FACT SHEET Residential, Business, and Wind & Solar Resource Leasing on Indian Land Final Rule

Transcription

1 FACT SHEET Residential, Business, and Wind & Slar Resurce Leasing n Indian Land Final Rule The Bureau f Indian Affairs (BIA) has finalized revisins t 25 CFR 162, Leases and Permits, t replace the nn-agricultural leases subpart with subparts specific t residential leasing, business leasing, and wind and slar resurce (WSR) leasing. Overview f the Final Rule The final rule is a cmprehensive refrm f residential, business, and WSR leasing f trust r restricted land ( Indian land ). It increases the efficiency and transparency f the BIA apprval prcess, increases flexibility in cmpensatin and valuatins, supprts landwner decisins regarding the use f their land, facilitates management f direct pay, encurages BIA crdinatin with the Indian landwner in lease enfrcement, and makes ther crss-cutting changes t residential, business, and WSR leasing. BIA Apprval Prcess Eliminates BIA apprval f permits fr residential, business, r WSR uses f Indian land Specifies the prcess fr btaining BIA apprval f leases fr residential, business, and WSR purpses n Indian land Allws fr BIA review f a prpsed lease befre r during preparatin f Natinal Envirnmental Plicy Act (NEPA) dcumentatin and any valuatin t identify ptential bstacles t BIA apprval Impses time limits n BIA t act n submitted lease dcuments: BIA Apprval Timelines Type Actin Deadline fr If BIA fails t meet the deadline, then: Sectin BIA decisin: Residential Lease 30 days Parties may take actin under Amendment 30 days Deemed apprved Assignment 30 days Parties may take actin under Sublease 30 days Deemed apprved Leasehld mrtgage 20 days Parties may take actin under WEEL* Lease 20 days Parties may take actin under Business, 60 days Lease Parties may take actin under r WSR Business, 30 days WSR, Amendment Amendment is deemed apprved WEEL Assignment 30 days Parties may take actin under r Sublease 30 days Sublease is deemed apprved Leasehld days Parties may take actin under r mrtgage *Wind Energy Evaluatin Lease (WEEL) Page 1

2 Establishes an administrative prcess fr elevating an agency s failure t act n lease dcuments t the BIA Reginal Directr and Directr Establishes that BIA must apprve lease dcuments unless it finds a cmpelling reasn nt t, based n certain specified findings Deletes the requirement fr insurance r bnding fr residential leases Cmpensatin and Valuatins A WEEL may be fr any negtiated amunt and BIA will nt require a valuatin fr a WEEL, regardless f whether the lease is n tribal r individually wned Indian land Fr residential, business, and WSR leases, the fllwing requirements apply: Fr tribal land, as lng as the tribe prvides dcumentatin that it has determined the fllwing t be in its best interest r the lease is fr husing fr public purpses: The lease cmpensatin may be in any amunt the tribe negtiates, and BIA will nt require a valuatin The lease may prvide fr alternative frms f rental, such as in-kind cnsideratin, r varying types f cmpensatin at specific stages f the lease N peridic review f the adequacy f rent r rental adjustment is required Fr individually wned Indian land, the lease cmpensatin must be at least fair market rental and BIA will require a valuatin, unless applicable cnditins are met, as summarized in the table belw: Lease Cmpensatin & Valuatin Requirements Individually Owned Indian Land Residential, Business, and WSR Leases Type Fair Market Rental Required Unless: Valuatin Required Unless: Sectin Residential Business WSR -Lessee is a c-wner residing n tract fr 7 years as f INSERT DATE and n ther c-wner bjects t presence by INSERT DATE; r -Tribe r lessee will cnstruct infrastructure imprvements n, r serving, the leased premises and BIA determines it is in the best interest f all Indian landwners -100% f the Indian landwners waive and BIA determines the waiver is in the landwners best interest, based n specified factrs; r - The lease prvides fr less than fair market rental during pre-develpment r cnstructin perids and BIA determines it is in the landwners best interest; -100% f the Indian landwners waive and BIA determines the waiver is in the landwners best interest, based n specified factrs; r - The lease prvides fr less than fair market rental during the perids befre generatin and transmissin f electricity begins and BIA determines it is in the landwners best interest; *Office f Indian Energy and Ecnmic Develpment (IEED) -Tribe r lessee will cnstruct infrastructure imprvements n, r serving, the leased premises and BIA determines it is in the best interest f all Indian landwners -BIA determines it is in the best interest f the landwners t accept an IEED* ecnmic analysis in lieu f an appraisal; r -Tribe r lessee will cnstruct infrastructure imprvements n, r serving, the leased premises and BIA determines it is in the best interest f all Indian landwners Page 2

