A Pick-Sloan Winters: Using the Army Corps of Engineers's Duties to Stop the Pipeline

Photo by Rob Wilson

The Bakken Dakota Access Pipeline is slithering down the North Dakota hills, poised to stick its head directly under the Missouri River. Thousands of Water Protectors, people from all over the world, have gathered in and around the Standing Rock Sioux Reservation to stop its descent, and terminate the Black Snake. The Black Snake killer may come in the most unexpected forms, an obscure court ruling, legislation which ruined much of the ecology of the Standing Rock Reservation, and the agency responsible for enacting it - the Army Corps of Engineers.

The Missouri River ravaged Omaha, laying waste to the city with frightening efficiency in 1943. In response, Congress passed the Flood Control Act of 1944, commonly known now as Pick-Sloan. The Army Corps of Engineers and Board of Reclamation were assigned responsibility to enact Pick-Sloan and took control of the river.

Even for those living right on the Missouri River, the name Pick-Sloan is obscure but no legislation changed the nature of the Missouri more. By the time the entire Pick-Sloan plan was enacted, only 1/3 of the river was in a natural state.

After Omaha flooded, America was frantic to assure Omaha and selected other cities’ safety. The government took the opportunity to put a wider, more comprehensive plan covering other commercial and safety aspects of the river in place. Pick-Sloan assigned the Army Corps of Engineers and the Bureau of Reclamation the task of caring for eight categories related to the river: flood control, navigation, irrigation, power, water supply, recreation, fish and wildlife, and water quality.

The Army Corps of Engineers created a gaggle of hydroelectric dams, including Lake Oahe on the Standing Rock Sioux Reservation.

Lake Oahe Reservoir and hydroelectric dam was created when the Army Corps of Engineers flooded the fertile river lands and displaced a village on the Standing Rock Sioux Reservation in 1960. A forest was deluged – lost to the water. Bison died. Burial grounds were submerged. Homes were lost. However, unlike other tribes who were also displaced under Pick-Sloan – the Standing Rock Sioux preserved their right to the Missouri River bed running through their reservation.

Just a few miles up the river from Lake Oahe Reservoir are the Water Protector camps. On a hill just above the largest of the Water Protector camps, Oceti Sakowin, the pipeline the pipeline is near completion. Energy Transfer Company, the owner of the Bakken Dakota Access Pipeline (DAPL), is just waiting for a permit from the Army Corps of Engineers to drill under the river and place their pipeline under the river.

The Army Corps of Engineers’ requirements under Pick-Sloan may be the last weapon the Water Protectors have to stop the drill and the pipeline.

Wild Water:

Flooding is prevented by the Army Corps of Engineers by controlling the flow of water streaming down to Omaha through a series of flood planes, levies, and dams.

A tragic, and possibly prophetic event occurred in Michigan in 2010.

Black sludge crept from a pipeline for 17 hours before anyone knew it was escaping. Before the spill was confirmed and contained, the million gallons of oil had taken over 40 miles of the river. It was called the Dilbert Disaster.

The crew monitoring the pipeline near the Kalamazoo River had ignored several pressure warnings, allowing the oil to flow freely into the river. A hydroelectric dam down river was used to contain the spill. Clumps of oil were still being pulled from the water five years after the spill.

The lessons of the Dilbert speak directly to the factors which The Army Corps of Engineers must consider for the Missouri River.

The Oahe Reservoir and flood plains, act to stem the tide of water flowing down the river. Flood plains around the river swell as the water builds up during heavy rains, dissipating the water pressure and increasing the width of the river.

The dam would be unable to continue to hold both the contaminated water and rushing water from the storm in the event of an oil spill during heavy rain. The flood plains would have to be utilized.

Contaminated water would overflow onto the flood plains, greatly increasing the land mass affected by the spill. Even a minor flow onto the flood plains would have a major catastrophic effect on the wildlife. Animals, plants, and vulnerable soils which would otherwise not be affected would be contaminated.

Burrows of subterranean plains creatures; rodents, snakes, ground dwelling birds, and insects; would fill with contaminated water, creating vertical contamination. Each vertical tunnel would also have horizontal contamination from soil moisture absorption. Contaminated water could seep several feet underground and have lateral permeation of millions of cubic feet of soil.

The animals which survived direct contact with contaminated water would themselves become contaminated. The grass which did not die from the flood or polluted would become begrimed.

Animals which eat the grass or the animals in the grass would experience ruinous food shortages from the die off. A large portion of the food left would be contaminated.

The contamination of small animals would hit birds of prey, snakes, and coyotes hard. Deer and rodents would be vulnerable to the loss of grasslands. The entire ecosystem of the prairie flat lands acting as flood plains could collapse.

Normal protocols for removing oil from water and land would be insufficient, as the spill would not be on the land or on the water but soaked into the topsoil, and subsoil. Removing several feet of soil would be required to get rid of all of oil – itself creating further ecological disaster.

Using Lake Oahe dam would mean ecological ruin. It is nearly 150 miles away. It would mean a leak went undetected or unstopped for 25 hours. It would require complete failures of both human and automated systems. However, evidence is mounting that the leak detection devices do not work.

A Nexin Energy pipeline burst in Alberta in July 2015, sending 1.3 million gallons. The pipeline was less than one year old. Leak alarms failed to alert the company of the spill.

