Petition for Writ of Certiorari — Dakota Access, LLC, Petitioner v. Standing Rock Sioux Tribe, et al.
Supreme Court briefSep 20, 2021
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No. 21-
IN THE
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_______________
DAKOTA ACCESS, LLC,
Petitioner,
v.
STANDING ROCK SIOUX TRIBE, ET AL.,
Respondents.
_______________
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
_______________
APPENDIX TO PETITION
FOR A WRIT OF CERTIORARI
VOLUME I OF III
_______________
MIGUEL A. ESTRADA
Counsel of Record
WILLIAM S. SCHERMAN
DAVID DEBOLD
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
mestrada@gibsondunn.com
Counsel for Dakota Access, LLC
i
TABLE OF APPENDICES
Page
VOLUME I
APPENDIX A:
Opinion of the U.S. Court of Appeals for
the District of Columbia Circuit, 985
F.3d 1032 (Jan. 26, 2021) .............................. 1a
APPENDIX B:
U.S. Army Corps of Engineers,
Environmental Assessment – Dakota
Access Pipeline Project Crossings for
Flowage Easements and Federal Lands
(July 2016) ................................................... 41a
APPENDIX C:
Memorandum Opinion of the U.S.
District Court for the District of
Columbia Remanding Environmental
Assessment, 255 F. Supp. 3d 101 (June
14, 2017) ..................................................... 359a
VOLUME II
APPENDIX D:
Memorandum Opinion of the U.S.
District Court for the District of
Columbia Ordering Remaind Without
Vacatur, 282 F. Supp. 3d 91 (Oct. 11,
2017) ........................................................... 466a
APPENDIX E:
U.S. Army Corps of Engineers,
Memorandum
for
Record
on
Consideration of Issues Remanded (Aug.
31, 2018) ..................................................... 500a
ii
APPENDIX F:
U.S. Army Corps of Engineers, Review
and Analysis of Tribes’ Submissions
(Aug. 31, 2018) (Redacted) ........................ 503a
APPENDIX G:
Memorandum Opinion of the U.S.
District Court for the District of
Columbia Granting Summary Judgment
in Favor of Plaintiffs, 440 F. Supp. 3d 1
(Mar. 25, 2020) ........................................... 776a
APPENDIX H:
Memorandum Opinion of the U.S.
District Court for the District of
Columbia Ordering Vacatur, 471 F.
Supp. 3d 71 (July 6, 2020) ......................... 826a
APPENDIX I:
Per Curiam Order of the U.S. Court of
Appeals for the District of Columbia
Circuit Granting in Part and Denying in
Part Defendants’ Motions for a Stay
Pending Appeal (Aug. 5, 2020) .................. 855a
APPENDIX J:
Memorandum Opinion of the U.S.
District Court for the District of
Columbia Denying Plaintiffs’ Motion for
Clarification
and
a
Permanent
Injunction, -- F. Supp. 3d -- (May 21,
2021) ........................................................... 858a
APPENDIX K:
Order of the U.S. Court of Appeals for
the District of Columbia Circuit Denying
Rehearing En Banc (Apr. 23, 2021) .......... 895a
iii
APPENDIX L:
Statutory Provisions and Regulations
Involved ...................................................... 897a
5 U.S.C. § 702 ....................................... 897a
5 U.S.C. § 706 ....................................... 898a
30 U.S.C. § 185 (a), (b), (f), (h) ............. 899a
42 U.S.C. § 4332(2)(C).......................... 901a
33 C.F.R. pt. 325, App. B (2019) .......... 903a
40 C.F.R. § 1501.4 (2019) ..................... 908a
40 C.F.R. § 1508.28 (2019) ................... 910a
VOLUME III (SEALED)
APPENDIX M:
U.S. Army Corp of Engineers, Analysis of
the Issues Remanded (Aug. 31, 2018) ....... 913a
1a
____________________
APPENDIX A
____________________
United States Court Of Appeals
For The District Of Columbia Circuit
_____________
Argued November 4, 2020 Decided January 26, 2021
No. 20-5197
STANDING ROCK SIOUX TRIBE, ET AL.,
APPELLEES
v.
UNITED STATES ARMY CORPS OF ENGINEERS,
APPELLANT
DAKOTA ACCESS LLC,
INTERVENOR
_____________
Consolidated with 20-5201
_____________
Appeals from the United States District Court
for the District of Columbia
(No. 1:16-cv-01534)
_____________
James A. Maysonett, Attorney, U.S. Department
of Justice, argued the cause for appellant United
States Army Corps of Engineers. With him on the
briefs were Jeffrey Bossert Clark, Assistant Attorney
General, Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, Eric A. Grant, Deputy Assistant Attorney General, and Andrew C. Mergen and
Erica M .Zilioli, Attorneys.
2a
Miguel A. Estrada argued the cause for appellant
Dakota Access LLC. With him on the briefs were William S. Scherman and David J. Debold.
Wayne K. Steneljem, Attorney General, Office of
the Attorney General for the State of North Dakota,
and Matthew A. Sagsveen, Solicitor General, were on
the brief for amicus curiae the State of North Dakota.
Tim Fox, Attorney General, Office of the Attorney
General for the State of Montana, Curtis T Hill, Jr.,
Attorney General, Office of the Attorney General for
the State of Indiana, Thomas M. Fisher, Solicitor General, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Derek Schmidt,
Attorney General, Office of the Attorney General for
the State of Kansas, Daniel Cameron, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Jeff Landry, Attorney General,
Office of the Attorney General for the State of Louisiana, Doug Peterson, Attorney General, Office of the
Attorney General for the State of Nebraska, Dave
Yost, Attorney General, Office of the Attorney General
for the State of Ohio, Jason Ravnsborg, Attorney General, Office of the Attorney General for the State of
South Dakota, Patrick Morrisey, Attorney General,
Office of the Attorney General for the State of West
Virginia, and Bridget Hall, Attorney General, Office
of the Attorney General for the State of Wyoming,
were on the brief for amici curiae the States of Indiana, Montana, and 9 other states in support of appellants.
David H. Coburn, Joshua H. Runyan, Richard S.
Moskowitz, Tyler J. Kubik, Stephen J. Obermeier,
Wesley E. Weeks, John P. Wagner, Steven M. Kramer,
3a
Steven P. Lehotsky, and Michael B. Schon, were on the
brief for amici curiae American Fuel & Petrochemical
Manufacturers, et al. in support of appellants.
Jared R. Wigginton and Kent Mayo were on the
brief for amici curiae North Dakota Farm Bureau, et
al.
Christopher O. Murray was on the brief for amicus
curiae for appellant North Dakota Water Users Association in support of appellants.
Jan Hasselman argued the cause for appellees
Standing Rock Sioux Tribe, et al. With him on the
brief were Patti A. Goldman, Nicole E. Ducheneaux,
Jennifer S. Baker, Rollie E. Wilson, Jeffrey Rasmussen, Michael L. Roy, Jennifer P. Hughes, and Elliott A.
Milhollin, Jeremy J. Patterson entered an appearance.
Joel West Williams was on the brief for amici curiae the Great Plains Tribal Chairmen’s Association,
et al. in support of appellees.
Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Seth G. Schofield, Senior Appellate Counsel, Xavier Becerra, Attorney General, Office of the Attorney
General for the State of California, Jamie B. Jefferson
and Joshua R. Purtle, Deputy Attorneys General,
Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Christian
Douglas Wright, Director of Impact Ligitation, Aaron
M. Frey, Attorney General, Office of the Attorney General for the State of Maine, William Tong, Attorney
General, Office of the Attorney General for the State
of Connecticut, Clare Kindall, Solicitor General,
4a
Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Brian E. Frosh,
Attorney General, Office of the Attorney General for
the State of Maryland, Dana Nessel, Attorney General, Office of the Attorney General for the State of
Michigan, Elizabeth Morrisseau, Assistant Attorney
General, Gurbir S. Grewal, Attorney General, Office
of the Attorney General for the State of New Jersey,
Letitia James, Attorney General, Office of the Attorney General for the State of New York, Aaron Ford,
Attorney General, Office of the Attorney General for
the State of Nevada, Hector Balderas, Attorney General, Office of the Attorney General for the State of
New Mexico, Ellen Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon,
Paul Garrahan, Attorney-in-Charge, Steven Novick,
Special Assistant Attorney General, Peter F. Neronha,
Attorney General, Office of the Attorney General for
the State of Rhode Island, Tricia K. Jedele, Special Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the
State of Washington, Noah Guzzo Purcell, Solicitor
General, Leevin T Camacho, Attorney General, Office
of the Attorney General for the Territory of Guam,
Thomas J. Donovan, Jr., Attorney General, Office of
the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Karl
A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Jacqueline R. Bechara,
Appellant Litigation Fellow, and Sarah Utley were on
the brief for amici curiae States of Massachusetts, et
al. in support of appellees.
5a
Douglas P. Hayes was on the brief for amici curiae
Sierra Club, et al. in support of appellees.
Kenneth Rumelt and James G. Mui Thy were on
the brief for amicus curiae Members of Congress in
support of appellees.
Mary Kathryn Nagle was on the brief for amicus
curiae National Indigenous Women’s Resource Center, Inc. in support of appellees.
Before: TATEL and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
TATEL.
TATEL, Circuit Judge: Lake Oahe, created when
the United States Army Corps of Engineers flooded
thousands of acres of Sioux lands in the Dakotas by
constructing the Oahe Dam on the Missouri River,
provides several successor tribes of the Great Sioux
Nation with water for drinking, industry, and sacred
cultural practices. Passing beneath Lake Oahe’s waters, the Dakota Access Pipeline transports crude oil
from North Dakota to Illinois. Under the Mineral
Leasing Act, 30 U.S.C. § 185, the pipeline could not
traverse the federally owned land at the Oahe crossing site without an easement from the Corps. The
question presented here is whether the Corps violated
the National Environmental Policy Act, 42 U.S.C.
§ 4321, by issuing that easement without preparing
an environmental impact statement despite substantial criticisms from the Tribes and, if so, what should
be done about that failure. We agree with the district
court that the Corps acted unlawfully, and we affirm
the court’s order vacating the easement while the
6a
Corps prepares an environmental impact statement.
But we reverse the court’s order to the extent it directed that the pipeline be shut down and emptied of
oil.
I.
“In order to ‘create and maintain conditions under
which man and nature can exist in productive harmony,’ the National Environmental Protection Act
(NEPA), 42 U.S.C. § 4331(a), requires any federal
agency issuing a construction permit, opening new
lands to drilling, or undertaking any other ‘major’ project to take a hard look at the project’s environmental
consequences, id. § 4332(2)(C) . . . .” National Parks
Conservation Association v. Semonite, 916 F.3d 1075,
1077 (D.C. Cir. 2019). “To this end, the agency must
develop an environmental impact statement (EIS)
that identifies and rigorously appraises the project’s
environmental effects, unless it finds that the project
will have ‘no significant impact.’” Id. (quoting 40
C.F.R. § 1508.9(a)(1)). “If any ‘significant’ environmental impacts might result from the proposed
agency action[,] then an EIS must be prepared before
agency action is taken.” Grand Canyon Trust v. FAA,
290 F.3d 339, 340 (D.C. Cir. 2002) (quoting Sierra
Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir.
1983)). Preparing an EIS is a significant undertaking,
requiring the agency to “consult with and obtain the
comments of” other relevant agencies and publish a
“detailed statement” about the action’s environmental
effects. 42 U.S.C. § 4332(2)(C).
“Whether a project has significant environmental
impacts, thus triggering the need to produce an EIS,
7a
depends on its ‘context’ (regional, locality) and ‘intensity’ (‘severity of impact’).” National Parks, 916 F.3d
at 1082 (quoting 40 C.F.R. § 1508.27 (2018)). The operative regulations (since amended, Update to the
Regulations Implementing the Procedural Provisions
of the National Environmental Policy Act, 85 Fed.
Reg. 43,304 (July 16, 2020)) enumerate ten factors
that “should be considered” in assessing NEPA’s “intensity” element. 40 C.F.R. § 1508.27(b) (2019). “Implicating any one of the factors may be sufficient to
require development of an EIS.” National Parks, 916
F.3d at 1082. This case concerns the fourth factor—
”[t]he degree to which the effects on the quality of the
human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4) (2019).
The Dakota Access Pipeline (DAPL), nearly 1,200
miles long, is designed to move more than half a million gallons of crude oil from North Dakota to Illinois
each day. Standing Rock Sioux Tribe v. U.S. Army
Corps of Engineers (Standing Rock III), 255 F. Supp.
3d 101, 114 (D.D.C. 2017). DAPL crosses many waterways, including Lake Oahe, an artificial reservoir
in the Missouri River created when the Corps constructed a dam in 1958. The dam’s construction and
Lake Oahe’s creation flooded 56,000 acres of the
Standing Rock Reservation and 104,420 acres of the
Cheyenne River Sioux Tribe’s trust lands. Id. The
Tribes now rely on Lake Oahe’s water for drinking,
agriculture, industry, and sacred religious and medicinal practices. Id. As the Standing Rock Sioux Tribe
explained:
Lake Oahe is the source of life for the Tribe.
It provides drinking water for over 4,200 peo-
8a
ple on the Reservation. It is the source of water for irrigation and other economic pursuits
central to the Tribal economy. And it provides the habitat for fish and wildlife on the
Reservation upon which tribal members rely
for subsistence, cultural, and recreational
purposes. Moreover, the Tribe’s traditions
provide that water is more than just a resource, it is sacred—as water connects all of
nature and sustains life.
Letter from Dave Archambault II, Chairman, Standing Rock Sioux Tribe, to Lowry A. Crook, Principal
Deputy Assistant Secretary for Civil Works, Office of
the Assistant Secretary for the Army, and Col. John
Henderson, P.E., District Commander, U.S. Army
Corps of Engineers—Omaha District (Mar. 24, 2016),
Appendix (A.) 318.
Oil pipelines crossing federally regulated waters
like Lake Oahe require federal approval. See Standing Rock III, 255 F. Supp. 3d at 114. In June 2014,
Dakota Access, formed to construct and own DAPL,
notified the Corps that it intended to construct a portion of DAPL under Lake Oahe, just half a mile north
of the Standing Rock Reservation. Id. To do so, Dakota Access needed, among other things, a real-estate
easement from the Corps under the Mineral Leasing
Act (MLA), 30 U. S. C. § 185.
In December 2015, the Corps published and
sought public comment on a Draft Environmental Assessment (EA) finding that the construction would
have no significant environmental impact. Standing
Rock III, 255 F. Supp. 3d at 114-15. The Tribes sub-
9a
mitted comments voicing a range of concerns. Relevant here, the Tribes contended that the Corps had
insufficiently analyzed the risks and consequences of
an oil spill.
Two federal agencies also raised concerns. The
Department of the Interior requested that the Corps
prepare an EIS given the pipeline’s potential impact
on trust resources, criticizing the Corps for “not adequately justify[ing] or otherwise support[ing] its conclusion that there would be no significant impacts
upon the surrounding environment and community.”
Letter from Lawrence S. Roberts, Acting Assistant
Secretary—Indian Affairs, U.S. Department of the Interior, to Brent Cossette, U.S. Army Corps of Engineers, Omaha District (Mar. 29, 2016), A. 385-86. The
Environmental Protection Agency (EPA) registered
its concern that the Draft EA “lack[ed] sufficient analysis of direct and indirect impacts to water resources,”
though it requested additional information and mitigation in the EA rather than preparation of an EIS.
Letter from Philip S. Strobel, Director, NEPA Compliance and Review Program Office of Ecosystems Protection and Remediation, EPA, to Brent Cossette, U.S.
Army Corps of Engineers, Omaha District (Jan. 8,
2016), Reply Supplemental Appendix 1. But after becoming aware of the pipeline’s proximity to the Standing Rock reservation, EPA supplemented its comments to note that, while it agreed with the Corps that
there was “minimal risk of an oil spill,” it worried,
based on its “experience in spill response,” that a
break or leak could nonetheless significantly affect
water resources. Letter from Philip S. Strobel, Director, NEPA Compliance and Review Program, Office of
Ecosystems Protection and Remediation, EPA, to
10a
Brent Cossette, U.S. Army Corps of Engineers,
Omaha District (Mar. 11, 2016), A. 389-90.
On July 25, 2016, the Corps published its Final
EA and a “Mitigated Finding of No Significant Impact” (Mitigated FONSI). The Mitigated FONSI explained that, given the Corps’s adoption of various
mitigation measures, including horizontal directional
drilling, the Lake Oahe crossing would not “significantly affect the quality of the human environment”
and that an EIS was therefore unnecessary.
Shortly after the Final EA’s release, Standing
Rock sued the Corps for declaratory and injunctive relief under NEPA (and several other federal laws not
at issue in this appeal). Standing Rock III, 255 F.
