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Oct 30, 2016
Samantha L. Varsalona
Samantha Varsalona is a 2L at Georgetown University Law Center and Staff Member of Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate (ELRS).
The Dakota Access Pipeline (DAPL) has become a contentious topic in recent months. The controversy centers around Dakota Access, LLC, a subsidiary of Energy Transfer Crude Oil Company, LLC, and the Standing Rock Sioux Tribe of North and South Dakota (the Tribe or Sioux), a federally-recognized Indian tribe. The Tribe’s reservation, Standing Rock Indian Reservation, is half a mile upstream from where DAPL’s crude oil pipeline would cross the Missouri River underneath Lake Oahe in North Dakota. While much of the recent media attention surrounding Dakota Access and the Tribe has focused on the destruction of the Tribe’s ancestral burial grounds, the underlying issue can be traced back to the nationwide permits issued by the Army Corps of Engineers (the Corps) in 2012. More specifically, this article will examine Nationwide Permit 12 (NWP 12), which was one of the fifty NWPs issued by the Corps in 2012 and is at the heart of the current legal battle between Dakota Access and the Tribe.
The Tribe and environmentalists alike raised concerns about the potential health and environmental consequences of oil spills, being that the Missouri River “provides drinking water for millions of Americans and irrigation water for thousands of acres of farming and ranching lands.” Besides the Tribes concern about the proximity of the pipeline to their reservation, they were also concerned about the pipeline disrupting sacred ancestral burial grounds and places of cultural significance to the Sioux people. In particular, the Sioux have traditionally placed significance on the convergence of the Missouri and Cannonball Rivers because their ancestors gathered at that location to peacefully trade with other tribes. Ironically, this is not the first time the Army Corps of Engineers (the Corps) or the federal government has taken the Tribe’s land in particular location without their consent. In 1958 the Corps dredged the sacred Cannonball river to construct the Oahe Dam, which created the man-made Lake Oahe that now covers the confluence of the two rivers and is the future site of DAPL. The Oahe Dam not only destroyed a site of spiritual significance to the Sioux, but also flooded nearly fifty-six thousand acres of Standing Rock Reservation and over one hundred four thousand acres on the Cheyenne River Reservation. Overall, the construction of the Oahe Dam destroyed more Indian land than any other public works project in America. Nonetheless, the Tribe continues to use the banks of the Missouri River for “spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation.” With that poignant history in mind, it comes as no surprise that the Tribe would fight so vehemently against DAPL which would obviously affect both the Missouri River and Lake Oahe.
Fearing, once again, the possibility of sacred burial grounds being destroyed, the Tribe pursued legal action against the Army Corps of Engineers (Corps), the federal agency that approved DAPL’s permits, in hopes of being granted an injunction that would block DAPL’s construction of the pipeline. The outcome of the suit, decided September 9th by the D.C. District Court, held that the Corps had sufficiently followed federal law in approving the pipeline. Minutes after the court’s decision came down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement temporarily halting the work.
The future of DAPL underneath Lake Oahe is still unclear and it will, more than likely, continue to be a political hot potato for months to come. In its simplest form, the conflict comes down to the permitting process and the Corp’s alleged failure to adequately consult the Tribe before issuing the permit. The permit granted to DAPL is a type of general permit known as Nationwide Permit 12 (NWP 12) and has caused considerable controversy in the past several years.
Although one might logically assume that a crude oil pipeline traversing thousands of miles across the United States would require an extensive federal appraisal and permitting process, that assumption would be incorrect. Domestic oil pipelines require no general approval from the federal government. For example, DAPL needed almost no federal permitting of any kind because “99% of its route traversed private land.” However, when construction activity occurs in waters of the United States, meaning in federally regulated waters such as Lake Oahe, the Corps needs to permit the activity under the Clean Water Act (CWA) or the Rivers and Harbors Act or sometimes both.
Section 404(e) of the CWA has been the provision primarily used by the Corps to issue general permits. Nationwide permits (NWP) are a type of general permit that are issued or reissued every five years by the Corps headquarters, whereas regional permits are issued by an individual Corps District for a specific geographical area. NWPs authorize small-scale activities that are “similar in nature and result in no more than minimal individual and cumulative adverse environmental effects.” Because NWPs pre-approve categories of activities upfront, there is considerably less federal involvement upon commencement of an individual project. Indeed, in most cases project proponents can commence their activities without ever notifying the Corps. Some of the NWPs, including NWP 12, require the project proponent to submit a Pre-Construction Notification (PCN) to the relevant Corps District Engineer who then confirms whether or not the proposed activities qualify for NWP authorization. If the District Engineer determines that the proposed activity qualifies, he/she then issues a verification letter to the project proponent. It is important to note that the District Engineer is merely verifying that the activity is one that was already pre-authorized by the Corps when they promulgated the NWP reissuance.
