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Dakota Access Pipeline FAQ’s

Q: What are the specific actions Dakota Access has requested of the U.S. Army Corps of Engineers?

A: These are the actions required of the United States Army Corps of Engineers (USACE or Corps):

1) The verification that approximately 200 water body crossing in the states of North Dakota, South Dakota, Iowa and Illinois met the requirements of Nationwide Permit #12 under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act (Section 10/404);

2) The grant of permissions under Section 14 of the Rivers and Harbors Act of 1899, codified 33 U.S.C. §408 (Section 408) for consent to cross flowage easements acquired and administered by USACE at:

a) Lake Sakakawea, North Dakota

b) Carlyle Reservoir, Illinois for federal flood control and navigation projects;

3) The grant of Section 408 permissions to modify the Oahe Dam/Lake Oahe project by granting easements for the DAPL project to cross federal property administered by USACE for the flood control and navigation project.

4) The grant of Section 408 permission to cross the following:

a) McGee Creek Levee in Pike County, Illinois

b) Illinois River navigation channel in Pike and Morgan counties, Illinois

c) Coon Run Levees in Scott County, Illinois,

5) The grant of a Section 408 permission to horizontally directionally drill (HDD) under the Mississippi River navigation channel, operated by the Rock Island District.

Q: What is a “Section 408” permission?

A: 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 third parties 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.

Q: What decisions have been made?

A: On July 25, 2016, the Omaha, Rock Island, and St. Louis Districts verified that approximately 200 water body crossings by the pipeline were authorized under Nationwide Permit #12, and the Omaha and Rock Island District commanders granted permission under Section 408 where the pipeline crossed Corp-managed projects. On August 4, 2016, the St. Louis District granted Section 408 permissions for crossings at (1) McGee Creek and (2) Coon Run Levees in Illinois; (3) Carlyle Lake flowage easements in Illinois, and (4) Illinois River navigation channel in Pike and Morgan counties Illinois. A consent to cross flowage easements for Carlyle Lake, Illinois is also complete. The Corps also issued verification water crossings at Illinois River and Carlyle Lake met the terms and conditions of Nationwide Permit #12.

The Corps Omaha District has not granted an easement for the DAPL to cross Lake Oahe.  The Mineral Leasing Act requires the Corps to provide congressional notification before it may grant the easement.

Q: When was the Final Environmental Assessment for the Missouri River Crossings of the Dakota Access Pipeline released to the public?

A: The Finding of No Significant Impact and Final Environmental Assessments, prepared in compliance with the National Environmental Policy Act (NEPA), were signed and released to the public the week of July 25, 2016.  The Environmental Assessment is available at:  http://cdm16021.contentdm.oclc.org/cdm/ref/collection/p16021coll7/id/2801

Q: Which USACE officials decide on issuing a Nationwide Permit or making a determination under Section 408?

A: The District Commanders for the Omaha, St Louis, and Rock Island Districts are authorized to sign the NEPA decision documents, give Section 408 permissions and verify the Nationwide Permits for the areas under their jurisdiction. Commanders may also delegate the authority to determine whether an activity meets the terms and conditions of Nationwide Permits to District or state Regulatory program managers.

Q: How has the Corps complied with Section 106 of the National Historic Preservation Act?

A: USACE complied with all applicable laws and regulations to meet its obligations under Section 106 of the National Historic Preservation Act. Compliance activities include completing site specific cultural resource surveys for USACE jurisdictional areas; facilitating individual Tribal site surveys; consulting with the Advisory council on Historic Preservation (ACHP), respective State Historic Preservation Offices and Tribal Historic Preservation Offices or other designated Tribal representatives. The Assistant Secretary of the Army, Civil Works (ASA[CW]) concluded this process when that office responded to a letter from the ACHP noting that the ACHP objections and recommendations had been considered in compliance with Section 106 obligations.

Q: How is USACE involved in the DAPL? Did USACE select the route that the pipeline is currently following across Lake Oahe? 

