The Federal Energy Regulatory Commission (FERC), Office of Energy Projects, recently issued its Guidelines for Reporting on Cultural Resources Investigations for Natural Gas Projects (Guidelines).[1] FERC is responsible for authorizing the siting and construction of onshore and near-shore Liquefied Natural Gas (LNG) import or export facilities under Section 3 of the Natural Gas Act.[2] FERC, under Section 7 of the Natural Gas Act, also issues certificates of public convenience and necessity for LNG facilities engaged in interstate natural gas transportation by pipeline.[3] The Guidelines provide guidance to project sponsors on how to assist FERC in meeting its Section 106 consultation requirements under the National Historic Preservation Act (NHPA) as part of the process of gaining authorization for interstate natural gas projects. The Guidelines do not replace the existing regulations under the Natural Gas Act.
 
What is Section 106 Consultation?
 
This advisory provides an overview of the new FERC guidelines under the NHPA that pertain to natural gas projects that traverse Indian lands or otherwise impact traditional cultural properties of Tribes. Section 106 under the NHPA requires that a federal agency, in this case FERC, engage in a consultation process with affected parties to ensure that no harm comes to historic and cultural resources. The process requires the identification of the area of the project’s potential effects and any adverse effects from the project, as well as engagement with various interested entities to address any adverse impacts to historic and cultural properties through mitigation or avoidance measures.[4] The process involves discussion and consultation meetings with consulting parties, which typically consist of state or tribal historic preservation officers, the project sponsor, and other interested stakeholders to try and find solutions to any adverse impacts of the project. If necessary, the Advisory Council on Historic Preservation, a federal entity charged with overseeing the implementation of the NHPA, may also be involved, particularly when the parties are at an impasse, at which point, the Council provides comments to the federal agency about whether that impasse can be resolved. Of specific interest are the provisions regarding engagement with Indian tribes in the Section 106 consultation process. The Guidelines attempt to minimize the chances that a project will adversely impact tribal cultural properties, recommends steps to mitigate any adverse impacts, and other tools for avoiding costly delays, such as legal challenges from Tribes and other parties under the NHPA. Legal challenges will typically claim that FERC failed to adequately consult with the consulting parties and did not select a course of action that would minimize or avoid the adverse impacts to the cultural resources.  
 
The Tribal Perspective on FERC’s Section 106 Consultation Process
 
Tribes provided comments to the development of the Guidelines and expressed a variety of concerns and requests, as follows:

• Ensure that FERC, rather than the project sponsors, engage in government-to-government consultation with tribal leadership;
• Ensure protection of resources located outside the Tribe’s reservation;
• Provide recognition of tribal historic preservation officers’ unique qualifications to identify and assess cultural resources;
• Prohibit the curating of items without tribal consent;
• Provide confidentiality for not only the location, character, and ownership information of cultural resources, which is the current approach, but also include knowledge regarding religious practices and historical uses;
• Provide for tribal review of draft survey designs; and
• Require evidence demonstrating that the avoidance of impacts was infeasible.[5]   

The Guidelines address some but not all of the Tribes’ comments. Overall, the Guidelines adopted the Tribes’ request that FERC uphold its commitment to consult directly with the Tribes on a government-to-government basis as opposed to having the project sponsor stand in the shoes of FERC. The Guidelines also provide various tribal consent provisions, particularly when tribal lands are at stake and curating activities. The Guidelines did not expand the confidentiality requirements, but generally added measures to protect tribal information to the extent permitted under the law. Below is a highlight of these various provisions.  
 
Tribal Expertise in Identifying Cultural Resources
 
In the Guidelines, FERC allows project sponsors to work with tribal representatives that do not meet the NHPA standards in their role of identifying and evaluating effects to historic properties of religious or cultural significance.[6] While Tribes disagreed with the idea that tribal historic preservation officers are treated differently from state officers, this provision presumably supports the notion that Tribes may select their own tribal representatives based on their own qualifications as opposed to federal NHPA standards. 
 
