BAD RIVER BAND OF LAKE SUPERIOR (2022)

BAD RIVER BAND OF LAKE SUPERIOR

TRIBE OF CHIPPEWA INDIANS

Box 39 ● Odanah, Wisconsin 54861

CHIEF BLACKBIRD CENTER

March 22, 2022

via email to: CEMVP-L5WSR-PN-Comments@usace.army.mil

Bill Sande

St. Paul District, Army Corps of Engineers

CEMVP-RD

180 Fifth Street East, Suite 700

Saint Paul, MN 55101-1678

Re:

Comments on the Section 404 and Section 10 Permit Application for the Enbridge Line 5

Pipeline Segment Relocation Project, Army Corps of Engineers, St. Paul District, File

No. MVP-2020-00260-WMS

Mr. Sande,

The Bad River Band of Lake Superior Chippewa (“Bad River” or “Band”) respectfully

submits the following comments to the Army Corps of Engineers, St. Paul District’s Public Notice,

issued on January 6, 2022, on the permit application from Enbridge Energy for the Line 5 Segment

Relocation Project.

The Bad River Band is a federally recognized tribe in Northern Wisconsin, located wholly

within the Lake Superior Basin and majority within the sub-basin of the Bad River – Mashkiiziibii

– for which our Tribal Nation is named. The Bad River Reservation is also directly adjacent to

Lake Superior. The Anishinaabe, of which our Tribe of Ojibwe are a part, have lived in this area

for several hundred years, moving from the east as described in our migration story to find the

place where food grows on water. The Bad River Band and its people maintain a reciprocal

relationship with the natural environment. Anishinaabe people see the waters, trees, animals,

plants, birds, and even the air as an extension of a large community. This community is at the

center of Anishinaabe culture and life. The Band has a solemn responsibility to preserve our

homeland, our environment, our culture, our treaty-protected resources, and our distinct lifeways

for the coming seven generations. It is for this reason that the Band objects to the reroute of

Enbridge’s Line 5 pipeline around the Reservation.

The Band previously requested that the Army Corps of Engineers (“Corps”) rescind the

Public Notice and revise it before releasing it for public comment due to the numerous deficiencies

throughout the document. Letters to Col. Karl Jansen from Bad River Band (March 4, 2020)

(Attachments A and B). The Band expressed concerns that the Public Notice did not accurately

describe the project activity, did not assess the full geographical scope of the project, lacked critical

data to determine the project’s impacts, and failed to accurately describe the Corps’ jurisdiction.

The Band also requested the Corps re-initiate consultation under the Endangered Species Act due

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to federally listed threatened and endangered species and their critical habitat, other fish and

wildlife species and their critical habitat located within Ojibwe homelands and ceded territory, as

well as the court-ordered re-listing of the gray wolf as an endangered species. The Band is

renewing its request for the Corps to correct the factual discrepancies and release another Public

Notice for comment. The Band and the Mashkiiziibii Natural Resources Department (“MNRD”)

prepared this comment letter based on the information in the current version of the Public Notice

and permit application. As several of the MNRD staff noted, the lack of data and other information

presented barriers to the ability to comment fully on the environmental, cultural, and social impacts

of the proposed project. There are also inconsistencies between the application materials Enbridge

provided to the Wisconsin Department of Natural Resources (“WDNR”) and those provided to the

Corps, which raises questions about the accuracy of the information. The Bad River Band submits

this comment letter in order to meet the Corps’ imposed deadline. However, the Band reserves

the right to update this comment letter and the underlying MNRD staff reports, attachments, and

expert reports as additional information becomes available.

The Band is reiterating the need for the Corps to prepare an Environmental Impact

Statement (“EIS”) under the National Environmental Policy Act (“NEPA”) due to the project size,

the federal determination process for treaty harvest effects, differences between state and federal

law, impacts to the Bad River Band’s water quality standards, and likely environmental impacts

through several of the Corps’ jurisdictional waters. The scope of the Corps’ environmental review

must include the operation and decommissioning of the existing Line 5 segment that runs through

the Reservation in addition to the construction, operation, and eventual decommissioning of the

proposed pipeline. These comments highlight some of the severe deficiencies in the Public Notice

and the application that should be addressed before the Corps can conduct a full environmental

analysis of the project impacts. The need for a full federal environmental review becomes more

apparent as more information becomes available. On March 21, 2022, just one day before this

comment deadline, the Minnesota Department of Natural Resources revealed Enbridge breached

three aquifers as part of the construction of its Line 3 replacement project. 1 The impacts of the

aquifer breaches are severe and highlight the need for further data collection, transparency between

the Corps, Enbridge, and the public, and for a thorough environmental review. Based on the

current application, information available, and the Public Notice, the Corps cannot issue a Section

404 or Section 10 permit for this project. The Bad River Band looks forward to participating in a

robust review of the environmental and cultural impacts of the project as part of the EIS process.

I.

THE CORPS’ DE MINIMIS EFFECT DETERMINATION PROCESS FOR

ESTABLISHED TREATY RIGHTS

The Corps has a trust responsibility to ensure that this project will not interfere with the

Band’s Reservation property or treaty-guaranteed usufructuary rights. Here, the Band identifies

the history of its established treaty rights for a home, and established treaty rights which it holds

in common with other tribal signatories to the 1842 Treaty, throughout the project area. To help

that the Corps actions are consistent with the Band’s treaty rights, reserved rights, and statutory

rights, we also would like to meet with the Corps to discuss these issues. We have proposed

Minnesota Department of Natural Resources, Line 3 Replacement Project,

https://www.dnr.state.mn.us/line3/index.html (accessed March 22, 2022).