A: Where appropriate, USACE is responsible for evaluating and issuing permits for water crossings under Section 404 of the Clean Water Act, and Sections 10 and 14 of the Rivers and Harbors Act of 1899.  If a pipeline crosses USACE-managed federal lands that Water Resource Development project, the Corps must determine whether the pipeline crossing is "injurious to the public interest" or if it will "impair the usefulness of the project" under 33 U.S.C. 408.  The Corps will also need to issue an easement to cross the USACE-managed federal lands.   In total, USACE has jurisdiction over a very small portion of the total DAPL project—approximately 3 percent of the pipeline’s 1,168 total miles. The USACE approved approximately 200 jurisdictional water crossings that required permission under the Clean Water Act and the Rivers and Harbors Act, gave permission for the pipeline to cross seven USACE projects and managed federal lands under 33 U.S.C. 408.  USACE has not granted the easement for the pipeline to cross Lake Oahe.

USACE does not directly determine what routes pipelines and other utilities will take across the nation.  A denial of a permit may in fact alter the route of a planned utility, but USACE does not make the final determination on primary or recommend alternate utility route decisions.  The USACE did evaluate alternatives as part of compliance with the National Environmental Policy Act, including one alternative route north of Bismarck, N.D.  This alternative was determined not to be a viable alternative because of multiple factors including that it was not co-located with other infrastructure, the route's impacts to wellhead water resources, constraints on the route from the North Dakota Public Service Commission's 500-foot residential buffer requirement, and the route's additional impacts to areas identified as High Consequence areas under Pipeline and Hazardous Materials Safety Administration regulations.

Q: Does Dakota Access have permission to perform work under USACE-managed federal lands at Lake Oahe?

A:  No.  The pipeline company has not been granted the easement that is required before any horizontal drilling beneath USACE-managed federal lands at Lake Oahe can begin.

Q: Did the U.S. Army Corps of Engineers request local law enforcement assistance to remove protesters on USACE-managed federal lands?

A:  Yes.  On Monday, October 31, the USACE Omaha District was contacted by the State of North Dakota with concerns about individuals who were departing the existing Seven Council Camp encampment and moving by boat up Lake Oahe backwaters to establish new and unauthorized camps on previously unoccupied USACE-managed federal property on Cantapeta Creek.  This area is not open for either public recreation or camping purposes.

In an effort to protect federal property, and to ensure there would be no escalation of tensions between DAPL protesters and local law enforcement, Col. John Henderson, Omaha District Commander, reached out to tribal chairmen to request that they advise their members and others not to occupy additional USACE property without permission.  Despite these efforts, the Cantapeta Creek area was illegally occupied and the assessment of the site was that the intent of the occupiers was to establish a more permanent presence in the area.  On Wednesday, November 2, COL Henderson formally requested the assistance of the Morton County Sheriff's Department and granted permission to enter USACE's federal property to remove the unauthorized individuals and structures from the site, to include a makeshift bridge that had been constructed at the site.  "The Omaha District's request for support from the Morton County Sheriff's Department was made with the intent to reduce the risk of possible future escalation of violence between protestors and pipeline workers in the area," added BG Scott Spellmon, Army Corps Commander of the Northwestern Division.  BG Spellmon also stated that "[w]e also have a responsibility to safeguard federal property from illegal occupation, especially when it is not an area equipped to support possible long-term occupancy as we approach the brutal North Dakota winter."  The request for assistance did not affect inhabitants of the existing Sacred Stone Camp and the Rosebud Camp, or the Seven Councils Camp, which are located south of the Cannonball River.

USACE continues to work with the affected Tribes, local law enforcement, and federal and state agencies in the vicinity of the proposed Dakota Access Pipeline crossing of Lake Oahe to try to ensure that all parties honor the right to peaceful protest, respect the rule of law, and safeguard the safety and welfare of all involved.  USACE has been respectful of the current, yet unauthorized, occupation of public lands, but in recent days has become increasingly concerned for life, health, and safety of Native Americans, construction workers, and local law enforcement personnel all trying to keep the peace while allowing for peaceful protests to occur.

Q: There is a misunderstanding that DAPL plans to dig without a permit, and we are being asked to "stop them"?

A: We cannot speak for DAPL about their construction plans. The easement necessary for the pipeline to cross USACE-managed federal land at Lake Oahe is currently under review.  We expect all parties involved to adhere to federal law.

Q: What the USACE will do if DAPL continues work without a permit or drills under Lake Oahe?