Supp. 3d at 116-17. Dakota Access and the Cheyenne
River Sioux Tribe intervened on opposing sides, and
Cheyenne River filed a separate complaint adding additional claims. Id. at 117. Though the district court
denied the Tribes’ request for a preliminary injunction
on September 9, 2016, the Departments of Justice, Interior, and the Army immediately issued a joint statement explaining that the Corps would not issue an
MLA easement and that construction would not move
forward until the Army could determine whether reconsideration of any of its previous decisions was necessary. Id.
Following that statement, Standing Rock submitted several letters to the Assistant Secretary of the
Army for Civil Works, who oversees the portion of the
Corps’s mission that includes issuing permits for pipelines like DAPL. Those letters raised concerns about
the EA’s spill risk analysis. The tribe also submitted
11a
an expert review of the EA from an experienced pipeline consultant who concluded that the assessment
was “seriously deficient and [could not] support the
finding of no significant impact, even with the proposed mitigations.” Accufacts Review of the U.S.
Army Corps of Engineers Environmental Assessment
for the Dakota Access Pipeline (Oct. 28, 2016), A. 83746. Following the Corps’s internal review, the Assistant Secretary stood by her prior decision, but nonetheless concluded that the historical relationship between the affected tribes and the federal government
“merit[ed] additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives,
and greater public and tribal participation and comments.” Memorandum from Jo-Ellen Darcy, Assistant
Secretary of the Army (Civil Works) (Dec. 4, 2016), A.
260; see Standing Rock III, 255 F. Supp. 3d at 117-18.
During the ensuing review, both Standing Rock
and the Oglala Sioux Tribe submitted additional comments and analysis. The Corps solicited Interior’s
opinion on the pipeline, Interior’s Solicitor responded
with a recommendation that the Corps prepare an
EIS, and the Secretary of the Army for Civil Works
issued a memorandum directing the Army not to
grant an easement prior to preparation of an EIS. See
Standing Rock III, 255 F. Supp. 3d at 118-19. On January 18, 2017, the Assistant Secretary of the Army for
Civil Works published in the Federal Register a notice
of intent to prepare an EIS. See Notice of Intent to
Prepare an EIS in Connection with Dakota Access,
LLC’s Request for an Easement to Cross Lake Oahe,
North Dakota, 82 Fed. Reg. 5,543 (Jan. 18, 2017).
Two days later, a new administration took office,
and the government’s position changed significantly.
12a
In a January 24 memorandum, the President directed
the Secretary of the Army to instruct the Corps and
the Assistant Secretary for Civil Works to expedite
DAPL approvals and consider whether to rescind or
modify the Notice of Intent to Prepare an EIS. Memorandum of January 24, 2017, Construction of the Dakota Access Pipeline, 82 Fed. Reg. 8,661 (Jan. 30,
2017). The Army in turn concluded that the record
supported granting an easement and that no EIS or
further supplementation was necessary.
The Corps granted the easement on February 8,
2017, and after the district court denied Cheyenne
River’s motion for a preliminary injunction and temporary restraining order, both the Tribes and the
Corps moved for partial summary judgment on several claims. The district court concluded that the
Corps’s decision not to issue an EIS violated NEPA by
failing to adequately consider three issues: whether
the project’s effects were likely to be “highly controversial,” the impact of a hypothetical oil spill on the
Tribes’ fishing and hunting rights, and the environmental-justice effects of the project. Standing Rock
III, 255 F. Supp. 3d at 111-12. It accordingly remanded the matter to the agency to address those
three issues. Id. at 160-61.
After the Corps completed its remand analysis in
February 2019, the parties again moved for summary
judgment, with the Tribes arguing that the Corps
failed to remedy its NEPA violations and pressing several other non-NEPA claims. Standing Rock Sioux
Tribe v. U.S. Army Corps of Engineers (Standing Rock
V), 440 F. Supp. 3d 1, 11 (D.D.C. 2020). Based on its
examination of four topics of criticism out of “many . . .
to choose from,” id. at 17, the district court concluded
13a
that “many commenters in this case pointed to serious
gaps in crucial parts of the Corps’ [s] analysis,”
demonstrating that the easement’s effects were “likely
to be highly controversial,” id. at 26 (internal quotation marks omitted). It therefore remanded to the
agency for it to complete an EIS but reserved the question whether the easement should be vacated during
the remand. Id. at 29-30. Following additional briefing, the court concluded that vacatur was warranted,
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock VII), 471 F. Supp. 3d 71, 87
(D.D.C. 2020), and ordered that “Dakota Access shall
shut down the pipeline and empty it of oil by August
5, 2020,” Order, Standing Rock Sioux Tribe v. U.S.
Army Corps of Engineers, No. 16-cv-01534-JEB, at 2
(D.D.C. July 6, 2020), ECF No. 545.
The Corps and Dakota Access now appeal the district court’s order remanding for preparation of an
EIS, as well as its separate order granting vacatur of
the pipeline’s MLA easement and ordering that the
pipeline be shut down. While this appeal was pending, a motions panel denied the Corps’s request to stay
the vacatur of the easement but granted its request to
stay the district court’s order to the extent it enjoined
the pipeline’s use. Order, Standing Rock Sioux Tribe
v. U.S. Army Corps of Engineers, No. 20-5197, at 1
(D.C. Cir. Aug. 5, 2020) (August 5 Order).
II.
The Corps, together with Dakota Access, challenges the district court’s conclusion that the effects of
the Corps’s easement decision were “likely to be
highly controversial” under NEPA. A decision is
“highly controversial,” we explained in National Parks
14a
Conservation Association v. Semonite, if a “substantial
dispute exists as to the size, nature, or effect of the
major federal action.” 916 F.3 d at 1083 (internal quotation marks omitted). But not just any criticism renders the effects of agency action “highly controversial.” Rather, “something more is required for a highly
controversial finding besides the fact that some people
may be highly agitated and be willing to go to court
over the matter.” Id. (internal quotation marks omitted).
In National Parks, we clarified what more is required. There, we considered the Corps’s decision to
forgo an EIS before approving a permit authorizing an
electrical infrastructure project in a historically significant area. “[T]he Corps’s assessment of the scope
of the Project’s effects ha[d] drawn consistent and
strenuous opposition, often in the form of concrete objections to the Corps’s analytical process and findings,
from agencies entrusted with preserving historical resources and organizations with subject-matter expertise.” Id. at 1086. Because those criticisms reflected
“the considered responses . . . of highly specialized
governmental agencies and organizations” rather
than “the hyperbolic cries of . . . not-in-my-backyard
neighbors,” we found the effects of the Corps’s decision
“highly controversial.” Id. at 1085-86. “[R]epeated
criticism from many agencies who serve as stewards
of the exact resources at issue, not to mention consultants and organizations with on-point expertise, surely
rises to more than mere passion.” Id. at 1085. And
while the Corps “did acknowledge and try to address
[those] concerns,” that was not enough to put the controversy to rest. Id. at 1085-86. “The question is not
15a
whether the Corps attempted to resolve the controversy, but whether it succeeded.” Id. Indeed, an EIS
is perhaps especially warranted where an agency explanation confronts but fails to resolve serious outside
criticism, leaving a project’s effects uncertain. “Congress created the EIS process to provide robust information in situations . . . where, following an environmental assessment, the scope of a project’s impacts remains both uncertain and controversial.” Id. at 108788.
The Corps and Dakota Access advance two arguments: that, in relying on National Parks, the “district
court applied the wrong legal standard,” Appellant’s
Br. 14, and that the Corps adequately addressed the
four specific disputes on which the district court relied
in finding the effects of the Corps’s easement decision
likely to be highly controversial. We disagree as to
both.
The Corps offers two bases for distinguishing this
case from National Parks. First, it argues that here,
in contrast to in National Parks, “the Corps’ [s] efforts
to respond to the Tribes’ criticisms were not ‘superficial.” Appellant’s Br. 19. That distinction, however,
rests on an inaccurate description of National Parks.
Contrary to the Corps’s claim that we deemed “superficial and inadequate” the Corps’s response to criticisms, we pointedly explained that we took “no position on the adequacy of the Corps’s alternatives analyses.” National Parks, 916 F.3d at 1088. Instead, we
noted only that other agencies had expressed concerns
about the superficiality and inadequacy of the Corps’s
efforts. Id. Furthermore, the Corps’s position that a
response to criticism suffices so long as it is not “su-
16a
perficial” is hard to square with our statement in National Parks that “[t]he question is not whether the
Corps attempted to resolve the controversy, but
whether it succeeded.” Id. at 1085-86. The decisive
factor is not the volume of ink spilled in response to
criticism, but whether the agency has, through the
strength of its response, convinced the court that it
has materially addressed and resolved serious objections to its analysis, a matter requiring us to delve
into the details of the Tribes’ criticisms—to which we
shall turn momentarily.
As a second basis for distinguishing National
Parks, the Corps emphasizes that the “opposition here
has come from the Tribes and their consultants, not
from disinterested public officials.” Appellant’s Br.
20. But the Tribes are not, as Dakota Access suggested at oral argument, “quintessential . . . not-inmy-backyard neighbors.” Oral Arg. Tr. 97:17-18.
They are sovereign nations with at least some stewardship responsibility over the precise natural resources implicated by the Corps’s analysis. “Indian
tribes within Indian country are,” the Supreme Court
has declared, “a good deal more than private, voluntary organizations.” Merrion v. Jicarilla Apache
Tribe, 455 U.S. 130, 140 (1982) (internal quotation
marks omitted). Rather, they are “domestic dependent nations that exercise inherent sovereign authority
over their members and territories” and the resources
therein. Oklahoma Tax Commission v. Citizen Band
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505,
509 (1991) (internal quotation marks omitted); see
also New Mexico v. Mescalero Apache Tribe, 462 U.S.
324, 335 (1983) (“We have held that tribes have the
17a
power to manage the use of [their] territory and resources by both members and nonmembers . . . .”);
Merrion, 455 U.S. at 140 (“Indian tribes . . . are unique
aggregations possessing attributes of sovereignty over
both their members and their territory.” (internal
quotation marks omitted)).
The Tribes’ unique role and their government-togovernment relationship with the United States demand that their criticisms be treated with appropriate
solicitude. Of course, as the Corps points out, the
Tribes are not the federal government. But in National Parks, we emphasized the important role
played by entities other than the federal government.
There, criticism came from “highly specialized governmental agencies and organizations,” including the
Virginia Department of Historic Resources and several conservation groups. National Parks, 916 F.3 d
at 1084-85; see also North Carolina v. Federal Aviation Administration, 957 F.2d 1125, 1131-33 (4th Cir.
1992) (finding “legitimate controversy” present where
“[s]tate, local and federal officials, interested individuals,” and a federal agency “expressed concern”);
Foundation for North American Wild Sheep v. U.S.
Department of Agriculture, 681 F.2d 1172, 1182 (9th
Cir. 1982) (finding that criticism from “conservationists, biologists,” two state agencies, and “other knowledgeable individuals” demonstrated the existence of
“precisely the type of ‘controversial’ action for which
an EIS must be prepared”); Friends of the Earth, Inc.
v. U.S. Army Corps of Engineers, 109 F. Supp. 2d 30,
43 (D.D.C. 2000) (finding that a project was “genuinely and extremely controversial” where “three federal agencies,” “one state agency,” and the public “all
18a
disputed the Corps[‘s] evaluation”). The Tribes are of
at least equivalent status.
With the proper legal framework in mind, we turn
to the four disputed facets of the Corps’s analysis that
the district court found involved unresolved scientific
controversies for purposes of NEPA’s “highly controversial” factor.
DAPL’s Leak Detection System
The district court found that serious unresolved
controversy existed concerning the effectiveness of
DAPL’s leak detection system. Specifically, it found
that the 2012 Pipeline and Hazardous Materials
Safety Administration (PHMSA) study submitted
with Standing Rock’s expert report “indicated an 80%
failure rate in the type of leak-detection system employed by DAPL.” Standing Rock V, 440 F. Supp. 3d
at 18. The court went on to note that “the system was
not even designed to detect leaks that constituted 1%
or less of the pipe’s flow rate,” which could amount to
6,000 barrels a day. Id. Because the Corps “failed entirely to respond to” those deficiencies, the court found
that the Corps had not succeeded in resolving the controversy presented by the study. Id. at 17-18.
On appeal, the Corps correctly points out that the
2012 PHMSA study does not reflect an 80% “failure
rate.” Rather, the study indicates that in 80% of all
incidents where it was in use and “functional,” the
“computational pipeline monitoring” (CPM) system
used by DAPL was not the first system to detect a
leak. That the CPM system was commonly eclipsed
by visual identification, however, casts serious, unaddressed doubt on the Corps’s statement that the
system will “detect the pressure drop from a pipeline
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rupture within seconds.” Appellant’s Br. 21 (internal
quotation marks omitted). As the PHMSA study explains, “CPM systems by themselves did not appear to
respond more often than personnel . . . or members of
the public passing by the release incident.” U.S. Department of Transportation, Pipeline and Hazardous
Materials Safety Administration, Final Report Leak
Detection Study 2-11 (Dec. 10, 2012). The Corps has
failed to address the apparent disconnect, suggested
by the PHMSA study, between the CPM system’s historic performance and the agency’s representations
about its future utility. Indeed, the Corps acknowledges that it “did not explicitly discuss the 2012
PHMSA report” in its review. Appellant’s Br. 22. The
consequences of that oversight are especially significant since DAPL is buried deep underground and visual identification is therefore unlikely to make up for
deficiencies in the CPM system, as it apparently has
in the incidents included in the PHMSA study.
Attempting to discount the significance of the
Corps’s failure to consider the 2012 PHMSA study,
the Corps and Dakota Access observe that the study
included older pipelines and that the type of pinhole
leaks the study suggests the CPM system might initially miss are rare. But as the district court noted,
the Tribes’ expert observed that “more recent investigations” corroborated the study’s leak detection data.
Standing Rock V, 440 F. Supp. 3d at 17 (internal quotation marks omitted). The Corps’s failure to address
the study cannot be justified by the mere fact that the
study’s data set includes some older pipelines.
As for the rarity of pinhole leaks, the Tribes
pointed to “numerous examples of pipelines that
20a
leaked for hours or days after similar detection systems failed.” Appellees’ Br. 27. In one such instance,
DAPL’s own operator spilled 8,600 barrels of oil during a 12-day-long slow leak in 2016, even though the
monitoring system in use there showed the exact
same type of “detectable meter imbalance” that the
Corps here claims will quickly alert DAPL’s operators
to a slow leak. See Supplemental Appendix (S.A.) 31718. That same year, at another pipeline buried deep
underground in North Dakota, an operator’s leak detection system “registered an imbalance” and “notified
the control room”—but the control room “misinterpreted its own data[.]” PHMSA, Post-Hearing Decision Confirming Corrective Action Order, Belle
Fourche Pipeline Co. 5 (Mar. 24, 2017), https://primis
.phmsa.dot.gov/comm/reports/enforce/docments
/520165013H/520165013H_HQ%20Post%20Hearing
%20Decision%20Confirming%20CAO_03242017.pdf.
That led to a slow release of more than 12,600 barrels
of oil into a nearby creek over at least a two-day period, until it was discovered by a rancher at the release site. Id. at 1-2; S.A. 711. So there is ample reason to believe that the magnitude of harm from such
a leak could be substantial.
Appearing to acknowledge those troubling examples, the Corps discounts their significance by asserting that leaks will eventually be found. But how rapidly such leaks would be detected and their potential
severity are key factors underlying the Corps’s EA
and precisely the issues called into question by the
Tribes’ unaddressed criticism. We also note that the
volume of a one percent spill from a pinhole leak
would double if the volume of oil placed in the pipeline
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were itself to double. And DAPL’s operator has represented to its investors that it intends to double the
amount of oil it places in the pipeline as early as this
coming summer. See Illinois approves expansion of
Dakota Access oil pipeline, Reuters, Oct. 15, 2020,
https://www.reuters.com/article/us-energy-transferoil-pipeline-illinois-idUSKBN2702DL. In any event,
when asked why the EA did not evaluate the potential
consequences of an undetected slow pinhole leak, the
Corps responded that “there was no particular reason”
it did not do so. Oral Arg. Tr. 12:8-9, Standing Rock
Sioux Tribe v. U.S. Army Corps of Engineers, No. 16cv-01534-JEB (D.D.C. Mar. 18,2020), ECF No. 498.
The Tribes’ criticisms therefore present an unresolved
controversy requiring the Corps to prepare an EIS.
DAPL’s Operator Safety Record
The district court found that the Corps’s decision
to rely in its risk analysis on general pipeline safety
data, rather than DAPL’s operator’s specific safety
record, rendered the effects of the Corps’s decision
highly controversial. We agree.
To analyze the Corps’s risk assessment, Standing
Rock retained as an expert “an attorney, investigator,
and process safety practitioner with many decades of
experience.” Holmstrom Decl. ¶ 1, S.A. 79-80. The
expert explained that “PHMSA data shows Sunoco,”
DAPL’s operator, “has experienced 276 incidents in
2006-2016,” which the expert described as “one of the
lower performing safety records of any pipeline operator in the industry for spills and releases.” Id. ¶ 9.