1

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calendar dates at the end of this letter. We look forward to engaging with the Corps to analyze the

proposed Line 5 reroute project’s impacts to the Band’s treaty rights both on and off the Bad River

Reservation.

A.

The Bad River Band and 1842 Territory Members Have Rights Established Under

Treaties with the United States

The Band’s connection to this watershed runs deep in its history and culture. The Band

signed treaties with the United States in 1837 and in 1842 ceding territory in Wisconsin and parts

of Michigan and Minnesota. The tribes party to the 1837 and 1842 Treaties, including the Bad

River Band of Ojibwe, explicitly retained rights to hunt, fish, and gather on ceded territory, along

with other usual and customary practices. Treaty with the Chippewa, 7 Stat. 536 (1837) (“1837

Treaty”) and Treaty with the Chippewa, 7 Stat. 591 (1842) (“1842 Treaty”) (referencing the “usual

privileges of occupancy”). The District Court for the Western District of Wisconsin summarized

reserved rights in interpreting the 1837 and 1842 Treaties this way: “[The 1837 and 1842 treaties]

grant the [Ojibwe] the right to live on the ceded lands as they had lived before the treaties were

signed. That way of life included hunting, fishing, trapping, and gathering wild rice and maple sap

as a means of providing food for themselves . . . in addition to having a place of residence.” United

States v. Bouchard, 464 F. Supp. 1316, 1358 (W.D. Wis. 1978), aff’d in relevant part and rev’d on

other grounds sub nom. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt,

700 F.2d 341 (7th Cir. 1983). The usufructuary rights retained by the Ojibwe Tribes in these

treaties are known as “reserved rights” because, under the established reserved-rights doctrine of

federal Indian law, Indian treaties grant rights not to tribes, but rather to the United States. The

inherent sovereign rights of tribes are retained unless they have been explicitly relinquished via

treaty. See United States v. Winans, 198 U.S. 371, 381-82 (1905) (recognizing that a treaty is “not

a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted”);

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, No. 74-cv-313-bbc,

2015 WL 5944238, at *2 (W.D. Wis. Oct. 13, 2015) (recognizing that Ojibwe Tribes “retained

their hunting rights, including the right to hunt at night, when they ceded thousands of acres of

northern Wisconsin to the United States in the early part of the nineteenth century”) (emphasis in

original).

Tribal members from the Bad River Band and other tribes continue to exercise their treaty

rights throughout this region, including hunting, fishing, gathering, and other customary practices.

See e.g. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wis., 758 F.

Supp. 1262, 1275 (W.D. Wis. 1991) (holding that tribes have an “undisputed usufructuary right to

gather forest products.”).

At the time the Band and the United States negotiated the 1837 and 1842 Treaties, United

States policy was to remove tribes to land west of the Mississippi. However, the Bad River Band

avoided removal and retained their off-reservation rights by negotiating a third and final treaty

with the United States in 1854. The 1854 Treaty was signed at La Pointe on September 30, 1854.

Treaty of LaPointe, Signed Sept. 30, 1854, Ratified Jan. 10, 1855, 10 Stat. 1109 (“1854 Treaty”).

This Treaty formally abandoned a Presidential Removal Order issued in 1850 and established

permanent homelands (reservations) for the Ojibwe in Wisconsin, Michigan, and Minnesota.

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The present-day Bad River Reservation is in Northern Wisconsin and is part of the Bad

River Watershed on the southern shore of Lake Superior. Several rivers from upstream

subwatersheds – the Potato, Tyler Forks, Upper Bad, Marengo, and White Rivers – all flow

downstream into the Bad River. The Bad River, White River, Potato River, Marengo River,

Brunsweiler River, Tyler Forks River, Beartrap Creek, Vaughn Creek and many tributaries also

flow through the Bad River Reservation. The presence of these waterways, and the unique

hydrology and geology of the area mean that both surface waters and groundwaters feed the Bad

River Reservation.

1. 1842 Treaty Territory Uses

The 1842 Treaty specifically reserved “the right of hunting on the ceded territory, with the

other usual privileges of occupancy[.]” See 1842 Treaty, Art. II. The history surrounding the

Ojibwe Tribes’ 1837 and 1842 Treaties demonstrates that the tribes recognized that their reserved

usufructuary rights included the rights to hunt, fish, and gather. That same history shows that the

tribes also retained the right to conserve and protect the key species they relied upon for their

livelihood, to maintain healthy populations of those species, and to ensure their continued

existence. Thus, for example, tribal representatives stated during the 1837 Treaty negotiations

“[t]hat you”—meaning the United States and its citizens— “may not destroy the [Wild] Rice in

working the timber.” Ojibwe treaty statement, 1864, U.S. Commission of Indian Affairs, Original

manuscript in the Wisconsin Historical Society Archives (SC-O 40), English Version, at 5.

Similarly, recognizing the implications of the United States planned lumbering activities, tribal

representatives explicitly retained their right to conserve and protect the oak and maple trees from

which the Ojibwe derived important food sources and other values. Id. at 4. (“I will sell him the

Pine Timber as he requests me to . . . [but] I hold in my hand the Maple Timber, also the Oak

Timber[.] . . . These I do not sell.”); see also Negotiations for the Chippewa Treaty of July 29,

1837, reprinted in Ronald N. Satz & Laura Apfelbeck, Chippewa Treaty Rights: The Reserved

Rights of Wisconsin's Chippewa Indians in Historical Perspective app. 1, at 142 (1996) (journal

of 1837 treaty negotiations documenting tribal negotiator’s statement that, “[o]f all the country

that we grant you we wish to hold on to a tree where we get our living . . . . The Chiefs will now

show you the tree we want to reserve. This is it (placing an oak sprig upon the Table near the

map).”).

