May 3, 2024
Offshore Wind: The Bureau of Ocean Energy Management’s
Engagement with Federally Recognized Tribes
The Bureau of Ocean Energy Management (BOEM), within
for geophysical sound surveys, so that active survey areas
the Department of the Interior (DOI), administers offshore
are clear of marine mammals and sea turtles. During both
wind leasing on the U.S. outer continental shelf (OCS).
surveys and project construction, BOEM may require
Among its responsibilities, BOEM engages with federally
monitoring in conjunction with NOAA. NOAA’s trained
recognized Tribes (hereinafter Tribes) at multiple stages of
Protected Species Observers look for marine mammals so
the wind leasing process. Some Tribes have historical
that the possibility of vessel strikes is minimized.
connections and/or treaty rights to natural and cultural
resources in OCS areas that inform their views on offshore
Tribal Connections to Areas of Potential
wind development. BOEM’s policies for tribal engagement,
Offshore Wind Development
and the extent to which BOEM incorporates tribal feedback
Some Tribes have historical connections and/or treaty rights
into its offshore wind leasing decisions, have been subjects
in offshore areas. In the 18th and 19th centuries, the federal
of congressional interest.
government removed many Tribes from their ancestral
homelands through treaties and other means. Due to the key
Federal agencies other than BOEM, such as the National
role native fish and wildlife played in many Tribes’
Oceanic and Atmospheric Administration (NOAA) and the
histories, culture, religion, and economic development,
U.S. Army Corps of Engineers, also have certain permitting
Tribes often reserved rights to maintain access to those
responsibilities for offshore wind projects. These agencies’
resources through treaties. In the Pacific Northwest, several
tribal engagement policies and activities are beyond the
tribal treaties reserved rights to take fish (e.g., Pacific
scope of this CRS product.
groundfish) and other wildlife at “usual and accustomed”
places, which included offshore areas. Tribes without treaty
BOEM’s Offshore Wind Activities
rights may nonetheless practice historic customs such as
BOEM administers offshore wind leasing under the Outer
fishing and gathering and may claim that they continue to
Continental Shelf Lands Act (OCSLA; 43 U.S.C. §1337(p))
exercise sovereignty over their traditional land and waters.
and other laws. BOEM uses a multiphased approach to
grant access to ocean areas deemed suitable for wind
Tribes also may have cultural connections to areas of
energy development. BOEM’s process includes calls for
potential offshore wind development. For example,
interest in offshore wind development in particular OCS
gathering, fishing, and whaling historically have served
regions or areas, subsequent assessments to narrow
important social, economic, and ceremonial roles for many
proposed areas to those most suitable for leasing, conduct
coastal Tribes. In addition, some tribal oral histories and
of lease sales, and review and approval of lessees’ site
ongoing scientific studies indicate that thousands of years
assessment plans (SAPs) and construction and operations
ago, tribal ancestors lived in areas that are now underwater.
plans (COPs). BOEM solicits public feedback at multiple
Therefore, submerged cultural sites could exist offshore.
stages and must comply with public scoping requirements
of the National Environmental Policy Act (NEPA; 42
Due to these historical and continuing connections, some
U.S.C. §§4321 et seq.).
Tribes have expressed concern about potential negative
impacts of offshore wind on natural and cultural resources,
Under both the OCSLA and NEPA, BOEM must assess the
such as potential impacts to traditional fishing grounds or
potential environmental impacts of offshore wind projects
offshore burial grounds. Other Tribes have opposed these
on the marine ecosystem. Projects may have both adverse
projects because they could obstruct culturally and
and beneficial impacts, such as changes to the ocean
spiritually significant viewsheds.
environment; habitat alterations; risks that living marine
resources may collide with construction vessels and
BOEM’s Tribal Engagement Authorities
offshore wind structures; altered behaviors and disturbance
and Policies
of migration paths of certain fish, marine mammals, and
The federal government and Tribes have a complex history
birds; and water pollution. Some observers also emphasize
that continues to affect their relationships today. The
offshore wind’s potential to play a longer-term role in
federal trust responsibility is a legal obligation under which
reducing climate change impacts to marine environments.
the United States, through treaties, acts of Congress, and
court decisions, “has charged itself with moral obligations
BOEM requires, both through lease stipulations and as part
of the highest responsibility and trust” toward Tribes
of the approval process for SAPs and COPs, that offshore
(Seminole Nation v. United States, 316 U.S. 286, 296-297
wind project developers take steps to mitigate potential
(1942). This responsibility can include obligations to
adverse environmental impacts. As one example, BOEM
protect tribal treaty rights as well as lands, assets, and
has directed lessees to establish “acoustic exclusion zones”
resources on behalf of Tribes.
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Offshore Wind: The Bureau of Ocean Energy Management’s Engagement with Federal y Recognized Tribes
The federal trust responsibility underpins multiple statutory
projects. The National Congress of American Indians
and regulatory requirements concerning tribal consultation.
(NCAI) has asserted that Tribes should be able to negotiate
For example, the National Historic Preservation Act
fair compensation for the use of tribal lands and resources,
(NHPA; 54 U.S.C. §§300101 et seq.) requires tribal
including revenue sharing.
consultation when federal actions may impact tribal
historic, cultural, and religious sites. Agencies also may
In light of all these tribal concerns, in 2023 NCAI urged
invite Tribes to be cooperating agencies in the development
BOEM to stop scoping and permitting offshore wind
of required documents under NEPA. Pursuant to such
projects until the agency developed a procedure that
authorities, BOEM invites Tribes to be cooperating
protected tribal “environmental and sovereign interests.”
agencies in NEPA reviews for offshore wind COPs and
consults with Tribes under Section 106 of the NHPA when
BOEM Tribal Engagement Efforts
considering approvals for activities that may impact tribal
BOEM is taking steps to expand its tribal engagement and
historic, cultural, and religious sites.
consultation. BOEM has stated that it “needs an improved
understanding” of tribal relationships with the marine and
The federal trust responsibility also is the basis for several
coastal environments to better assess the effects of wind
executive orders, presidential memoranda, and
energy development on cultural sites. To develop that
departmental policies on tribal consultation. For example,
understanding, BOEM has initiated a series of collaborative
Executive Order 13175 requires agencies to conduct
research projects to develop cultural landscape assessments.
“meaningful consultation” with Tribes for federal actions
with potential “tribal implications.” In addition, DOI and
Beyond these studies, in FY2022 (the most recent year
BOEM have issued departmental and agency-specific tribal
available), BOEM reported on multiple actions:
consultation policies. Under these policies, BOEM conducts
• developed new lease stipulations requiring lessees to
formal tribal consultations and engages informally by
draft tribal communication plans for leases in the New
meeting with Tribes at multiple stages of the offshore wind
York Bight, Carolina Long Bay, and California;
leasing and permitting process. For example, Tribes have
• hosted meetings with BOEM leadership and Tribes in
participated in BOEM’s intergovernmental renewable
energy task forces, which provide BOEM with feedback on
the Atlantic, Pacific, and Gulf of Mexico regions;
proposed regional offshore wind activities.
• developed an interagency tribal engagement series on
offshore wind for FY2023; and
BOEM also has encouraged offshore wind developers to
• issued a contract to three Indian-owned businesses to
cooperate with Tribes. At some lease auctions, BOEM has
facilitate tribal review of offshore wind documents
awarded bidding credits to developers who contribute to
Issues for Congress
tribal offshore wind workforce development or negotiate
community benefit agreements (CBAs) with Tribes. CBAs
In recent decades, congressional interest in federal-tribal
address potential impacts to communities that use lease
consultation on federal actions has grown, especially as
areas or are otherwise impacted by lease area development.
some Tribes have sought more input into federal
CBA benefits may include community payments. BOEM
decisionmaking. Tribal consultation issues for BOEM
also has included stipulations in offshore wind leases that
include what it should encompass, when it should occur,
require developers to engage with Tribes and report on their
and how the agency should consider tribal input. For
engagements. BOEM guidance directs lessees to work with
example, some Members of Congress have requested
Tribes to establish “the level of engagement the Tribe
extensions of the agency’s public comment periods to allow
for “robust comments” from Tribes and other communities.
considers appropriate.” One example of cooperation is a