Here, as in the district court, “[t]he Corps focuse[s]
its responses on defending the operator’s performance
record itself rather than on justifying its decision to
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not incorporate that record into its analysis.” Standing Rock V, 440 F. Supp. 3d at 19. In so doing, the
Corps and Dakota Access make two arguments.
First, the Corps emphasizes that “70% of [DAPL’s]
operator’s reported accidents on other pipelines were
minor and limited to the operator’s property.” Appellant’s Br. 31. But that does nothing to address the
“[t]wo central concerns” on which the district court
based its decision: “(1) the 30% of spills—about 80 of
them—that were not limited to operator property; and
(2) the criticism that the spill analysis should have incorporated the operator’s record.” Standing Rock V,
440 F. Supp. 3d at 20. For its part, Dakota Access
argues that while Sunoco’s number of leaks is high, its
number of spills per mile of pipeline operated “is in
line with industry averages.” Intervenor’s Br. 22. Not
only has Dakota Access failed to identify record evidence supporting that assertion, the relevant evidence
that does exist suggests a serious risk that Sunoco’s
record is worse than the industry average. The
Corps’s own analysis concluded that, industry-wide,
there were 0.953 onshore crude oil accidents per 1,000
miles of pipeline in 2016 and 0.848 in 2017. U.S.
Army Corps of Engineers, Analysis of the Issues Remanded by the U.S. District Court for the District of
Columbia Related to the Dakota Access Pipeline
Crossing at Lake Oahe 13 (Aug. 31, 2018). By contrast, Dakota Access’s expert explained that Energy
Transfer, Sunoco’s parent company following a merger, experienced 1.42 “reportable incidents per 1,000
miles of pipeline”—after a 50% decline in incidents on
Sunoco lines since 2017. Second Godfrey Decl. ¶ 7, A.
1612. If anything, comparing that figure to the industry-wide average understates the safety gap between
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Sunoco and other operators because, as Dakota Access
and its expert observe, Sunoco is “one of the largest
pipeline operators,” Intervenor’s Br. 22, and its own
incidents are included in the average. See Appellant’s
Br. 32 (“The Corps also considered PHMSA’s historical data on oil spills, which necessarily includes this
operator’s safety record.”).
Nor are we persuaded by the Corps’s second argument, that it had no need at all to address the operator
safety controversy. Though the Corps may have considered “other objective measures of the operator’s
safety practices,” Appellant’s Br. 31, the cited materials—industry-wide spill data and a questionnaire
about Sunoco’s safety practices—fall short of resolving
the controversy. The Corps contends that its “decision
to use all data on oil spills, and not just the operator’s
safety record, is the kind of technical judgment that is
entrusted to the agency and entitled to deference from
the Court.” Appellant’s Br. 32. That is not at all clear.
For example, it would be strange indeed if we were to
defer to the Federal Aviation Administration’s decision to renew the operating certificate of an airline
with an extremely poor safety record on the basis that
the airline industry, on average, is safe. The Supreme
Court, moreover, has “frequently reiterated that an
agency must cogently explain why it has exercised its
discretion in a given manner,” Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 48
(1983), and the Corps has made no effort to do so here.
To treat the Corps’s unadorned plea for deference as a
sufficient basis for ignoring well-reasoned expert criticism would vitiate National Parks.
24a
Winter Conditions
The district court found the Corps’s response insufficient to resolve criticism of the agency’s “failure
to consider the impact of harsh North Dakota winters
on response efforts in the event of a spill.” Standing
Rock V, 440 F. Supp. 3d at 20. In particular, the
Tribes’ experts explained that shut-off valves might
be more prone to failure and response efforts hindered
by freezing conditions. Elaborating, Oglala’s expert
explained that “winter conditions create significant
difficulties” because, among other things, “workers require more breaks and move slower due to the bundling of clothing,” “daylight hours are shorter,” and
“slip-trip-fall risk increases significantly.” Earthfax
Report at 7, A. 830.
The Corps argues that it had no need to engage in
a quantitative evaluation of a winter spill scenario because its non-quantitative response was adequate.
Appellant’s Br. 29-30. In the Corps’s view, it adequately considered winter conditions by noting that
ice coverage could “have a mixed effect on efforts to
contain an oil spill” and by ordering DAPL’s operator
to conduct winter spill response training exercises at
Lake Oahe as a condition of the easement. Appellant’s
Br. 29. But the Corps’s passing reference to winter
conditions’ “mixed” effects, without more, provides little comfort. The Corps’s point might have been more
forceful had the agency estimated just how much time
during a spill would be saved by the oil-containing
properties of ice and compared that to the additional
time required to identify oil pockets and adjust work
methods to extreme conditions. Indeed, it seems that
such an analysis is precisely what the Tribes believe
the Corps ought to have done, and such a reasoned
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weighing of the evidence would have been entitled to
substantial deference. But instead, faced with serious
expert criticism, the Corps simply declared the evidence “mixed” and offered no attempt at explaining its
apparent conclusion that winter’s countervailing effects measured out to zero. Moreover, we agree with
the district court that while winter response training
may be “prudent and perhaps a good avenue for producing data as to how exactly winter conditions would
delay response efforts,” such exercises do “not get to
the point of addressing the concern that the spill
model does not currently take that kind of data into
account.” Standing Rock V, 440 F. Supp. 3d at 21.
The Corps next argues that the Tribes failed to
present a “specific alternative methodology” for incorporating winter conditions into its spill response modeling. Appellant’s Br. 30. But the fact that an established methodology for assessing the consequences of
a unique type of risk is not readily apparent to commenters hardly means an agency can discount relevant, serious criticism of its method of analysis. Although the Corps emphasizes in its brief that “no one
has identified any way to calculate exactly how much
more difficult” a clean-up would be during winter, Appellant’s Br. 30, our review “is limited to the grounds
that the agency invoked when it took the action,” Department of Homeland Security v. Regents of the University California, 140 S. Ct. 1891, 1907 (2020) (internal quotation marks omitted), and the Corps does not
suggest that, during its environmental review process, it actually applied its technical expertise to consider whether it was possible to identify such a
method. Had the Corps considered the problem and
26a
concluded that no comprehensive analysis was possible, that might have amounted to “successfully” resolving the controversy. But the Corps cannot foist its
duty to consider such technical matters onto commenters who point out valid deficiencies.
Worst Case Discharge
The district court considered the “largest area of
scientific controversy” to be “the worst-case-discharge
estimate for DAPL used in the spill-impact analysis.”
Standing Rock V, 440 F. Supp 3d at 21. The regulations set forth a detailed formula for calculating the
worst-case discharge, 49 C.F.R. § 194.105(b)(1), but
we need not delve into its specifics here. “The idea,”
the district court succinctly explained, “is to calculate
the maximum amount of oil that could possibly leak
from the pipeline before a spill is detected and
stopped.” Standing Rock V, 440 F. Supp. 3d at 21.
According to the Corps, we need not consider the
Tribes’ criticisms because “an accident leading to a
full-bore rupture of the pipeline is extremely unlikely”
and, in any event, no statute or regulation required
the Corps to calculate the worst-case discharge at all.
Appellant’s Br. 26. The thrust of both arguments is
that because the Corps need not have calculated a
worst-case discharge in the first place, it is unimportant whether it did so in a reasonable manner. But
we agree with the district court that because the
Corps chose to perform such a calculation and then
relied on it throughout its analysis, it cannot dispel
serious doubts about its methods by explaining that it
could have forgone such a calculation in the first
place. See Sierra Club v. Sigler, 695 F.2d 957, 966
(5th Cir. 1983) (“The purpose of judicial review under
27a
NEPA is to ensure the procedural integrity of the
agency’s consideration of environmental factors in the
EIS and in its decision to issue permits. If the agency
follows a particular procedure, it is only logical to review the agency’s adherence to that procedure, not to
some altogether different one that was not used.”).
We therefore turn to the Tribes’ criticisms of the
Corps’s calculations.
The Corps estimated that, for purposes of a worstcase discharge, it would take 9 minutes to detect a
leak and 3.9 minutes to close the shut-down valves.
Appellant’s Br. 26-27. Before the district court, the
Corps suggested that its nine-minute figure included
one minute of detection time, with the remaining
eight minutes devoted to shutting down the mainline
pumps. Standing Rock V, 440 F. Supp. 3d at 23. But
as the district court observed, the Tribes pointed to
“many experts who commented that hours, rather
than minutes, were more accurate figures for the
[worst-case discharge].” Id. The Tribes’ expert explained that “[m]ajor spill incidents typically occur
with multiple system causes, when people, or equipment, or systems do not function exactly as they are
expected to.” Holmstrom Decl. ¶ 11, S.A. 83. The
Corps’s explanation that its response time estimates
were mildly conservative does not begin to explain its
choice to ignore the real-world possibility of significant human errors or technical malfunctions, see supra at 18-19, in calculating what it claimed was a
worst-case estimate. Although the PHMSA formula
did not require the Corps to model a complete doomsday scenario in which every possible human error and
technical malfunction occurs simultaneously, we
agree with the district court that the Corps’s failure to
28a
explain why it declined to consider any such eventualities leaves unresolved a substantial dispute as to
its worst-case discharge calculation.
The Corps also argues that, even if, as the Tribes
claim, some aspects of the model are unduly optimistic, the model is nonetheless sufficiently conservative
because it assumes the pipeline lies directly on top of
the water rather than beneath ninety-two feet of overburden. Appellant’s Br. 25-26. In effect, the Corps
tries to defend its decision to develop a model that assumes away significant risks by explaining that, despite those omissions, it analyzed an imaginary pipeline of roughly equivalent risk to DAPL—one laying
directly on top of Lake Oahe, but with superior leak
detection and shut-down valve systems. The Corps,
however, never explains why its one conservative assumption accurately counterbalances the particular
risks the Tribes identify. Accordingly, the model’s assumption that DAPL lies directly on the water fails to
resolve the controversies raised by the Tribes’ criticisms.
*
*
*
Having determined that several serious scientific
disputes mean that the effects of the Corps’s easement
decision are likely to be “highly controversial,” we
turn to one other issue before considering the appropriate remedy. The Corps and Dakota Access repeatedly urge that, whatever the merits of the Tribes’ criticisms, the Corps’s easement decision cannot be
highly controversial because the risk of a spill is exceedingly low and because the pipeline’s location deep
29a
underground provides protection against the consequences of any spill. That argument faces two major
hurdles.
First, the claimed low risk of a spill rests, in part,
on the Corps’s use of generalized industry safety data
and its optimism concerning its ability to respond to
small leaks before they worsen—precisely what the
Tribes’ unresolved criticisms address. Second, as our
court made clear in New York v. Nuclear Regulatory
Commission, 681 F.3d 471,478-79 (D.C. Cir. 2012),
“[u]nder NEPA, an agency must look at both the probabilities of potentially harmful events and the consequences if those events come to pass.” Id. at 148. A
finding of no significant impact is appropriate only if
a grave harm’s “probability is so low as to be remote
and speculative, or if the combination of probability
and harm is sufficiently minimal.” Id. at 147-48 (internal quotation marks omitted). Doing away with
the obligation to prepare an EIS whenever a project
presents a low-probability risk of very significant consequences would wall off a vast category of major projects from NEPA’s EIS requirement. After all, the
government is not in the business of approving pipelines, offshore oil wells, nuclear power plants, or spent
fuel rod storage facilities that have any material prospect of catastrophic failure. In this case, although
the risk of a pipeline leak may be low, that risk is sufficient “‘that a person of ordinary prudence would take
it into account in reaching a decision’” to approve the
pipeline’s placement, and its potential consequences
are therefore properly considered here. Sierra Club v.
FERC, 827 F.3d 36, 47 (D.C. Cir. 2016) (quoting City
of Shoreacres v. Waterworth, 420 F.3d 440,453 (5th
Cir. 2005)).
30a
III.
This brings us to the Corps’s challenge to the district court’s remedy, and specifically to its orders
(1) requiring that the Corps prepare an EIS, (2) vacating the easement pending preparation of an EIS, and
(3) ordering that the pipeline be shut down and emptied of oil.
As already explained, “[i]mplicating any one of the
[intensity] factors may be sufficient to require development of an EIS.” National Parks, 916 F.3d at 1082.
Dakota Access argues that because implicating the
“highly controversial” factor does not itself mandate
preparation of an EIS, the district court erred in ordering the Corps to prepare one. In National Parks,
however, we ordered the Corps to prepare an EIS
where, as here, it “failed to make a ‘convincing case’
that an EIS is unnecessary.” Id. at 1087 (quoting Myersville Citizens for a Rural Community, Inc. v. FERC,
783 F.3d 1301, 1322 (D.C. Cir. 2015)). National Parks
thus forecloses the idea that we must ordinarily remand to the agency to weigh the intensity factors
anew whenever we find that it improperly analyzed
one of them.
That National Parks involved multiple intensity
factors is at most a superficial distinction between
this case and National Parks. For one thing, as explained above, the effects of the Corps’s easement decision are “highly controversial” in four distinct respects, and we see no good reason for treating differently a decision that implicates multiple significance
factors and a decision that implicates a single factor
in several important ways. Moreover, both National
31a
Parks and this case present “precisely” the circumstances in which Congress intended to require an EIS,
namely “where, following an environmental assessment, the scope of a project’s impacts remains both
uncertain and controversial.” Id. at 1087-88. Finally,
as in National Parks, the “context” of this case—”a
place of extraordinary importance to the Tribes, a
landscape of profound cultural importance, and the
water supply for the Tribes and millions of others”—
weighs in favor of requiring an EIS. Appellees’ Br. 4041. And in at least one sense, the case for ordering
production of an EIS is stronger here than in National
Parks or the cases on which Dakota Access relies, Intervenor’s Br. 29-30, given that, unlike in those cases,
the district court has already given the Corps an opportunity to resolve the Tribes’ serious criticisms and
it failed to do so.
The Corps and Dakota Access next argue that,
even if the district court properly ordered the Corps to
prepare an EIS, the court abused its discretion by vacating the pipeline’s easement in the interim. “The
ordinary practice,” however, “is to vacate unlawful
agency action,” United Steel v. Mine Safety & Health
Administration, 925 F.3d 1279, 1287 (D.C. Cir. 2019)
(citing 5 U.S.C. § 706(2)), and district courts in this
circuit routinely vacate agency actions taken in violation of NEPA. See, e.g., Humane Society of the United
States v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007)
(observing that vacatur is the “standard remedy” for
an “action promulgated in violation of NEPA”);
Greater Yellowstone Coalition v. Bosworth, 209 F.
Supp. 2d 156, 163 (D.D.C. 2002) (“[P]laintiffs . . . seek
a vacatur of the permit . . . until the [agency] complies
with NEPA. As a general matter, an agency action
32a
that violates the APA must be set aside. . . . Based on
this authority, I shall vacate the permit . . . .”).
“While unsupported agency action normally warrants vacatur, [a] court is not without discretion” to
leave agency action in place while the decision is remanded for further explanation. Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety
Administration, 429 F.3d 1136, 1151 (D.C. Cir. 2005)
(citation omitted). In Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir.
1993), our court set forth the two factors governing
that exercise of discretion: “The decision whether to
vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the
agency chose correctly) and the disruptive consequences of an interim change that may itself be
changed.” Id. at 150-51 (internal quotation marks
omitted). The “seriousness” of a deficiency, we have
explained, is determined at least in part by whether
there is “a significant possibility that the [agency]
may find an adequate explanation for its actions” on
remand. Williston Basin Interstate Pipeline Co. v.
FERC, 519 F.3d 497, 504 (D.C. Cir. 2008). “We review
the district court’s decision to vacate . . . for abuse of
discretion.” Nebraska Department of Health & Human Services v. Department of Health & Human Services, 435 F.3d 326, 330 (D.C. Cir. 2006).
As to the first factor, the district court concluded
that the Corps was unlikely to resolve the controversies on remand because the court had previously remanded without vacatur for just that purpose and the
Corps had nonetheless failed to resolve them. Standing Rock VII, 471 F. Supp. 3d at 79-80. The court also
33a
explained that the Corps focused on the wrong question: whether, on remand, it would be able to justify
its easement decision rather than its decision to forgo
an EIS. Id. at 81. (“Looking at the first Allied-Signal
factor, the Court does not assess the deficiency of the
ultimate decision itself—the choice to issue the permit—but rather the deficiency of the determination
that an EIS was not warranted.” (internal quotation
marks omitted)).
With respect to the disruptive consequences of vacatur, the district court understood that shutting
down pipeline operations would cause Dakota Access
and other entities significant economic harm. But for
four reasons it concluded that those effects did not justify remanding without vacatur. First, the Corps’s expedited timeline for preparing an EIS “would cabin
the economic disruption of a shutdown.” Id. at 84.
