A 91-page memorandum shows the close relationship between DAPL and the Army Corps of Engineers
On Wednesday US District Court Judge James Boasburg’s decision was that the Corps did not consider environmental justice when approving the Dakota Access Pipeline
The memorandum showed that DAPL worked with the Corps to create their Environmental Assessment
It is not decided if the Dakota Access Pipeline will have to stop operations during the court ordered remand
Some water protectors are celebrating a victory based off of a Thursday decision in federal court that said DAPL violated critical laws in order to get the $3.8 billion project up and running.
A 91-page memorandum shows US District Court Judge James Boasburg decision that the US Army Corps of Engineers did not adequately consider the environmental justice implications of the project or how a potential oil spill might affect the Standing Rock Sioux Tribe’s hunting and fishing.
The Standing Rock Sioux Tribe brought two substantial legal challenges against DAPL. The first contended that the grading and clearing of land for the pipeline threatened sites of cultural and historical significance. The second alleged the US Army Corps of Engineers had neglected their duty to engage in tribal consultations under the National Historic Preservation Act.
National Environmental Preservation Act
Both challenges were rejected by the courts, which forced the Standing Rock Sioux Tribe, along with Cheyenne River to make a third attempt. This time the challenge was brought against DAPL’s environmental impact, namely the The Corps failure to comply with the National Environmental Policy Act (NEPA).
To correct those violations, the ACOE is forced to reconsider those sections of its environmental analysis on remand by the Court. At this time it is not yet decided if DAPL will have to shut down operations of the pipeline during the remand, but that decision will be made in a future briefing.
NEPA was designed “to consider every significant aspect of the environmental impact of a proposed action,” while ensuring that the “agency will inform the public that it has indeed considered environmental concerns in its decision-making process.” NEPA’s requirements are “procedural,” requiring “agencies to imbue their decision-making, through the use of certain procedures, with our country’s commitment to environmental salubrity.”
Following NEPA, an agency must prepare an Environmental Impact Statement for any proposed major federal action that has the possibility of “significantly affecting the quality of the human environment.” An EIS must detail the environmental impact of the proposed action, any unavoidable adverse effects, alternatives to the proposed action, the relationship between short-term uses of the environment and long-term productivity, and any irreversible commitments of resources.
Draft Environmental Assessment
In December of 2015, the Corps posted and requested public comment on a Draft Environmental Assessment that evaluated DAPL’s proposed crossing of Lake Oahe. The conclusion of the EA was that “construction of the proposed Project [was] not expected to have any significant direct, indirect, or cumulative impacts on the environment.”
The Standing Rock Sioux Tribe commented that the draft failed to adequately address potential harm from the pipeline’s construction and operations to the Lake’s water. The draft also did not acknowledge the pipeline’s proximity to the Reservation, insufficiently analyzed the risks of an oil spill and did not adequately address environmental justice considerations.
The SRST requested the Corps conduct an EIS to assess the pipeline’s effects, a request they had made before the draft.
Environmental Protection Agency
The Environmental Protection Agency shared the same concern with the Draft EA, stating that the draft “lack[ed] sufficient analysis of direct and indirect impacts to water resources.” The EPA also claimed the draft did not adequately address “the measures that will be required to assure that impacts from construction and operation of the pipeline are not significant,” and did “not identify the related effects from the entire project segment.”
The EPA did not believe that the Draft EA would “support a FONSI,” but still did not request the Corps to put together an EIS. Instead, the EPA suggested that “information and mitigation could be added to the EA in order to support a mitigated FONSI.” A FONSI is issued after the EA process finds a project to have no significant impacts on the quality of the environment.
After the EPA had learned just how close the Dakota Access Pipeline was to the SRST, it was recommended that the Corps revise their Draft EA. Part of that revision included a second public-comment period to assess the potential risks to the SRST and drinking water, and additional concerns involving environmental justice, and emergency response time to any spills.
The EPA took issue with the Draft EA’s spill analysis, stating that despite the claim of a minimal spill risk associated, based on “experience in spill response,” could significantly affect water. This concern was based on Dakota Access Pipeline’s ability to pump 13,100 to 16,600 gallons per minute of crude oil and the proximity of drinking-water intakes to the Oahe crossing.
July 25 2016
On July 25, 2016, the Corps published the Final EA and a “Mitigated Finding of No Significant Impact.” DAPL prepared the Final EA Draft with involvement from the Corps. The Mitigated FONSI showed that the Corps “coordinated closely with Dakota Access to avoid, mitigate and minimize potential impacts of the Proposed Action.”
DAPL was placed in charge of mainly heading up the details for their horizontal directional drilling (HDD) technology that was being used to drill under Lake Oahe. Court documents say that DAPL was required to comply with a set of mitigation measures established in the EA.
After being given the measures by DAPL that “anticipated environmental, economic, cultural, . . . social[, and] . . .cumulative effects,” the Corps decided that the pipeline would not “significantly affect the quality of the human environment.” The Corps stated that an EIS was not necessary.
The Corps confirmed that DAPL met the terms and conditions of NWP 12 and granted the permission under Section 408 of the Rivers and Harbors Act for DAPL’s placement under Lake Oahe. Section 408 reads as follows:
Section 14 of the Rivers and Harbors Act of 1899, as amended, and codified in 33 USC 408 (Section 408) provides that the Secretary of the Army may, upon the recommendation of the Chief of Engineers, grant permission to other entities for the permanent or temporary alteration or use of any USACE Civil Works project.
On July 31, 2014, the Corps issued Engineer Circular (EC) 1165-2-216, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 USC 408. The EC provides the requirements and procedures for an overall review process that can be tailored to the scope, scale, and complexity of individual proposed alternations, and provides infrastructure specific considerations for dams, levees, floodwalls, flood risk management channels, and navigation projects.
The memorandum goes on to show a steady relationship between the Corps and DAPL. While some view Wednesday’s court decision as a major victory, Energy Transfer Partners who owns the Dakota Access, showed little concern in a statement released by the company.
Dakota Access believes the record supports the fact that the Corps properly evaluated both issues, and that the record will enable the Corps to substantiate and reaffirm its prior determinations.
At this time, operations of the Dakota Access Pipeline has not been halted. The next court date is set for June 21, where a decision may be made to stop operations during the court remand. However, after seeing how close DAPL and the Corps have worked together over the last year, and with the leak of TigerSwan documents, it is still unknown if the pipeline is receiving preferential treatment. The entire 91 page memorandum can be read below.