Water & Pipelines
Pipeline Permitting and NEPA
Pipelines within a state (intrastate) built by a private company without public funding as a general rule are permitted by the state. The federal government gets involved when the pipeline crosses federal lands or tribal lands; navigable waters, wetlands or locations where a federal agency such as the Army Corps of Engineers have built a project (e.g. reservoir); where it might impact sensitive species protected by the federal government (e.g. Threatened or Endangered Species, Migratory Waterfowl); where it crosses state boundaries (interstate) or international boarders; if federal funds are used or the federal government cooperates in the development of the project; where sites are complicated by issues under federal authority (for example, a Superfund site); and where there are potential environmental justice (civil rights) issues.
This case study focuses on the Dakota Access Pipeline (DAPL) Project. DAPL is a 1,168-mile long crude oil pipeline system designed to carry up to 570,000 barrels per day of "U.S. light sweet oil" from the Bakken and Three Forks production region of North Dakota to refineries in Patoka, Illinois. DAPL was initially permitted by a combination of state permits and a federal program that allows some projects that are made up of many segments to use a "general" national permit for utilities like electrical lines that have only minor impacts on waterways. This use of a general permit assumed that there was no potential for significant impact to the environment or human health, which in the case of DAPL is controversial; in fact, there is currently a review underway of the national general permitting program itself to determine if it is being misused in some projects. It is important to note that for a project to fall under the general permit it has to have minimal cumulative impact (i.e. all the segments taken together have minimal impact, not just each segment taken individually). Here is how EPA describes the use of national general permits:
For most discharges that will have only minimal adverse effects, a general permit may be suitable. General permits are issued on a nationwide, regional, or state basis for particular categories of activities. The general permit process eliminates individual review and allows certain activities to proceed with little or no delay, provided that the general or specific conditions for the general permit are met. For example, minor road activities, utility line backfill, and bedding are activities that can be considered for a general permit. (Source)
In addition to the permits that DAPL received at the state and general (national ) level, the US Army Corps of Engineers got involved whenever DAPL had to cross navigable waters under federal jurisdiction, especially in places where the Corps has built and maintains federal reservoirs like Lake Oahe. The two federal statutes in this case that required permits from the Corps were Section 408 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. These basically cover alterations to navigable waters, including the potential for discharges into the river. According to the Corps:
In total, USACE has jurisdiction over a very small portion of the total (DAPL) pipeline project—approximately 37 miles of the pipeline’s 1,168 total miles. However, these 37 miles encompass 202 jurisdictional water crossings, which USACE was required to review and complete each as a single project. (Source)
To get a permit from a federal agency that isn't covered by a general national permit requires a review under NEPA. This review could be either an Environmental Assessment (this is a lower level review) or an Environmental Impact Statement (a higher level review). The Corps opted for an EA rather than an EIS, signaling that it didn't expect significant harm to the environment or human health, and reducing the amount of attention that was given to tribal concerns over culturally significant sites.
When a NEPA review is triggered, however, the federal agency is required to consult with Tribal governments, and to include an assessment of the potential impact on tribal lands and the health of tribal members. This includes an assessment of the potential impact of the project on "cultural resources" and "historic properties" identified by Tribal Historic Preservation Officers. For a thorough review that would address tribal concerns, the Corps should have done an Environmental Impact Statement (EIS) rather than an Environmental Assessment (EA); the courts have subsequently ruled in favor of the tribes and have forced the Corps to conduct an EIS (which is currently due for public review in spring 2023).
Here is how EPA describes the NEPA process:
NEPA requires the federal government to use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. It requires all federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. These statements are commonly referred to as Environmental Impact Statements (EIS) and Environmental Assessments (EA). (Source)
A federal action may be "categorically excluded" from a detailed environmental analysis when the federal action normally does not have a significant effect on the human environment.
A federal agency can determine that a Categorical Exclusion (CATEX) does not apply to a proposed action. The federal agency may then prepare an Environmental Assessment (EA). The EA determines whether or not a federal action has the potential to cause significant environmental effects.
Federal agencies prepare an Environmental Impact Statement (EIS) if a proposed major federal action is determined to significantly affect the quality of the human environment. The regulatory requirements for an EIS are more detailed and rigorous than the requirements for an EA. (Source)
The tribal government should have initially been directly involved in the NEPA process, not treated like a "stakeholder," since tribal agencies are treated a "cooperating agencies." This means that the tribal environmental agencies, the Tribal Historic Preservation Office, etc., should have been treated as agency partners in the process. Here is the definition of cooperating agency in the NEPA process:
Cooperating Agency
A federal, state, tribal or local agency having special expertise with respect to an environmental issue or jurisdiction by law may be a cooperating agency. A cooperating agency has the responsibility to:
assist the lead agency by participating in the NEPA process at the earliest possible time
participate in the scoping process
develop information and prepare environmental analysis that the agency has special expertise in
make staff support available (Source)
The Standing Rock tribe was made a cooperating agency on the new EIS during the Biden Administration; however, because they have not been allowed to review the complete emergency response plan for how spills will be handled, as well as serious concerns over the consultants who are writing the EIS because of their conflict of interest (they wrote an amicus brief in favor of the pipeline), the tribe has withdrawn as a cooperating agency and requested that the EIS process be made more transparent. The Corps currently expects the Draft EIS to be completed in spring 2023, at which point it will be available for public comments. This is the point at which there may be additional legal action and political protests.
Sources
https://www.everycrsreport.com/reports/R44880.html
https://www.usace.army.mil/Missions/Civil-Works/Section408/
https://www.epa.gov/nepa/what-national-environmental-policy-act
https://ceq.doe.gov/docs/get-involved/Citizens_Guide_Dec07.pdf
https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404
https://www.epa.gov/nepa/national-environmental-policy-act-review-process
Dakota Access pipeline suffers U.S. Supreme Court setback
Standing Rock withdraws from ongoing environmental assessment of Dakota Access Pipeline
Tribal Leaders Call on Biden Administration to Scrap Dakota Access Pipeline Assessment; Start Over
U.S. Energy Information Administration (EIA.gov)