Federal courts have routinely interpreted the 1837 and 1842 Treaties as a “grant the Indians

the right to live on the ceded lands as they had lived before the treaties were signed.” The Ojibwe

reserved to themselves the “right to make a moderate living off the land and from the waters in

and abutting the ceded territory and throughout that territory by engaging in hunting, fishing, and

gathering as they had in the past and by consuming the fruits of that hunting, fishing, and gathering,

or by trading the fruits of that activity for goods they could use and consume in realizing that

moderate living.” Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wis.,

653 F. Supp. 1420, 1426 (W.D. Wis. 1987). At the time the treaties were signed, the Ojibwe made

use in various ways of almost all the flora and fauna in the region. Lac Courte Oreilles Band of

Lake Superior Chippewa Indians, 653 F. Supp. at 1426-29 (listing mammals, birds, fish, plants,

plant materials, and other resources the Ojibwe used at the time of signing the Treaty of 1837 and

the Treaty of 1842).

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The Bad River Band and its members, as well as members of other tribes that were

signatories to the 1842 Treaty, continue to exercise their treaty rights to hunt, fish and gather the

same resources throughout the ceded territory as many of our relatives did that came before us.

2. The Band’s Treaty-Protected Water Rights

Under federal caselaw, tribes generally have federally reserved rights to enough water to

fulfill the purposes of their reservations. See Winters v. United States, 207 U.S. 564, 576-77

(1908). In Winters, the Supreme Court of the United States recognized that when Congress

approved an agreement between the United States and the tribes to establish the Fort Belknap

Reservation as a homeland, the tribes did not surrender prior rights to water necessary to make the

reservation livable. Id. at 576 (“The Indians had command of the lands and the waters, [] command

of all their beneficial use, whether kept for hunting, and grazing roving herds of stock, or turned

to agriculture and the arts of civilization[.] Did they give up all this?”) (citations omitted). The

Court ruled that when Congress ratified the agreement with the Tribes, it included an implied

reserved water right to fulfill the agricultural purposes of the reservation. Id. at 577. Since

Winters, other courts have applied this doctrine. See also Arizona v. California, 373 U.S. 546, 600

(1963) (finding that five tribal reservations had reserved water rights effective at the time the

United States created their reservations). These reserved water rights also apply to groundwaters

that supply tribal reservations. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water

Dist., 849 F.3d 1262, 1268 (9th Cir. 2017), cert. denied, 138 S. Ct. 469 (2017). Significantly, once

tribal reserved rights are established at the time of, for the purposes of, the reservation, they

continue to exist, Arizona, 373 U.S. at 600, whether or not they have been historically accessed or

used, Agua Caliente, 849 F.3d at 1272. See Cohen’s Handbook of Federal Indian Law, Section

19.01[1] (2012) (Indian reserved water rights “are not lost to non-use”). These rights exist even if

they have not yet been quantified, as is the case for the Bad River Band. The Bad River Band

relies on instream flows for hunting, fishing, and ceremonial purposes. The Band also relies on

the aquifer south and southeast of the reservation for drinking water. Even though the Band’s

water rights have not yet been determined, the Band has a basic right to drinking water as part of

the occupation of its homeland.

B.

The Federal De Minimis Effect Process to Consider the Bad River Band’s Treaty

Rights

The Corps previously has examined projects’ impacts on tribal treaty rights as part of the

consideration on whether or not to grant an individual permit under Section 10 of the Rivers and

Harbors Act. In Northwest Sea Farms, Inc. v. U.S. Army Corps of Engineers, a federal court

upheld the Corps’ denial of a permit to construct a salmon farm in Puget Sound because the project

would have a more than de minimis impact on tribal treaty rights. 931 F. Supp. 1515 (W.D. Wash.

1996). The court found that the “Corps owes a fiduciary duty to ensure that [tribal] treaty rights

are not abrogated or impinged upon” in administering its permitting programs. Id. at 1520.

Significantly, the court found that Corps’ conclusion that the project would affect the Lummi

Nation’s geographical right to access tribal treaty rights was enough to support denying the project.

Id. at 1522.

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At the District level, the Corps followed Northwest Sea Farms when it reviewed, and

denied, a Section 404 permit for the Gateway Pacific Terminal in Cherry Point, Washington. See

Gateway Pacific Terminal Denial Memo, May 9, 2016 (Attachment C). The Seattle District

denied the permit after reviewing first-hand evidence from tribal fishermen that the project would

interfere with their ability to fish in their treaty-reserved areas. Id. at 7-8. The Seattle District also

reviewed an expert report that examined the project’s overall impact on tribal fishing activities.

Id. at 10-11. The District concluded the terminal would have more than a de minimis impact on

tribal treaty rights and supported its decision based on tribal members’ testimony and other

supporting evidence demonstrating that the project presence in itself would infringe on tribal

members’ ability to fish. Id. at 21-23. In denying the permit, the Seattle District also rejected

arguments that mitigation would be enough to reduce the project’s impacts so that it would not

have a more than de minimis impact on tribal treaty rights. The District concluded that “[o]nly an

act of Congress can eliminate a part of the Lummi’s [treaty-protected] fishing grounds.” Id. at 28.

