
    have seen delays in that way and communication and also just
    every single time thinking--are we doing this in the smartest
    way 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 just make it move as quickly as possible.
        Senator Murkowski. Well, it sounds like you're not
    satisfied that we have a process that is efficient, does allow
    for a--whether it's a multi-track--but just recognizing that
    understanding what this process may look like, timelines that
    are realistic, could help us with our efficiency.
        Dr. Merritt. One hundred percent.
        When a proponent calls me because they know they have to
    enter into a consultation with the BLM to get a permit, I try
    to walk them through, as clearly as I can, like expect this,
    expect this. When you meet with the BLM, let me know, we can
    communicate with the BLM to move the project along. And so,
    it's communication.
        Senator Murkowski. Yes.
        Dr. Merritt. And sometimes we stink at it.
        Senator Murkowski. Thank you for that.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Murkowski.
        Senator Hickenlooper, you are up next.
        Senator Hickenlooper. Thank you, Mr. Chair. Thanks to all
    of you for being here. Thanks for your work.
        Expanding and updating our electrical grid is critical, I
    think, to ensure reliable, affordable, you know, dependable,
    electricity. Many of us up here have sponsored a number of
    bills in that direction. In Colorado, we have seen how valuable
    it is when energy developers and agencies consider cultural and
    historical context and the resources up front in the processes
    of much-needed grid expansion. I think you all touched on this.
        Let me start with Dr. Merritt and Mr. Concho. 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 speeding up the buildout of critical infrastructure, like
    transmission, which the country depends upon?
        Mr. Concho, why don't you start?
        Mr. Concho. Thank you for the question.
        I believe, like you mentioned, first and foremost, 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 at its inception is the most important part
    in this whole thing because you get the input from tribal
    representatives, plus the tribal knowledge--the elders, the
    people that live there and that have lived there know where
    certain things are at, know where certain historic and sacred
    sites are. And so, coming from the Native American perspective
    and coming from the Southwest, it is very important, especially
    in the Southwest because there's not--you can't walk, at least
    maybe a mile, and not run into a place of cultural
    significance, and that's how important it is for the THPOs just
    to come to the table early and involve the tribes at an early
    point.
        Senator Hickenlooper. Great.
        Dr. Merritt. I struggle with being pithy, but I will try to
    do my best because this is a very interesting question. So, in
    Utah, 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 up front, like, let's set up a
    firm process for any geothermal company in our state. What are
    the expectations? Where can you find and move quickly? Where do
    you need to slow down? I think that's one big piece, is being
    proactive, ahead of the game. We have established similars for
    solar on the western side of Utah to make solar projects simple
    when they come in--simple on a grand scheme.
        The second thing, as you brought up--historic context. So,
    I will nerd out again for you. For everybody's sake, the
    National Register of Historic Places urges people to create
    historic context. So, it's a playbook. You are out
    inventorying, you find a type of building or an archeological
    site, you go through this already-pulled-together resource to
    determine what makes that resource important or not important
    in the eyes of the law. I am a big proponent of these because
    it does help standardize, when people are going to the field--I
    find ``A'', I look at the document, and I conclude ``B'',
    versus every single resource kind of winging it. And so, I
    think that does offer another place of structure.
        And so, we invested, in Utah, with partnership with the
    Bureau of Land Management, historic context in our oil field in
    northeastern Utah, looking at very commonly discovered sites--
    sheep herder camps, Native American open campsites. And so, we
    just wanted to invest a lot early on.
        Senator Hickenlooper. Well, I appreciate that and I think
    that is crucially important, making sure to reach out.
        A relatively unknown part of my past that I loved is, my
    business would renovate old historic buildings. I spent a lot
    of time working with historic preservation in local communities
    around the western United States. In 1997, I was proud, the
    National Trust for Historic Preservation gave me their award of
    honor--much ado about nothing, as my wife said. But I do think,
    Mr. Merritt, I think it's incredibly valuable that we take into
    consideration exactly what you are working on, making sure that
    we are out front.
        The Trump administration had removed three members of the
    Advisory Council on Historic Preservation earlier this year and
    then two more resigned. This is in addition to the staffing
    cuts we have seen, not just for the Council staff, but for
    federal land management agencies, other agencies leading
    projects through the entire Section 106 process. Can you speak
    to the impact that these vacancies and staffing cuts have made,
    especially on energy projects?
        Dr. Merritt. So, in Utah, we haven't 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 of 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.
    And so, while we're not seeing it yet in Utah, I know other
    places are. And so, it is a concern of ours because the more
    that the federal agencies don't do their job because of
    staffing, the more it falls to us.
        Senator Hickenlooper. Got it. Hear you loud and clear.
        Thanks to all three of you.
        I yield back to the Chair.
        The Chairman. Thank you.
        Senator McCormick.
        Senator McCormick. Thank you, Mr. Chairman and Ranking
    Member. Thank you to our three distinguished guests. I am
    grateful that 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
    delaying and hindering vital infrastructure projects across the
    country, including in my state, the Commonwealth of
    Pennsylvania. And that's why I am committed to streamlining the
    permitting process and examining the different regulations and
    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 build, update, and
    modernize due to several specific failures that directly impact
    our state's economy. This includes the fundamental regulatory
    inconsistency across how different federal agencies apply the
    rule, often resulting in duplicative and overly expensive,
    expansive consultations by agencies like the National Park
    Service.
