The U.S. Army Corps of Engineers has not issued a decision in response to Dakota Access, LLC’s application for permits and permissions to construct and operate the Dakota Access Pipeline Project.
The applicant has requested that USACE issue permits under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 for water body crossings, as well as provide the permission required by Section 14 of the Rivers and Harbors Act of 1899, codified at 33 U.S.C. 408 (Section 408).
The project is a crude oil pipeline which would connect the Bakken and Three Forks crude oil production areas in North Dakota to existing infrastructure in Illinois. While most of the 1,170-mile project crosses private lands the U.S. Army Corps of Engineers has jurisdiction on approximately 37 miles, or about 3 percent of the project.
On Dec. 9, the Omaha District released a draft environmental assessment and a notice requesting public comments for the two Missouri River crossing locations in North Dakota. The EA is being completed in support of the Section 408 permission that was requested. The period to receive public comments closed Jan. 8.
The environmental assessment addresses the potential impacts and proposed mitigation at the two Missouri River crossing locations where the proposed pipeline would cross flowage easements or federal lands. The flowage easements are upstream of Lake Sakakawea in Williams County, and the federally-owned property is at Lake Oahe in Morton and Emmons counties.
The District must review and consider comments received during the public comment period. “Considering comments means checking whether the concern has been addressed or changes are needed to the EA,” said Larry Janis, Chief of Recreation and Natural Resources for the Omaha District. “This process can take time to complete.”
Comments received after the public comment period is closed, but before a federal decision is rendered, are reviewed to determine whether the concern has been adequately addressed in the EA. “The District will require the applicant to address those comments that are substantive,” said Janis.
The St Louis District has completed a draft EA for the proposed Illinois River navigable channel crossing at Milepost 901, Coon Run Levee, McGee Creek Levee, and the Carlyle Lake flowage and is also working toward a final decision.
Additionally, 209 pre-construction notifications have been submitted to USACE Regulatory Offices in North Dakota, South Dakota, Iowa and Illinois for verification under Nationwide Permit #12, Utility Lines.
“The USACE Section 404 and Section 10 verification for each of the 209 preconstruction notification crossings is critically reviewed as a “separate and complete project” for compliance with the national review process for Nationwide Permits. The approach is consistent with similar pipeline projects and emphasizes an opportunity for Tribes to provide input and consult on the project,” said Martha Chieply, Chief of Regulatory programs for the Omaha District.
Before USACE may verify any of the 209 crossings, it must meet the requirements of Section 106 of the National Historic Preservation Act and consult with each respective state’s Historic Preservation Officer, as well as with interested Tribal governments, to examine potential impacts to cultural resources. USACE must also consult with the U.S. Fish and Wildlife Service under Section 7 of the Endangered Species Act to examine the potential for impacts to threatened, endangered and sensitive species.
Tribal consultation is conducted government-to-government in accordance with federal trust responsibilities. Representatives from Omaha District, including District Commander, Col. John Henderson, have met with several Tribal leaders in South Dakota and North Dakota, including representatives from the Standing Rock Sioux Tribe on April 29.
“The U.S. Army Corps of Engineers is not an opponent or a proponent of the project,” said Henderson. “Our job is to consider impacts to the public and the environment as well as follow all applicable laws, regulations, and policies associated with this permission and permit review process.