Projects that Occur on Tribal Lands
 
The FERC Guidelines require tribal consent when a project occurs on tribal lands. Either before or after issuance of a FERC Certificate of Public Convenience and Necessity, cultural resource investigations that occur on tribal lands must be conducted with permission of the Tribe. In practice, this requirement can be achieved as part of the right of way approval process that involves an application process to gain permission to traverse tribal lands. As part of this process, not only does the Tribe need to give consent to use their lands, but the Tribe will also have an opportunity at that stage to require approval of draft survey designs.
 
Tribal lands are defined as “all lands within the exterior boundaries of any Tribe’s reservation and all dependent tribal communities as defined in the NHPA or the Native American Graves Protection and Repatriation Act (NAGPRA).”[7] It is important that you receive a legal determination as to the scope of a Tribe’s reservation and the legal definition of “dependent tribal communities,” as those are complex legal and factual-based determinations. You also will likely need the U.S. Department of the Interior’s (Interior) review and approval for a right-of-way that crosses Indian land. Interior recently adopted new regulations regarding rights-of-way across tribal land that will supplement FERC’s new Guidelines.[8]
 
Unique Tribal Cultural Properties and Confidentiality
 
The Guidelines note that project sponsors should be aware that Tribes may utilize natural resources for subsistence or specific ceremonial uses, and should avoid impacting those uses during studies.[9] These practices will be unique to a Tribe and there are often sensitivities regarding confidentiality where the Tribe will not want to share details about those practices, but will expect and require non-disturbance of those practices. In this regard, it will be important to engage investigators that closely coordinate with the Tribal Historic Preservation Officer (THPO) and gain permission from the Tribe to better understand and navigate through these sensitive issues. FERC regulations provide confidentiality for information regarding the location, character, and ownership information regarding cultural resources.[10] Tribal comments noted that cultural history and religious practices also should be protected from disclosure, but this request did not appear in the final Guidelines.
 
Any reports required as part of the cultural resources survey should ensure that investigation designs and report format comport with tribal expectations and guidelines, as well as Interior’s Guidelines for Archeology and Historic Preservation and the National Park Service’s National Register Bulletin series.[11] And if a Tribe is a consulting party under the Section 106 process, the project sponsor will provide the report to the Tribe and allow for a 30-day comment period, address any comments, and issue the final report to FERC.[12] There are also key requirements regarding the curating of items discovered during the investigation, including fulfillment of tribal preservation requirements, as well as other federal laws requiring engagement with the affected Tribe depending on the nature of the discovery.[13] Generally speaking, Tribes wanted mandatory guarantees on these issues, such as certain decision-making points for Tribes as a consulting party and tribal consent requirements for curating activities.   
 
FERC Blanket Certificates Requiring Additional Tribal Input
 
Additional procedures apply when FERC grants a blanket certificate for future activities if tribal lands are within a project area.[14] Under a blanket certificate issued pursuant to section 7(c) of the Natural Gas Act, a natural gas company may undertake a restricted array of routine activities without the need to obtain a case-specific certificate for each individual project. However, in cases where the activity is on tribal lands, the project sponsor must communicate with the Tribe and document any tribal comments and communications regarding the proposed future activities. The parties can avoid this step if they have a preexisting agreement that exempts certain activities because they will not affect historic properties.
 
If the THPO does not give concurrence as part of this process, separate Commission approval is required through the submission of a Section 7 application under the NGA.[15] To avoid this potential delay, it will be important to gain early agreement with the Tribe regarding blanketed activities.
 
Heightened Requirements for Standard LNG Export and Facility Activities
 
The Guidelines provide heightened direction to project sponsors in the Section 3 and 7 processes of the National Gas Act, recommending early identification of potentially affected Tribes, early communication with consulting parties, and a clear commitment that FERC does not delegate its government-to-government consultation role with Tribes in recognition of the trust relationship between them.[16] FERC further offers to engage in consultation directly with a Tribe if that is the Tribe’s wish, and that such a process typically is initiated by FERC in concert with the National Environmental Policy Act review process, which is often on a parallel track with the NHPA Section 106 process.
 
