USACE has received several common questions during the evaluation of the DAPL project. These questions and answers are provided below.
Question: What are the specific actions Dakota Access has requested of the Corps?
Answer: These are the actions required of the United States Army Corps of Engineers:
1) The verification of Nationwide Permit #12 permits under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act (Section 10/404) for 202 proposed jurisdictional crossings of waters of the United States in the states of North Dakota, South Dakota, Iowa and Illinois;
2) The grant of permissions under Section 14 of the Rivers and Harbors Act of 1899, codified 33 U.S.C. Section 408 (Section 408) for consent to cross flowage easements acquired and administered by USACE at:
a) Lake Sakakawea, North Dakota
b) Carlyle Reservoir, Illinois for federal flood control and navigation projects;
3) The grant of Section 408 permissions to modify the Oahe Dam/Lake Oahe project by granting easements for the DAPL project to cross federal property administered by USACE for the flood control and navigation project.
4) The grant of Section 408 permission to cross the following:
a) McGee Creek Levee in Pike County, Illinois
b) Illinois River navigation channel in Pike and Morgan counties, Illinois
c) Coon Run Levees in Scott County, Illinois,
5) The grant of a Section 408 permission to horizontally directionally drill (HDD) under the Mississippi River navigation channel, operated by the Rock Island District.
Question: What is a Section 408 permission?
Answer: Section 14 of the Rivers and Harbors Act of 1899, codified 33 U.S.C. Section 408 (Section 408) authorizes the Corps to grant permission to Dakota Access to modify federal flood control and navigation projects, provided the modifications are not injurious to the public interest and will not impair the usefulness of the projects.
Question: What decisions have been made?
Answer: On July 25, 2016, the Omaha, Rock Island, and St. Louis Districts verified 200 crossings of jurisdictional waters of the United States under Nationwide Permit #12, and the Omaha and Rock Island District commanders approved three (3) Section 408 permissions. One Omaha District permission requires the District to grant an easement for the DAPL project to be placed under Lake Oahe by HDD. The Mineral Leasing Act requires the Corps to provide congressional notification before it may grant the easement. The Districts may not execute outgrants for the Section 408 permission locations until USACE has provided congressional notification.
On August 4, 2016, the St. Louis District granted Section 408 permissions for crossings at (1) McGee Creek and (2) Coon Run Levees in Illinois; (3) Carlyle Lake flowage easements in Illinois, and (4) Illinois River navigation channel in Pike and Morgan counties Illinois. A consent to cross flowage easements for Carlyle Lake, Illinois is also complete. Verifications under Section 404/10 Nationwide Permit #12 for crossings at Illinois River and Carlyle Lake were also issued.
A change to the construction method for one (1) crossing in South Dakota is no longer under USACE jurisdiction under Section 404/10.
Question: When was the Final Environmental Assessment for the Missouri River Crossings of the Dakota Access Pipeline released to the public?
Answer: The Finding of No Significant Impact and Final Environmental Assessments were signed and released to the public the week of July 25, 2016.
Question: Does this mean the complete pipeline was approved by USACE? If not, why wasn’t the entire project federalized and an Environmental Impact Statement (EIS) prepared for the whole 1,168-mile pipeline?
Answer: No federal agency has jurisdiction over oil pipelines. For this project, USACE has jurisdiction over a very small portion of the overall pipeline and may not regulate where it does not have jurisdiction. In this case, it may only regulate the areas where the pipeline crosses waters of the United States or federal real property interests acquired and managed by the Corps for flood control and navigation projects.
Under Section 10/404, 202 jurisdictional crossings apply. USACE must review each crossing as a “single and complete” project for the purposes of verifying Nationwide Permits (NWP). NWP 12 authorizes utility line construction activities that affect no more than ½ acre of jurisdictional waters at any single crossing, and which otherwise comply with the NWP 12 general conditions. USACE has regulatory jurisdiction over approximately 37 miles of the 1,168-miles of proposed pipeline. The National Environmental Policy Act (NEPA) applies to Section 10/404 decisions. That process was completed when NWP 12 was issued in 2012. This process is underway for permits expiring in March 2017.
In locations where federal real property interests acquired and managed by the Corps for flood control and navigation projects are apply, 33 U.S.C. Section 408 authorizes USACE to give permission for a pipeline to cross federal project lands and flowage easements after determining that it will not be injurious to the public interest and will not impair the usefulness of the federal projects. NEPA applies to these permissions and USACE drafted an Environmental Assessment (EA) to determine if the placement and operation and maintenance of the pipeline on federal real property interests have potential to cause significant environmental effects. If there is such potential, USACE will prepare an Environmental Impact Statement (EIS); if not, USACE will issue a Finding of No Significant Impact.