Second, though economic disruption is properly considered, it is not commonly a basis, standing alone, for
declining to vacate agency action. Id. at 84-85. Third,
Dakota Access’s approach would subvert NEPA’s objectives. “[I]f you can build first and consider environmental consequences later, NEPA’ s action-forcing
purpose loses its bite.” Id. at 85. And finally, the
countervailing risk of a spill—difficult to quantify in
part because of the Corps’s failure to prepare an EIS—
counseled in favor of vacatur. Id. at 85-86. The district court discounted as “inconclusive” Dakota Access’s evidence that if DAPL were inoperative, more
oil would be transported by rail, a riskier alternative.
Id. at 87.
On appeal, Dakota Access takes primary responsibility for arguing against vacatur. It contends first
that the Corps can “easily substantiate its easement
34a
decision on remand even if it must prepare an EIS.”
Intervenor’s Br. 33. But that is not the question. As
the district court explained, the question is whether
the Corps is likely to justify its issuance of a FONSI
and refusal to prepare an EIS. Dakota Access argues
that Heartland Regional Medical Center v. Sebelins,
566 F.3d 193 (D.C. Cir. 2009), supports its contrary
view that the Allied-Signal factors look to whether an
agency can justify the action the court is considering
whether to vacate, rather than the challenged procedural decision. There, we sought to determine
whether an earlier district court decision had, by declaring a regulatory requirement invalid for failing to
consider certain public comments, necessarily vacated
the regulation. In making that determination, we
concluded that the Allied-Signal factors would have
directed remand without vacatur. Id. at 197-98. But
because the agency had not elected to forgo a procedural requirement (in that case, notice and comment),
only one agency action—the decision to promulgate
the challenged rule—was implicated at all. Heartland
Regional therefore says nothing one way or the other
about the proper focus of the Allied-Signal inquiry in
cases, like this one, where we confront a distinct challenge to an agency’s decision to forgo a major procedural step in its path to its ultimate action. Cf. id. at
199 (“Failure to provide the required notice and to invite public comment—in contrast to the agency’s failure here adequately to explain why it chose one approach rather than another for one aspect of an otherwise permissible rule—is a fundamental flaw that
normally requires vacatur of the rule.” (internal quotation marks omitted)). Besides, the district court’s
view is more sensible.
35a
Consider the consequences of Dakota Access’s contrary approach. If, when an agency declined to prepare an EIS before approving a project, courts considered only whether the agency was likely to ultimately
justify the approval, it would subvert NEPA’s purpose
by giving substantial ammunition to agencies seeking
to build first and conduct comprehensive reviews
later. If an agency were reasonably confident that its
EIS would ultimately counsel in favor of approval,
there would be little reason to bear the economic consequences of additional delay. For similar reasons, an
agency that bypassed required notice and comment
rulemaking obviously could not ordinarily keep in
place a regulation while it completed that fundamental procedural prerequisite. See Daimler Trucks
North America LLC v. EPA, 737 F.3d 95, 103 (D.C.
Cir. 2013) (“[T]he court typically vacates rules when
an agency ‘entirely fail[s]’ to provide notice and comment . . . .” (quoting Shell Oil Co. v. EPA, 950 F.2d
741, 752 (D.C. Cir. 1991))). When an agency bypasses
a fundamental procedural step, the vacatur inquiry
asks not whether the ultimate action could be justified, but whether the agency could, with further explanation, justify its decision to skip that procedural
step. Otherwise, our cases explaining that vacatur is
the default response to a fundamental procedural failure would make little sense.
Even were we to consider the Corps’s odds of ultimately approving the easement, our case law still instructs that a failure to prepare a required EIS should
lead us to doubt that the ultimate action will be approved. In Oglala Sioux Tribe v. U.S. Nuclear Regulatory Commission, 896 F.3d 520 (D.C. Cir. 2018), we
explained that because NEPA is a “purely procedural
36a
statute,” where an agency’s NEPA review suffers from
“a significant deficiency,” refusing to vacate the corresponding agency action would “vitiate” the statute.
Id. at 536 (internal quotation marks omitted). As we
made clear, “[p]art of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there
may be little if any information about prospective environmental harms and potential mitigating
measures.” Id. (internal quotation marks omitted).
Put another way, Oglala strongly suggests that where
an EIS was required but not prepared, courts should
harbor substantial doubt that ‘the agency chose correctly’ regarding the substantive action at issue—in
this case, granting the easement. Id. at 538 (quoting
Allied-Signal, 988 F.2d at 150-51). The Corps resists
the proposition that Oglala cautions against applying
Allied-Signal in NEPA cases, but that is not the point.
The point is that Oglala’s application of those factors
suggests that NEPA violations are serious notwithstanding an agency’s argument that it might ultimately be able to justify the challenged action.
As for vacatur’s consequences, Dakota Access contends that while the district court “acknowledged the
severe economic disruption that vacatur would cause,”
it “wrongly discounted those severe consequences”
and “credit[ed] remote, unsubstantiated harms.” Intervenor’s Br. 35. But in reviewing for abuse of discretion, we “consider whether the decision maker
failed to consider a relevant factor, whether he [or she]
relied on an improper factor, and whether the reasons
given reasonably support the conclusion.” Kickapoo
Tribe of Indians of Kickapoo Reservation in Kansas v.
Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995) (alteration in original) (internal quotation marks omitted).
37a
In doing so, we may not “substitute our judgment for
that of the trial court, so we cannot decide the issue
by determining whether we would have reached the
same conclusion.” United States v. Mathis—Gardner,
783 F.3d 1286, 1288 (D.C. Cir. 2015) (citation omitted)
(internal quotation marks omitted). Dakota Access
believes that the district court’s assessment of a shutdown’s economic impacts was far too rosy and that the
court “ignored” a shutdown’s environmental consequences. But the court considered all important aspects of the issue and reasonably concluded that the
harms were less severe than the Corps and Dakota
Access suggested. In view of the discretion owed the
district court and the seriousness of the NEPA violation, Dakota Access has given us no basis for concluding that the district court abused its discretion in applying the Allied-Signal factors. See National Parks
Conservation Association v. Semonite, 925 F.3d 500,
502 (D.C. Cir. 2019) (“[The district] court is best positioned to . . . make factual findings[] and determine
the remedies necessary to protect the purpose and integrity of the EIS process.”); Stand Up for California!
v. U.S. Department of Interior, 879 F.3d 1177, 1190
(D.C. Cir. 2018) (“[T]he district court acted well within
its discretion in finding vacatur unnecessary to address any harm the defect had caused.”).
In any event, Dakota Access’s assessment of vacatur’s consequences is undercut significantly by the
fact that we agree that the district court’s shutdown
order cannot stand.
On August 5, 2020, a motions panel of this court
ordered that “to the extent the district court issued an
injunction by ordering Dakota Access LLC to shut
down the Dakota Access Pipeline and empty it of oil
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by August 5, 2020, the injunction be stayed.” August
5 Order at 1. Relying on the Supreme Court’s decision
in Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139
(2010), the panel explained that “[t]he district court
did not make the findings necessary for injunctive relief.” August 5 Order at 1 (“[B]efore issuing an injunction in a [NEPA] case, ‘a court must determine that
an injunction should issue under the traditional fourfactor test.’” (quoting Monsanto, 561 U.S. at 158)).
The Tribes argue that an injunction was unnecessary because vacatur itself “invalidat[ed] the underlying easement,” thus requiring the “suspension of pipeline operations pending compliance with NEPA.” Appellees’ Br. 73-74. That is the view the district court
appeared to adopt, Standing Rock VII, 471 F. Supp.
3d at 88 (requiring, after vacating the pipeline’s easement, “the oil to stop flowing and the pipeline to be
emptied within 30 days”), and that approach finds
some support in our case law. For instance, in Sierra
Club v. FERC, 867 F.3d 1357, 1379 (D.C. Cir. 2017),
we vacated a pipeline authorization due to a NEPA
violation and appeared to assume that vacatur encompassed an end to construction. Likewise in National
Parks, we appeared to accept the parties’ assumption
that vacating Corps-issued construction permits
would require ceasing construction of the challenged
electrical towers or tearing them down. See National
Parks, 925 F.3d at 502.
The Tribes’ approach, however, cannot be squared
with Monsanto, which should caution against reading
too far into our tacit approval of shutdown orders in
prior cases. If a district court could, in every case, effectively enjoin agency action simply by recharacter-
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izing its injunction as a necessary consequence of vacatur, that would circumvent the Supreme Court’s instruction in Monsanto that “a court must determine
that an injunction should issue under the traditional
four-factor test.” 561 U.S. at 158. In fact, the Tribes
have already moved for a permanent injunction in the
district court during the pendency of this appeal, and
that motion is fully briefed.
Furthermore, Sierra Club and National Parks differ from this case in a subtle but important way.
Those cases involved challenges to agency authorizations of the very activities the court assumed would
end. Vacating a construction permit in National
Parks, for instance, naturally implied an end to construction. Here, in contrast, we affirm the vacatur of
an easement authorizing the pipeline to cross federal
lands. With or without oil flowing, the pipeline will
remain an encroachment, leaving the precise consequences of vacatur uncertain. In fact, the parties have
identified no other instance—and we have found
none—in which the sole issue before a court was
whether an easement already in use (rather than a
construction or operating permit) must be vacated on
NEPA grounds. That makes this case quite unusual
and cabins our decision to the facts before us.
It may well be—though we have no occasion to
consider the matter here—that the law or the Corps’s
regulations oblige the Corps to vindicate its property
rights by requiring the pipeline to cease operation and
that the Tribes or others could seek judicial relief under the APA should the Corps fail to do so. But how
and on what terms the Corps will enforce its property
rights is, absent a properly issued injunction, a matter
for the Corps to consider in the first instance, though
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we would expect it to decide promptly. To do otherwise would be to issue a de facto outgrant without engaging in the NEPA analysis that the Corps concedes
such an action requires. See Oral Arg. Tr. 36:14-15
(“The Corps’[s] regulations contemplate that an outgrant would require a NEPA analysis.”). Although
the district court was attuned to the discretion owed
the Corps, see Standing Rock VII, 471 F. Supp. 3d at
88 (“Not wishing to micromanage the shutdown, [the
court] will not prescribe the method by which DAPL
must [make the flow of oil cease].”), we nonetheless
conclude that it could not order the pipeline to be shut
down without, as required by Monsanto, making the
findings necessary for injunctive relief.
IV.
For the foregoing reasons, we affirm the district
court’s order vacating DAPL’s easement and directing
the Corps to prepare an EIS. We reverse to the extent
the court’s order directs that the pipeline be shut
down and emptied of oil.
So ordered.
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____________________
APPENDIX B
____________________
ENVIRONMENTAL ASSESSMENT
Dakota Access Pipeline Project
Crossings of Flowage Easements
and Federal Lands
Prepared on behalf of:
U.S. Army Corps of Engineers — Omaha District
1616 Capitol Avenue, Suite 9000
Omaha, NE 68102
July 2016
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*
*
*
EXECUTIVE SUMMARY
In accordance with the National Environmental
Policy Act (NEPA) and implementing regulations, the
following Environmental Assessment (EA) has been
prepared to evaluate the effects of the United States
Army Corps of Engineers (USACE), Omaha District
(District) granting permission to Dakota Access, LLC
(Dakota Access) to place a portion of the Dakota Access Pipeline Project (DAPL Project) on federal real
property interests acquired and managed for the Garrison Dam/Lake Sakakawea and Oahe Dam/Lake
Oahe Projects in North Dakota. 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. The EA addresses the purpose and need of the pipeline, as well
as the location and method of installation of the pipeline, but the analysis is limited to the effects of allowing the pipeline to cross federal flowage easements
near Lake Sakakawea and federally owned lands at
Lake Oahe in North Dakota, to determine whether the
placement of the pipeline on federal real property interests is injurious to the public interest or will impair
the usefulness of the federal projects.
This EA was prepared by Dakota Access on behalf
of the Corps in compliance with the NEPA Act of 1969;
the Council on Environmental Quality (CEO) Regulations (40 CFR 1500-1508); Corps of Engineers Regula-
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tion ER 200-2-2 (33 CFR Part 230), and related environmental compliance requirements, including the
Section 106 of the National Historic Preservation Act
(Section 106). Tribes, Tribal Historic Preservation Offices, State Historic Preservation Offices, the Advisory
Council on Historic Preservation, and interested parties were consulted by representatives from Dakota
Access and the Corps Omaha District as required by
the Programmatic Agreement and the National Historic Preservation Act.
This EA was prepared in accordance with CEO
regulations in Section 1506.5(a) and 1506.5(b), which
allow an applicant to prepare an EA for federal actions. The Corps has independently evaluated and
verified the information and analysis undertaken in
this EA and takes full responsibility for the scope and
content contained herein.
The Corps published a draft EA on December 8,
2015, on the U.S. Army Corps of Engineers (USACE)
Omaha District website (http://www.nwo.usace.army.mil
/Missions/CivilWorks/Planning/ProjectReports.aspx)
and hard copies were made available at public libraries in Bismarck, Williston, and Pierre. Additionally,
notifications where made to cooperating agencies,
other federal, state and local agencies, and signatory
and non-signatory Tribes to the Omaha Corps District
Programmatic Agreement.
The Corps received comments from 20 reviewers
in response to the Draft EA, primarily from individuals believed to be members of the Standing Rock Sioux
Tribe, and two sets of comments from EPA. These
comments relate to topics in the EA. The Corps fully
considered and responded to these comments. There
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is no new, significant information on environmental
effects as a result of these comments. As such, neither
a supplemental nor a revised EA will be published for
further public review nor are additional NEPA compliance actions required prior to the Corps making a
decision on the proposed action.
Impacts on the environment resulting from the
placement of the pipeline on federal real property interests is anticipated to be temporary and not significant as a result of Dakota Access’s efforts to avoid,
minimize, and mitigate potential impacts. Dakota Access will comply with all applicable local, state, and
federal regulations and permits associated with the
construction and operation of the pipeline, which is
not expected to have any significant direct, indirect,
or cumulative impacts on the environment.
1.0 INTRODUCTION
Dakota Access is proposing to construct a new
crude oil pipeline that would provide transportation
service from the Bakken and Three Forks plays in
North Dakota through portions of South Dakota and
Iowa to a terminus in Patoka, Illinois (Figure 1). In
coordination with the U.S. Army Corps of Engineers,
the Applicant, Dakota Access, LLC (Dakota Access),
as the non-federal representative for compliance with
the NEPA of 1969, the CEO Regulations (40 CFR
1500-1508), Corps of Engineers Regulation ER 200-22 (33 CFR Part 230), and related environmental compliance requirements, prepared this Environmental
Assessment to analyze whether the Corps could grant
Section 408 permissions for the placement of Dakota
Access Pipeline Project (DAPL Project) on federal
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flowage easements near the upper end of Lake Sakakawea, and federally owned lands at Lake Oahe in
North Dakota (“the Requester’s Preferred Alternative” or “Proposed Action”). Areas that are potentially
impacted by construction and/or operation of the Proposed Action are referred to herein as the Project
Area.
1.1 DAPL Project
The DAPL Project is an approximately 1,100-mile
long crude oil pipeline project beginning near Stanley,
North Dakota, and ending at Patoka, Illinois. The
DAPL project, as proposed and being evaluated
herein, would cross federal flowage easements near
the upper end of Lake Sakakawea north of the Missouri River in Williams County, North Dakota, and
federally owned lands at Lake Oahe in Morton and
Emmons counties, North Dakota. The EA analysis is
limited to these portions of the pipeline only.
1.2 Purpose and Need
The purpose and need of the federal action is to
determine whether USACE may grant permission for
Dakota Access to place the pipeline on federal real
property interests acquired and managed by USACE
for the Garrison Dam/Lake Sakakawea and Oahe
Dam/Lake Oahe projects. 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.
The EA addresses the purpose and need of the pipeline, as well as the location and method of installation
of the pipeline, but the analysis is limited to the effects
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of allowing the pipeline to cross federal flowage easements near the upper end of Lake Sakakawea and federally owned lands at Lake Oahe in North Dakota.
1.3 Authority and Scope of the EA
The proposed crossings of Corps-owned lands and
easements would require the Corps to grant the Section 408 permissions as well as real estate outgrants.
Therefore, the scope of this EA is limited to the crossings of Corps-owned lands and flowage easements. As
noted below, separate Corps authorizations are being
sought for Section 404, Section 10, and Section 408
crossings on other portions of the DAPL route. Those
actions are not discussed in the EA.
The Proposed Action does not qualify for a Categorical Exclusion from NEPA documentation as defined by ER 200-2-2, 4 March 1998 paragraph 9.
Thus, this EA has been prepared as required under
NEPA to determine potential impacts that may occur
as result of implementing the Proposed Action. If it is
determined that no significant impacts would be incurred after implementing the mitigation measures
described within this document, the USACE would issue a finding of no significant impact (FONSI). If it is
determined that significant impacts would be incurred as a result of construction and/or operations of
the Proposed Action, an environmental impact statement (EIS) would be prepared to further evaluate the
Proposed Action under NEPA.