A: USACE expects all parties involved to adhere to federal law.

Q: Do we expect to approve the easement to drill under Lake Oahe?

A: The easement necessary for the pipeline to cross USACE-managed federal land at Lake Oahe is currently under review.

Q: What timeline are we using to approve or deny the easement?

A: There is no timeline for this review period.  A determination is expected in the near future.

Q: Is DAPL being monitored to make sure they do not continue without the permit?

A: The Corps is monitoring activities on USACE-managed federal lands around Lake Oahe.

Q: Will anything be done to stop DAPL if they begin work without the easements or permits?

A: We do not expect DAPL to work on USACE-managed federal lands without the required easement.  As with any unauthorized work on USACE-managed federal lands, we would determine the appropriate response at that time that work is discovered.

Q: Recent drone footage seems to show drilling equipment in place on the drill pad. Is DAPL intending to drill with or without the permits?

A: We are aware of the recent aerial video from the site. The drill pad that is the subject of the video is not located on USACE-managed federal lands. We do not expect DAPL to work on USACE-managed federal lands without the required easement. We continue to monitor activity at Lake Oahe.

Q: What is the Army Corps of Engineers reaction to Energy Transfer Partners CEO telling PBS they will finish the pipeline, despite lack of permits to do so? This comes after the company said on Nov. 11th they have "no choice" but to finish despite lack of drilling permits under the Lake. Also, what is your response to them saying they received the permit on July 25th? (As shown in statement they issued on Nov. 11th).

A: The U.S. Army Corps of Engineers cannot speak for DAPL about their construction plans. The pipeline company has not been granted the easement by the Corps that is required before any horizontal drilling beneath USACE-managed federal lands at Lake Oahe can begin. Prior to granting the easement, the Corps must notify Congress as required in the Mineral Leasing Act. We do not expect DAPL to work on USACE-managed federal lands without the required easement. As with any unauthorized work on USACE-managed federal lands, we would determine the appropriate response at that time should work be discovered. The Corps is monitoring activities on USACE-managed federal lands around Lake Oahe.

On July 25, 2016, the Omaha, Rock Island, and St. Louis Districts verified that approximately 200 water body crossings by the pipeline were authorized under Nationwide Permit #12, and the Omaha and Rock Island District commanders granted permission under 33 U.S.C. § 408 (section 408) where the pipeline crossed Corp-managed projects. Covered by these actions were two of the three authorizations required for the Lake Oahe crossing - the section 408 permission and the Nationwide Permit #12 verification.  These authorizations did not include the third authorization for the Lake Oahe crossing, which is the easement required to cross Corps-managed federal lands.  On August 4, 2016, the St. Louis District granted section 408 permissions for crossings at (1) McGee Creek and (2) Coon Run Levees in Illinois; (3) Carlyle Lake flowage easements in Illinois, and (4) Illinois River navigation channel in Pike and Morgan counties Illinois. On August 5, 2016,  the St. Louis District also issued verifications that water crossings at Illinois River and in Fayette County, Illinois, met the terms and conditions of Nationwide Permit #12.

Q: Is the US Army / USACE conducting meetings with Native Americans?

A: The U.S. Army is participating in a series of Tribal Consultations and Listening Sessions across the country. These meetings have been coordinated between the White House Native American Council on Native American Affairs, DoJ, DoI, HQDA, and other agencies. The meetings are focused on how, prospectively, federal decision making on infrastructure projects can better allow for timely and meaningful tribal input.  One of these tribal consultation meeting was held November 17, 2016 in Rapid City, South Dakota. The Assistant Secretary of the Army for Civil Works, Hon. Jo-Ellen Darcy and COL John Henderson, Commander, U.S. Army Corps of Engineers, Omaha District, attended for the Army. On November 16, 2016, Assistant Secretary of the Army, Hon. Darcy and COL Henderson attended an engagement with Great Plains Tribal Chairman's Association.

Q: Has a discussion with the Standing Rock Sioux Tribe been scheduled? If so, when will this take place?

A: USACE met with representatives of the Standing Rock Sioux Tribe Thursday, November 17, 2016 in Rapid City, SD, as part of a previously scheduled meeting. As of November 18, further meetings with the Tribe have not been scheduled.