InsideClimateNews.org studied 10 years of pipeline spill information. The study found, “Between 2002 and July 2012, remote sensors detected only 5 percent of the nation's pipeline spills, according to data from the Pipeline and Hazardous Materials Safety Administration (PHMSA).”

The gross majority of spills are detected by people who happen to come across the spill, be them average citizens or oil workers.

“The general public reported 22 percent of the spills during that period. Pipeline company employees at the scenes of accidents reported 62 percent,” according to InsideClimateNews.org’s study.

Nexin Energy could not even tell the public how long the Alberta pipeline was leaking because of the automated warning systems failure.

The Center for Biological Diversity studied the numbers significant of pipeline incidents between 1986 and 2013. An incident was considered significant if it spilled 50 barrels, resulted in injury or death, or caused $50,000 or more in damage.

“According to the data, since 1986 there have been nearly 8,000 incidents (nearly 300 per year on average), resulting in more than 500 deaths (red dots on the video), more than 2,300 injuries (yellow dots on the video), and nearly $7 billion in damage,” reads the Center for Biological Diversity report, “Since 1986 pipeline accidents have spilled an average of 76,000 barrels per year or more than 3 million gallons. This is equivalent to 200 barrels every day.”

In 2013 North Dakota had one of the largest oil pipeline spills. A wheat field was deluged by 840,000 gallons of crude when lightening hit a pipe.

Unlike in Alberta and Kalamazoo, the Missouri River is the primary water source for millions of people, including the Standing Rock Sioux Reservation. The reservation starts approximately just 2,400 feet from where the Bakken Dakota Access Pipeline is proposed to dip under the Missouri River.

A leak in the Dakota Access Pipeline would contaminate Standing Rock’s drinking water in 30 minutes or less. The time it would take to confirm a spill under the best conditions would probably be long enough for an oil spill to reach the reservation.

Art by: weshoyot alvitre ‏@weshoyot

Many states and area farms rely on the water from the Missouri to irrigate their farms. Should oil slip into the irrigation lines, the food supply could become interrupted for years as farms suffer from oil contamination.

Lake Oahe offers reservation members and members of the public numerous recreational opportunities; including swimming, boating, camping, and wild life observation. A spill would greatly diminish the public’s access to safe, enjoyable, recreation at Lake Oahe.

Lake Oahe provides hydroelectric power for the surrounding area. Any interruptions in the creation or distribution of power because of a spill would diminish the welfare of the people who rely on it for power.

Standing Rock Sioux preserved their right to the bottom of the Missouri River during the imminent domain acquisition outlined in Pick-Sloan. Anything which changes the qualities of the river bottom is within the tribe’s right to decide.

Winters Waters:

In June 2016, the Crow Creek Sioux Tribe, whose reservation is on the Missouri River south of Standing Rock Sioux Reservation, argued in a lawsuit that the federal government squandered their water rights to the Missouri River.

Crow Creek argued that use of the water guaranteed to the federal government had been “completely abdicated” its fiduciary trust responsibilities by allocating the water for the tribes for non-native projects like water reclamation, urban development, and consumption as protected in the Supreme Court case Winters v. United States.

The Supreme Court was asked to rule on the tribal sovereignty of water in a reservation in Winters v. United States. They ruled that because the goal of reservations was independent, self-sufficient native communities and water is essential to self-sufficiency, tribes must have secure, ample access to water. The ruling established reserved water rights.

Reserved water rights apply to water and bodies of water in and directly around the reservations. Winters allocated each tribe enough water to sufficiently irrigate each irrigable acre on the reservation.

Impact:

Energy Transfer Company, the company which owns the Dakota Access Pipeline, prepared an environmental impact assessment for the Army Corps of Engineers. However, the environmental impact assessment failed to address the requirements of Pick-Sloan or the Winters ruling.

Environmental impact assessments are required to explain the impact of a project on humans, flora, fauna, and the land.

The Missouri River is the primary water source for the Standing Rock Sioux Reservation. Any contamination would shut down the majority of their guaranteed Winters water. No alternatives for the acquisition of Winters water in the event of a spill or contamination incident has been provided by Energy Transfer Company or The Army Corps of Engineers. The Supreme Court guarantee of sufficient irrigable water for the reservation is a human impact requirement which is not addressed in the environmental impact assessment prepared by Energy Transfer Company.

Given the geography, topography, and infrastructure, failing to address the eight federal agency requirements in Pick-Sloan means the Environmental Impact Assessment has failed to meet the flora, fauna, and human impact requirements of the an Environmental Impact Assessment.

Substantial negligence to provide information on the full scope of environmental impacts in an assessment are grounds for requiring an environmental impact statement – a more stringent and complete explanation of the environmental impacts.

Should the Army Corps of Engineers fail to require a full environmental impact statement, they are permitting their known legal duties to go unaddressed.

The Army Corps of Engineers is now faced with the full weight of their legal charge for the health and care of the river. They must decide if issuing a permit to drill under the Missouri River will be a direct violation of the statutory requirements for protecting the river and of the Winter water requirements.

The Water Protectors are waiting to learn if the Army Corps of Engineers will honor their legal duties under Pick-Sloan and pipe the snake way, or if it will charm it under the water.