Federal Intervention in Dakota Access Pipeline Project Focuses on Tribal Consultation Process
A dramatic and surprising turn of events on Friday, September 9, 2016 created significant uncertainty for the Dakota Access Pipeline Project (Dakota Access), and may have shifted the landscape for other infrastructure projects involving National Historic Preservation Act (NHPA) Section 106 tribal consultations. On Friday afternoon, U.S. District Court Judge James E. Boasberg issued a 58-page Memorandum Opinion (Opinion) denying the Standing Rock Sioux Tribe’s motion for preliminary injunction filed against the U.S. Army Corps of Engineers (Corps). That motion challenged whether the Corps complied with NHPA Section 106 consultation requirements in connection with a July 25, 2016 verification letter permitting Dakota Access to engage in certain construction activities associated with the crossing of Lake Oahe, North Dakota pursuant to the Clean Water Act (CWA) Section 404 nationwide general permit 12 (NWP 12).
Dakota, PipelinaNWP 12 generally allows a pipeline or other linear utility project to discharge dredged or fill materials into the waters of the United States, subject to certain limits, without having to obtain a project-specific permit. Certain General Conditions associated with NPW 12 require some discrete projects to obtain additional verification, as was the case for the Dakota Access Lake Oahe crossing. This additional verification triggers NHPA’s Section 106 requirements.