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North Dakota Looks to Extend Pipelines Through Tribal Land to Reduce Natural Gas Burn-Offs

While North Dakota takes steps to limit the volume of natural gas that is being burned off, or “flared,” in its rapidly expanding oil fields, the problem, which has caught the attention of Congress, is far worse on the state’s American Indian land — where regulation is more difficult.

Last week, the North Dakota Industrial Commission announced it would force producers to restrict oil production if they could not meet reduction targets for burning off natural gas. Gov. Jack Dalrymple called the new policy “a dynamic shift in the way regulators approach reducing natural gas flaring.”

Oil companies burn off natural gas venting from their wells when they don’t have processing plants or pipelines to carry the gas away. The rapid rate of North Dakota oil exploration in recent years has outrun pipelines and resulted in a dramatic increase in flaring, which is 30 times more common there than in Texas, where both pipelines and regulations have been established for decades.

“We’ve got to be able to develop the infrastructure,” Sen. John Hoeven, R-N.D., said recently. “We cannot do that without the permitting of the pipelines and the gatherings system to do it.”

That permitting process can be particularly complicated on tribal lands, which fall under the jurisdiction of multiple federal agencies.

Companies burn off more than half of the gas produced from the 743 oil wells on the Mandaree section of the Fort Berthold Indian Reservation in the western half of North Dakota — twice the average on state and federal lands in the rest of the state.

Bisected by the Missouri River, Fort Berthold is home to members of the Mandan, Hidatsa and Arikara, known as the Three Affiliated Tribes. The reservation is now dotted with hundreds of wells, connected to deep lateral borings that extend horizontally for more than a mile under tribal soil. Since 2011, oil production on the reservation has doubled to more than 170,000 barrels a day, making up about 17 percent of North Dakota’s total. Because the installation of natural gas gathering lines has not caught up with the expansion in drilling, the flaring rate has soared.

Oil companies blame tribal right-of-way laws, topography and duplication of federal agency oversight for delays in getting permits for lines to gather the natural gas.

Like other states and tribes, the government of the Three Affiliated Tribes recently revised its right-of-way laws to allow gas lines to come within 700 feet of structures, opening up new opportunities for routes that had been blocked by a previous half-mile buffer. But unlike on state lands, those lines still require approval from several federal agencies.

Sen. John Barrasso, R-Wyo., introduced a measure (S 2132) this spring to expedite the approval of pipelines in right of ways on tribal lands, which he said hold nearly one quarter of all American onshore oil and gas reserves.

“Tribes have called upon Congress and the administration to assist in finding a way to tap into that potential,” he said.

On the Southern Ute Indian lands in Colorado, companies are waiting for approval of 81 right-of-way agreements that must be OK’d by the Bureau of Indian Affairs before the Bureau of Land Management issues a permit. More than half of those agreements were approved by the tribe seven years ago, according to acting tribe council Chairman James Olguin.

“In each instance, these pending transactions have already undergone environmental reviews by the tribe’s natural resource department,” he told lawmakers last month.

Under the Energy Policy Act of 2005 (PL 109-58) tribes and the secretary of the Interior are required to enter into a Tribal Energy Resource Agreement. Barrasso’s bill would set a time limit for the Interior Department’s review of those agreements.

Rep. Alan Lowenthal, D-Calif., said revising the multiple layers of federal bureaucracy on Indian lands could be something to consider.

“I think that’s something that we potentially might want to look at and work on,” Lowenthal said last month while debating a bill (HR 4293) to provide categorical environmental exemptions for natural gas pipeline permits on federal and American Indian lands. Lowenthal opposed that measure because it would cut environmental protections.

Rep. Cynthia M. Lummis, R-Wyo., welcomed Lowenthal’s openness to considering potential jurisdiction issues.

“I’m delighted to hear Mr. Lowenthal say that we have problems in Indian lands with regard to multiple layers of bureaucracy,” she said. “It does transcend just oil and gas production — it goes to grazing and a whole variety of things.”

Republicans have pointed to flaring as a reason for expediting pipeline infrastructure and increasing exports, while Democrats have called for regulations to cut the waste and emissions from burning natural gas. Members from both parties agree that the problem is worse on tribal lands.