Q: Has the "framing paper" been developed the facilitate discussion? If so, can I please get a copy?

A: We are not in a position to answer the question on the "framing paper.” Please check back with us at a later time.

Q: Will the Army Corps take any action related to people camped on USACE land without a permit? Will there be any action related to people who have erected structures on USACE land?

A: USACE expects all parties involved to adhere to federal law. As with any unauthorized presence on USACE-managed federal lands, we would determine the appropriate response at the time that a presence is discovered. Land on the Standing Rock Sioux Reservation has been provided and those who are on USACE-managed lands are encouraged to relocate to those areas. Relocating will provide greater access to emergency services and protection from the elements - especially as colder winter weather begins. Those who remain on USACE property are there at their own risk and that risk will increase as temperatures drop and inclement weather begins.

Q: Why didn't or won't the U.S. Army Corps of Engineers do a full Environmental Impact Study for a project of this magnitude?

A: USACE has jurisdiction only over a very small portions of the total DAPL project, approximately 3 percent of the pipeline’s 1,168 total miles, and not over the entire pipeline. The USACE approved approximately 200 jurisdictional water crossings that required permission under the Clean Water Act and the Rivers and Harbors Act, gave permission for the pipeline to cross seven USACE projects and managed federal lands under 33 U.S.C. 408.  USACE has not granted the easement for the pipeline to cross Lake Oahe. USACE determined that an Environmental Impact Study prepared under the National Environmental Policy Act was not required for any of the portions of the pipeline within USACE's jurisdiction.

Q: The drilling continues. Why doesn’t USACE stop the drilling?

A: We do not expect DAPL to work on USACE-managed federal lands without the required easement. As with any unauthorized work on USACE-managed federal lands, we would determine the appropriate response at that time that work is discovered. The drill pad and any activity occurring there is not located on USACE-managed federal land.

Q: What is the Army Corps planning to do after Dec. 5? How are you going to move the protestors who stay behind and when?

A: As stated in a November 25 letter from Omaha District commander, the Army Corps of Engineers is seeking a peaceful and orderly transition to a safer location, and the U.S. Army has no plans for forcible removal. Those who choose to stay do so at their own risk as emergency, fire, medical, and law enforcement response cannot be adequately provided in these areas, especially as the harsh North Dakota winter sets in. Those who remain will be considered unauthorized and may be subject to citation under federal, state, or local laws. The Army Corps of Engineers does not have law enforcement authority, so we ask that you contact local law enforcement for questions on any future law enforcement actions.

Q: Has COL Henderson communicated with Morton County Sheriff regarding the next step going forward when the eviction notice goes into effect on 5 Dec.?

A: The notice to the Tribes is part of the ongoing coordination with the Tribes, local law enforcement and local and state representatives to ensure the safety of the peaceful and prayerful demonstrators, and the public, from potential harm due to confrontations or the harsh North Dakota weather. The U.S. Army has no plans for a forcible removal. Those who choose to stay do so at their own risk as emergency, fire, medical, and law enforcement response cannot be adequately provided in these areas, especially as the harsh North Dakota winter sets in. Those who remain will be considered unauthorized and may be subject to citation under federal, state, or local laws. The Army Corps of Engineers does not have law enforcement authority, so we ask that you contact local law enforcement for questions on any future law enforcement actions.

Q: Will we see a resolution on the route/construction? What’s the most likely solution now?

A: There is no set timeline for the review period of the easement. Prior to granting an easement, the Army Corps of Engineers is required to provide Congress with a 14-day notification period required in the Mineral Leasing Act. We cannot speculate on what the outcome of this process will be.

Q: Is that the president's call or the Army Corps’ decision?

A: Easement decisions related to USACE project lands are made by the U.S. Army Corps of Engineers. Those decisions are subject to review by the U.S. Army and the administration, and Congress must be provided a 14-day notification period.

Q: Why are you not protecting demonstrators and telling law enforcement to cease their activities?

A: The U.S. Army Corps of Engineers (USACE) does not have a law enforcement authority. State and local law enforcement have jurisdiction to enforce the law on USACE-managed lands. USACE continues to work with the Tribes, local law enforcement, and federal and state agencies in the vicinity of the proposed Dakota Access Pipeline crossing of Lake Oahe to ensure that all parties honor the right to peaceful protest and to safeguard the safety and welfare of all involved.