This effect analysis is being completed in accordance with CEO regulations in Section CFR 1506.5(b),
which allow an applicant to prepare an EA for a federal action in coordination with the lead federal
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agency (i.e., Corps). The Corps will use the information in the EA to make a final determination
whether to grant the required Section 408 permissions using the information contained herein. The
Corps independently evaluated and verified the information and analysis undertaken in this EA and takes
full responsibility for its scope and content.
2.0 ALTERNATIVES
Dakota Access proposes the DAPL Project to efficiently and safely transport at least 570,000 barrels of
crude oil per day (bpd) from the Bakken and Three
Forks production region in North Dakota to a crude
oil market hub located near Patoka, Illinois, and ultimately to refineries located in the Midwest and the
Gulf Coast, where 80% of the U.S. refining capabilities
exist. Because the Corps can only grant permission
for the modification of a federal project if it would not
be injurious to the public interest, the EA evaluated
alternatives to the construction of the pipeline as a
whole, as well as the alignment of the pipeline and
method for installation on federal property. The alternatives were compared using the proposed purpose
of the DAPL project. The EA also analyzed the potential for the pipeline to impair the usefulness of the federal projects.
2.1 Alternatives Considered but Eliminated
from Detailed Analysis
2.1.1 Alternative 1—Modification of Existing
Infrastructure
There are no other major interstate pipelines that
would meet the purpose and need of the Project. The
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DAPL Project would be Energy Transfer’s (Company’s) first asset in the state. For this reason, the
manipulation of operating pressures or additional of
pump stations to increase transport capacity in pipelines or altering existing infrastructure to increase
storage and transport capacity are not viable options
to meet the purpose and need of the Project.
2.1.2 Alternative 2 — Trucking Transportation
Alternative
While trucking is instrumental in the gathering
and distribution of crude on a limited scale, trucking
as an alternative for transporting volume of crude oil
the distances planned for the DAPL Project is not viable. Based on data recorded by the North Dakota
Pipeline Authority as recently as November of 2015,
approximately 1% of the crude oil in the Williston Basin is transported via truck out of the Williston Basin
due to a lack of transport capacity (Kringstad, 2016).
Factors such as road safety, roadway capacity, and a
lack of reliability due to seasonal constraints, in addition to other logistical issues involving availability of
labor force, trailer truck capacity, and economics, all
contribute to truck transportation not being a realistic
alternative.
A sharp increase in traffic on North Dakota roads
as a result of the rapid expansion in the number of
commercial trucks linked to the oil industry speaks to
the issues associated with road safety. In 2012, the
Federal Motor Carrier Safety Administration reported a traffic fatality rate in North Dakota of 0.48
per million vehicle miles traveled, with 48 deaths involving a bus or large truck, far surpassing any other
state (U.S. Department of Transportation [DOT],
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2014). In the pre-boom years of 2001 to 2005, there
was an average of only 13 annual deaths involving
commercial trucks. Furthermore, the economic cost of
severe truck crashes has more than doubled between
2008 and 2012. Much of the increase in the fatality
rate can be attributed to the energy production boom,
along with the fact that the state’s infrastructure still
consists of single-lane, rural, and unpaved roads in
many areas (Bachman, 2014). Harsh winter weather
and seasonal road restrictions compromise the reliability of truck transportation even further. Based on
the above, a pipeline is a safer and more economical
alternative than trucking for the volumes transported
and distances covered by the DAPL Project.
Assuming the average oil tanker truck is capable
of holding about 220 barrels of oil, the transportation
of the initial capacity of the proposed Project (450,000
bpd), would require a total of 2,045 (450,000/220) full
trucks to depart the proposed tank terminals daily,
and more than 85 (2,045/24) trucks would have to be
filled every hour with a 24-hour/day operation. Time
spent in transit, loading/offloading, and additional
time for maintenance would add to the number of
trucks needed to offset for the DAPL Project. For a
trucking mode, an increase in daily truck traffic would
lead to an increase in the degradation of public roads
as well as contribute to the noise pollution adjacent to
the roads. For both truck and rail modes, an increase
in exhaust would be anticipated due to truck and locomotive combustion. An increase in air pollution
would also be anticipated from potential releases during the filling operations for trucks or rail cars.
Analysis of infrastructure considerations (the burden of thousands of additional trucks on county, state,
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and interstate highways, as well as the loading and
offloading facilities that would have to be constructed
which would incur their own environmental impacts),
economic considerations (e.g., labor costs, purchase
and maintenance of hauling equipment, fuel, public
infrastructure, etc.), and reliability considerations
(e.g., weather, mechanical, manpower, road closures)
all contribute to making the truck transportation alternative unviable.
2.1.3 Alternative 3 — Rail Transportation
Alternative
Reliance on rail as a transportation method in the
Williston Basin has drastically increased in recent
years, carrying a negligible percentage of the overall
market share as recently as 2010 to nearly 60% of the
overall market share by mid-2014 (Nixon, 2014). The
rise in the use of rail as a primary transportation
method has been driven in large part by the rapid increase in production of crude oil coupled with a lack of
pipeline capacity to account for additional supplies.
Negative impacts from the growth in popularity of
rail as a method of long-distance transportation of
crude oil include delays that disrupt the agricultural
sector, reductions in coal-fired power plant inventories, and significant production issues in the food production industry. In August 2014, reports filed with
the federal government indicated that the Burlington
Northern Santa Fe Railway had a backlog of 1,336 rail
cars waiting to ship grain and other products, while
Canadian Pacific Railway had a backlog of nearly
1,000 cars (Nixon, 2014). For industries, such as those
listed, in which the use of pipelines is not an option,
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the only viable alternative would be increased reliance on trucking, which would exacerbate some of the
issues listed in the section above.
Assuming a carrying capacity of 600 barrels per
car, a total of 750 rail cars would be required to depart
the tank terminal daily to transport 450,000 barrels
of crude oil to its final destination. Loading and offloading 750 rail cars in a day would require servicing
more than 31 rail cars per hour. With an assumption
of 125 rail cars per train, six trains would have to depart the tank terminal every day. With 10 to 12 trains
currently leaving the state per day carrying Bakken
crude, the DAPL Project would represent a 50 to 60%
increase in the number of trains transporting crude
oil out of the state, likely exacerbating issues with delays (Horwath and Owings, 2014).
Rail operations on the scale of the DAPL Project
do not exist in the U.S. An oil-by-rail facility designed
to handle an average of 360,000 bpd has been proposed in the Port of Vancouver, Washington. Known
as the Vancouver Energy proposal, the project would
be the largest rail terminal in the country (Florip,
2014).
A rail transportation alternative to handle the volumes of the DAPL Project would require the design
and construction of 125 to 158% of that of the Vancouver Energy proposal. A facility of this size would incur
its own environmental consequences.
From a safety standpoint, railroad transport consistently reports a substantially higher number of
transportation accidents than pipelines (DOT, 2005).
A series of major accidents taking place in 2013 to
2014 in Canada and the U.S. has heightened concern
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about the risks involved in shipping crude by rail (Fritelli, 2014).
Increases in rail traffic necessary to transport the
volume of crude oil proposed by the DAPL project
would increase the emissions of combustion products
due the use of diesel engines which could have an adverse impact on air quality in the region. This alternative would also directly affect communities along
utilized rail lines by increasing noise and creating
transportation delays due to the substantial increasing rail traffic across railroad crossings of roads.
While rail tanker cars are a vital part of the shorthaul distribution network for crude oil, pipelines are
a more reliable, safer, and more economical alternative for the large volumes transported and long distances covered by the DAPL Project. This alternative
would create delays on the rail lines due to the substantial increase in rail traffic, resulting in shipping
delays in other industries such as agriculture that
cannot rely on pipeline transportation. Furthermore,
the purpose and need of the Project would not be attainable with the current oil-by-rail infrastructure in
the country because rail loading facilities of sufficient
size do not exist. As such, rail transportation is not
considered a viable alternative.
2.1.4 Alternative 4 — Route Alternatives
Although this EA is limited to the pipeline placement on federal real property interests administered
by the Corps, major route alternatives were evaluated
for the pipeline route as a whole. During the DAPL
Project fatal flaw analysis and early routing process,
Dakota Access utilized a sophisticated and proprietary Geographic Information System (GIS)-based
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routing program to determine the pipeline route
based on multiple publicly available and purchased
datasets. Datasets utilized during the Project routing
analysis included engineering (e.g., existing pipelines,
railroads, karst, powerlines, etc.), environmental (e.g.,
critical habitat, fault lines, state parks, national forests, brownfields, national registry of historic places,
etc.), and land (e.g., fee owned federal lands, federal
easements, dams, airports, cemeteries, schools, mining, tribal lands, and military installations, etc.).
Each of these datasets was weighted based on the
risk (e.g., low, moderate, or high based on a scale of
1,000) associated with crossing or following certain
features. In general, the route for the pipeline would
follow features identified as low risk, avoid or minimize crossing features identified as moderate risk,
and exclude features identified as high risk. For example, the existing pipelines dataset was weighted as
a low risk feature, so that the routing tool followed existing pipelines to the extent possible to minimize potential impacts. An example of a high risk feature is
the national park dataset. Since national parks were
weighted for the DAPL Project as high risk, the GIS
routing program excluded any national parks from
the pipeline route to avoid impacts on these federal
lands. In addition, the routing program established a
buffer between the proposed route and certain types
of land, such as maintaining a 0.5-mile buffer from
tribal lands.
Route Alternative for the Crossing of Flowage
Easements at the Missouri River
Early in the routing process Dakota Access performed a cursory route evaluation to attempt crossing
54a
the Missouri River at a location that does not contain
flowage easements. This would dictate moving the
centerline west of the flowage easements in Williams
County. This alternative was not carried forward
through the environmental consequences analysis,
given that this would require approximately eight additional miles of pipe, an exceedance of an additional
130 acres of workspace, and another major river crossing (Yellowstone River) in addition to the Missouri
River. Furthermore, other state and federal properties are located along the river west of the confluence
of Missouri and Yellowstone Rivers.
Route Alternative for the Crossing of Federal
Lands at Lake Oahe
Early in the routing phase of the DAPL Project,
Dakota Access considered but eliminated an alternative centerline that originated in Stanley, North Dakota, within Mountrail County, where it connected to
customer receipt points and headed southwest
through Williams County and crossed the Missouri
River approximately 8.5 miles east of the Yellowstone
River and Missouri River confluence (Figure 12).
The centerline then headed southeast across the state
and crossed Lake Oahe approximately 10 miles north
of Bismarck (Figure 13), where it then headed south
again and entered South Dakota approximately 35
miles east of Lake Oahe in McIntosh County. In addition to other evaluation criteria listed in Table 2.1,
the route alternative was in proximity to and/or crossing multiple conservation easements, habitat management areas, National Wildlife Refuges, state trust
lands, waterfowl production areas, and private tribal
lands.
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As a result of public input and comment during
this EA process, additional desktop evaluation of the
North Bismarck alternative portion of the early route
(Figure 13) was undertaken. The comparison of this
alternative to the preferred route is included in Tables 2-1 and 2-2 contained herein. As illustrated in
the tables, the data substantiates eliminating this
route as a viable alternative. While the alternative
does avoid Corps fee owned land at Lake Oahe; therefore, would not require a Corps real estate outgrant or
Corps EA review, approximately 11-miles of length
would be added to the pipeline route, consisting of
roughly 165 additional acres of impact, multiple additional road crossings, waterbody and wetland crossings, etc. In addition to the criteria shown in the tables, due to the proximity to Bismarck, the North Bismarck route alternative crossed through or in close
proximity to several wellhead source water protection
areas that are identified and avoided in order to protect areas that contribute water to municipal water
supply wells. The route was also severely constrained
by the North Dakota Public Service Commission’s
500-ft residential buffer requirement at multiple locations. Furthermore, this route alternative crossed
other populated PHMSA high consequence areas
(HCAs), that are not present on the preferred route.
Pipeline safety regulations use the concept of HCAs to
identify specific locales where a release from a pipeline could have the most significant adverse consequences.
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58a
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A negative number indicates that the value for the
proposed action is less than the value for the population that the proposed action is being compared to.
2.1.5 Alternative 5 — Major Waterbody
Crossing Method Alternatives
Once an optimal route was selected based on the
evaluation of impacts discussed in Section 2.1.3, Dakota Access then identified the preferred major waterbody crossing construction method that would meet
the purpose and need while minimizing impacts to resources. Pipeline construction methods utilized at
waterbody crossings are highly dependent on the
characteristics of the waterbody encountered. A variety of waterbody crossing techniques were considered
during the DAPL Project planning stages for the
crossings of major waterbodies, including Dam and
Pump, Flume, Open-Cut, and Horizontal Directional
Drill.
Dry Crossings Methods
Two different techniques, including dam and
pump and flume crossing methods, are typically used
on waterbody crossings well under 100 feet in width
and require a temporary diversion of flow within the
waterbody. Because of the large volume of water
within the Missouri River system, it is not feasible to
temporarily divert the water either by pump or flume,
and these methods were ruled out of consideration for
the crossing of the Missouri River and Lake Oahe.
Wet Open-Cut Crossing Method
Aside from trenchless or HDD crossing techniques, the only feasible crossing method from a con-
64a
structability standpoint for the major waterbodies associated with the Proposed Action is the wet open-cut
crossing method, in which flow would be maintained
throughout installation of the pipeline. This method
of construction would require the construction rightof-way (ROW) to extend right up to the waterbody itself, allowing equipment to operate from the banks of
the waterbody to excavate a trench. The sensitive
habitat adjacent to the banks of the waterbodies
would be cleared of vegetation and graded to create a
safe and level workspace that could accommodate excavation equipment and spoil storage for the duration
of the open-cut installation (approximately 6 months).
Since the widths of the Missouri River and Lake Oahe
at the crossing locations is such that operating trenching equipment entirely from the banks would not be
possible, trench excavation in the waterbodies would
require equipment operating from barges. Furthermore, the depth of the waterbodies crossed (15 to 25
feet) exceeds the reach of a backhoe, and the use of
mechanical dragline dredgers would be necessary.
Spoil dredged from the bottom of the waterbody would
be stored on a spoil barge or otherwise temporarily
stockpiled in the waterbody itself. This method of excavation would greatly influence the overall sediment
load generated in the waterbody for the duration of
the installation. The generation of a downstream turbidity plume would have a direct effect on the aquatic
habitat of the waterbody. In addition, the operation
of equipment within and on the banks of the waterbody has the potential for adverse effects on surface
water quality (i.e., potential contamination of surface
water resources from fuel or leaks from the equipment). Compared to trenchless technology, the open-
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cut method would incur far greater impacts on sensitive habitat located on both the banks of the waterbodies and within the waterbodies. Therefore, this
method of construction was eliminated from consideration.
The trenchless construction method known as
HDD was selected as the preferred construction
method of the Proposed Action, because this method
of construction involves far less impacts on resources.
In addition, the Garrison Project — Lake Sakakawea
Oil and Gas Management Plan explicitly states that:
Oil and gas pipelines should use directional drilling
technology to traverse beneath sensitive habitat areas. Further information regarding the HDD construction method is provided in Section 2.3.2.6 below.
2.2 No Action Alternative
Under the “no action” alternative, Dakota Access
would not construct the DAPL Project. The “no action” alternative would not provide the infrastructure
necessary to transport light sweet crude oil to refining
facilities. In northwest North Dakota, exploration
and production of oil is a major economic activity, with
crude oil production being the primary mineral resource of interest. Although the “no action” alternative itself would not incur direct environmental impacts, it would also not address the existing demand
to transport crude oil to refining facilities. Market demands would likely compel shippers to rely on alternative methods of crude oil transport such as truck or
rail. Although, both the truck and rail alternatives
are not sufficient to meet the purpose and need of the
Project due to the lack of available infrastructure and
other limitations described in Sections 2.1.3 and 2.1.4,
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it is reasonable to assume that truck and rail traffic
would increase if the “no action” alternative were implemented.
These alternative shipping methods
would adversely affect resources as described in Sections 2.1.3 and 2.1.4 and throughout this EA.
It is purely speculative to predict the resulting effects and actions that could be taken by another company or Dakota Access’ shippers and any associated
direct or indirect environmental impacts in response
to the “no action” alternative. However, if this alternative is implemented, it is likely that other methods
of transporting crude oil to the marketplace would be
implemented and anticipated effects of the “no action”
alternative has been carried forward in the environmental analysis of this EA to provide a comparison between it and the impacts of implementing the Preferred Alternative.
2.3 The Proposed Action (Preferred
Alternative)
2.3.1 location and Detailed Description of the
Proposed Action
The DAPL Project originates near Stanley, North
Dakota, traversing westerly northwest of Williston
then turning south, crossing the Missouri River and
traverses southeasterly across the state, exiting
through the central portion of the southern border.
