November 20, 2017

November 17, 2017

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FERC Staff Issues New Guidelines on Cultural Resources

On July 31, 2017, the Federal Energy Regulatory Commission (“FERC”) staff issued new Guidelines for Reporting on Cultural Resources Investigations for Natural Gas Projects. The new guidelines include changes of potential interest and significance to developers (“project sponsors”). In addition to changes in the organization of reports and documents, the guidelines define more detailed expectations for project sponsors, particularly concerning engagement with tribes. It remains to be seen whether the changes lead to improved dialogue with tribes on cultural resources, or more divergence in expectations.

A small but important change is that the new guidelines exempt from federal and state qualification standards individuals designated as experts in historic preservation by federally recognized tribes. Designated tribal experts are presumed to be qualified. Dialogue between tribal and non-tribal experts can be complex for many reasons, and may become more so if less training and perspective are shared.

The new guidelines require materials collected on state, federal, or tribal lands to be curated in the manner chosen by the SHPO/THPO, land manager, or tribe, rather than according to federal standards. The expectations of individual SHPO/THPOs, land managers, and tribes are less transparent and less uniform than federal standards and may complicate surveys and unanticipated discoveries. Differences may also arise between THPOs and tribes. 

Another important change is the requirement that project sponsors seek comment from all tribes that “attach religious or cultural significance to historic properties”—regardless whether the tribe ever used the area in question.[1] Previously, project sponsors were only required to seek comment from tribes that occupied the project area, whether currently or in the past.  Now, project sponsors must send comment request letters to all tribes that may view a property as religiously or culturally significant, with no geographic boundary. The guidelines do not offer a limiting principle to guide project sponsors in assessing which tribes require notice and engagement, and they do not define the bases for significance that might animate tribes to participate notwithstanding the absence of present or historical connection to the area.

The new guidelines acknowledge that tribes may not respond to notices and requests for engagement by project sponsors or FERC. Project sponsors are now required to continue to follow-up despite a lack of response. The new guidelines do not establish what frequency or duration of follow-up is adequate, nor when engagement attempts can be terminated. The only instruction FERC gives to project sponsors is that they should thoroughly document efforts to contact tribes. 

Together, these changes appear to invite higher expectations among tribes, without defining limits on the correlative responsibilities of project sponsors. Whether the new guidelines improve tribal consultations and enhance the protection of historic and cultural resources remains to be seen in practice.  It may be hoped that thoughtful, respectful engagement will create the context for success.


[1] New Guidelines, at 10. 

© 2017 Bracewell LLP

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About this Author

SARAH L. RAFIE, Bracewell, electric utilities lawyer, hydroelectric generators attorney
Associate

Sarah Rafie counsels clients in relation to regulatory matters, particularly in infrastructure service industries, including electric utilities and hydroelectric generators. She advises clients regarding compliance matters before the Federal Energy Regulatory Commission (FERC) and various state regulatory agencies.

Before joining Bracewell, Sarah served as a judicial intern to Judge Jennifer W. Elrod of the U.S. Court of Appeals for the Fifth Circuit in Houston, and as an appellate intern in the U.S. Attorney’s Office for the Western District of...

202-828-5814
Kevin Ewing, Energy, environmental, attorney, Bracewell law firm
Partner

Kevin Ewing advises chiefly energy and infrastructure companies concerning natural resources and environmental issues arising from new regulations and agency policies, corporate risk management, and major incidents.  His clients are generally involved in offshore exploration and development, transmission siting, gas pipelines, LNG facilities, and highways.  Kevin is regularly involved in crisis preparedness and response, representing clients before government investigators, in negotiations with federal agencies, and in internal investigations.

Areas of special focus include offshore E&P, environmental impact assessment, federal leasing and permitting, suspension/debarment, and federal lands policy (and related administrative/civil litigation).  Kevin also advises public companies on mandatory and voluntary disclosure of environmental proceedings, investigations and risks, and he assists companies facing shareholder demands and governmental inquiries into disclosures about climate change and hydraulic fracturing.  He also has broad experience representing specialty chemical manufacturers and technology innovators with respect to TSCA compliance, auditing and enforcement defense.

202-828-7638