The applicant’s mitigation proposal altered the tribal fisherman’s fishing practices and fishing

locations. The District found the mitigation plan would “still continue[] to impair or limit the

Lummi’s access to its [treaty-protected] fishing grounds” and that “even with the [applicant’s]

proposed mitigation, there would still be impediments to fishing because the physical presence of

the wharf and trestle interferes with the Lummi’s [treaty-protected] fishing.” Id. at 30. “The pier

itself eliminates a geographic area where fishing and crabbing occurs, which I find to be greater

than de minimis. That alone is sufficient to be a greater than de minimis impact on the Lummi’s

tribal treaty rights.” Id.

The Bad River Band, as well as other signatories to the 1842 Treaty, retain and exercise

treaty rights to resources within the 1842 ceded territory. The proposed re-route project is wholly

within the watershed that provides instream flows and groundwater that support the Band’s

hunting, fishing, and ceremonial purposes, and within the 1842 ceded territory. The project area

also public land where tribal members exercise their treaty-protected hunting and gathering rights.

To identify, and understand, the review the process and general types of information that the Corps

would need to properly analyze the adverse impacts of the agency decisions, or other actions, to

the Band’s treaty rights, we suggest a meeting.

The Band also has concerns about how the proposed pipeline route will impact treaty rights

vis-à-vis a state law. Wisconsin has enacted a law making it a felony to trespass on a pipeline right

of way. See Wis. Stat. § 943.143. The result of this law is that the presence of a pipeline route

through state and public land where tribes exercise treaty rights will effectively criminalize access

to those areas. Tribal members will also be burdened with increased travel times and may have to

take new routes to their traditional gathering and hunting sites because of the illegality of crossing

Enbridge’s right-of-way. See infra at VII.B. The Band requests to consult with the Corps on the

impacts to treaty resources that will result from the proposed project.

II.

THE CORPS MUST CONSIDER THE CURRENT LINE 5 LITIGATION IN

RELATION TO THE PROPOSED PROJECT

Line 5 has been operating through the Bad River Reservation since 1953. The Corps must

consider the current operation of Line 5 and current litigation between the Band and Enbridge as

part of a federal EIS. The Public Notice fails to include the crucial fact that Enbridge currently

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operates Line 5 in trespass. The Corps needs a fuller understanding of the line’s current legal

situation to compare and evaluate the proposed project.

Although Line 5 has been operating through the Reservation for many years, it can only do

so with legal permission from the Bad River Band and the Bureau of Indian Affairs in the form of

easements. See Section III.C.3.a. infra. In 2013, several of Enbridge’s easements expired and the

Band decided not to renew them. Quite simply, this means Enbridge illegally operates Line 5 in

trespass through the Reservation and has done so since the easements expired in 2013.

The Band decided not to renew these easements, in part, because of the dangers a pipeline

spill poses to wetlands, waters, and the Reservation community. 2017 Tribal Council Resolution

(Attachment D). The Council resolved in 2017 and 2019 to not renew the Line 5 easements, and

also directed Band staff to take all lawful action to remove Line 5 from the Bad River watershed,

not just the Reservation. Id.; 2019 Tribal Council Resolution (Attachment E). Enbridge and the

Bad River Band entered into mediation from June 2017 to July 2019 but could not reach an

agreement. The Bad River Band filed a lawsuit seeking to order removal of the pipeline in federal

district court in 2019. Complaint, Bad River Band of the Lake Superior Tribe of Chippewa Indians

of the Bad River Reservation v. Enbridge, Inc., et al., 3:19-cv-00602 (D. W.D. Wis. July 23, 2019),

ECF No. 1 (“Bad River Complaint”) (Attachment F).

The Band’s lawsuit seeks to enforce the Band’s decision to not renew the easements and

the duty on Enbridge to remove the pipeline. In fact, the easements themselves required removal

of the pipeline upon their expiration, which is now several years past due. See Bad River Bands’

Mem. of Law in Supp. of Its Mot. for Partial Summ. J. and for Summ. J. on Defs’ Countercl., 3:19cv-00602 (D. W.D. Wis. Feb. 17, 2022), ECF No. 172 (Attachment G). The Corps’ environmental

analysis must reflect that Enbridge does not have the required easements to operate Line 5 in its

current location, and any decommissioning plans and timelines must reflect that. The Band’s

success in litigation will affirm that Enbridge must remove the existing segment of Line 5 that runs

through the Reservation. Also, decommissioning the current Line 5 need not wait until

construction of the proposed project, but rather may need to start on a timeline that is dictated by

the outcome of the litigation, regardless of the status of the proposed project. Despite the expired

easements and the Band’s clear resolve to remove Line 5 from both the Reservation and the

watershed, Enbridge flouts the law and contractual obligations requiring pipeline shutdown and

removal.

Should the Band’s lawsuit succeed, Enbridge must cease operating Line 5 through the

reservation and remove it. However, to fully comply with the repeated resolutions of the Band,

Enbridge must remove the pipeline from the entire Mashkiigon-ziibi (Bad River)

watershed. Enbridge’s proposal to locate the pipeline around and upstream of the Reservation

unreasonably interferes with the Band’s treaty-protected rights to fish, hunt, and gather, and to

control the use of its lands consistent with public health, safety, and welfare. The Corps’

environmental review must consider the present and future impacts and risks of the current Line

5, as it is inextricably intertwined with the proposed project.

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III.

