On July 25, 2016, the Corps granted permission to applicant Dakota Access, LLC, under Section 14 of the Rivers and Harbors Act of 1899, 33 U.S.C. 408 (408 permission), for a proposed pipeline crossing under Lake Oahe approximately 0.5 miles upstream of the northern boundary of the Standing Rock Reservation. The approximately 1,172-mile pipeline connects the Bakken and Three Forks oil production areas in North Dakota to an existing crude oil market near Patoka, Illinois.
The 408 permission was supported by a Finding of No Significant Impact (FONSI) based on an Environmental Assessment (EA), as contemplated under the National Environmental Policy Act (NEPA). This EA/FONSI was completed on July 25, 2016, the date that the Corps granted the 408 permission. On February 8, 2017, the Corps granted an easement, with conditions, to cross federal property administered by the Corps at Lake Oahe, North Dakota. The Corps granted the easement under the Mineral Leasing Act (MLA), 30 U.S.C. 185. The easement allowed for the installation, construction, operation, maintenance, repair, replacement, and termination of a thirty-inch diameter horizontal directional drill buried oil pipeline for the purpose of transporting crude oil, and related facilities, at or under Lake Oahe Project in North Dakota, with a 50-foot-wide width plus the ground occupied by the pipeline and related facilities. Operation of the pipeline began on June 1, 2017.
On March 25, 2020, the District Court for the District of Columbia ordered the Corps to prepare an EIS for this portion of the pipeline because the pipeline’s “effects on the quality of the human environment are likely to be highly controversial.”
Consistent with the Court’s decision, Dakota Access, LLC seeks an easement from the Corps for the original proposed project whose construction was completed on June 1, 2017. A decision on whether to authorize the pipeline to cross Lake Oahe at the proposed location would be based on: (1) the July 25, 2016, EA/FONSI; (2) the Corps’ August 31, 2018, analysis on remand from a decision by the District Court; and (3) additional analysis developed through this EIS.