The project sponsor is to thoroughly investigate which Tribes may be interested in the project, including those that no longer reside in the project area and those Tribes that attach religious or cultural significance to the properties at issue, which tracks with the consulting party status in the NHPA regulations.[17] To this end, the Guidelines provide specific information that project sponsors should include in written correspondence with Tribes to initiate the information gathering process, such as input from the Tribe on the survey design, traditional cultural information and a method for protection from disclosure, and recognition that FERC will make all substantive determinations and will be available to fulfill its consultation role if the Tribes wish - all measures that the Tribes were advocating for in their comments.[18]
 
Special Tribal Provisions in Required Reports
 
Additional guidance is given on the content of various reports and plans. The project sponsor must file a plan with FERC for the treatment of unanticipated cultural resources and human remains, and confer with affiliated Tribes in developing the plan.[19] The project sponsor must also file a report to document the results of cultural resources investigation and coordinate with tribal representatives regarding areas of interest in the report. If required by Tribes or other affected government agencies, the project sponsor should provide an overview report that outlines existing literature and records regarding cultural resources in the area of potential effects.[20] This report will inform whether additional cultural surveys and updated information is needed to properly evaluate the impacts on historic and cultural properties. If the existing record is insufficient, the project sponsor must prepare a survey report that provides a comprehensive review of all existing and newly-discovered cultural resources, including field results, archaeological site analysis, artifact analysis, and NHPA eligibility.[21] If consulting parties recommend additional investigations, then the project sponsor must prepare an Evaluation Report that sets forth all prior information and any adjustments needed to avoid impacts.[22]
 
In the case where adverse impacts to historic properties cannot be avoided, the project sponsor must prepare a treatment plan outlining mitigation efforts and provide it to consulting parties, including any Tribe, for review.[23] Ultimately, FERC reviews the plan and decides whether to accept it. One method for avoiding effects on historic properties is the use of boring or directional drilling which minimizes surface impacts.[24]  If surface impacts occur nonetheless, such boring and directional drilling will be considered mitigation instead of avoidance and would need to be included in a treatment plan. Contrary to the Tribes’ request, the Guidelines do not require evidence of the infeasibility of avoidance of impacts. 
 
Tribal Parallel Regulatory Requirements
 
Lastly, Tribes also may have their own regulatory regimes and requirements regarding environmental impacts and preservation of historic and cultural resources on their lands. With the addition of the Guidelines’ new and more specific recommendations for engagement with tribes, project developers would be well-advised to ensure that planning includes an assessment of where the NHPA Section 106 consultation process can mesh with the Tribes’ regulatory expectations as well. Project sponsors should encourage FERC to pursue the Section 106 consultation process in parallel with other environmental legal review requirements, such as the National Environmental Policy Act and the Endangered Species Act, to avoid costly delays.

[1] Docket No. AD15-10-000 (July 31, 2017). 

[2] 15 U.S.C. § 717b.

[3] 15 U.S.C. § 717f.

[4] 54 U.S.C. § 306108; 36 C.F.R. Part 800.

[5] See, e.g., comments of Colorado River Indian Tribes (March 27, 2017); United South and Eastern Tribes, Inc. (March 23, 2017); Choctaw Nation of Oklahoma (March 22, 2017).

[6] P. 3.

[7] Pp. 3-4 (citing 25 U.S.C. § 3001(15)).

[8] 25 C.F.R. Part 169; see also the Hearth Act at 25 U.S.C. § 415 and the Bureau of Indian Affair’s leasing regulations at 25 C.F.R. 162.

[9] P. 4.

[10] 18 CFR 388.112.

[11] P. 5 (citations omitted).

[12] P. 6.

[13] P. 6. See also the Native American Graves Protection and Repatriation Act (NAGPRA) and the Archaeological Resources Protection Act (ARPA).

[14] P. 7.

[15] Pp. 7-8.

[16] P. 9.

[17] P. 10.

[18] P. 10-11.

[19] P. 11.

[20] P. 14.

[21] P. 18.

[22] P. 20.

[23] Pp. 21-24.

[24] P. 24.