Army Will Not Grant Easement for Dakota Access Pipeline

On December 4, the U.S. Army’s Assistant Secretary for Civil Works announced [link eliminated] that the Army will not approve an easement that would have allowed Energy Transfer Partners’ proposed Dakota Access Pipeline to cross under the Missouri River at Lake Oahe in North Dakota, effectively putting the project on hold.  In an accompanying memo, the Army Corps of Engineers explains the history and background of this decision.

The proposed Dakota Access Pipeline is approximately 1,172 miles of pipeline that would connect the Bakken and Three Forks oil production areas in North Dakota to an existing crude oil terminal near Patoka, Illinois. It is projected to transport 470,000 barrels of oil per day, if completed as planned.

Lake Oahe is a project of the Army Corps of Engineers on the Missouri River.  The pipeline’s proposed crossing at Lake Oahe thus requires several Corps approvals, including permission under Section 14 of the Rivers and Harbors Act of 1899 and an easement, or right-of-way, under the Mineral Leasing Act.

The Corps granted Section 14 permission in July 2016, accompanied by an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA), finding that the proposed crossing “did not constitute a major Federal action that would have significant environmental impacts.” The EA briefly described an alternative route, which would have crossed the Missouri River 10 miles north of Bismark, ND.

As to the easement, the proposed crossing of Lake Oahe is about 0.5 mile upstream of the Standing Rock Sioux Tribe’s reservation. Lake Oahe provides drinking water and irrigation to the Tribe, and portions of the lake downstream from the proposed crossing are within the Tribe’s reservation boundaries.  The Tribe also retains water, hunting, and fishing rights in the lake.  Protesters have gathered at the site since the spring (background here).

On November 14, the Army concluded that “additional discussion and analysis are warranted in light of the history of the Great Sioux Nation’s dispossessions of lands, the importance of Lake Oahe to the Tribe, our government-to-government relationship, and the statute governing easements through government property.”  The Army reports that there was a meeting December 2 between the representatives of the Tribe, the applicant, and the Corps.  This meeting included technical discussions and “a meaningful exchange of information.”

Citing the NEPA requirement to consider reasonable alternatives to recommended actions, including in “some cases where environmental effects on Tribal resources are at stake,” the Corps’ December 4 determination found that additional review and analysis is appropriate before deciding on the easement. That is, “the Army will not grant an easement to cross Lake Oahe at the proposed location on the current record.”

The Tribe released the statement of Standing Rock Sioux Tribal Chairman Dave Archambault II, applauding the administration’s efforts and decision to “genuinely consider the broad spectrum of tribal concerns.”

Energy Transfer Partners and Sunoco Logistics Partners released their statement that they “are fully committed to ensuring that this vital project is brought to completion and fully expect to complete construction of the pipeline without any additional rerouting in and around Lake Oahe.”

It remains to be seen what the incoming administration, with its indications of support for the project, will mean for the Dakota Access Pipeline.  As we have previously noted, a new administration cannot typically overturn an agency decision such as this without some scrutiny (although Congressional action on the project is also a possibility).

Litigation  against the pipeline remains pending, including a complaint brought in July by the Standing Rock Sioux and Earthjustice.  The court previously denied the Tribe’s motion for a preliminary injunction.  The company recently filed a motion for summary judgment.

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