NWPs are designed to streamline the permitting process and are often considered to be more cost-efficient and cost-effective for both the Corps and the individual or business seeking the permit. Although NWPs can have important benefits when used for their intended purpose, some of the NWPs, NWP 12 in particular, are often used by the oil and gas industries as a way to fast-track the permitting process by avoiding project-specific environmental review and by skirting around a more comprehensive public participation process. The oil and gas industries circumvent stricter federal regulations by evading the National Environmental Policy Act’s (NEPA) “hard look” review which requires federal agencies to analyze the environmental consequences of all “major Federal actions significantly affecting the quality of the human environment.” If the federal action is one that would significantly affect the environment, the level of federal involvement and regulation is substantially elevated.Although NEPA review applies only to major federal actions and imposes obligations only on federal agencies, “it is well-settled that ‘federal involvement in a non-federal project may be sufficient to federalize the project for purposes of NEPA.’” In other words, it is possible for the Corps to have “sufficient control and responsibility” over a project to warrant them having authority to control portions of a project that would normally be out of their jurisdiction. The district engineer makes the determination as to whether the scope of the Corps involvement warrants them to federalize the entire project. For example, if a pipeline spans 100 miles and 40 miles of the project fall within federal control, the district engineer can determine the scope of the project gives the Corps sufficient control to warrant federalizing all 100 miles of the project, even if the other 60 miles were done by private action.
The Corps renewed fifty nationwide permits on February 21, 2012 and they will expire on March 19, 2017. The Corps, however, has no intention of letting these NWPs expire and on June 1, 2016 they proposed to reissue the NWPs and published the proposed rules in the Federal Register to solicited public comments. The renewal included NWP 12, which covers “construction, maintenance, repair and removal of utility lines . . . provided the activity does not result in the loss of greater than 1/2 acre of waters of the United States for each single and complete project.” The Corps defined NWP 12 to include “pipeline[s] for the transportation of gaseous, liquid, liquescent, or slurry substance, and any cable, line, or wire. . . .” Accordingly, the construction of a pipeline may qualify for NWP 12 as long as the construction is a single and complete project and does not result in a loss greater than 1/2 acre of jurisdictional waters. At this point NWP 12 seems innocuous enough, however the conflict arises over the Corps defining a single and complete project as,“[the] portion of the total linear project proposed or accomplished by one owner/developer . . . that includes all crossings of a single water of the United States (i.e., a single waterbody) at a specific location.”
The effect of this definition is that it allows each water crossing to be verified under NWP 12 separately, essentially creating many “single and complete projects” along one proposed route. In other words, the Corps allows pipeline proponents to “stack” NWP 12 hundreds, if not, thousands of times along a single pipeline. For instance, TransCanada’s Gulf Coast Pipeline, which is the bottom half of the Keystone XL Pipeline, is 485 miles long and crosses United States waters 2,227 times, meaning the it “crosse[d] . . . waters about once every 1150 feet.” The Corps verified the Gulf Coast Pipeline under NWP 12, even though NWP 12 was used 2,227 times in the process. Another example is the Corps’ verification of Enbridge’s Flanagan South Pipeline under NWP 12 despite the pipeline traversing 27 miles of federal land, and crossing waters of the United States 1,950 separate times. The Corps is essentially allowing project proponents to piecemeal the pipeline into separate smaller projects, which is seemingly inconsistent with NEPA. What is perhaps more extraordinary is the Corps defines a single and complete non-linear project as requiring the project to have independent utility, which is defined as the project having the ability to be “constructed absent other projects in the project area.” Not only does the definition of single and complete non-linear project require independent utility, it also specifically states “[s]ingle and complete non-linear projects may not be “piecemealed . . . .” It is bewildering why Corps distinguishes so drastically between linear and non-linear projects, especially when considering linear projects that cannot function independently are, by their very nature, neither “single” nor “complete.”
The Corps justifies the expansive nature of NWP 12 by requiring the project proponent to submit a PCN to the Corps District Engineer (DE). The DE will then review the PCN and determine if the proposed action “will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest.” On its face, requiring the DE to perform an extra layer of review may alleviate concerns about the open-ended nature of NWP 12. However, the review is based solely on the discretion of the DE and whether he/she determines there will be cumulative effects. The PCN verification of the Gulf Coast Pipeline is an example of the considerable amount of discretion granted to the Corps. The Gulf Coast Pipeline passes through three Corps’ districts; Galveston, Fort Worth, and Tulsa and even though all three districts issued verification letters, none of the letters “provide a reasoned basis for any cumulative impacts analysis.” As District Judge Martinez’s dissent points out, the verification letters issued by the three districts attempted to circumvent the analysis by “simply stat[ing] the legal standard and then recit[ing] that it made a ‘determination’ that such criteria were satisfied.” Even though the DE and the Corps provided no specific findings as to why authorizing the use of NWP 12 2,227 times wouldn’t have a cumulative effect, the Tenth Circuit Court of Appeals approved the Corps use of discretion in verifying NWP 12.
