Multiple parties are making the case for earlier and more extensive consultation with Native American tribes as FERC receives comments on draft guidelines for cultural resource investigations for natural gas projects.
The question of how tribes are brought into the planning and review of pipelines has drawn heightened scrutiny in light of legal conflict and protests over the Dakota Access pipeline review. In that case, several tribes said the project would threaten burial grounds as well as water quality, leading to months of protests over approval of the project.
The commission on Jan. 25 released a draft that builds on 2002 guidance with added instructions for sponsors and the commission in their consultations with tribes. The draft guidance also includes a section on handling unexpected discoveries of human remains and suggests a 30-day timeline for parties to comment, or for surveys or evaluations.
While the issues have not yet reached the same intensity thus far for natural gas pipelines as in the DAPL case, disputes over historic tribal resources have arisen recently for some projects, such as Kinder Morgan Inc.'s Connecticut Expansion project. Some environmentalists have also stated their intent to link up with Native American groups in their advocacy, often opposing projects.
Joan Dreskin, vice president and general counsel for the Interstate Natural Gas Association of America, said there is increasing engagement by tribal authorities and tribal historic preservation offices in pipeline expansions both on and off tribal land.
"Early engagement and identification of potential cultural resources allows the pipeline to attempt to address these concerns earlier during the resource report preparation and right-of-way stage," she said in an email.
In its comments at FERC, INGAA urged the commission to go further to create multiple, full-time tribal coordinators with an adequate budget to improve communication with tribes and allow enough time meet with tribes and learn about tribal values to foster relationships.
If such a position is dedicated to improving relationships, that person will be better placed to serve as a "credible intermediary" and spur more "cooperation, compromise and agreement" during project planning and development, the group said.
Such coordinators "will not be able to make significant strides towards improving communications and long-term relationships with tribes unless his or her sole job is to serve as a tribal coordinator, as opposed to being additionally responsible for managing ongoing pipeline certificate cases," the comments said.
It would also be helpful to specify ways to ensure coordinator communications happen early in the planning process, the trade association said. It also asked FERC to clarify that the guidelines are only intended as recommendations and to clarify when project sponsors can proceed with blanket authority.
Push for early outreach with tribes
The Advisory Council for Historic Preservation also urged that tribes be involved early, in the prefiling stage at FERC, when applicants and their consultants are engaged in environmental reviews. Tribes have information about historic properties that should inform the investigation, the independent federal agency said.
"Timing has been a huge issue," said the Choctaw Nation of Oklahoma, particularly concerning questions of when tribes are notified and may want to participate in planning processes.
"As part of the government-to-government relationship with tribes, FERC, and not the project sponsor, needs to reach out to tribal governments at the earliest stage possible to ensure that they are aware of the proposed projects" and any prefilings or filings, said the tribe in its comments.
The American Cultural Resource Association found that FERC often initiates formal consultation only when it has enough information to issue a notice of intent. The association said FERC should consult much earlier, or tribes may lose the chance to be fully engaged before and during fieldwork.
Tribal authorities were on board with the idea of early communications, although the precise details of what they advocated were at times at odds with what the developers put forward. The Colorado River Indian Tribes sought to create a mandate that project sponsors provide draft survey designs to tribes for review prior to implementation.
Pipeline companies, by contrast, sounded a note of caution about FERC's recommendation that cultural resources field work not begin until after the parties have a chance to review and comment on project-specific research designs and surveys. While noting that section of the guidance is a recommendation and nonbinding, INGAA worried that the field work could be delayed if parties failed to respond in a timely manner. The group requested a clarification from FERC.
The United South and Eastern Tribes Sovereignty Protection Fund also backed consultation with tribal nations from the earliest planning stages. But the organization sought to strengthen some recommendations. For instance, it suggested, the recommendations should include a requirement that FERC staff consult with any tribe that attaches religious and cultural significance to historic properties, regardless of the location of the properties.
A number of tribal authorities raised concerns about project sponsors acting as the conduit with tribes. The Colorado River Indian Tribes said they were "troubled by extent to which the guidelines suggest that it is appropriate for pipeline proponents ... to be conducting the work of government-to-government consultation with federal recognized Indian tribes."
While recognizing that sponsors often have information before FERC staff, the tribes worried that if the guidelines are adopted, such consultative activities would not be incorporated into FERC's standard protocol.
Also of concern to the Colorado group was the possibility that limits on FERC ex parte communication could cut off government-to-government consultations with tribes once a formal application has been filed.