Q: Why is DAPL drilling despite a lack of an easement authorizing work on USACE-managed lands?

A: No drilling is authorized on Corps-managed federal land without the easement. USACE has no authority to control or limit activities taking place outside Corps-managed federal land.

Q: What motivated the timing of the Nov. 25 Col. Henderson letter? 

A: USACE issued the letter out of concern for public safety.

Q: Is the motivation to move the camp to further hide construction activities from the general public?

A: Absolutely not. Our motivation is out of concern for public safety.

Q: If persons remaining at the current camp location will be considered unauthorized and may be subject to citation, what are the laws governing this type of violation and who will be enforcing them?

A: USACE does not direct or manage any law enforcement actions.

Q: What response does USACE have to protest site violence and allegations of human and civil rights violations?

A: Public safety and the right to peaceful protest are important to USACE.  Allegations of human and civil rights violations should be presented to the appropriate authorities.

Q: Why is USACE asking demonstrators to vacate USACE-managed land and not DAPL workers or subcontractors?

A: DAPL workers and subcontractors are not on Corps-managed federal land.

Q: How does USACE respond that it is infringing upon freedom of speech by the establishment of a "free speech area"?

A: The Army Corps of Engineers is not infringing on freedom of speech and honors the right to peaceful protest.

Q: Does the ND Governor have the greenlight from Army Corps to be removing protesters from the main camp protesters have been on your land?

A: The Army Corps of Engineers, as well as the North Dakota Governor's recent executive order, both stated that there are no plans to forcibly remove anyone from Corps-managed federal lands north of the Cannonball River, and that those who might choose to stay do so at their own risk as emergency, fire, medical, and law enforcement response cannot be adequately provided in those areas, especially as the harsh North Dakota winter sets in. Those individuals who remain will be considered unauthorized and may be subject to citation under federal, state, or local laws. The US Army has no law enforcement authority and refers all questions about the current actions on the ground by law enforcement to the Morton County Sheriff's Department. State and local law enforcement have the authority to access Corps-managed federal lands as needed to enforce state law, which also applies to other Corps facilities.

Q: How is there no acknowledgement of the unceded Sioux territories, from Heart River to Cannonball River, as per the 1868 Fort Laramie Treaty? Approximately 25 miles of pipeline has been constructed on these Lakota-owned territories. Is this jurisdiction just being ignored?

A: As this topic is related to ongoing litigation, we are unable to comment. Members of the media, may wish to contact the U.S. Department of Justice Public Affairs for questions related to litigation. The POC there is Wyn Hornbuckle and his phone number is (202) 514-2007.

Q: What is your response to this analysis – isn’t this cause for worry for people in North Dakota who are already concerned about the Dakota Access project?

A: Public safety is always a top priority for the U.S. Army Corps of Engineers.  However, USACE is not authorized to regulate entire utility routes, to include pipelines.  USACE legal authority is limited to regulating discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States, under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899, respectively.

Q: Will the Army Corps conduct a full oil-spill risk analysis for every river crossing along the entire route of the Dakota Access project?

A: USACE evaluates the environmental impacts of all proposed activities within its jurisdiction in accordance with all applicable federal statutes and regulations.  If a pipeline crosses USACE-managed federal lands at a Water Resources Development project, USACE must determine whether the pipeline crossing is "injurious to the public interest" or if it will "impair the usefulness of the project" under 33 U.S.C. 408.  For utilities like oil and gas pipelines, companies must provide oil spill response plans in accordance with the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration requirements.

Q: What is your response to the allegation that the pipeline will “threaten every community it cuts through?”

A: USACE has no response to this opinion statement.  Again, USACE legal authority is limited to regulating discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States, under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899, respectively.

Q: According to the group, Energy Transfer Partners has a “questionable” safety record. What is your response to that, and has the Army Corps taken the company’s safety record into account in its decision making process?

A: For utilities like oil and gas pipelines, companies must provide oil spill response plans in accordance with the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration requirements.

In response to public feedback, we have established a comment line for those interested in voicing their thoughts and concerns on the Dakota Access Pipeline project. Interested parties can call (202) 761-8700.