The Bureau of Indian Affairs ("BIA") yesterday proposed new regulations that would greatly facilitate renewable energy development on tribal lands. For years, tribes and developers have objected to BIA's leasing regulations, complaining that the regulations stymied much-needed economic development in Indian country. The BIA responded to these long-standing objections by proposing a process that specifically governs wind resource evaluation and development leases and solar resource development leases on Indian land. The proposed rule would affect surface leasing on 56 million acres of Indian land held in trust by the federal government.
The purposes of the new process are to remove significant obstacles to wind and solar energy development and streamline leasing for small businesses and commercial developments on Indian lands, promoting private investment in businesses in Indian communities.
The leasing of Indian lands requires federal approval – a requirement that often entails significant delays. Existing rules do not establish a process that specifically pertains to renewable energy development. The proposed rule would clarify the appropriate process. For wind energy, the proposed rule establishes a two-part process whereby developers obtain BIA approval of a short-term wind energy evaluation lease ("WEEL") of Indian land for installation and maintenance of wind evaluation equipment, such as meteorological towers, to evaluate wind resources for electricity generation. The WEEL may provide the developer with an option to lease the Indian land for wind energy development purposes. The environmental reviews conducted for the short-term lease, which would only evaluate the impacts of the evaluation equipment, not the full development of the wind project, may be rolled into environmental reviews conducted for a lease for full development of the wind project. This two-part process is not necessary for solar resource development because solar evaluation does not require possession of the land. Because the evaluation of solar resources does not require the installation of any device, solar development does not require a preliminary evaluation lease.
When long-term wind leases are considered feasible, the proposed rules create wind and solar resource ("WSR") leases that authorize use of Indian land for the purpose of installing, operating and maintaining instrumentation, facilities and associated infrastructure, such as wind turbines and solar panels, to harness wind and/or solar energy to generate and supply electricity. These proposed rules also apply for long-term solar leases. Activities include installing instrumentation facilities and infrastructure associated with the generation, transmission and storage of electricity and other related activities. WSR leases may have an initial term not to exceed 25 years and one renewal period not to exceed 25 years, unless a statute provides for a longer maximum term for certain tribes.
The proposed rules also address leasing for residential and business purposes, including: residential mortgages, leases and subleases, leases for religious, educational, recreational, cultural and other public purposes, and commercial or industrial leases for retail, office, manufacturing, storage, biomass, waste-to-energy and other business purposes. The proposed regulations provide BIA 60 days to issue a decision on a complete business lease application.
The proposed rule establishes a 60-day public comment period. Final regulations are expected in 2012.
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