Corps files document justifying CD-5 permit
The U.S. Army Corps of Engineers has provided an analysis to a federal court on its 2011 decision to approve a controversial permit for the ConocoPhillips CD-5 oil project on the North Slope now under construction.
Environmental groups and six villagers in the nearby community of Nuiqsut had filed suit against the Corps in Alaska U.S. District Court, claiming that the permit should be revoked because the Corps had not provided supplemental environmental impact statement, or SEIS, to cover changes in the project design since an original environmental impact statement was published in 2004.
U.S. District Court Judge Sharon Gleason found for the plaintiffs that the Corps erred in not justifying its decision more thoroughly but declined to revoke the permit or stop construction. She instead accepted a proposal from the Corps that the agency would provide the necessary analysis.
Two other federal agencies, the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service, had also argued that an SEIS should have been done.
At the time the permit application was being reviewed by the Corps in 2010, there were reports that EPA was considering invoking its Section 404(c) authority under the Clean Water Act to veto the permit if it was issued by the Corps, and took the position that an underground pipeline was preferable to cross the Colville River rather than a bridge.
The company argued that the bridge would allow year-round access and the project would be uneconomic without it.
The Corps originally denied the ConocoPhillips permit for a bridge, but the company appealed the decision administratively and the Corps reversed its decision, allowing construction to commence in 2013.
The Corps of Engineers CD-5 document filed Sept. 12 stated there is no provision in federal law or regulations for an EIS to “time out,” or for the 2004 Alpine field development plan (which includes CD-5) to have become invalid by 2011, although the Corps did note that the Council on Environmental Quality recommends that additional analysis be done if an EIS is more than five years old.
However, the CEQ’s “guidance” is not a requirement, the Corps said in its document prepared for the court.
The agency also argued that changes in the project design including moving the location of a bridge across a Colville River channel, are not substantial enough to warrant an SEIS. The 2004 EIS document discussed a number of alternatives to the CD-5 project design that existed then and those are sufficiently broad to cover environmental effects of the changes that were made later in the design, according to the Corps.
The change in bridge location, which was done at the request of the Nuiqsut village, also caused changes in the routing of roads for the project. Kuukpik Corp., the village corporation for Nuiqsut, worked cooperatively with ConocoPhillips and the Corps on the change in bridge location, according to the document submitted to the court.
The changes in the project design between 2004 and 2011 included a downsized “footprint” of 58.5 acres compared with 62.16 acres in 2004; a change in the crossing of the Nigliq Channel of the Colville River that is three miles south of the original proposed crossing site; the road connecting the CD-5 production pad to the Alpine oil field infrastructure was realigned to the south, and lengthened, and the drill site pad was relocated.
The redesign of the road included a narrowing to reduce the gravel footprint.
The CD-5 pad was also increased in size from 9.1 acres in 2004 to 11.7 acres in 2011 to accommodate additional producing wells, from 23 in 2004 to 33 in the final plan. The pad was also moved 1.3 miles to the south and east.
These changes, however, were done to better locate the pad on the reservoir and to avoid the need for a second drill pad in the future, the Corps said in its analysis.
The Corps noted that it does not regulate the number of wells on a pad but only the footprint of the gravel laid down for the production pad, and in this case the alternatives studied in the 2004 EIS included larger pads as options.
Another change between 2004 and 2011 was to substitute several small bridges for culverts in the road, but this has the effect of reducing the amount of gravel fill and the environmental impact, the Corps noted.
The total amount of wetland acreage affected by the project did increase between the 2004 plan and the 2011 approved plan, from 13.4 acres to 58.5 acres.
“Most of this change was due to the road realignment and increase in pad size,” the Corps said.
The potential of a larger wetlands impact was also included in the alternatives in the 2004 EIS, according to the Corps filing.
The environmental lawsuit against CD-5 has had the effect of splitting the Inupiat community at Nuiqsut. While the six Nuiqsut residents are listed as lead plaintiffs, Nuiqsut’s village corporation, Kuukpik Corp., has intervened in the case on the side of the Corps and ConocoPhillips, the developer.
Kuukpik Corp. owns the surface lands where the CD-5 project is being built.
Arctic Slope Regional Corp. of Barrow, the regional Native development corporation for the North Slope, also intervened on behalf of the corps and ConocoPhillips. ASRC owns the mineral rights at CD-5 and will receive royalties from oil production.
According to people familiar with the land ownerships, Kuukpik will also receive a small overriding royalty through an agreement negotiated with ASRC because of the use of its surface lands.
Gleason will now decide whether to accept the Corps’ filing, and whether it will render the Clean Water Act claims of the plaintiffs moot. Gleason stated in her original decision ordering the Corps to present the documentation for the permit that she would rule on the CWA claims after receiving the information.