On November 19, 2015, the Bureau of Indian Affairs (BIA) finalized revisions to the regulations governing rights-of-way on Indian land and BIA land at 25 CFR part 169. The regulations became effective on April 21, 2016 (see 81 FR 14976). The final regulations established new requirements for bonding, insurance, or alternative form of security to cover the annual rental, estimated damages, operation and maintenance charges, and restoration (see 25 CFR 169.103(a)). The regulations allow for waiver of this requirement on a case-by-case basis (see 25 CFR 16.103(f)). Currently, a governmental entity applying for a right-of-way across Indian land or BIA land must seek a waiver (and landowner consent for the waiver) from the requirement to provide bonding, insurance, or alternate security in those cases in which the entity is prohibited by law from obtaining such bonding, insurance, or alternate security.
On July 23, 2018, the BIA published a Federal Register notice (83 FR 34802) on a proposed rule to exempt Federal, State, Tribal, and local governments from the requirement to obtain a bond, insurance, or alternative form of security for a right-of-way across Indian land and BIA land where such governments are prohibited by law from obtaining security.