Dakota Access proposes to construct the pipeline,
ranging in size from 12 to 30 inches in diameter, so
that the majority of lands crossed would be privatelyowned lands. The locations for collecting product into
the proposed system were largely fixed based on the
location of existing terminals. The first of the six fixed
input locations is located at the pipeline’s origin near
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the town of Stanley in Mountrail County. Three other
input locations exist near the towns of Ramberg, Epping, and Trenton in Williams County. Two additional collection points are located south of the proposed Missouri River crossing on the flowage easements in McKenzie County near the towns of Waterford City and Johnson’s Corner. Connecting the input
locations was largely a matter of minimizing length
and maximizing the avoidance of sensitive features,
developments, public lands, and constructability issues (e.g., steep terrain, potholes, excessive bedrock,
etc.), as discussed above in Section 2.1.4 Route Alternatives. Based on the location of the collection points,
crossing the Missouri River (Lake Sakakawea) was
unavoidable. The selected crossing location of the
Proposed Action avoids federally owned lands to the
extent practical, is at a narrow width of the river upstream of the wider Lake Sakakawea, and minimizes
impacts on sensitive resources (e.g., piping plover critical habitat, eagle nests, etc.). The pipeline is 24
inches in diameter where it crosses approximately
14,942 feet (2.83 miles) of the Corps flowage easements at the Missouri River and is 30 inches in diameter where it crosses approximately 1,109 feet (0.21
mile) of the Corps-owned federal lands at Lake Oahe.
Within North Dakota, the proposed Supply pipeline crosses seven tracts of flowage easement retained
by the Corps located north of the Missouri River in
Williams County (Figure 2). The proposed DAPL
Project Mainline route travels through land owned
and managed by the Corps on both sides of the Lake
Oahe crossing at the border between Morton and Emmons counties, approximately 0.55 mile north of the
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northern boundary of the Standing Rock Sioux Reservation (Figure 3).
The following narrative relates to Figures 1
through 3 in Section 12.0 and is provided to assist the
reader in identifying the Project Area under consideration in this analysis. Purple polygons indicate real
estate interests; either the flowage easements that the
Corps has with private landowners upstream of Lake
Sakakawea, or the fee title lands that the Corps has
on the upper end of Lake Oahe. The red hyphenated
line shows the DAPL Project centerline as it approaches Federal property at the Lake Oahe crossing
and temporary workspace areas. The straight solid
redline indicates the HDD pipeline that will go beneath Corps managed federal surfaces and is the Project Area being considered as part of the Federal action to issue a real estate easement. The yellow polygon indicates workspace where temporary work is
proposed to be completed that directly supports the
HDD installation of the pipeline underneath the
river/reservoir. Temporary activities that would occur
in this workspace include: welding together pipe, inspecting and testing the pipeline to ensure no leaks
are present prior to preparing to install beneath the
river/reservoir at both locations.
Potential impacts have to be evaluated in temporary workspace, as actions completed here are directly
connected to the ability for the applicant to complete
the proposed project (both the purple and yellow
polygons). Further, these actions are directly connected to the federal decision to allow an easement for
the pipeline to cross federal lands in this area. Notice
that the Corps is not analyzing the effects of the red
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hyphenated line (DAPL centerline) at the Lake
Oahe crossing as it is outside the EA review area.
This is an important difference compared to the flowage easement location where temporary work happens to coincide with the orientation of the flowage
easements perpendicular to the Missouri River.
Therefore, temporary workspace required for portions
of the pipeline installed via conventional (non-HDD)
methods on the flowage easements is included in the
EA review area.
The flowage easements and Corps owned lands associated with the Proposed Action, and the associated
Project impact acreages, expressed as construction
workspace, are identified in Table 2-3 below.
Table 2-3
Flowage Easements and Federal Land Crossings
County
Construction
Workspace
LL3440E
Williams
9.4
LL3483E-1
Williams
10.8
LL3453E
Williams
10.7
LL3430E
Williams
5.0
LL3450E-2
Williams
5.2
LL3431E
Williams
14.7
LL3426E-2
Williams
3.4
--
59.2
Federal Land
Morton
0.4
Federal Land
Emmons
0.8
Grant of Easement
Document Number
Flowage Easements
Flowage Easements
Total Acres
Federally-Owned Lands
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Table 2-3
Flowage Easements and Federal Land Crossings
Grant of Easement
Document Number
Total Acres
County
Construction
Workspace
--
1.2
The EA review area includes areas within the
Corps flowage easements and federal lands that are
potentially impacted by construction and/or operation
of the DAPL Project. The EA review area is hereafter
referred to as the Project Area(s). Actions that occur
outside of the flowage easements and the federal
lands at the Lake Oahe crossing are considered Connected Actions. Connected Actions are those actions
that are “closely related” and “should be discussed” in
the same NEPA document (40 CFR § 1508.25 (a)(i)).
Actions are connected if they automatically trigger
other actions that may require an EA, cannot or will
not proceed unless other actions are taken previously
or simultaneously or if the actions are interdependent
parts of a larger action and depend upon the large action for their justification (40 CFR § 1508.25 (a)(i, ii,
iii)). Connected Actions are limited to actions that are
currently proposed (ripe for decision). Actions that
are not yet proposed are not Connected Actions, but
may need to be analyzed in the cumulative effects
analysis if they are reasonably foreseeable. The only
Connected Actions at each individual crossing location associated with the Proposed Action are those
that relate to the HDD workspace at the Missouri
River crossing and the HDD workspace, HDD stringing area, and the permanent easement on private
lands in the vicinity of the Lake Oahe crossing. The
two federal permissions are not connected actions because the locations of each crossing are independent
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of one another and the location of the first does not
dictate the location of the second.
Dakota Access initially proposed an isolation
valve to be located within the flowage easements
(easement LL3453E); however, the Omaha District
has assessed the potential for open water and ice jam
flooding within the vicinity of the Project Area in the
“Reconnaissance Report, Missouri River, BufordTrenton Irrigation District, North Dakota” and based
on the findings the valve would be located within an
area that has the potential to be submerged or damaged by ice jam flooding. Therefore, the valve has
been removed from the Project Area.
The Project Area and Connected Actions analyzed
within this EA for both crossings are outlined in Table 2-4, which identifies land status (private, Federal
or Easement) and provides associated acreages.
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73a
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2.3.1.1 Flowage Easements
The Missouri River HDD is located just upstream
of Lake Sakakawea and downstream of the confluence
of the Yellowstone and Missouri rivers. The proposed
crossing of flowage easements near upper Lake Sakakawea (flowage easements) is located in Sections 7,
18, 19, and 30, Township 152 North, Range 103 West,
in Williams County, North Dakota (Figure 2). The
proposed pipeline is routed parallel to an existing buried natural gas pipeline and associated valve sites,
which cross the Missouri River and flowage easements just west of the proposed Dakota Access pipeline.
The HDD exit workspace would be located on a
flowage easement tract. Access to the Project Area on
the flowage easements would be via the construction
ROW from an existing road (38th Street NW). No additional temporary access roads would be required.
The Connected Action at the flowage easements includes the HDD entry workspace, located on the south
side of the Missouri River on private lands in McKenzie County. Access to the HDD entry workspace will
be via the existing access road located adjacent to the
HDD entry workspace. No additional temporary access roads would be required.
2.3.1.2 Federal Lands
The proposed crossing of federally-owned tracts at
Lake Oahe (federal lands) is located in Section 10,
Township 134 North, Range 79 West in Morton
County, North Dakota, and Section 11, Township 134
North, Range 79 West in Emmons County, North Dakota (Figure 3). The proposed pipeline is routed to
parallel existing linear infrastructure (an overhead
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powerline and a buried natural gas pipeline) in this
area. The HDD entry and exit point workspaces and
stringing area would be located on private land outside of the federal lands and are considered Connected
Actions in this analysis. HDD design reflects a crossing length of approximately 7,500 feet, of which approximately 5,420 feet occurs beneath the bed of Lake
Oahe.
2.3.2 Description of Construction Techniques
and Construction Mitigation Measures
All facilities associated with the Proposed Action
would be designed, constructed, tested, operated, and
maintained in accordance with the U.S. DOT regulations in Title 49 CFR Part 195. Dakota Access is currently developing project-specific plans and would implement best management practices (BMPs) to mitigate for potential construction-related impacts associated with stormwater runoff. This includes implementation of their Stormwater Pollution Prevention
Plan (SWPPP; see Appendix A), which includes the
Spill Prevention Control and Countermeasure Plan
(SPCC Plan) as an appendix. Additionally, Dakota
Access would implement their HDD Construction
Plan and HDD Contingency Plan (HDD Construction/Contingency Plan; see Appendix B) for inadvertent release of drilling mud during HDD construction work at wetland and waterbody crossings to protect sensitive resources from such releases. The Proposed Action would be constructed via a combination
of conventional and specialized construction procedures, as described below.
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2.3.2.1 Clearing and Grading
Prior to commencement of ground-disturbing activities, a standard survey and stakeout would be conducted to identify ROW and workspace boundaries
and to locate existing foreign utility lines within the
construction ROW. Following completion of the surveys, the construction ROW would be cleared of vegetation and debris. Clearing of wetlands is limited to
removal of woody debris in the forested wetlands
above the HDD profile on the north bank of the Missouri River within the flowage easements. Stumps
would be cut flush with the ground and left in place,
as described in Section 3.2.3. Cleared vegetation and
debris along the ROW would be disposed of in accordance with federal, state, and local regulations either
by burning, chipping and spreading, or transportation
to a commercial disposal facility. Where necessary, to
contain disturbed soils during clearing and grading in
upland areas, and to minimize potential erosion and
sedimentation of wetlands and waterbodies, temporary erosion control devices (ECDs) would be installed
prior to initial ground disturbance and maintained
throughout construction. Vegetative buffers would be
left where practical at all waterbody crossings to limit
the exposure and impact to these features. Final
clearing would take place immediately prior to crossing the feature rather than advance.
2.3.2.2 Trenching
Trenching involves excavation of a ditch for pipeline placement and is accomplished through the use of
a trenching machine, backhoe, or similar equipment.
Trench spoil would be deposited adjacent to each
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trench within the construction work areas, with topsoil segregation utilized where necessary based on
land use (see the typical ROW configuration drawings
in Appendix C). In standard conditions, the trench
would be excavated to an appropriate depth to allow
for a minimum of 36 inches of cover over the pipe.
Ground disturbance associated with conventional
pipeline construction is generally limited to approximately 6 to 10 feet below the existing ground surface.
Typically the bottom of the trench would be cut at
least 12 inches greater than the width of the pipe. The
width at the top of the trench would vary to allow the
side slopes to adapt to local conditions at the time of
construction.
2.3.2.3 Pipe Stringing, Bending, and
Welding
Following preparation of the trench, the new pipe
would be strung and distributed along the ROW parallel to the trench. Depending on available workspace, some pipe may be fabricated off-site and transported to the ROW in differing lengths or configurations. Pipe would be bent by hydraulic bending machines, as necessary, to conform the pipe to the trench.
Once in place along the ROW, pipe lengths would be
aligned, bends fabricated, and joints welded together
on skids (i.e., temporary supports). Welding would be
performed in accordance with the American Petroleum Institute Standards, PHMSA pipeline safety
regulations, and Company welding specifications. All
welds would be coated for corrosion protection and visually and radiographically inspected to ensure there
are no defects. Segments of completed pipeline would
undergo hydrostatic pressure testing as described in
Sections 3.2.1.2 and 3.11.
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2.3.2.4 Pipeline Installation and Trench
Backfilling
Completed sections of pipe would be lifted off the
temporary supports by side boom tractors or similar
equipment and placed into the trench. Prior to lowering-in, the trench would be visually inspected to ensure that it is free of rock and other debris that could
damage the pipe or the coating. Additionally, the pipe
and the trench would be inspected to ensure that the
configurations are compatible. Tie-in welding and
pipeline coating would occur within the trench to join
the newly lowered-in section with the previously installed sections of pipe. Following this activity, the
trench would be backfilled with the previously excavated material and crowned to approximately 6 inches
above its original elevation to compensate for subsequent settling.
2.3.2.5 Clean-up and Restoration
Following pipeline installation and backfilling,
disturbed areas would be restored and graded to preconstruction contours as closely as practicable. Construction debris and organic refuse unsuitable for distribution over the construction ROW would be disposed of at appropriate facilities in accordance with
applicable regulations. Permanent ECDs would be installed as appropriate, and revegetation measures
would be applied in accordance with the Environmental Construction Plan (ECP; see Appendix G),
SWPPP, and requirements of applicable state and federal permits.
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2.3.2.6 Major Waterbody Crossing Method
As previously discussed, the preferred waterbody
crossing technique for the Proposed Action is the HDD
method. The HDD method allows for construction
across a feature without the excavation of a trench by
drilling a hole significantly below conventional pipeline depth and pulling the pipeline through the predrilled hole. As described in subsequent sections of
this document and in greater detail in the HDD Construction Plan (Appendix B), by utilizing the trenchless technology, Dakota Access would minimize impacts to resources within and adjacent to the waterbodies crossed and reduce the anticipated duration of
the crossing. The HDD equipment would be staged
well outside of the riparian area, avoiding impacts on
the steep banks, cultural resources, and sensitive habitat immediately adjacent to the waterbody. Cross
sections of the Missouri River and Lake Oahe HDDs
are provided in Figure 14 and Figure 15.
Depending on the HDD equipment utilized, to
help guide the drill bit along the pipeline ROW, electric-grid guide wires may be laid along the predetermined HDD route. In thickly vegetated areas, a small
path may be cut to accommodate laying the electricgrid guide wires. Once the electric-grid guide wires
are installed, the directional drilling rig would drill a
small diameter pilot hole along the prescribed profile.
Following the completion of the pilot hole, reaming
tools would be utilized to enlarge the hole to accommodate the pipeline diameter. The reaming tools
would be attached to the drill string at the exit point
and would then be rotated and drawn back to incrementally enlarge the pilot hole. During this process,
drilling fluid consisting of primarily bentonite clay
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and water would be continuously pumped into the pilot hole to remove cuttings and maintain the integrity
of the hole. When the hole has been sufficiently enlarged, a prefabricated segment of pipe would be attached behind the reaming tool on the exit side of the
crossing and pulled back through the drill hole towards the drill rig.
Fluid pressures can build up within the borehole
during HDD operations. In some instances, this can
result in hydraulic fracturing of the substrate and
subsequent migration of drilling fluids either into the
waterway or to the land surface—this is known as a
“frac-out.” The depth of the proposed HDD profiles below the beds of the surface waters to be crossed would
minimize the potential for frac-outs to occur. Additionally, precautions would be taken during all phases
of the drilling operation. A high quality drilling fluid
would be used to maintain and protect the integrity of
the borehole during the entire HDD operation until
the final pipe pull is completed. The HDD Construction Plan (Appendix B) includes more details regarding HDD construction technology and methods. The
work would be performed by an experienced drilling
contractor, Michels Directional Crossings, a Division
of Michels Corporation, that is knowledgeable in effective HDD practices, including maintaining proper
drilling rate, drilling fluid composition, pumping rate
of the drilling fluid, pull-back rate, and pumping rate
on the back ream, and adjusting these as appropriate
for the conditions.
The potential for river channel changes associated
with water erosion and scour were considered when
selecting the major waterbody crossing methods and
locations. Dakota Access has coordinated with the
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North Dakota Office of the State Engineer as part of
the Sovereign Lands Permitting Process to verify adequate depths for the pipe to be buried relative to geomorphological movements for the Lake Oahe and the
Missouri River crossings. Accordingly, the professional engineering firm evaluating HDD depths for
the Proposed Action, GeoEngineers, has performed a
scour analysis in order to evaluate the scour risk to
the proposed pipeline during 100- and 500-year discharge events for the Lake Oahe and the Missouri
River crossings.
The proposed HDD profile under Lake Oahe is designed to provide 92 feet of cover below the bottom of
the lake. Because of the depth of the pipe below the
waterbody, and the ponded condition of Lake Oahe,
this crossing is at a low risk to geomorphologic movements at the proposed crossing. The North Dakota
Office of the State Engineer has issued Sovereign
Lands Permit for the Lake Oahe crossing. A copy of
the permit is included in Appendix M.
The Missouri River HDD profile is designed to
provide a minimum of 36 feet of cover at the crossing
location beneath the lowest point of the Missouri
River. This crossing has less proposed cover between
the bottom of the waterbody and the top of the buried
pipe and it is an active channel. As part of the Sovereign Lands Permitting Process with the Office of the
State Engineer, conservative assumptions were utilized in the analysis of the Missouri River HDD design
profile as a factor of safety. For example, the proposed
crossing is not located at a bend in the channel and is
located over 3,000 feet downstream of the nearest upstream channel bend. An analysis of historic photo-
82a
graphs of the proposed crossing show that the upstream bend has been stable and in the same location
and that the potential downstream migration of this
bend is highly unlikely. However, although bend
scour is not likely to propagate downstream to the proposed crossing, to be conservative in their evaluation
GeoEngineers assumed that the bend could migrate
downstream and negatively influence the crossing.
GeoEngineers estimated the maximum bend
scour at the proposed pipeline to be 23 to 25 feet for
the 100- and 500-year peak flow events, respectively.
