A group of residents from the village of Nuiqsut on the North Slope have told the federal District Court in Alaska that a report filed in September by the U.S. Army Corps of Engineers has failed to provide an adequate explanation of why the Corps did not prepare an SEIS, or supplemental environmental impact statement, when permitting ConocoPhillips' CD-5 oil field development in the northeastern National Petroleum Reserve-Alaska, the first field to be developed in the reserve.
Dredge-and-fill permit
The permit at the center of the dispute is the Corps' dredge-and-fill permit. The villagers launched an appeal against the permit in federal court in February 2013, saying that the CD-5 project had changed and new information had become available since the Corps published an FEIS, or final environmental impact statement, in 2004. The FEIS encompassed the potential development of several satellite fields to the Alpine oil field, including CD-5. Under the terms of NEPA, the National Environmental Policy Act, the changed circumstances of the CD-5 project require revisions to the FEIS, the villagers claimed.
In May of this year U.S. District Judge Sharon Gleason ruled that the Corps had violated NEPA by not explaining why it had decided not to prepare a revised EIS for the CD-5 project. The judge ordered the Corps to prepare an explanation for its decision. But, noting that the plaintiffs in the appeal had not filed suit until more than a year after the Corps had filed the dredge-and-fill permit, Gleason declined to cancel the permit, thus allowing ConocoPhillips to proceed with its CD-5 development while the appeal case is being resolved.
Supplemental report filed
In September the Corps complied with the court order by filing a supplemental information report, setting out the reasoning behind its decision not to rework the FEIS. The report says that in 2011 the Corps conducted a review "in light of the most current information about the potential impacts of the proposed activities and determined that there were no significant changes that altered the analysis underlying the 2004 FEIS." Neither had there been any changed circumstances at the CD-5 development site, the report says.
The plan for the CD-5 project that ConocoPhillips finally permitted fell within a mid-range of alternatives considered within the FEIS, with project changes "encompassed within the concept" of the Corps' preferred alternative for the project, as documented in the FEIS, the report says. And almost all the changes mitigated potential adverse impacts noted for that alternative, it says.
Changes to the CD-5 project plan since FEIS publication consist of the relocation of a bridge for crossing a channel of the Colville River; the re-alignment of the CD-5 access road; an increase in the size of the CD-5 pad and a re-alignment of the pad; the construction of two small bridges as alternatives to culverts; an increase in the impacted area of waters of the United States; and some additional measures for reducing project environmental impacts, the Corps reported. The Corps presented detailed justifications for not viewing any of these changes as invalidating the FEIS, saying for example, that the revised bridge location lies within a range of locations considered in the FEIS.
Villagers cite 'new impacts'
In a response filed on Oct. 14 the villagers who are appealing the Corps permit argued that the CD-5 project changes are substantial. The changes involve a 30-percent increase in gravel fill, and 43 percent lengthening of the access road, as well as the addition of more and larger bridges, the villagers wrote. The Corps has failed to present a reasoned analysis of why the project changes should be viewed as insignificant, they said.
"The project necessarily created new impacts to the area's complex hydrology, wildlife, tundra, soils and aquatic habitat," the villagers wrote.
And the villagers disagree with the Corps' view that the changes fall within the scope of alternatives considered in the FEIS.
"The road and bridge locations were also shifted several miles south and completely rerouted from their original location - or any location considered in the 2004 FEIS," they wrote. "The Corps cannot avoid supplemental NEPA review by simply 'cobbling together' portions of alternatives that had been analyzed earlier."
New information that has become available since the FEIS was completed includes new insights into climate change, and its potential impact on the project, and the potential cumulative impacts of other projects in the CD-5 region, the villagers have argued. The Corps says that there has been no new information of sufficient impact to warrant a revisit of the FEIS, while the villagers say that the Corps has acted in an arbitrary manner by not formally assessing how new information may require some rethinking of the project impacts.
Judge Gleason has yet to rule on the legal adequacy of the Corps' supplemental information report.
This story originally appeared in Petroleum News and has been republished with permission.