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Dakota Access Backer ETP Reneged on Promises, Iowa Regulator Says

Energy Transfer Partners LP (ETP), sponsor of the 1,172-mile Dakota Access Pipeline to transport Bakken Shale crude oil, was accused by an Iowa regulator of not fulfilling some conditions imposed by the state in approving a route.

On Tuesday, Iowa Utilities Board (IUB) member Geri Huser, who chairs the panel, filed a dissent in the 2-1 vote authorizing the project to begin construction (see Shale DailyJune 7). The pipeline already has been approved by the three other states it will cross -- Illinois, North Dakota and South Dakota.

IUB earlier this year authorized the project (see Shale DailyMarch 11). The pipeline is being challenged in court, but even if it weren’t, ETP has failed to meet various conditions of the initial approval, Huser said.

Huser, an attorney, contended in her dissent that ETP made promises to the regulatory board before the March approval. A Dakota Access representative had told the IUB that a pre-construction notice (PC) would be filed with the Army Corps of Engineers to verify various pipeline crossings. However, ETP has not filed any proof of the PC with the IUB, Huser said in her seven-page dissent attached to the 2-1 decision.

"Dakota Access now asks the IUB to excuse it from the commitment that it made to provide all 'permits, approvals or other similar documents' from the Corps and Iowa Department of Natural Resources," Huser said. In giving the OK for construction this week, the IUB is modifying the original order. The IUB no longer has jurisdiction because the action is being appealed to a state district court.

"I would deny [ETP’s] request because the request directly affects the terms and conditions of the permit that the district court is reviewing on appeal," Huser’s dissent stated. She said the other two IUB members acknowledged that judicial review of the decision generally deprives the regulatory agency of jurisdiction, with a few exceptions, and they consider the Dakota Access case to fall under one of those exceptions.

The IUB order approved Dakota Access beginning construction in areas where it has "all required permits, authorization, approvals, and easements, along with providing all required notices and complying with all other legal requirements." It also said the activities "will be conducted at the company's own risk." The order also said that the IUB’s existing rules would apply in cases where Dakota Access is required to relocate the pipeline for any reason.

In response, an ETP spokeswoman told NGI’s Shale Daily that the operator had "requested and was approved to begin construction in areas for which we had the necessary permits and approvals as well as easement agreements," which were in line with commitments made at the time of the March IUB order.

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