3 In additin, fr leases f individually wned Indian land The lease may prvide fr alternative frms f rental r varying types f cmpensatin if BIA determines it is in the landwners best interest N peridic review f the adequacy f rent r rental adjustment is required if the lease is fr husing fr public purpses, the lease term is five years r less, the lease prvides fr autmatic adjustments, r BIA determines it is in the landwners best interest nt t require review r adjustment based n certain specified factrs. Direct Pay Allws fr direct pay (fr residential, business, WEEL, r WSR leases) nly where there are 10 r fewer landwners, and all landwners cnsent t direct pay Cntinues direct pay unless and until 100% f the wners agree t discntinue direct pay r certain circumstances ccur allwing discntinuatin with regard t ne specific landwner Lease Cmpliance and Enfrcement Restricts BIA s right f entry t reasnable times and upn reasnable ntice, cnsistent with ntice requirements under applicable tribal law and lease dcuments Prvides that, in the event f a vilatin, BIA will defer t nging actins r prceedings prvided fr in the lease s negtiated remedies, as apprpriate Prvides that BIA will prvide a cpy f the ntice f vilatin t the tribe fr tribal land, and will prvide cnstructive ntice t Indian landwners fr individually wned Indian land Requires BIA t cnsult with the tribe fr tribal land r, where feasible, with Indian landwners fr individually wned Indian land, t determine what actin t take if the lessee des nt cure a vilatin within the requisite time perid Other Crss-Cutting Changes Clarifies when a BIA-apprved lease f Indian land is required Incrprates sliding scale cnsent requirements established by the Indian Land Cnslidatin Act, as amended by the American Indian Prbate Refrm Act Clarifies that a lease f Indian land may include prvisins requiring the lessee t give a preference t qualified tribal members, based n their plitical affiliatin with the tribe Clarifies what laws and taxes apply t leases apprved under 25 CFR 162 NOTE This fact sheet is intended as an verview and summary f the final rule, rather than a replacement fr r supplement t the rule. If this fact sheet is, in any way, incnsistent with the text f the final rule at 25 CFR 162, the text f the final rule gverns. Additinally, there may be prvisins in the final rule that the reader may deem significant that were nt included here. Please refer t the final rule at 77 FR XXXXX. Page 3

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5 Appendix - Subparts Affected This final rule replaces Subpart F, Nn-agricultural leases, with the fllwing: A new Subpart C, Residential Leases A new Subpart D, Business Leases A new Subpart E, Wind and Slar Resurce (WSR) Leases The final rule als updates ther subparts t: Revise Subpart A, General Prvisins Mve existing Subpart E, Special Requirements fr Certain Indian Reservatins, t Subpart F Create a new Subpart G, Recrds. The final rule des nt affect Subpart B, Agricultural Leases. Subpart B may be revised at a later time. In additin, t ensure that changes t Subpart A, General Prvisins, d nt affect agricultural lease regulatins, the final rule mves sme f the current Subpart A, General Prvisins sectins t Subpart B, where they apply nly t agricultural leases. Minr edits were made t these General Prvisins t delete redundancies and clarify that they nw apply nly t agricultural leases. The table belw shws where current sectins f the regulatin are in the final rule. Lcatin f Current Sectins in Final Rule Current Subpart A Subpart General Prvisins Subpart A B Subpart B Agricultural Leases Subpart B Subpart -- Residential Leases Subpart C [Reserved] C Subpart -- Business Leases Subpart D [Reserved] D Subpart E Subpart Special Requirements Subpart E fr Certain Indian F Reservatins Subpart F Subpart G Final General Prvisins Agricultural Leases (With edits and deletins as required) Agricultural Leases Residential Leases Business Leases Wind and Slar Resurce Leases Special Requirements fr Certain Indian Reservatins Nn-Agricultural Leases (Deleted) Recrds Page 5