THE CORPS MUST PREPARE A FULL ENVIRONMENTAL IMPACT STATEMENT

IN ACCORDANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT

The Corps must prepare an independent federal EIS prior to any decision-making on

whether to issue a Section 404 or Section 10 permit to Enbridge for the Line 5 project. NEPA

requires review of Federal actions “significantly affecting the quality of the human environment”

including a detailed statement on environmental impacts, unavoidable adverse environmental

effects, project alternatives, short-term uses vs long-term productivity, and any irreversible and

irretrievable commitment of resources. 43 U.S.C. § 4332(2)(C). As written, the Public Notice

does not contain sufficient information or analyses to meet this standard of environmental review

and the Corps cannot issue a permit based on the available information. Based on the project

context, the project application materials, and the Public Notice, the Corps must prepare a full

federal EIS.

A.

The Corps Has a Duty to Meet Other Federal Requirements

The Corps has other Clean Water Act (“CWA”) requirements that it must meet before it

can issue a permitting decision. The Corps must complete an analysis under EPA’s CWA Section

404(b)(1) Guidelines before it can make a decision on whether to issue a Section 404 Permit. See

40 C.F.R § 230.5; Section IV. infra. The Corps must also comply with CWA Section 401 for state

water quality certification and it cannot issue a permit without one. 33 U.S.C. § 1341(a)(1). The

Corps also must comply with other federal statutes in this permitting process, such as the

Endangered Species Act, see Section V. infra, and the National Historic Preservation Act. See

Section VI. infra. This suite of federal laws affords a broad analysis of the impacts the project will

have on the environment, including water quality, endangered and threatened species, and cultural

and historic resources.

The Corps is the Bad River Band’s federal trustee and has an independent duty to consider

the impacts the project will have on the Band’s treaty rights, as well as other issues unique to tribal

and Indigenous communities. Specifically, the Band is concerned about Missing and Murdered

Indigenous Women – a social plague that seems to increase at pipeline construction sites. The

Band has a task force to raise awareness about this issue and we ask all our federal trustees to work

to address and prevent this terrible threat our tribal communities face. The Corps must also

conduct an independent analysis on the environmental justice (“EJ”) impacts of the project

consistent with Executive Order 12,898. 59 Fed. Reg. 7629 (Feb. 16, 1994); see also E.O. 13985

(Advancing Racial Equity); E.O. 14008 (Tackling the Climate Crisis). These comments address

these issues below. In order to meet the broad array of other federal requirements, the Corps must

conduct its own independent review.

The Corps has a duty to evaluate the impacts of the proposed project within its jurisdiction.

This includes informing the public of what impacts the project will have on jurisdictional waters

and the location of those waters. The Public Notice fails even this basic function because it does

not identify the Corps’ jurisdictional waters and the impacts to those waters. The Band has

inquired about the number of waterways and wetlands that are included in the Corps’ Public Notice

because the actual impacts to waters within the Corps’ jurisdiction is still unclear due to conflicting

information in the Corps 404 process and the Wisconsin state environmental review process. To

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date, the Corps has not fully or publicly clarified why there are discrepancies between the Public

Notice issued for the Section 404 permit and the project documents that have been provided in the

Wisconsin state environmental review process.

The Corps cannot rely on Wisconsin state processes to meet its federal responsibilities.

The Wisconsin Department of Natural Resources has prepared a state Draft Environmental Impact

Statement (“state DEIS”) as part of the state permitting process for state wetland fill and waterway

impact and crossing permits under Wis. Stat. §§ 30.123, 30.19, 20.20, 281.36. The Bad River

Band has expressed repeated concerns with the state process and the state DEIS, including failure

to accurately describe the project and its proposed impacts, failure to include underlying data,

failure to provide analyses supporting conclusions on impacts in the DEIS, and failure to consider

cultural resources. Even though the state DEIS is deeply flawed, the Band will still submit

comments to WDNR to preserve its rights in the state process. The preparation of the state DEIS,

however, does not relieve the Corps of its duty to conduct an independent environmental analysis

on the project’s impacts.

The Band has also notified both the Corps and WDNR about the inconsistencies between

the Corps’ Public Notice and the state DEIS with respect to impacts to wetlands and waterways.

Although the Corps suggests that the discrepancies are due to differences in jurisdictional areas,

the Corps still must define its jurisdictional areas and evaluate the impacts to the environmental,

cultural, and historical resources in the project area.

Ultimately, the Corps must complete an environmental analysis that meets its multiple

federal responsibilities before it can make a permitting decision. The Corps cannot defer nor rely

on a state level analysis.

B.

The Project Requires an Environmental Impact Statement

NEPA requires a review of Federal actions that “significantly affect[] the quality of the

human environment[.]” 42 U.S.C. § 4332(2)(C). The analysis must include environmental

impacts, project alternatives, and any irreversible and irretrievable commitment of resources. Id.

NEPA regulations, and the Army Corps regulations implementing NEPA, provide a process for

developing environmental review documents. See 40 C.F.R. § 1501 et seq (1978); 33 C.F.R. pt.

325 App. B (1978). 2 Based on these regulations and federal case law, the proposed re-route of the

Line 5 pipeline requires a full EIS.

The Corps must “prepare an Environmental Impact Statement ‘[i]f any ‘significant’

environmental impacts might result from the proposed agency action.’” Standing Rock Sioux Tribe

v. U.S. Army Corps of Engineers, 440 F. Supp. 3d 1, 13 (D.D.C. Mar. 5, 2020) (citing Grand

Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002)). “In order to determine whether its

The Council on Environmental Quality (“CEQ”) revised NEPA regulations. 85 Fed. Reg. 43304 (July 16, 2020).

