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Tribal Energy Resource Agreement Land Right-of-Way (3-FD-h)

Information current as of 2019
In the United States, a developer may need a Right-of-Way from a tribe for projects over or on their tribal land if the tribe has a Tribal Energy Resource Agreement (TERA) that has been approved by the Secretary of the Interior (Secretary). 25 U.S.C. § 3504(b). A tribe can grant rights-of-way over tribal land without review or approval from the Secretary if the right-of-way was granted pursuant to a TERA for a term of no more than 30 years and serves one of three types of facilities:
  • An electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land;
  • A facility located on tribal land that extracts, produces, processes, or refines energy resources; or
  • The purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land.

25 U.S.C. § 3504(b). Tribal land means "any land or interests in land owned by any Indian tribe, title to which is held in trust by the United States, or is subject to a restriction against alienation under laws of the United States." 25 U.S.C. § 3501(13).

Tribes with TERAs grant ROWs over their respective tribal land pursuant to 25 U.S.C. § 3504 and 25 C.F.R. § 224.

Tribal Energy Resource Agreement Land Right-of-Way Process

3-FD-h.1 – Contact Tribal Representatives Identified in the TERA

The developer should contact the tribal representatives that are authorized to approve ROWs. Tribes are required to identify authorized tribal representatives in the TERA. 25 C.F.R. § 224.63(d)(8)

3-FD-h.2 – Negotiate ROW Directly with Tribe

Once the Secretary approves a tribe's TERA, the tribe negotiates directly with the developer. 25 U.S.C. § 3504 and 25 CFR § 224 govern some of the ROW terms, while others are left up to the parties.

3-FD-h.3 – Obtain Information Regarding the Project, Economic Return and Developer Qualifications

Pursuant to a TERA, a tribe may obtain information from the developer about the following to inform the tribe's decision on the ROW:

  • The corporate, technical, and financial qualifications of the developer;
  • Information about the project's economic return to the tribe; and
  • Technical information about the project.

25 C.F.R. § 224.63(d).

The tribe must preserve the obtained information in order to facilitate the Secretary’s periodic review of the TERA, along with other information related to the ROW and the performance of the tribe’s activities assumed under the TERA. 25 C.F.R. § 224.63(l).

3-FD-h.4 – Conduct Environmental Review

The tribe must conduct an environmental review of the project in compliance with the process outlined in the TERA. 25 U.S.C. § 3504(e)(2)(C). The Secretary may provide financial assistance to the tribe to facilitate the environmental review. 25 U.S.C. § 3504(e)(1)(B)(iii). The TERA environmental review process may be patterned after the National Environmental Policy Act (NEPA) review process, although it need only meet the minimum requirements found in 25 U.S.C. § 3504(e)(2)(C) and 25 C.F.R. § 224.63(c). The process must include, at a minimum:

  • Identification and evaluation of significant environmental effects;
  • Identification of proposed mitigation measures, if any, and incorporation of mitigation measures into the ROW;
  • A public comment process and a tribal response to substantive comments before the ROW is approved;
  • Sufficient administrative support and technical capability to carry out the environmental review process; and
  • Tribal oversight of other parties to the ROW to ensure compliance with the TERA and applicable federal environmental laws.

25 C.F.R. § 224.63(c).

3-FD-h.5 – Consult with States Affected by Off-Reservation Environmental Impacts

The tribe must consult with any state that is affected by off-reservation environmental and cultural impacts identified pursuant to the environmental review process. 25 U.S.C. § 3504(e)(2)(B)(iii)(VI).

3-FD-h.6 – Transmission Right-of-Way

As stated above, tribes negotiate ROWs directly with the developer without the need for BIA approval. Any ROW term or condition that violates an express provision of the TERA is null and void. 25 C.F.R. § 224.63(d)(12).

3-FD-h.7 – Send Copy of the ROW to the BIA

The tribe must send a copy of the ROW to the BIA within one business day of granting it. The copy must be sent by certified mail with a return receipt requested or by overnight delivery. 25 C.F.R. § 224.83(b).

3-FD-h.8 – Inform Public of ROW Approval

The tribe must inform the public of the approval of the ROW under the TERA. For specific notification procedures, developers should refer to the applicable TERA. 25 C.F.R. § 224.83(a).

3-FD-h.9 – Submit Information and Documentation of Payments to the BIA

The tribe must submit information and documentation of payments made directly to the tribe, if any. Required documentation must include proof of payment. 25 C.F.R. § 224.63(k).

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