The green light is on for the red-lighted Dakota Access pipeline, but the picture is still murky when it comes to how things will unfold from here.
A memo prepared by the U.S. Army Corps of Engineers sometime in December and contained in the paperwork filed Jan. 6 in U.S. District Court helps shed some light on what may occur, and also contains information that has, until now, been veiled from public view.
An official with the agency could not be reached to verify the exact timeframe of its preparation, but the memo references a Dec. 2 meeting with the tribe in its conclusions, and Assistant Secretary to the Army Jo Ellen Darcy’s announcement was made Dec. 4.
In the nine-page memo, Col. John W. Henderson of the Omaha District wrote that denying the easement would require a finding that the crossing was inconsistent with some aspect of the authorized purpose of the Lake Oahe project, or violated some other required parameter. An Environmental Assessment had already shown the former not to be the case, and Henderson lays out the remaining parameters that were met point by point.
The memo also mentions a December consultation with the tribe, held to discuss additional safety precautions that could be taken at the disputed crossing, as well as the risks in light of those additional steps and whether to issue the easement.
The three points are close in wording to what was ultimately published in a Federal Register notice that announced the start of a public scoping session for an Environmental Impact Statement to consider alternate routes.
Craig Stevens, with the MAIN Coalition, said the memo clearly shows that politics overrode an open and transparent public process, superseding it by political decisions that lay outside the known regulatory process.
“This memo demonstrates that the Army Corps of Engineers worked diligently — and in accordance with the law — to ensure the Dakota Access Pipeline was sited and constructed in the most environmentally and culturally sensitive manner possible,” he said.
It also showed, Stevens said, that the U.S. Army Corps of Engineers was going to issue the easement in December, until the Obama administration intervened.
“It’s now clear, and certainly unfortunate, that former assistant secretary of the Army, Jo Ellen Darcy, and other appointees in the Obama administration blocked the Corps’ work purely for political reasons,” he said. “We are pleased that President Trump is clearing the way for this and other important energy infrastructure projects to move forward.”
Permissions three at Lake Oahe
The nine-page memo lays out three permissions required for the Lake Oahe easement, and also sheds some light on discussions with the Standing Rock Sioux Tribe during November and December.
The Corps received the Dakota Access application for the Lake Oahe crossing on Oct. 21, 2014. The memo notes that the Corps has jurisdiction over 3 percent of the line, including the Lake Oahe crossing.
Three separate permissions were needed for the disputed crossing. The memo notes that the company had already met and received verification that its proposed crossing complied with Nationwide Permit 12 requirements, which is part of the Clean Water and the Rivers and Harbors acts.
The permission under Section 408 required an Environmental Assessment to examine whether safety precautions at the crossing were stringent enough to ensure the safety of water at the lake, as well as to ensure that the project’s mission of flood control, navigable waters and recreation are not impeded.
That study found no significant impact. Henderson noted in his memo that the line would be drilled 92 feet under the lake bed, and would include a number of safety precautions, including thicker walls, electronic and computational pipeline monitoring, leak detection systems sensitive enough to detect a leak of 1 percent in an hour or a rupture in 30 seconds, and block valves to allow immediate shutdown if any leaks were detected. The memo also mentions the fact the pipeline is co-located with another easement, which the U.S. Army Corps of Engineers is required to do whenever possible.
The remaining permission involved an easement to work on the property, which is federally owned and managed. Henderson’s memo runs through all the reasons why that last easement might legally be denied, and concludes there aren’t any. Given that, it was his recommendation that, after the required notification to Congress, the Omaha District should issue the easement to Dakota Access.
When it comes to tribal consultation, Henderson’s memo notes that the pipeline doesn’t cross the reservation of the Standing Rock Sioux tribe, and states that the pipeline won’t directly affect them. Therefore, under existing law, the agency was not required to consult them, Henderson wrote, but nonetheless did so prior to the pipeline beginning work, exceeding requirements.
The Corps sought additional consultation with the tribe on Nov. 14, according to the memo, to seek conditions that would address the Tribe’s concerns.
A return letter from Chairman Dave Archambault reiterated that the easement must be denied and said that for discussions to be productive, they must take that position into account. The letter also requested a number of items for an expert the tribe had hired to examine the pipeline. Archambault did agree to meet with the Corps on Dec. 2 to discuss potential terms and conditions that could be placed on the easement, but there is no detail on what those might have been.
What the future may hold
Two plausible scenarios would be proceeding with an expedited Environmental Impact Statement, or simply withdrawing the public notice to begin one and returning to Henderson’s recommendation to issue the easement.
If the former way, there is a similar case that provides a little bit of a model in the Glendive Intake Dam, which ran aground after two environmental groups filed suit in an effort to force removal of the diversion dam, which provides water to 58,000 farmers in the region. In that case, since an Environmental Assessment had already been completed for the dam, the Corps was able to expedite the Environmental Impact Statement in much less time than usual. A large portion of the engineering work required had already been done on some of the options considered, so it was a matter of adding in study of the additions and holding additional hearings.
Those close to the Dakota Access issue have suggested that the latter scenario is more probable, given that the Corps had already prepared legal justification for the crossing that had been ruled adequate and legal by a federal court.
“The memo beautifully outlines all of the legal reasons why they should issue the easement,” Rep. Kevin Cramer said. “And the timing of it to me makes it difficult for a legal challenge against the easement. Any judge would have a hard time at this point reading that and concluding something different.”
That move, however, is sure to draw continued protests, as well as more litigation from the Standing Rock Sioux Tribe, who have argued that their treaty rights to Lake Oahe should be considered and respected, and national environmental groups, which want to stop pipelines altogether.