CEQ is now in the process of reviewing those regulations pursuant to Executive Order 13990 (Jan. 20, 2021) and

has extended the deadline for agencies to update their implementing NEPA regulations to September 14, 2023. 86

Fed. Reg. 34154 (June 29, 2021). As of the date of this comment letter, the Corps has not updated their

implementing NEPA regulations at 33 C.F.R. pt. 325. Accordingly, the 1978 NEPA regulations are still applicable

to this permitting process.

2

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actions may result in ‘significant’ environmental impacts — and therefore whether it must prepare

an EIS — an agency must examine both the ‘context’ and the ‘intensity’ of the action.” Standing

Rock Sioux Tribe v. U.S. Army Corps of Engineers, 471 F. Supp. 3d 71, 76 (D.D.C. July 6, 2020).

Both the context and the intensity of the proposed project lead to significant environmental impacts

that must be assessed in a federal EIS.

The Corps’ review must consider the context of the proposed pipeline project including the

watershed as a whole and the project’s impacts to the wetlands, waters, and the human and

biological communities that rely on those resources. See 40 C.F.R. § 1508.27(a). The watersheds

that encompass the proposed project area are ones of extraordinary ecological and hydrological

function. The waterways include unique waters such as Lake Superior and the Kakagon-Bad River

Sloughs. Lake Superior is important on multiple scales, from local to international. The KakagonBad River Sloughs also are of international significance. MNRD Other Waters Report

(Attachment H) at 2 (“MNRD Other Waters Report”). The Band has identified many of these

waterways as Outstanding Tribal Resource Waters for both their unique qualities and their cultural

significance to the Bad River Band. See MNRD Water Quality Standards Report (Attachment I)

(“MNRD WQS Report”). EPA has also recognized the Bad River and the Kakagon-Bad River

Sloughs as Aquatic Resources of National Importance “because they are economically significant;

their unique characteristics have been identified and designated for protection under international,

national, state, and tribal law; and these waterbodies are integral to maintaining and enhancing the

quality of the Nation’s waters.” Letter to Col. Karl Jansen, USACE, from Tera Fong, EPA R5,

Re: Public Notice MVP-2020-00260-WMS / Enbridge Line 5 Wisconsin Segment Relocation

(March 16, 2022) at 2 (Attachment J) (“EPA Letter”). The Kakagon-Bad River Sloughs wetland

complex is designated as a Ramsar International Treaty Convention Wetland of International

Importance. MNRD Other Waters Report at 2 (Attachment H); EPA Letter at 2 (Attachment J).

The context of this unique area alone, which is important on state, regional, national, and even

international levels, necessitates that the Corps must conduct a full EIS for the proposed project.

The intensity factors also all point the Corps to prepare an EIS. The intensity factors

“refer[] to the severity of impact.” 40 C.F.R. § 1508.27(b). The factors at issue in the proposed

project include: the degree the proposed action affects public health or safety, “[u]nique

characteristics of the geographic area such as proximity to historic or cultural resources, park lands,

prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas,” the “degree to

which the effects on the quality of the human environment are likely to be highly controversial,”

the “degree to which the possible effects on the human environment are highly uncertain or involve

unique or unknown risks,” whether the action is related to other actions with cumulatively

significant impacts, the degree to which the action “may cause loss or destruction of significant

scientific, cultural, or historical resources,” the degree to which action may affect endangered or

threatened species, and “[w]hether the action threatens a violation of Federal, State, or local law

or requirements imposed for the protection of the environment.” Id. at § 1508.27(b)(2)-(10).

Triggering any one of the factors may be sufficient to require development of an EIS. Standing

Rock Sioux Tribe, 440 F. Supp. 3d at 14 (quoting National Park Conservation Association v.

Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019)).

The proposed project area is a unique geographical area, as described in the context above.

The watersheds are of unique importance, in part, because of intense hydrological connections

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between surface waters and groundwaters, and the ecosystems they travel through, such as

aquifers, wetlands, rivers, and streams. All these waters eventually reach Lake Superior – the

largest freshwater lake in the world by volume. The proposed project will likely adversely affect

this special hydrological network. The unique hydrology of the region also supports plants and

wildlife that are essential to the cultural practices of the Bad River Band. Indeed, the proposed

project is located wholly within the ceded territory of the Bad River Band and other tribes who

were signatories to the 1842 Treaty, and the area contains many treaty-reserved resources. Some

of these treaty resources are located within the waters and wetlands that the proposed project will

directly destroy. See MNRD Wildlife Report (Attachment K) (“MNRD Wildlife Report”); MNRD

Non-Local Beings Program Report (Attachment L) (“MNRD NLBP” Report”). The area is also

home to delicate ecosystems that support threatened and endangered species. MNRD Threatened

and Endangered Species Report (Attachment M) (“MNRD T&E Report”). The proposed project

will have an adverse effect on the unique characteristics of the region, including the wetlands,

rivers, and waters. MNRD Other Waters Report (Attachment H); MNRD Wetlands Report

(Attachment N) (“MNRD Wetlands Report”); See also Thompson & Associates Wetland Services,

Review of Enbridge Line 5 Wisconsin Segment Relocation Project, at 2-3 (March 3, 2022)

(Attachment O) (“T&A”). These impacts will also affect those that depend on the water resources

to live in the area, including threatened and endangered species.

The Bad River Band and its tribal members also rely on the hydrology of the region for

drinking water. The proposed project threatens public health and safety, will likely be highly

controversial, and will involve unique risks to the communities downstream of the project area.