The bend scour at the crossing location would not be
additive for successive storms as long-term degradation is assumed to be zero. Historic aerial imagery
and recent Google Earth imagery indicates bar building and deposition of sediments in the Project Area,
representing a dynamic sediment environment. This
equates to a high likelihood that there is an adequate
upstream sediment supply and likely minimal long
term degradation at the proposed crossing location.
In general terms, if the area over the pipeline was to
experience a large scour event from one large storm
event (up to 23 feet of scour during the 500-year peak
flow event following the conservative assumptions),
this area would be filled in/covered after the storm
event by deposition of sediments from upstream and
potential exposure of the pipeline would be negligible.
In addition to bend scour, there is potential for
contraction scour that occurs when channel width varies within a short reach of the river. There is a small
contraction upstream of the proposed crossing at the
downstream end of the bend approximately 3,000 feet
upstream. The DAPL proposed crossing is not located
in a contraction, but actually a small expansion and
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the contraction point is not likely to migrate downstream to the proposed crossing. However, to be conservative in their analysis as an additional factor of
safety, GeoEngineers assumed that the contraction
scour upstream of the proposed crossing could migrate
downstream to the proposed crossing location. Based
on this conservative assumption, contraction scour estimates for the 100-year discharge event are approximately 9 feet. This 100-year contraction scour depth
is greater than what would occur during the 500-year
event as flood waters spreading across the floodplain
actually reduce contraction and therefore reduce the
contraction scour depth.
Combining the conservative assumptions from
above, the maximum estimated total potential scour
depth at the proposed Missouri River HDD site would
occur during a 100-year flood event. This conservatively assumes “worst case” that both the bend scour
and the contraction scour migrate downstream and
are both realized directly over the pipeline crossing at
the same time. Under this scenario, the bend scour
would create a scour of 23 feet and the contraction
scour would contribute another 9 feet creating the
maximum estimated total potential scour depth of 32
feet below the existing channel elevation during a
100-year flood event. To assess the factor of safety applied using these assumptions, GeoEngineers utilized
general scour equations that take into account bend
and contraction scour and compared them to the total
scour estimated using the Maynord equation for bend
scour and Laursen’s live-bed contraction scour equation. Utilizing the Blodgett equation, Lacey equation,
and Blench equation forgeneral scour, the estimated
general scour at the proposed pipeline crossing ranges
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between 14 to 23 feet for the 100- and 500-year peak
flow events. This results in a total factor of safety of
1.4 to 2.3 for total scour at the proposed crossing.
Based upon their calculated worst-case scenario
scour estimate, GeoEngineers considers the risk of
scour occurring down to the level of the proposed pipeline to be low and the proposed Missouri River HDD
design profile to be appropriate. The North Dakota
Office of the State Engineer has issued Sovereign
Lands Permit for the Missouri River crossing. A copy
of the permit is included in Appendix M.
2.3.2.7 Minor Waterbody Crossing
Methods
There are no minor waterbodies crossed by the
pipeline on Corps Fee Lands. All minor waterbodies
encountered on the flowage easements have been
identified as falling under the jurisdiction of the
Buford/Trenton Irrigation District (BTID) and, in
compliance with their regulations, would be crossed
via trenchless pipeline construction methods (bores).
Dakota Access is working through the BTID permitting and approval process separately. One intermittent waterbody has been identified on the south side
of the Missouri River crossing, within the connected
action area but outside of the flowage easements, and
within the HDD workspace. Temporary impacts to
this waterbody would be mitigated during construction with a customized HDD equipment configuration,
including the placement of temporary matting/bridging over the feature as necessary to maintain natural
water flow during construction, and installation of appropriate ECDs. Therefore, impacts on surface wa-
85a
ters and adjacent sensitive habitat would be minimized by eliminating open-cut pipeline installations
and in-stream work for all crossed waterbodies.
2.3.2.8 Wetland Crossings
As discussed in Section 3.2.3 below, the only wetlands that would be crossed by the Proposed Action
are located within the permanent easement between
HDD workspace and the Missouri River on the flowage easements. As such, no wetlands would be impacted by construction or operation of the facilities
within the Project Area/Connected Actions of the federal lands, and no trenching within wetlands would
occur within the Project Area on the flowage easements. A temporary waterline would be laid aboveground, across the wetlands located between the HDD
workspace and the north bank of the Missouri River
on flowage easement LL3440E (Figure 6-13). No
ground disturbing activity would be required for installation of the temporary waterline. A more detailed
discussion regarding wetlands is provided in Section
3.2.3.
2.3.2.9 Operation and Maintenance
Following completion of construction, a 50-footwide permanent easement that is generally centered
on the pipeline (25 feet on either side of the centerline)
would be retained along the pipeline route. The 50foot-wide easement would be maintained by the Operator in an herbaceous state (cleared of large diameter
woody vegetation) to facilitate inspection of the pipeline, operational maintenance, and compliance with
the federal pipeline safety regulations. This 50-footwide maintained corridor would be reduced to a 30foot-wide corridor centered on the proposed pipeline
86a
within the wetland area north of the Missouri River
in Corps Flowage Easement LL3440E (Figure 6-13).
Maintenance of the permanent ROW would entail
periodic vegetation clearing measures, in accordance
with PHMSA regulation for pipeline inspection. This
may involve selective tree cutting and periodic mowing. The use of herbicides would not occur on Corps
Fee Lands without obtaining prior approval from the
Corps. Vegetation maintenance of the ROW in areas
of active cropland is not expected to occur due to agricultural practices.
3.0 THE AFFECTED ENVIRONMENT AND
POTENTIAL ENVIRONMENTAL IMPACTS OF
THE PROPOSED ACTION AND NO ACTION
ALTERNATIVE
3.1 Geology and Soils
Under the “no action” alternative, Dakota Access
would not construct the DAPL Project and no impacts
on geology and soils would occur. However, if the objectives of the DAPL Project are to be met under the
“no action” alternative, other projects and activities
would be required and these projects would result in
their own impacts on geology and soils, which would
likely be similar to or greater than the DAPL Project.
If the Project is not constructed, less reliable shipping
methods such as truck or rail could result in an adverse effect on geology and soils due to increases in
transportation accidents and future construction of
infrastructure necessary to support these methods
(i.e. additional loading/offloading facilities, rail spurs,
etc.).
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3.1.1 Geology
3.1.1.1 Affected Environment
The Corps flowage easements to be crossed extend
approximately 2.83 miles north of the Missouri River
in Williams County (Figure 2). Conventional open
trench construction methods would be used to install
the pipeline on approximately 13,553 feet of the
14,953 feet of flowage easements. The remaining
1,400 feet would be installed via HDD for the adjacent
Missouri River crossing. The easements and Connected Action lie within the Missouri River valley and
floodplain on top of the Quaternary Oahe Formation
(Clayton, 1980). The Oahe Formation is comprised of
unconsolidated sediments, including clay, sand, silt,
and gravel, with some dispersed organic material. Geotechnical borings placed on both sides of the river,
ranging in depth from 75 to 95 feet below ground surface, confirm the presence of unconsolidated sand,
gravel, and clay to at least these depths. At this location, the Oahe Formation unconformably overlies the
Paleocene Bullion Creek Formation, which is made up
of silt, sand, clay, sandstone, and lignite, and is the
uppermost part of a thick sequence of early Tertiary
and late Mesozoic sedimentary formations. Well borehole data from McKenzie County indicates that this
sequence occurs in excess of 15,000 feet thick in certain locations (Freers, 1970). No soil borings were obtained below the Missouri River crossing because the
banks of the Missouri River the length of the crossing
is sufficiently short (930 feet) to allow for a comprehensive geotechnical analysis without testing directly
beneath the river itself.
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The flowage easements crossed by the Proposed
Action and area crossed by the Connected Action occur
within the Great Plains Physiographic Province,
which is characterized by a broad expanse of flat land
in the central portion of the U.S. The easements and
the Missouri River Project Area lie within an area
where physiography is characterized by low-relief alluvial and floodplain deposits and range in elevation
from 1,856 to 1,879 feet above mean sea level (MSL).
The bedrock geology of the Lake Oahe crossing
area is characterized by Cretaceous sedimentary formations (Clayton, 1980). The Fox Hills Formation
(sandstone and shale) overlies the Pierre Formation
(shale), which has been exposed through erosion along
the axis of the Lake Oahe reservoir of the Missouri
River. The surficial geology is characterized by alluvium within the valley and dune deposits moving in
an eastward direction. This was corroborated by geotechnical soil borings that were placed on private
lands on both sides of Lake Oahe that indicate the
presence of sands and clays to depths ranging from at
least 150 to 235 feet below ground surface (Appendix
D).
The Lake Oahe crossing area also lies within the
Great Plains Physiographic Province. On the west
side of Lake Oahe, the federal land tracts range in elevation from 1,609 to 1,712 feet above MSL. The HDD
exit point workspace ranges from 1,699 to 1,711 feet
MSL, and the stringing area ranges from 1,671 to
1,766 feet MSL. On the east side of Lake Oahe, the
federal lands range in elevation from 1,613 to 1,664
feet MSL, and the HDD entry point workspace ranges
from 1,636 to 1,644 feet MSL.
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3.1.1.2 Impacts and Mitigation
To protect the terrain of the Project Area and Connected Actions, Dakota Access would, to the extent
feasible, restore the areas affected by pipeline construction to pre-construction contours and similar
vegetation (excepting trees within approximately 15
feet of the centerline). Pre-construction and as-built
surveys would be completed and provided to the Garrison Project.
Construction of the pipeline on the flowage easements and Connected Action at the Missouri River
crossing would result in minor impacts on topography
and geology, and no unique geologic features that
have received state or federal protection would be impacted within the Corps flowage easements or Connected Action.
The impacts attributable to the HDD would not be
significant. Vibrations produced during the HDD process are not of a magnitude that would cause any impacts to geologic features or other resources. Any vibrations associated with the drilling process would be
limited to the immediate vicinity of the drilling equipment on the surface and downhole. The vibrations
produced from the downhole tooling are of a very low
magnitude and are attenuated very quickly by the formation such that vibrations are not felt at the surface.
A vibration monitoring analysis conducted by GeoEngineers in 2009 found that peak particle velocities
were less than 0.07 inches/second within approximately 50 feet of HDD operations. These velocities
are well below that which would cause any structural
impacts and moreover, the recorded vibrations were,
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in fact, imperceptible to human senses (GeoEngineers, 2009). Primary impacts of open trench installation within the Corps flowage easements or Connected Action would be limited to construction activities and consist of temporary alteration due to grading
and trenching operations.
Construction of the pipeline at the Lake Oahe
crossing would not result in adverse impacts on topography or geology on federal lands of the Project Area.
Similarly, construction impacts on topography and geology from the Connected Actions would be low to nonexistent. No unique geologic features would be impacted by any aspect of the HDD installation.
No impacts on topography or geology would occur
during operations.
Based on recently obtained geotechnical analysis,
no blasting would be expected to occur in association
with pipeline installation on the Project Area or Connected Actions, given that the HDD would be conducted in unconsolidated or loosely indurated sediments, as described in Section 3.1.1.1. Although not
anticipated, if blasting is found to be necessary, Dakota Access would follow procedures specified in its
Blasting Plan (Appendix E).
3.1.2 Mineral Resources
3.1.2.1 Affected Environment
Williams and McKenzie counties have numerous
mineral resources that include petroleum, lignite, halite, sand and gravel, and scoria. Scoria, sediments
baked from the in situ combustion of lignite (Carlson,
1985), is commonly used to surface roads. Although
lignite occurs throughout Williams and McKenzie
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Counties, there are no lignite beds in the vicinity of
the Corps flowage easement crossings (Murphy, 2006;
2007). A review of aerial photographic and USGS
1:24K topographic coverage indicates that there are
no sand, gravel, or scoria pits within 1.5 miles of the
Corps flowage easement crossing areas.
Two oil/gas wells are located within the Corps flowage easements (LL3440E), but neither occur within 150
feet of the proposed HDD workspace. In addition, no
oil/gas wells are located within 150 feet of the Connected Action at the Missouri River (North Dakota Department of Mineral Resources, 2015). Impacts within
150 feet of the Project was used following the Federal
Energy Regulatory Commission (FERC) guidelines for
the evaluation of construction impacts to well integrity.
Although the Project is not under the jurisdiction of the
FERC, FERC guidance was deemed to be an appropriate distance for this evaluation.
The primary mineral resources of Morton and Emmons counties are sand and gravel aggregates. The
older Cretaceous sediments in the vicinity of the Lake
Oahe crossing (i.e., scoria) do not contain economical
deposits of fossil fuels. Although lignite occurs in Morton County, no lignite beds were identified in the vicinity of the Lake Oahe crossing. A review of aerial
photographic and USGS 1:24K topographic coverage
indicates that there are no sand, gravel, or scoria pits
within 1.5 miles of the Lake Oahe crossing.
Since Morton and Emmons Counties are located
outside the areal extent of the Bakken Formation,
there is little to no development of oil/gas resources.
This is reflected in the fact that no oil/gas wells were
located within 150 feet of the federal lands or HDD
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workspace and stringing area. However, the proposed
pipeline would be co-located with an existing buried
natural gas pipeline and an overhead electric transmission line across the lake.
3.1.2.2 Impacts and Mitigation
As noted previously, mineral resources, including
lignite, halite, sand and gravel, and scoria occur
within the region around the Corps flowage easements and Connected Action; however, the only commercially exploited mineral resources in the direct vicinity of the route are oil and gas, as evidenced by the
two wells found within the Corps flowage easements.
These wells would not be impacted by the Proposed
Action due to proposed conventional construction
methods and distance from the wells. No impacts on
any mineral resources are expected as a result of the
proposed flowage easement crossings or Connected
Action.
The Proposed Action does not cross active mining
areas nor any oil or gas wells and facilities in the vicinity of Lake Oahe. No impacts to any mineral resources are expected as a result of the proposed Lake
Oahe crossing.
Dakota Access, in accordance with North Dakota
One Call, would require that the construction contractor, prior to initiating any ground disturbance activities, identify all underground utilities to minimize the
potential for encountering buried utility structures.
Accordingly, the Proposed Action is not expected to
have any impact on mineral resources, because there
would be no additional surface disturbance required
beyond that used for construction.
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3.1.3 Geologic Hazards
3.1.3.1 Affected Environment
Earthquakes and Seismic Hazards
The Project Area, traverses terrain that overall is
geologically stable. The potential seismic hazard was
assessed by evaluating the USGS 2014 Seismic Hazard Map. According to the Seismic Hazard Map, an
earthquake that has a 2% chance of being exceeded in
a 50-year period would result in peak ground accelerations (PGAs) of 2 to 4 percent gravity (g) in the Project Area and Connected Actions (USGS, 2014a).
Ground movement from an earthquake of this
magnitude may cause a light perceived shaking but is
not expected to cause any structural damage. The low
seismic hazard of the Project Area is further corroborated by the relatively low number of earthquakes
that have historically occurred in North Dakota
(North Dakota GIS Hub Data Portal, 2010).
Landslides
Landslides refer to the gravity-induced downward
and outward movement of slope-forming materials
and pose the greatest risk to facilities on or near steep
slopes or on soil materials that are susceptible to failure particularly in response to earthquakes or heavy
precipitation. A map developed by the USGS that illustrates the regional potential for the occurrence of
landslides was used to evaluate the Project Area for
landslide incidence and susceptibility (Radbruch et
al., 1982).
Portions of the Project Area within the Corps flowage easements are moderately susceptible to landslides. This includes 59.2 acres (100%) of construction
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workspace, of which 17.0 acres lies within the 50-footwide permanent easement, and 0.55 acre occurs
within the 30-foot-wide maintained corridor above the
HDD profile within the Corps flowage easement
(which would not have surface disturbance aside from
selective tree cutting and roots would remain in
place). The HDD entry point on the south side of the
Missouri River outside of the flowage easements is
considered the Connected Action. The HDD entry
workspace is approximately 2.0 acres and is also moderately susceptible to landslides.
As designed, the Proposed Action does not require
any surface impacts to the federally owned lands at
Lake Oahe, although, 0.4 acre of the permanent easement through the federal property on the west side of
the Lake Oahe (Morton County) is classified as having
a high incidence of landslides. Slopes greater than
25% in the Project Area within federal lands are not
found on the east side of Lake Oahe (Emmons County)
and comprise less than 0.02 acre on the west side. Activities related to the HDD crossing outside of the federal lands at the Lake Oahe crossing are considered
Connected Actions. On the west side of Lake Oahe,
1.2 acres of the HDD workspace (exit point) and 13.1
acres of the pipe stringing area are designated as having a high incidence for landslides. Additionally, the
stringing area encompasses approximately 1.8 acres
of land that is classified as highly susceptible to landslides. Approximately 0.9 acre within the stringing
area has slopes exceeding 25%. Approximately 1.2
acres of the HDD entry point workspace on the east
side of Lake Oahe is designated as having a high inci-
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dence of landslides, but there are no slopes within either the east or west HDD workspace that exceed
25%.
