Amid rising tribal frustrations and widespread concerns emphasized during protests of the Dakota Access Pipeline, the U.S. Departments of the Interior and Justice, and the U.S. Army Corps of Engineers (USACE) hosted a series of meetings with Indian Tribes in the Fall of 2016 to discuss their input in Federal infrastructure project decisions.
Federal agencies are required to consider the effects of their undertakings on historic properties that are listed or eligible for inclusion in the National Register of Historic Places (NRHP), codified in 36 Code of Federal Regulations (CFR) 800. An undertaking is defined as any project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval (36 CFR 800.16[y]). Energy projects are often regulated by the Federal Government, requiring compliance with Section 106 of the National Historic Preservation Act (NHPA). As part of the Section 106 process, Federal agencies must consult with Indian Tribes and Native Hawaiian Organizations (36 CFR 800.2[c]).
As a result of these meetings, Federal agencies are reviewing their consultation practices to ensure they reflect the key principles included in the report "Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions", which encourages effective communications between Federal agencies and Tribes and compliance with Section 106 of the NHPA. Of interest to the oil and gas industry, recent infrastructure projects have highlighted the need for the USACE to improve their participation in Tribal consultations in accordance with the regulations; resulting in increased time and effort from applicants in the USACE permitting process.
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