The project involves construction techniques, such open cut/trenching, Horizontal Directional

Drilling (“HDD”), and steep slope grading, that will adversely affect the waters in the region.

These impacts range from sediment runoff from construction sites that can degrade the quality of

surface waters, including wetlands, streams, and rivers, to aquifer breaches that can contaminate

groundwater resources, to permanent changes in surface and groundwater flows. Indeed, the

severity of threats to groundwaters and aquifers recently came to light in the case of Enbridge’s

Line 3 replacement project. See Jeffrey Broberg, Addendum #1 to Report on Line 5 (March 22,

2022) (Attachment P) (Broberg Addendum). The Minnesota Department of Natural Resources

(“MNDNR”) revealed that there were three total aquifer breaches related to the construction of

Line 3, and that over 262 million gallons of water were lost as a result of those breaches (32.6

million gallons at Clearbrook, 9.8 million gallons at LaSalle, and 219.6 million gallons at Mile

Post 1102.5). See Broberg Addenum, Attachment 1 (Attachment P). Because this information

was just made public, the Band has not had an opportunity to evaluate the information released by

MNDNR and Enbridge, including the impacts a similar breach could have to the Bad River Band

and its groundwater resources.

These construction risks comprise only some of the direct construction impacts. Additional

associated impacts from construction include building and maintaining construction sites, access

roads, and storage areas that will have a cumulative impact on the entire project area. There are

also impacts resulting from the operation of the proposed project. Operating a pipeline through

the region subjects the watersheds to the risks of an oil spill that can contaminate the areas’ waters,

including drinking water for the community. The Corps must prepare an EIS to disclose these

risks and analyze the environmental impacts that construction, operation, and maintenance of the

pipeline will have on downstream communities.

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The proposed project also “threatens a violation of …[tribal] …requirements imposed for

the protection of the environment.” Id. at § 1508.27(2)-(10). As explained in Section IV.I.1. infra,

the Bad River Band is a downstream entity that has Treatment as a State Status under the CWA.

The Band has established water quality standards, with water quality criteria, designated uses, and

an antidegradation policy under the CWA that apply to waters within and that flow through the

exterior boundaries of the Reservation. Id.; MNRD WQS Report (Attachment I). The Band has

concerns that the proposed project will impact the water quality within the Reservation. EPA

shares that concern. The EPA found “that the Application does not adequately consider, mitigate,

and address potential impacts to downstream State and Tribal federally approved WQS.” EPA

letter, Encl. 1 at 13. Although Section 401 of the CWA provides an avenue for EPA and Bad River

to review the project’s impacts on downstream waters, both the EPA and Bad River need additional

information to conduct that review. See 33 U.S.C. § 1342(a)(2). If anything, the Corps must

prepare an EIS to evaluate impacts to water quality standards to allow for an efficient water quality

certification review under Section 401.

C.

The Environmental Impact Statement Must Capture All of the Project’s Impacts

The Bad River Band expects the Corps to provide a notice of intent to prepare a federal

EIS and plans to participate in the scoping process. The Band identified the following nonexhaustive list of impacts at this stage given the information in the Public Notice, the information

in the application, and the long list of information that is lacking before the Band can make an

informed comment on the full range of environmental impacts.

1. The Current Operation of Line 5 Through the Reservation

The Bad River Band is in the unique position of having on-the-ground experience and

witnessing first-hand the effects of a pipeline through the Bad River watershed. Enbridge,

formerly Lakehead, has been operating Line 5 through the Reservation since 1953. Since that

time, the Bad River Band has discovered several environmental conditions in the pipeline route

that can lead to environmental disasters from a potential oil spill and other activities associated

with the operation and maintenance of the pipeline. MNRD Other Waters Report, Attachment 10

(Attachment H). The impacts from the current operation of Line 5 should be included in the EIS

as a baseline operation.

First, the Bad River is naturally prone to meandering and the river can change course over

time. This natural process is important for a healthy river system. The existing presence and

operation of the Line 5 pipeline at this location, however, poses a threat to the Bad River. This

concern was one of many that the Band expressed in its lawsuit to remove Line 5 from operating

illegally on Reservation lands. Bad River Complaint at 33-47 (Attachment F). The Bad River

meander has resulted in the River moving closer to a portion of the pipeline buried under the River.

The distance between the meander and Line 5 continues to shrink, and at a rapid pace. Between

2015 and 2019 (the year Bad River filed the lawsuit) the distance from the meander to the pipeline

shrunk from 80 feet to 28 feet. Bad River Complaint at 35-36 (Attachment F).

As the Bad River continues to meander, the Line 5 pipeline will become exposed, thus

changing the forces on that pipeline segment and increasing the potential for a catastrophic oil

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spill. A third-party engineering report partially published in January 2022 evaluated the

environmental impacts of a Line 5 oil spill at the location of the Bad River meander. Wright Water

Engineers, Inc., Engineering Evaluation of the Bad River Meander adjacent to Enbridge Line 5

and Related Water Resources Issues (Jan. 2022) (hereinafter “Meander Report”) (Attachment Q).

The firm “found that damage to the Line 5 pipeline resulting in oil release would have severe

environmental impacts to the Bad River and downstream aquatic resources under a variety of

scenarios.” Meander Report at 113 (Attachment Q). The Meander Report modeled several spill

scenarios and “[u]nder all four oil release scenarios evaluated, oil was transported all the way to

Lake Superior and the Bad River Sloughs (at approximately river mile 16).” Meander Report at

118 (Attachment Q).