As seen above, the Corps definition of “single and complete” essentially allows the project proponent to segment the pipeline into smaller projects, which, in turn, allows the Corps to treat the project as not significant enough to warrant them having “control and responsibility” over the entire project. The approval of the Gulf Coast Pipeline is an example of how easily NWP 12 can be manipulated. Judge Martinez’s dissent challenges the Corps conclusion that its’ involvement did not warrant them to have sufficient control and responsibility and he asserted that “[c]onsidering the number of permits [2,227] issued by the Corps . . . it is patently ludicrous for Appellees to characterize the Corps’ involvement in the subject project as minimal . . . .”
The malleability of NWP 12 is seen, once again, in its application permitting the Dakota Access Pipeline. DAPL is not similar to the Gulf Coast Pipeline and Flanagan South Pipeline in the sense that the Corps didn’t seemingly abuse its authority by granting the use of NWP 12 thousands of times, rather the application of NWP 12 in DAPL’s context is offensive in the sense that it approved the pipeline even though the Tribe alleged it was not adequately consulted as required under Section 106 of the National Historic Preservations Act (NHPA).
Section 106, also known as the “stop, look, and listen” provision requires “[f]ederal agencies takes into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings.” Meaning, the Corps are required to consider, prior to the reissuance of the NWPs, the effects of the permits on properties of cultural and historical significance. This would have required the Corps to consult with the Tribe before they reissued the NWPs in 2012. Additionally, the consultation can’t just be a rubber stamping process, it “must recognize the government-to-government relationship between the Federal Government and Indian tribes.”
The Corps claimed, and District Court Judge Boasberg agreed, that the Corps “made a reasonable effort to discharge its duties under NHPA prior to promulgating NWP 12” and that “the Corps’ effort to speak with those it thought be concerned was sufficient . . . .” This “reasonable effort” to consult the Tribe included the Corps sending a notification letters containing information pertaining to its proposed NWPs, as well as the Corps holding listening sessions and workshops with tribes, and eventually the Corps sending letters to the Tribe inviting them to begin consultations. The Advisory Council on Historic Preservation (ACHP), the federal agency that promulgates the regulations used to implement Section 106, wrote five letters to the Corps questioning the adequacy of the tribal consultations. The EPA and Department of Interior also wrote letters to the Corps questioning their use of NWP 12 and the adequacy of tribal consultations. The ACHP’s final letter states that it believes the “findings made by the Corps are premature, based on an incomplete identification effort, which was not sufficiently informed by the knowledge and perspective of consulting parties . . . .” Despite all the objections from the Tribe and three other federal agencies, the Corps and Judge Boasberg emphasize that the Corps’ efforts were reasonable “given the nature of the permit.” In other words, because NWP 12 is broad and over inclusive then apparently the Corps’ consultation requirements can be viewed in the same way.
This article has attempted to highlight a fundamental problem with how the United States permits domestic oil pipelines. The controversy surrounding the Dakota Access Pipeline has the potential to have both negative and positive implications. The most obvious potentially negative consequence is that the Sioux Tribe may, once again, lose sites of cultural significance at the hands of the U.S. government. However, a positive outcome that has emerged from this whole fiasco is that it has created a national dialog regarding not only nationwide permits and pipelines, but more importantly, how we, as citizens, view and understand the rights of Native Americans.
 Energy Transfer, Overview, http://www.daplpipelinefacts.com/about/overview.html (last visited Oct. 10, 2016).
 Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 80 Fed. Reg. 1942-02, 1946 (Jan. 14, 2015).
 Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-1534, 2016 WL 4734356, at *6 (D.D.C. Sept. 9, 2016).
 Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184 (Feb. 21 2012).
 David Archambault II, Taking a Stand at Standing Rock, N.Y. Times (Aug. 24, 2016),
 Standing Rock Sioux Tribe, 2016 WL 4734356, at * 6.
 Michael L. Lawson, Dammed Indians: The Pick-Sloan Place and the Missouri River Sioux, 1944-1980, 50-52 (1994).
 Id. at 50.
 Standing Rock Sioux Tribe, 2016 WL 4734356, at * 6.
 Complaint for Declaratory and Injunctive Relief at 1, Standing Rock Sioux Tribe, 2016 WL 4734356 (Jul. 27, 2016) (No. 1:16-cv-01534), 2016 WL 4033936.