Karst and Subsidence
Geologic terrane beneath the flowage easements
as well as the Connected Actions has potential for
karst development owing to the presence of evaporite
deposits, consisting of gypsum, salt, anhydrite, and/or
potash (Weary and Doctor, 2014). These deposits
range in age from Devonian to Jurassic and occur at
depths ranging from 900 to 3,700 meters (3,000 to
12,000 feet). Fresh water must be present for the necessary dissolution to occur for karst development.
However, since fresh water is not likely to be found at
these depths, dissolution and karst development are
not likely to occur (Ackerman, 1980). Even if karst
conditions were to develop, any physiographic expression at the ground surface would be negligible given
the great depth of these formations.
Geologic terrane beneath the federal lands crossings as well as the HDD workspaces at Lake Oahe
area may have potential for karst development due to
deposits of gypsum and other evaporates (Weary and
Doctor, 2014). However, a review of topographic and
aerial photographic coverages as well as geotechnical
testing gave no indication of karst feature development, and no documentation was found to indicate
that karst features have actually developed in this
area. Furthermore, an existing buried pipeline and
overhead electric transmission line also cross in this
location, and no information was found indicating
those utilities have been impacted by karst.
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Land subsidence may be caused by mining, underlying karst features, and extraction of fluids, such as
oil or groundwater. No surface subsidence effects are
expected to be incurred in the Project Area since no
mines, oil/gas wells, water wells, or karst development have been identified in the Project Area. Moreover, despite the fact that oil and gas production has
occurred for decades in the Williston Basin, no surface
subsidence effects have been documented in that area
and, therefore, are not expected to impact the Project
Areas within or near the margin of the Williston Basin.
3.1.3.2 Impacts and Mitigation
Although landslides can represent a significant
geologic hazard during construction and operation of
the pipeline, the pipeline would be installed via the
HDD to significantly reduce ground disturbing activities in areas with steep slopes (greater than 25%), effectively mitigating the risk.
As previously discussed, no ground disturbing activities would occur within the Project Area on the federal lands. Ground disturbing activities associated
with the HDD workspace and pipe stringing area would
be required as part of the Connected Action; however,
these activities would consist of clearing and grading
only and would occur, at the closest distance, 1,040 feet
from the bank of Lake Oahe. As such, no trenching or
excavation activities would occur within the Project
Area or Connected Action of the federal lands, thereby
reducing the potential for erosion and off-site sedimentation which could otherwise occur as a result of sideslope trench excavation methods and accumulation of
water within the trench.
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To further mitigate impacts during construction,
Dakota Access would utilize erosion and sediment
control devices in accordance with the ECP and
SWPPP, and in compliance with the National Pollutant Discharge Elimination System (NPDES) program, during construction in these areas with slopes
greater than 25%. Dakota Access would install sediment barriers (e.g., silt fence) at the base of slopes and
along the sides of slopes, as necessary, to prevent potential siltation downslope of the construction area
from entering waterbodies.
Temporary ECDs would be maintained until the
areas disturbed by construction have been successfully revegetated or are replaced with permanent
ECDs. Following the completion of construction activities, disturbed areas would be restored and graded to
pre-construction contours as closely as practical. In
order to minimize the potential for future slip or landslide events during operation of the Proposed Action,
Dakota Access may install permanent ECDs in addition to performing regular restoration and revegetation activities. Permanent ECDs would be installed
in accordance with revegetation measures outlined in
the ECP, SWPPP, and specific landowner requests.
The effectiveness of revegetation and permanent
ECDs would be monitored by Dakota Access’ operating personnel during the long-term operation and
maintenance of the Proposed Action facilities. Therefore, construction and operation of the Proposed Action facilities on the Project Area and Connected Action of the federal lands would not be expected to increase the potential for significant landslide or slip
events or result in adverse impacts on aquatic life resources within Lake Oahe.
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Dakota Access has completed a geotechnical analysis of the flowage easement and federal land crossing
sites to facilitate engineering and design, including
selection of appropriate materials and construction
methods to limit any environmental impacts attributable to landslides. Results of the geotechnical analysis are included in Appendix D.
The strength and ductility of a properly designed
pipeline would allow it to span a considerable distance
without compromising its integrity in the event of a
landslide or other ground movement, such as subsidence. Arc-welded steel pipelines are the most resistant
type of piping, vulnerable only to very large and abrupt
ground displacement (e.g., earthquakes, severe landslides) and are generally highly resistant to moderate
amounts of permanent deformation. This strength and
ductility effectively mitigates the effects of fault movement, landslides, and subsidence. Therefore, by implementing the mitigation measures presented here, impacts on the pipeline from geologic hazards are expected to be minimal.
No impacts associated with seismic activity
within the Project Area are anticipated. Due to the
limited potential for large, seismically induced ground
movements, there is minimal risk of earthquake-related impacts on the pipeline. Therefore, no mitigation beyond designing the proposed pipeline to currently accepted industry specifications is necessary.
3.1.4 Paleontology
3.1.4.1 Affected Environment
The surficial geology at the Missouri River crossing is dominated by Quaternary glacial drift materials
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within the floodplain overlying the Bullion Creek and
Sentinel Butte Formations. These bedrock formations
have been known to contain wide variety of fossils, including fossilized wood and tree stumps, mollusks,
leaves, and insects (Hoganson and Campbell, 2002).
Additionally, vertebrate fossils have been found, including turtles, crocodile-like champosaurs, and bearlike titanoides.
The surficial geology at the Lake Oahe crossing is
also characterized by Quaternary glacial drift materials; however, it is underlain by the Fox Hills and
Pierre Formations. These formations could contain
diverse fossils, including marine reptiles (e.g., mosasaurs, plesiosaurs, sea turtles), fish (e.g., sharks and
rays), birds, and invertebrates (Hoganson, 2006).
While there is potential for the bedrock formations underlying the Missouri River and Lake
Oahe crossings to contain fossils, all activities, including HDDs, would only penetrate the surficial geology
that is dominated by unconsolidated sediments, as evidenced in the geotechnical report provided in Appendix D. The potential for encountering fossils in these
unconsolidated sediments at the Missouri River and
Lake Oahe crossings is low, as fossils are primarily
found in sedimentary rock.
3.1.4.2 Impacts and Mitigation
Activities associated with pipeline construction
that have the potential to impact paleontological resources are clearing, grading, and trenching, as well
as site preparation for HDD operations. The paleontological resources of concern pertaining to construction of the Proposed Action are vertebrate fossils that
may be present in the Paleocene bedrock sediments,
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and to a lesser degree, in Quaternary alluvium since
this type of deposit only rarely contains vertebrate fossils.
In the event paleontological resources are discovered during construction, Dakota Access would implement measures outlined in its Unanticipated Discoveries Plan Cultural Resources, Human Remains, Paleontological Resources and Contaminated Media
(UDP) (Appendix F) to avoid further impacts on
these resources.
Invertebrate fossils are considered to be insignificant, and mitigation measures would not be required,
should they be encountered. However, if vertebrate
fossils are found during pipeline construction, Dakota
Access would immediately cease construction activities and notify appropriate agency personnel, including the North Dakota state paleontologist as well as
the Corps archaeologist. The appropriate authorities
would determine the significance of the find and prescribe the mitigation procedures to be completed prior
to resuming pipeline construction.
Operation of the pipeline would not disturb paleontological resources.
3.1.5 Soils
3.1.5.1 Affected Environment
Dakota Access identified and assessed soil characteristics in the Project Area and Connected Actions
using the Soil Survey Geographic Database, which is
a digital version of the original county soil surveys developed by the Natural Resources Conservation Service (NRCS) for use with GIS (NRCS, 2015). The areas are located within the Rolling Soft Shale Plain of
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North Dakota, South Dakota, and Montana. The
dominant soil orders in the Rolling Soft Shale Plain
are Mollisols and Entisols, which are shallow to very
deep, generally somewhat excessively drained and
loamy or clayey (NRCS, 2006).
The flowage easements and Connected Action are
within Zone A of the Missouri River floodplain. Soils
within the Project Area are formed out of alluvium deposited by the river over time. Slopes throughout this
Project Area are very flat, ranging from 0-2%. Approximately 94% of the flowage easement Project Area
and Connected Action would be located within either
Scorio silty clay or Lohler silty clay (Table 3-1, Figure 4). The Scorio and Lohler silty clay soils are moderately well drained and formed in clayey alluvium.
In the case of the Scorio silty clay, the clay alluvium
is deposited over a loam alluvium. The Scorio and
Lohler soils are identified as Hydrologic Soil Group C,
which have slow infiltration rates when thoroughly
wet and a slow rate of water transmission. The average depth to the water table across the majority of this
Project Area is 4.25 feet. The soils within the flowage
easements experience occasional flooding but are not
generally ponded. Soil boring data is provided in (Appendix D).
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The predominant soil type at the federal lands at
Lake Oahe is the Flasher-Vebar-Parshall complex.
This complex would comprise 7.5 acres (34%) of the
Project Area and Connected Action (Table 3-2, Figure 5). The Flasher-Vebar-Parshall complex contains
36% Flasher or similar soils, 22% Vebar or similar
soils, 15% Parshall or similar soils, and 27% minor
components. The Flasher-Vebar-Parshall complex is
formed from sandy residuum weathered from sandstone and is steep within the Project Area and Connected Action, with slopes ranging from 9 to 35%
(NRCS, 2015). The Flasher-Vebar-Parshall complex
is Hydrologic Soil Group D, which has very slow infiltration (high runoff potential) when thoroughly wet.
The depth to the water table is greater than 6.5 feet.
A majority of the soils within the Project Area and
Connected Action are neither frequently flooded nor
frequently ponded.
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Prime Farmland
Prime farmland has the best combination of physical and chemical characteristics for producing food,
feed, forage, fiber, and oilseed crops and is available
for these uses. Other soils that do not meet the criteria for prime farmland may be considered farmland of
statewide importance. These soils may produce high
yields of crops when managed appropriately (NRCS,
2013). Climate is the primary limiting factor preventing farmland of statewide importance in North Dakota from being considered prime farmland; therefore,
specific management techniques or other soil amendments cannot elevate farmland of statewide importance to a prime farmland designation (Sieler,
2015).
Within the flowage easements and Connected Action, 95% of soils are considered farmland of statewide
importance, and none of the soils are considered prime
farmland. Approximately 9.5% of the soils on the federal lands, consisting only of Grassna silt loams, are
considered prime farmland. Additionally, LintonMandan silt loam and Armo-Sambo loam, which comprise 25% of the soils on federal lands, are designated
as farmland of statewide importance. The remaining
soils do not have a farmland designation.
3.1.5.2 Impacts and Mitigation
Pipeline construction activities such as clearing,
grading, trench excavation, and backfilling, as well as
the movement of construction equipment along the
ROW may result in temporary impacts on soil resources. Clearing removes protective cover and exposes soil to the effects of wind and precipitation,
which may increase the potential for soil erosion and
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movement of sediments into sensitive environmental
areas. Grading and equipment traffic may compact
soil, reducing porosity and percolation rates, which
could result in increased runoff potential and decreased soil productivity. Trench excavation and
backfilling could lead to a mixing of topsoil and subsoil
and may introduce rocks to the soil surface from
deeper soil horizons.
Dakota Access would minimize or avoid these impacts on soils by implementing the mitigation
measures described in the DAPL Project’s SPCC,
SWPPP, and ECP as well as requirements of applicable state and federal permits. These documents would
be included as contract documents and enforced as
such throughout the DAPL Project. As a result, impacts on soils as a result of the Proposed Action are
expected to be insignificant.
Temporary erosion and sedimentation control
measures may include installation of silt fence, straw
bales, slope breakers, trench breakers, erosion control
fabric, and mulch.
To minimize potential impacts on soil productivity,
topsoil would be separated during trench excavation in
agricultural land, and if applicable, other areas where
soil productivity is an important consideration. Unless
otherwise requested by the landowner, topsoil in
cropland would be removed to a maximum depth of 12
inches from the trench and spoil storage area and
stored separately from the trench spoil. After the
trench is backfilled, topsoil would be returned to its approximate original location in the soil horizon.
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Compaction of agricultural soils would be minimized by restricting construction activities during periods of prolonged rainfall. Where unacceptable levels
of compaction occur in agricultural lands, a chisel
plow or other deep tillage equipment would be utilized
to loosen the soil.
Dakota Access would retain environmental inspectors (Els) to monitor the contractor’s compliance
with applicable requirements to protect soil resources
during construction of the DAPL Project. The Garrison Project would be notified if the Els document noncompliant activities by the contractor(s) on the Project
Area or Connected Action Areas.
Soils would be temporarily disturbed within HDD
workspaces during construction at the Missouri River
and Lake Oahe crossings. Primary impacts attributable through open trench installation within the
Corps flowage easements and Connected Action would
be limited to construction activities and consist of
temporary alteration of the construction ROW due to
grading and trenching operations. Tables 3-3 and 34 present the soil types that would be impacted by construction and maintenance activities. By implementing BMPs and recognized construction methods identified in the ECP (Appendix G), impacts to soils
should be limited.
Additionally, temporary workspace used for staging HDD operations would impact soils, particularly in
association with the HDD entry excavation pit (approximately 5 feet to 15 feet across). The pits would contain
the drilling fluid that would be circulated through the
borehole during drilling operations and the cuttings
that are removed from the borehole. All drilling mud
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and cuttings would be disposed at an approved location
on non-federal lands, which may include land farming
on private property or disposal at a licensed disposal
facility. Drilling fluid pits at the HDD entry and exit
workspaces would be backfilled and the area returned
as closely as practical to pre-construction conditions.
Dakota Access would implement the erosion control
measures described in the SWPPP (Appendix A). The
HDD workspace sites would be cleared, graded and
matted as needed to avoid rutting and minimize compaction.
There would be no soil disturbance outside of the
construction workspace. Permanent impacts on soils
would be avoided through the implementation of
BMPs during construction, restoration, and post-construction revegetation management. A more complete
description of BMPs and recognized construction
methods can be found in the ECP (Appendix G).
There would be no conversion of prime farmland
soils to non-agricultural use.
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3.2 Water Resources
Under the “no action” alternative, Dakota Access
would not construct the DAPL Project, and no impacts
on water resources would occur. However, if the objectives of the DAPL Project are to be met under the
“no action” alternative, other projects and activities
would be required and these projects would result in
their own impacts on water resources, which would
likely be similar to or greater than the DAPL Project.
Less reliable shipping methods such as truck or rail
could result in an adverse effect on water resources
due to increases in transportation accidents and future construction of infrastructure necessary to support these methods (i.e. additional loading/offloading
facilities, rail spurs, etc.).
3.2.1 Surface Waters
3.2.1.1 Affected Environment
The Missouri River is a large perennial river and
forms the border between Williams and McKenzie
counties. The flowage easements are located on the
north side of Lake Sakakawea in the Lake Sakakawea
sub-basin (HUC 11010101) within the Upper Missouri
River Basin. All drainage patterns from the flowage
easements flow east and south towards and into the
Missouri River/Lake Sakakawea ending at the Garrison Dam. Once released from the dam, water flows
south into the Missouri River (NRCS, 2008).
Lake Oahe is a large reservoir formed behind the
Oahe Dam on the Missouri River. Lake Oahe forms
the border between Morton and Emmons counties.
The northern boundary of the Standing Rock Sioux
Reservation is located in Sioux County, North Dakota
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approximately 0.55 mile south of the DAPL Project
Area. The Project Area is located in the Upper Lake
Oahe Watershed (HUC 10130102) within the Missouri River Basin and adjoins both sides of Lake Oahe
at the crossing.
The Oahe Dam/Lake Oahe project is part of the
chain of Missouri River main stem lakes authorized in
the Flood Control Act of 1944. The Oahe Dam is located 6 miles north of Pierre, South Dakota and was
placed into operation in 1962. The dam and associated reservoir (Lake Oahe) are congressionally authorized to provide flood control, hydroelectric power,
navigation, irrigation, fish and wildlife enhancement,
municipal water supply, water quality, and recreational opportunities to the residents of both South Dakota and North Dakota. At maximum normal operating pool level (1,617 feet MSL), Lake Oahe extends
roughly 231 miles from the Oahe Dam in South Dakota to near Bismarck, North Dakota. At this level,
the lake covers approximately 360,000 acres. At elevation 1,607.5 feet MSL base flood control elevation,
the lake has over 2,250 miles of shoreline.
Lake Oahe can be divided into three segments
based on the character of the lake. The Project Area is
located within the northern segment. The northern
segment extends north from the North Dakota/South
Dakota state line to the upstream Oahe Dam/Lake
Oahe project boundary near Bismarck, North Dakota.
This segment is more river-like in appearance and is
characterized by both submerged and emergent snags,
sandbars, many shallow areas, and a definite current
(USACE, 2010a).
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Dakota Access conducted field and desktop delineations of the Project Area/Connected Action on the flowage easements and the Project Area/Connected Action
of the federal lands. Field surveys took place upon permission to access the properties in order to verify desktop delineations and ensure that the most accurate, upto-date data is used
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