The U.S.  Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota, the Army’s Assistant Secretary for Civil Works announced yesterday.

Jo-Ellen Darcy said she based her decision on a need to explore alternate routes for the Dakota Access Pipeline crossing. Her office had announced on November 14, 2016 that it was delaying the decision on the easement to allow for discussions with the Standing Rock Sioux Tribe, whose reservation lies 0.5 miles south of the proposed crossing. Tribal officials have expressed repeated concerns over the risk that a pipeline rupture or spill could pose to its water supply and treaty rights.

“Although we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”

Darcy said that the consideration of alternative routes would be best accomplished through an Environmental Impact Statement with full public input and analysis.

The announcement met with a mixed response.There was no doubting the undiluted delight of the protesters who hailed it a a victory. Standing Rock Sioux Tribal Chairman Dave Archambault II said

“Today, the U.S. Army Corps of Engineers announced that it will not be granting the easement to cross Lake Oahe for the proposed Dakota Access Pipeline. Instead, the Corps will be undertaking an environmental impact statement to look at possible alternative routes. We wholeheartedly support the decision of the administration and commend with the utmost gratitude the courage it took on the part of President Obama, the Army Corps, the Department of Justice and the Department of the Interior to take steps to correct the course of history and to do the right thing.

The announcement received a less enthusiastic response in other quarters. North Dakota Governor Jack Dalrymple, for example, called the decision a “serious mistake” saying the move only “prolongs the dangerous situation” of having several hundred protesters who are camped out on federal land during cold, wintry weather.” and U.S. Rep. Kevin Cramer said it’s a “very chilling signal” for the future of infrastructure in the United States.

The Dakota Access Pipeline is an approximately 1,172 mile pipeline that would connect the Bakken and Three Forks oil production areas in North Dakota to an existing crude oil terminal near Pakota, Illinois. The pipeline is 30 inches in diameter and is projected to transport approximately 470,000 barrels of oil per day, with a capacity as high as 570,000 barrels. The current proposed pipeline route would cross Lake Oahe, an Army Corps of Engineers project on the Missouri River.

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of the World’s Leading Environmental Lawyers by Who’s Who Legal: 2016.

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