        We also face challenges from the Bureau of Land
    Management's deference to tribes and their required changes on
    previously agreed upon plans, which creates crippling
    uncertainty for developers. Compounding all of this, the
    reliance on subjective and difficult-to-measure concepts, like
    the traditional cultural properties (TCPs), allows for
    decisions that go beyond clear statutory requirements, treating
    vague concepts with the same significance as clearly delineated
    historic sites. Now, for Pennsylvania to secure our future and
    lead in manufacturing, we need reforms that impose firm
    deadlines, clarify the scope of review to the project's actual
    disturbance, and exempt critical infrastructure, like utility
    poles and transmission lines from being unnecessarily flagged
    as historic.
        So, with that context, Mr. McDonald, last summer in
    Pennsylvania we hosted the inaugural Pennsylvania Energy and
    Innovation Summit, which convened President Trump, his Cabinet,
    and leading CEOs from the technology and energy sectors.
    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 discuss
    the unexpected delays MDU faced when rebuilding an electric
    distribution line due to Section 106 of the National Historic
    Preservation Act. Given that U.S. electricity demand is
    projected to increase by nearly 80 percent by 2050, how do you
    expect the current Section 106 process to significantly hinder
    critical energy development?
        Mr. McDonald. Thanks for the question, Senator.
        I think the answer is that it varies, and that gets back to
    the point in my testimony about the clarity needed in the
    statute. Depending on which federal agency you are talking to,
    even which consultant, which utility company, there has just
    been a lot of different interpretations of how do you define
    that area of potential effects and what the project is
    establishing there. So, I mean, 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 on how these projects are
    going to run and how efficient they are going to be planned and
    executed.
        And as I spoke to--with that example, again, we are dealing
    with about a two, two-and-a-half-month window for construction.
    So, 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.
        Senator McCormick. Advice on what changes policymakers
    should pursue to address critical infrastructure delays caused
    by Section 106?
        Mr. McDonald. I think, Senator, we can get you more
    definitive language on what that looks like. I think it's
    really just, for linear projects, in particular, if we're not
    receiving federal funding, which we typically don't--we are an
    investor-owned company, so it's pretty rare anyways--but if
    we're not receiving federal funding, then our thought is the
    jurisdiction for the federal agencies and the consultation
    projects is the land that they manage. That would be our
    suggestion, but we can follow up with more distinct language
    there too.
        Senator McCormick. Very good.
        Mr. Concho, I have a question for you, but I am not sure I
    am going to have enough time, so, I will submit that for the
    record.
        Thank you.
        The Chairman. Senator Padilla.
        Senator Padilla. Thank you, Mr. Chairman. I just want to
    echo the sentiment that has been shared from several members
    already, and that's the importance, obviously, of truly
    meaningful tribal consultation. Consultation through Section
    106 of the National Historic Preservation Act is a critical
    tool within California. We, too, have a State Historic
    Preservation Officer, a SHPO, and in 2024 alone, the SHPO
    completed roughly 4,100 reviews under Section 106. So, it's not
    a slow, sleepy office. It is a very busy one, in addition to
    being an important one. This has included individual project
    consultations for efforts such as road projects, solar
    installations, and hazardous fuels projects in our forests.
        California is home to 109 federally recognized tribes, more
    than any other state in the nation, and over 50 have THPOs, the
    Tribal Historic Preservation Officers. 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's why it's critical for the Federal Government
    to meaningfully engage with tribes when pursuing projects that
    could impact their cultural resources. And the key word I want
    to emphasize here is meaningful. Tribal consultation is not
    just a quick call, an email, whether or not it is replied to,
    simply for the purposes of checking a box. Meaningful means
    meaningful.
        Mr. Concho, I know that in your testimony and some of the
    Q&A with other members, you have talked about not just the
    quality of engagement, how important that is, but the
    importance and value of early engagement as well. 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 not getting
    to the finish line, if you will, and the long-term viability of
    some of these important projects?
        Mr. Concho. Thank you for that question.
        Back at Acoma, what I refer to as the Acoma Method, or the
    Acoma Way, we met with the one of the Kinder Morgan projects
    that was coming through our area. And you know, we did meet
    with them from the onset and we partnered with them. And we met
    with them and we brought in our tribal knowledgeable people
    that know the land, know my elders, and we, with the Governor,
    along with the Council, we sat and we talked about this project
    and how it is going to go, and where is it going to go, and how
    is it going to affect the land. So, we worked with them to
    agree on a specific area that we are going to survey. That way,
    we have enough room to say, oh, there is a cultural property
    here or something significant here. That way, for that
    pipeline, we can then say, okay, we are good with this project.
    Let's move forward.
