Senators Allege DAPL Builder Didn't Have Permit to Build Under Lake Oahe

Reprinted with permission from Indian Country Media Today

April 7, 2017. Top Senate Democrats are questioning whether the builder and manager of the Dakota Access Pipeline (DAPL) had a permit to construct a controversial stretch of the project near tribal land and water sources.

In a letter dated April 3, Sens. Maria Cantwell (D-WA), the ranking member of the Senate Committee on Energy and Natural Resources, and Tom Carper (D-DE), the ranking member of the Senate Committee on Environment & Public Works, took the U.S. Army Corps of Engineers, which on February 8 granted an easement to Energy Transfer Partners to build the pipeline under Lake Oahe in North Dakota, to task on several fronts.

They argued that the Corps has provided “virtually no information to Congress regarding its oversight of the project” and that the Corps’ actions have left real questions over whether it made “efforts to make sure that Energy Transfer Partners complies with even the most fundamental environmental, safety and mitigation conditions of its easement and permits.”

In one of their most legally intriguing allegations, the senators wrote to Todd Semonite, the chief of engineers at the Corps, that the permitting process of the Lake Oahe portion of the pipeline appears suspect.

“We are concerned that Energy Transfer Partners or its subsidiaries might have been drilling under Lake Oahe without a permit and while project approval was under a court challenge given news reports and court documents showing that the pipeline is close to completion 50 days ahead of schedule,” the senators wrote.

To address that concern, Cantwell and Carper are asking the Corps to provide information on how it oversaw drilling operations “to ensure the company and its subsidiaries were meeting their legal obligations,” as well as any documentation that would show Corps’ supervision.

If something unusual happened involving the pipeline’s permitting and drilling, it could raise legal problems that need to be addressed in court, according to Senate aides familiar with the letter. The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe all continue to battle Energy Transfer Partners and the U.S. government in federal court on multiple legal fronts.

The letter comes the same week that Energy Transfer Partners announced that it had begun to move oil under the Lake Oahe pipeline section as it preps to put the pipeline into service. The letter also notes that Sunoco Logistics, which is designated to operate the pipeline, has violated environmental and other legal rules in its construction and operation of pipeline projects to the tune of $22 million in government fines since 2010. Federal records indicate that the company, a subsidiary of Energy Transfer Partners, has had more hazardous material leaks than any other company, according to the letter.

Referring to President Donald Trump’s memorandum of January 24 forcing DAPL to proceed sans completion of an environmental impact statement, the senators wrote that “[e]xecutive memoranda and other actions to expedite the issuance of an easement or permits for the Dakota Access project did not exempt the project from the need to comply with federal environmental law as it pertains to tribal, environmental, and other legal responsibilities and requirements,” and the Corps was not absolved “from its responsibility to ensure the requirements of those laws are fulfilled, the safety of downstream citizens is ensured, and the federal government’s trust and treaty responsibilities are met.”

Jennifer Baker, a lawyer for the Yankton Sioux, said the letter underscores many of the concerns of the tribe surrounding DAPL and the Corps’ process involving it.

“Yankton in fact submitted a FOIA (Freedom of Information Act) request for the information the Senators are seeking through their letter,” Baker said, presumably to use such information in its litigation effort.

Jan Hasselman, a lawyer for the Standing Rock Sioux Tribe, said the letter “highlights many of the themes that we have been talking about in the case—the rushed process, the lack of oversight, the failure to really think about spills and how they would affect the tribe.”

Hasselman said the legal case will be determined based on the record that was in front of the Corps at the time it issued the permit.

The senators further asked the Corps to clarify its well-reported lack of tribal consultation on this matter.

“Given the federal government’s trust and treaty responsibilities to tribes affected by this project, we also seek information regarding how the Corps has engaged with affected tribal communities and the extent to which tribes have been appropriately consulted and informed during any permitting and construction activity,” the senators wrote. “Has the Corps made a determination that compliance with President Trump’s Executive Memoranda satisfies the federal government’s obligation to meet its trust and treaty obligations to affected tribal governments?”

They further ask whether the Corps has considered any alternative options to protect and provide access to clean drinking water if Lake Oahe is contaminated by the pipeline.

A spokesperson for Cantwell said the Corps has not responded to the letter to date.