joint letter in which the Northern Chumash Tribal Council
(a California state-recognized tribe) and three offshore wind
Beyond consultation, Congress could consider whether to
maintain BOEM’s current framework for tribal involvement
lessees expressed support for a phased approach to the
proposed designation of a NOAA marine sanctuary.
or provide the agency with additional mandates and funding
to address tribal concerns about offshore wind. For
Tribal Concerns About BOEM’s
example, options could include establishing programs for
Engagement
tribal capacity-building, requiring archaeological surveys
Some Tribes and tribal associations have expressed
earlier in the leasing process, directing that leases mandate
concerns that BOEM is inadequately engaging or
CBAs with affected Tribes, establishing tribal revenue
consulting with Tribes about offshore wind projects. Some
sharing, or paying Tribes to monitor leases for potential
Tribes have sued BOEM, claiming inadequate or untimely
impacts. Congress also may continue to deliberate actions
consultation under the NHPA and other statutes. Some
to mitigate potential marine ecosystem impacts of offshore
Tribes have advocated not only for consultation but also for
wind, including any impacts to tribal treaty rights to
a standard that Tribes must provide free, prior, and
offshore groundfish, salmon, and other species.
informed consent for activities within BOEM’s jurisdiction
that affect them. Some Tribes also have expressed concern
Mariel J. Murray, Specialist in Natural Resources Policy
about a lack of capacity to analyze highly technical
Laura B. Comay, Specialist in Natural Resources Policy
documents, such as environmental impact statements,
Anthony R. Marshak, Analyst in Natural Resources
within BOEM’s required timeframes. In addition, some
Policy
Tribes have advocated for an increased opportunity to share
in the potential economic benefits of offshore wind
IF12650
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Offshore Wind: The Bureau of Ocean Energy Management’s Engagement with Federal y Recognized Tribes


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https://crsreports.congress.gov | IF12650 · VERSION 1 · NEW

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