        And by doing so early, it allows the proponent to say,
    well, we sat with them. This is where it's 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's going through
    the pueblo that we are working alongside the proponent with
    that project. So, we're not saying that Section 106 stops or
    gives the tribes permission to halt a project, but as long as
    we are working together, we can see outcomes and look these
    projects through and then see that they don't affect any of our
    cultural resources.
        Senator Padilla. Wonderful. It seems to be an elegant
    evolution of what is referred to sometimes as the carpenter's
    rule, right? Measure twice, cut once, right? If you are
    thoughtful on the front end, you're not having to go back and
    redesign and redesign and accommodate for things that you learn
    later in the process because you consider them much earlier.
        Dr. Merritt, quick follow-up question for you. What are
    some of the best practices that have allowed responsible
    development in Utah without undermining tribal resources?
        Dr. Merritt. Thank you, Senator, for that question.
        And so, I will just refer back to my talking points. It's
    focusing on the process, the data, and the relationships. In
    Utah, our Department of Transportation has actually set up
    consultation agreements with tribes. So, the tribes aren't
    being inundated with projects that they're not typically
    concerned about as a way to limit down the workload for our
    tribal partners.
        We also focus on the digital workflows, and we provide data
    sharing to all our state and federal partners to provide that
    information in real time. And all of these efficiencies allow
    us, much like Mr. Concho is saying, to invest up front to make
    the best decision. The better data we have, the better process
    we have, the better way we can plan for a project to not impact
    Utah's 13,000 years of human history. And so, we have done that
    in such a way that projects can move forward without deep-level
    concerns and impacting resources without due diligence.
        Senator Padilla. Thank you very much. I know my time is up,
    Mr. Chairman. I just want to end on two quick notes.
        One, I will submit some questions for the record in writing
    for the witnesses afterwards. I know some of my colleagues
    spoke to some of the funding and staffing, you know, general
    resource concerns--the need for them as opposed to the cuts and
    reductions that we seem to be fending off.
        I will ask Mr. Concho specifically about THPOs and the
    $100,000 figure that seems very low, nowadays especially, and
    the value of additional investment for this process.
        And 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 a specific project, but genuine partnerships and
    shared management responsibilities of public lands and
    stewardship for the long term of public lands. There is a lot
    of experience and historical knowledge to be gained here,
    whether it's management, whether it's environmental species
    protection, whether it's wildfire mitigation, on and on and on.
    So, I hope these are great examples that other states can be
    inspired by, learn from, and replicate.
        Thank you, Mr. Chair.
        Senator Heinrich. I am going to just put sort of a fine
    point on what Senator Padilla mentioned. A couple of things
    that we clearly heard in this hearing today are that we need
    better coordination between federal agencies, and that has been
    my personal experience, and I think that's something that
    probably is shared across the aisle. But we also need people at
    the desks. There is talk of extensive additional layoffs at 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's not the case. That is not responsible management. It's
    not responsible stewardship of our public lands. And hopefully,
    we can find some common ground around that for the entire
    energy spectrum.
        Thank you, Chairman.
        The Chairman. Thanks, and I appreciate that insight that
    nobody wants to see a process that has resulted in a lot of
    delays produce even more delays. I will note that the
    relatively recent efforts within the Trump administration to
    streamline the federal workforce--almost mathematically
    impossible that those could have caused the significant delays
    that we are talking about here. And I would add that 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 or the Obama administration.
        A lot of what we are talking about here today, as we have
    discussed at length, is the fact that we have some ambiguous
    text that has left THPOs and SHPOs, among others in the
    process, with a lot of subjective--there is a lot of
    subjectivity involved, and that has resulted in delays. So, to
    the extent that we can clarify those standards, we will all be
    better off.
        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. That will be admitted, without objection.
        [Washington Post editorial follows:]

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        The Chairman. Finally, before we conclude today's hearing,
    I want to take a moment of personal privilege to recognize our
    Chief Counsel, Pat McCormick, who will soon be departing,
    sadly, after 14 years of service to this Committee and the
    United States Senate.
        Pat is an extraordinary human being. Anybody who has
    interacted with him knows that. His mind is an encyclopedia
    that knows the work of this Committee backwards, forwards, and
    upside down. His judgment and his deep knowledge of all the
    laws touching on the subject matter of the Energy and 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, Pat, I just thank you for your
    many years of service.
        Mr. McCormick. Thank you. Thank you to the Committee.
        [Applause.]
        The Chairman. We wish you the very best of luck in all of
    your future endeavors, and thanks for your service.
        Mr. McCormick. Thank you very much. It has been an honor to
    work with you.
        The Chairman. Thank you so much.
        All right, so that will conclude today's hearing. I thank
    my colleagues for their contributions. I thank the witnesses,
    who have traveled great distance to offer great insights today.
        Any Senator who wishes to submit additional questions for
    the record may do so. The deadline for doing that will be 6:00
    p.m. tomorrow, and that is Thursday, the 30th of October.
        Senators will have until 6:00 p.m. next Wednesday, November
    5th, to add any statements for the record to today's hearing.
        Thanks again for being here. The Committee stands
    adjourned.
        [Whereupon, at 11:00 a.m., the hearing was adjourned.]

                          APPENDIX MATERIAL SUBMITTED

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