DOI’s New Tribal-Land Leasing Rules Give Wind Developers More Certainty

Mark Del Franco
Written by Mark Del Franco
on December 01, 2011 No Comments
Categories : New & Noteworthy

8993_sticky9.6 DOI's New Tribal-Land Leasing Rules Give Wind Developers More Certainty In an effort to expedite renewable energy development on American Indian lands, the U.S. Department of the Interior (DOI) has put forth a proposal that could dramatically reduce the timeline for lease approvals.

According to the DOI, the proposed rule would modify regulations governing the Bureau of Indian Affairs' (BIA) process for approving the lease of surface acres on lands the federal government holds in trust for tribes and individuals. As trustee, the DOI is responsible for managing approximately 56 million surface acres in Indian Country – or about 2.4% of all U.S. land.

The proposed rule provides a 30-day limit for the BIA to issue decisions on residential leases, subleases and mortgages. For commercial or industrial development, the BIA would have 60 days to review leases and subleases. If the BIA were to not complete its review of subleases within this time frame, those agreements would automatically go into effect.

The news is meaningful to renewable energy developers, who – fearing extensive delay – often thought twice about developing projects on tribal lands.

Andy Spielman, partner at Denver-based law firm Hogan Lovells, explains that because the BIA approvals had no time limits, lease review and approval would drag on – sometimes for years.

‘Previously, building on tribal lands was far less attractive to wind developers,’ he says. ‘It was a black box, a complete question mark.’

The proposed reform identifies specific processes, with enforceable timelines, through which the BIA must review leases. The regulation establishes separate, simplified processes for residential, business and renewable energy development, so that, for example, a lease for a single-family home is distinguished from a large solar energy project.

‘This is a good thing,’ Spielman says. ‘There's too much opportunity for renewable energy development in Indian Country to have bureaucratic backlogs stifle this type of economic development.’

Further, he says, with the proposal, DOI Secretary Ken Salazar has created additional opportunities for wind power.

‘By putting fairly narrow limits for review and approval, developers, capital markets, tribes and job creation will all benefit from more certainty.’

The proposal appeared in the Nov. 29 Federal Register, and the DOI expects to hold tribal meetings following the required 60-day public comment period. The BIA regulatory drafting workgroup is expected to review the comments and publish a final rule in 2012.

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