On January 4, 2013, new Department of the Interior, Bureau of Indian Affairs (“BIA”) rules went into effect that expressly address renewable energy projects on Indian lands.
The federal statutes governing “business use” leases of Indian land generally require BIA approval of business leases. BIA’s prior business lease rules were silent on renewable energy project leases. This resulted in uncertainty among tribes and prospective lessees, and inconsistency among BIA offices, regarding both BIA’s approval conditions and process.
The new BIA rules:
These rules also implement the so-called “HEARTH Act” of July 2012, P.L. 112-151. It authorizes tribes to take more complete responsibility for renewable energy project leases on their lands, and end the BIA approval requirement for WSR Leases. Under the HEARTH Act:
While a Tribe’s TERA must contain provisions for environmental, land use, wildlife and cultural resources review, these clearances would occur under the Tribal program, not under the strictures of federal law binding BIA.
The combination of new WEEL and WSR Lease rules and the HEARTH Act’s TERA provisions should facilitate renewable energy projects on tribal lands. However, they are not a complete, exclusive regime for all aspects of these projects on Indian lands. One shortcoming is that outside of the generation project lease, a right-of-way will still be required for the power line connecting to the nearest transmission lines. The statute and rules for power line rights of way have not been modernized or simplified, so BIA’s issuance of a right-of-way grant (subject to the consent of the Tribe) may still delay getting the new renewable generation facilities connected to the grid.
The rules are found at 25 CFR Part 162, as new Subpart E, 25 CFR 162.501 through 162.599, issued at 77 Fed. Reg. 72,440, 72,494-508 (Dec. 5, 2012).
The HEARTH Act is Public Law 112-151, 126 Stat. 1150-54, and the provisions for TERAs discussed here are codified as 25 U.S.C. § 415(h).
For further information on these subjects, contact Larry McBride: firstname.lastname@example.org; 202-295-4017