Legislature continues to overview National Historic Preservation consultation
Whether it be for oil and gas activity, installation of water pipelines or other activities, Sen. Brian Boner of Douglas told the Wyoming Legislature’s Select Federal Natural Resources Management Committee on May 30, “For activities on private lands, it can be hard to avoid the federal nexus, which brings up questions about how that impacts our private property rights.”
Boner spearheaded an effort to work cooperatively with the Bureau of Land Management (BLM) in Wyoming and the Wyoming State Historic Preservation Office to answer questions for landowners about ensuring the National Historic Preservation Act (NHPA) is upheld while also not infringing on private property rights.
Since beginning to explore this topic, Boner continued, “Situations have much improved,” but he said official guidance and changes in policy are still necessary, which will take some time.
“We don’t want oil and gas activity to destroy historical properties, but we certainly have to identify how far and how deep these historic properties exist,” Boner explained.
Factors like indirect effects and viewsheds must be considered and assessed through the NHPA, but Boner said this federal act has been applied to private properties when there is a project with a federal nexus, causing undue regulatory burden.
Boner said the amount of time the consultation process takes is also a challenge, as delays in permitting processes can impede the ability of companies to be successful.
Questions as to what triggers the federal nexus have also come into play.
“Is it enough to trigger the federal nexus is the federal government has a minority mineral share?” asked Boner. “This question and others are being addressed in Washington, D.C.”
“The Advisory Council on Historic Preservation (ACHP) has also written a letter, which is very positive. It verifies there is no absolute right by any federal agency – at least in the NHPA – to enter into private property.”
Further, the letter says if a landowner denies access to their property the federal agency must gather any information they can while still moving forward with the process.
“ACHP also mentioned that it may be in the landowner’s best interests to a speedy process to allow access, but there should also be a 30-day time limit for Section 106 consultation under NHPA,” Boner explained. “Certainly even a 45- or 60-day timeframe is reasonable for most people, but if we’re looking at a year, that’s where we start to see concern.”
Overall, Boner said the ability gives landowners more input on the process.
Rep. Liz Cheney (R-Wyo.) and Sen. John Barrasso (R-Wyo.) have sponsored the Onshore Act in Congress to address consultation concerns at the federal level.
While the act remains in committee in both the U.S. House and the U.S. Senate, Boner said, “The most interesting piece is a proposed construction bill that would limit surveys to direct effects and allow the process to play out.”
“There is more guidance in the process that is coming to help us address the complexities of these situations,” he said.
“Moving forward, there’s also interest from the Wyoming Stock Growers Association and BLM to come to a short-term agreements with landowners and BLM that allow both parties to have some say and hopefully move on in the process in more of a reasonable manner,” Boner said.
Wyoming BLM State Director Mary Jo Rugwell said, “We stand behind the legal and responsible use of the public lands in Wyoming.”
Rugwell noted, that while there are time delays due to requirements for BLM in working with NHPA, they are moving forward on nearly 100 Section 106 consultation requirements.
However, Committee Chairman Tyler Lindholm said, “Part of the issues we talked about during our last interim in regards to working with BLM seems to be that staff are not always on the same page as state leadership, which can cause a problem.”
Rugwell praised the Wyoming Legislature for tackling the issues, which has allowed Wyoming’s BLM organization to garner the attention of Washington, D.C. to make substantive changes to policy and guidance.
“I’ve love to see us continue to work together locally to address the problems we have locally in this area,” she said. “We’ve also begun to address challenges with staff by having discussions with our leadership and cultural resource specialists to let them know they are valuable, but it’s the local field office managers who have the authority to make decisions about whether consultation has occurred.”
“Projects have been put on hold in the past and hung up because of consultation, which is not something we want to do,” Rugwell continued. “We’re under a lot of scrutiny to get things done quickly with proper environmental review and consultation, but we can’t say, ‘This is hard, so let’s put it to the side tomorrow.’ That doesn’t work.”
Rugwell has emphasized that the role of cultural resource specialists is important, but their job is not to serve as decision maker. Rather the field office managers are responsible for making decisions.
“We need to make sure we’re doing our due diligence and following the laws that we’re bound to follow, but we’re not allowing ourselves to be sidetracked by anyone,” she commented.
Wyoming Stock Growers Association Executive Director Jim Magagna expressed appreciation for all parties who have made efforts to address impacts caused by NHPA Section 106 consultation, saying, “I believe we’re moving forward toward resolving the issue.”
He continued that all parties will continue to work through the challenges associated with NHPA in spite of rules and regulations “because the right people came together to focus on this challenge.”
“While we’re working our way through this,” Magagna said, “I hope we don’t lose sight of addressing the bigger issue of things that are in our laws and regulations. The whole concept of nexus was developed before the idea of directional drilling existed. We run into this issue of federal nexus with other topics, as well.”
“We want to resolve Section 106 consultation issues, but we want to focus on to addressing the bigger issue, which will continue to haunt us in other ways moving forward,” he said.
Boner commented, “I’m optimistic we’ll find a resolution to these situations relatively soon.”
Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at firstname.lastname@example.org.