Rock Products

JUL 2017

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Page 52 of 63 ROCK products • July 2017 • 51 LAW but does not require those agencies to select the action that has the fewest impacts. The procedural requirements must be satisfied – and if they are not satisfied, the risk of a lawsuit challenging the action is significant. 3. Some Federal Approvals Cannot Be Avoided – But Some Can. The easement authorizing the DAPL to cross federal land turned out to be a roadbock for the pipeline. And while many permitting programs apply to development on public and private lands alike – for instance, a permit is required to dredge or fill a wetland or to "take" a threatened or endan- gered species regardless of whether that impact occurs on public or private property – a NEPA analysis is only required for federal agency action like granting a significant federal approval or permit. While development on private property can still trigger a NEPA analysis if the permitting action is "major," development on federal property guarantees that one will be required. Siting a project to avoid federal lands or the requirement of major federal permits can avoid delay and limit the opportunities for litigation. 4. The Power of a Movement Should Not Be Underes- timated. The protest by tribal civil rights activists and supporters is undoubtedly the most high-profile Native American protest in recent history. David Archambault III, the chairman of the Standing Rock, has stated that "What happened at Standing Rock is a movement, and you don't see the benefits of a movement until way later." The result of the Standing Rock movement may be that the pipeline is not ulti- mately issued the easement required for the pipeline to run under Lake Oahe, or it may be that a more thorough environ- mental assessment is completed and the pipeline proceeds as planned. In either case, the movement will have set a prece- dent for future NEPA analyses that cannot be ignored. The DAPL therefore may be the highest profile case of its kind, but at its base it illustrates the challenges commonly facing project development. Companies across industries would be wise to be aware of the priorities of the current adminis- tration, to comply with required procedures (or avoid them through project siting, to the extent possible), and to recog- nize the real impact activism opposing a project can have. Ultimate Lesson Learned While the new administration may seek to streamline or even eliminate permitting or regulatory hurdles impeding devel- opment, those opposing development may be even more aggressive in seeking court action to block or delay it. The underlying caution here is that, regardless of the creation of more "development friendly" permitting agencies, companies must be even more diligent in seeing that the agencies ade- quately document their decisions. As the pipeline's lawsuit makes clear, the agencies will not always do this as a matter of course and companies must supply them with the material that they can use to withstand court scrutiny. We've got it. Rock ability. Experience Knowledge Service Rock Solid Solutions Built on Experience since 1977…. Proud Distributor of Aggregate Material Handling Systems 323 Energy Way • Bridgeport, TX 800.315.0871

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