Question: Why is there development of this type on USACE-managed lands?
Answer: Every application for use of federal lands, regardless of intended use, must be evaluated by USACE. If it is determined that the use will not be injurious to the public interest and will not impair the usefulness of the project, an easement may be granted.
Question: Which USACE officials decide on issuing a 404/10 permit or making a determination under Section 408?
Answer: The District Commanders for the Omaha, St Louis, and Rock Island Districts are authorized to sign the NEPA decision documents, give Section 408 permissions and verify the Nationwide Permits for the areas under their jurisdiction. Commanders may also delegate Nationwide Permit authorities to District or state Regulatory program managers.
Tribal Trust Responsibilities / National Historic Preservation Act
Question: How has the Corps complied with Section 106 of the National Historic Preservation Act?
Answer: USACE complied with all applicable laws and regulations to meet its obligations under Section 106 of the National Historic Preservation Act. Compliance activities include completing site specific cultural resource surveys for USACE jurisdictional areas; facilitating individual Tribal site surveys; consulting with the Advisory council on Historic Preservation (ACHP), respective State Historic Preservation Offices and Tribal Historic Preservation Offices or other designated Tribal representatives. The Assistant Secretary of the Army, Civil Works (ASA[CW]) responded to a letter from the ACHP noting that their objections and recommendations had been considered in compliance with Section 106 obligations providing rationale for the decisions that were made.
Question: How has USACE met its Tribal Trust Responsibility to the Tribes?
Answer: Tribal Consultation is a key obligation under Section 106 of the National Historic Preservation Act. Consultation began in September 2014. In that time, USACE representatives, including the Omaha District Commander met with consulting parties (Tribes; State and Tribal Historic Preservation Offices, the ACHP, and interested parties) more than 250 times [according to the USACE Environmental Assessment Administrative Record]. USACE met with tribal leaders on several occasions, attended comprehensive consultation meetings with representatives from numerous Tribes; have met with individual Tribes, and have attempted to accommodate specific requests. USACE continues to meet government-to-government in accordance with federal trust responsibilities. All Tribal comments are fully considered before any final decision requiring Section 106 consultation is made.
Question: If human burials were found on a jurisdictional area does USACE address this?
Answer: USACE is not authorized to share locations or information concerning historic properties. In locations where there is the potential for an unintentional discovery of historical or cultural significance to include human burials, USACE complies with the applicable regulations and includes language in its permits outlining requirements under those regulations. Generally, if a location is a known burial site, the applicant was required to adjust the alignment of the pipeline to avoid burials.
Question: Will HDD impact cultural resources?
Answer: Dakota Access consulted with GeoEngineers, its HDD subcontractor, and provided information that indicates vibrations produced during the drilling process are not of a magnitude to impact natural features, cultural resource features or structures. The crossing at Lake Oahe is 30 in. in dia. and will be placed approximately 140-210 feet below the ground surface of federal lands and approximately 92 feet below the bottom of Lake Oahe where it crosses approximately 0.21 miles of federal lands. Any vibrations associated with the drilling process would be limited to the immediate vicinity of the drilling equipment on the surface and down hole. The vibrations produced by equipment at the surface are no more than any other type of civil earthwork project. Vibrations produced from the down-hole tooling are of a very low magnitude and are attenuated very quickly so that vibrations are not felt at the surface. GeoEngineers performed vibration monitoring at one HDD site at the request of adjacent homeowners who were concerned about vibration from the construction activities, and the results of the vibration monitoring indicated the vibrations were imperceptible to human senses. Based on this information, it is not anticipated that the vibrations during construction will have a perceptible impact on cultural resources..
Question: The applicant proposed to use horizontal directional drilling (HDD) in for installation at the Lake Oahe crossing. Has USACE considered the possibility that HDD would not be feasible at the proposed Lake Oahe crossing, and that a different approach, that requires dredging, would be necessary?
Answer: USACE considered the possibility that HDD may not be feasible at the proposed Lake Oahe crossing and requested the applicant to complete a geotechnical investigation (borings) to determine feasibility. Results from the investigation are discussed in the Final EA, dated July 2016 and the geotechnical reports are included as Appendix D in the EA. Based on this information, it was determined that HDD is a feasible construction method. If HDD is determined to be infeasible, USACE will reassess the project. The Finding of No Significant Impact and Final EA are available here.