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *26.
 Dep’t of Justice, Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (2016). https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.
 Id. at *7.
 Id. at *1.
 33 U.S.C. § 1344(e)(1) (2012).
 U.S. Army Corps of Eng’rs, About national and regional permits, http://www.nwp.usace.army.mil/Missions/Regulatory/Nationwide.aspx (last visited Oct. 22, 2016).
 Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,186.
 33 C.F.R. § 330.1(e)(1) (2013).
 Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,184.
 Id. at 10,185.
 See generally Eric Biber, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 64 Duke L.J. 133 (2014).
 Industry attorneys and environmental consulting firms have highlighted the strategic benefits of utilizing NWP 12 as a way to construct pipelines with minimal federal regulatory interference. See, Robert E. Holden, E&P Wetlands Compliance Strategy: Nationwide Permits, Law360 (Oct. 9, 2014) http://www.law360.com/articles/585584/e-p-wetlands-compliance-strategy-nationwide-permits; John Kusnier, What Pipeline Companies Should Consider When Planning Projects, North American Oil & Gas Pipelines, (July 19, 2013) http://napipelines.com/pipeline-companies-planning-projects/; Lowell M. Rothschild, The Importance Of Keystone To NWP 12, Law360 (Aug. 29, 2012) http://www.law360.com/articles/371356/the-importance-of-keystone-to-nwp-12.
 For a more detailed discussion of NEPA and its statutory goals, see Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
 Citizens Alert Regarding the Envt, 259 F.Supp.2d at 15 (quoting Macht v. Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990)).
 33 C.F.R. Part 325, app. B (7)(b)(2) (2013).
 Id. § 7(b)(3).
 Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,184.
 Dep’t of Defense, Proposal To Reissue and Modify Nationwide Permits (2016)
 U.S. Army Corps of Eng’rs, Decision Document: Nationwide Permit 12 (2012), http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP_12_2012.pdf [hereinafter Nationwide Permit 12].
 Id. at 1.
 U.S. Army Corps of Eng’rs, 2012 Nationwide Permits, Conditions, and Definitions, with corrections (2012), http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP2012_corrections_21-sep-2012.pdf (emphasis added) [hereinafter 2012 Nationwide Permits, Conditions, and Definitions].
 Sierra Club, Comments on the U.S. Army Corps of Engineers’ Proposal to Reissue and Modify Nationwide Permit 12, (2016), https://www.nwf.org/~/media/PDFs/Global-Warming/Tar-Sands/NWP-12-Comments_FINAL_080116.ashx.
 Sierra Club v. Bostick, 539 Fed. Appx. 887, 898 (10th Cir. 2013) [hereinafter Gulf Coast Pipeline].
 Sierra Club v. Army Corps of Eng’rs, 803 F.3d 31, 39 (D.C. Cir. 2015).
 See 40 CFR § 1508.25(a) (2010) (requiring connected and cumulative actions to be analyzed together unless they would have independent utility).
 2012 Nationwide Permits, Conditions, and Definitions, at 45.
 Id. at 43.
 Id. at 45.
 Nationwide Permit 12, at 2.
 Reissuance of Nationwide Permits, 77 Fed. Reg. at 10260.
 33 C.F.R. § 330.1(d).
 Gulf Coast Pipeline, at 900.
 Id. at 896.
 See 33 C.F.R. pt. 325, app. B (7)(b).
 See generally, Lindsay M. Nelson, The Gulf Coast Pipeline: A Stealthy Step Toward the Completion of the Keystone XL Pipeline Project, 44 Cap. U. L. Rev. 429 (2016).
 Gulf Coast Pipeline, at 899 (emphasis added).
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.
 Complaint for Declaratory and Injunctive Relief at 36-8, Standing Rock Sioux Tribe, 2016 WL 4734356 (Jul. 27, 2016) (No. 1:16-cv-01534), 2016 WL 4033936.
 See generally, 36 C.F.R. § 800.2 (2016).
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *2.
 36 C.F.R. § 800.1(a) (2016).
 Standing Rock Sioux Tribe, WL 4734356, at *2.
 Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of the Interior, 755 F. Supp. 2d 1104, 1108-9 (S.D. Cal. 2010).
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *19 (emphasis added).
 Id. at *18-9.
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.
 The Advisory Council on Historic Preservation, Dakota Access Pipeline Project 1 (May 19, 2016).
Environmental Protection Agency, Additional Comments on Dakota Access Pipeline Draft Environmental Assessment (March 11, 2016); Department of the Interior, Letter to the Corps (March 29, 2016).
 The Advisory Council on Historic Preservation, Dakota Access Pipeline Project at 1.
 Standing Rock Sioux Tribe, 2016 WL 4734356, at *19.