Although the Meander Report focused on the single location of where the meander may

expose the current placement of Line 5, it also highlighted several issues that would be relevant

for consideration of any potential oil spill near water resources in the Bad River watershed. For

example, in the event of an oil spill, containment in the region would be difficult due to access

issues, especially during flood conditions or during the presence of snow or ice. “Consequently,

a rapid and successful response to a damaged pipeline would be challenging, which increases the

probability of difficulties and delayed implementation of spill containment and pipeline repairs.”

Meander Report at 119 (Attachment Q). The lack of access to remote sites means that “cleanup

will involve gaining access in a virtually roadless area.” Meander Report at 157 (Attachment Q).

As such, “[p]rojecting the impact of an oil spill must include both the direct effects of the spill and

the collateral damage produced by the cleanup activities.” Meander Report at 157 (Attachment

Q). The Meander Report also considered that the flow status of the Bad River can have an impact

on how an oil spill will affect the local ecosystem: “Floating oil will come into contact with plants

at the water surface, causing damage to emergent vegetation…Further, as flood waters recede,

more plant stalk area is exposed to oil. When flooded areas dry out, the floating oil will

contaminate soils, exposed shallow bars in sloughs and wetlands, channel banks, and previously

inundated floodplains.” Meander Report at 140 (Attachment Q).

Second, the Band has also encountered areas of Line 5 where the pipeline is exposed due

to soil erosion. Enbridge Line 5 Issues Within the Bad River Reservation at 3-4 (Feb. 2020);

MNRD Other Waters Report, Attachment 10 (Attachment H); see also Bad River Complaint at

48-52 (Attachment F). Changes in hydrology of surface waters, in large part due to the

construction or prior maintenance activities associated with the pipeline, have exacerbated the

issue of soil erosion. Exposed pipeline has an increased chance of rupture and requires more repair

work which increases disturbances of largely undeveloped areas.

The existing data demonstrates that the operation of Line 5 poses an imminent threat to

the Bad River Reservation and the waters the pipeline crosses. The current data on the meander –

such as how it has changed over time – and the risks that an oil spill at the meander poses to the

local ecosystem right now should be included as part of an EIS for a baseline analysis. These

threats result from naturally occurring environmental conditions in the watersheds. The Bad River

meander demonstrates clearly that the hydrology of the region can rapidly change the landscape

within the Bad River watershed as part of the River’s natural process. Not only is the situation

within the Reservation representative of the existing scenario on the ground, but it should also shed

light onto the future environmental impacts of the proposed reroute. Enbridge’s proposal to locate

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the pipeline around and upstream of the Bad River Reservation keeps it within the Bad River

watershed, which has similar environmental baselines that have resulted in the looming disaster of

the current Line 5 route. The situation that the Band’s MNRD staff are seeing on the ground right

now with the current operation of Line 5 will be the future of the Line 5 re-route in only a matter

of time. Any environmental analysis must consider the present and future impacts and risks of the

current Line 5, as it is inextricably intertwined with the proposed project. See also EPA letter,

Encl. 1 at 19 (Attachment J) (recommending that disposition of the pipeline within the Reservation

be considered together with the proposed project as a connected action).

2. Purpose and Need

The Purpose and Need for the proposed project in the Public Notice is so narrow that only

the proposed project will meet the stated objective, which is directly contrary to the requirements

of NEPA. “One obvious way for an agency to slip past the structures of NEPA is to contrive a

purpose so slender as to define competing ‘reasonable alternatives’ out of consideration (and even

out of existence)…If the agency constricts the definition of the project’s purpose and thereby

excludes what truly are reasonable alternatives, the EIS cannot fulfill its role” Simmons v. U.S.

Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997). This narrow construction is exactly

what appears in the Public Notice: “Enbridge’s stated purpose for its WI L5R project is to continue

transporting crude oil and natural gas liquids (NGLs) through its Line 5 pipeline, a portion of

which would be relocated around the Bad River Reservation.” Public Notice at 3. This purpose

is drawn so narrowly such that the products are sent through Line 5 specifically. Courts have

interpreted that the purpose statement “should look at the general goal of an action, rather than a

specific means to achieve that goal.” Nat’l Wildlife Refuge Ass’n v. Rural Utilities Serv., 21-cv096-wmc, 2022 WL 136829, *15, 16 (W.D. Wis. Jan. 14, 2022) (citing Simmons at 666). The

purpose in the Public Notice is too specific and must be modified to be broader.

Severely, and improperly, limiting the purpose and need of a project has a cascading effect

of limiting the range of alternatives considered and analyzed for that project. The purpose and

need statement “necessarily dictates the range of ‘reasonable’ alternatives.” Carmel-By-The Sea

v. U.S. Dept. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997); see also Simmons, 120 F.3d at 666.

The current purpose and need in the Public Notice is constructed so narrowly that selection of the

project proponent’s preferred alternative is a foreordained conclusion. The Corps must analyze

and draft a purpose and need statement reflective of the broader goals of the project and in

compliance with NEPA rather than accepting Enbridge’s purpose and need statement at face value.

3. Alternatives Analysis

The analysis of alternatives is at the heart of NEPA. See e.g., Conn. Fund for the Env’t,

Inc. v. U.S. Gen. Serv. Admin., 285 F. Supp. 3d 525, 533 (E.D.N.Y. Jan. 11, 2018). “Before the

Corps issues a Section 404 permit, it must determine that there is ‘no practicable alternative’ to

the proposed activity ‘which would have less adverse impact[s] on the aquatic ecosystem.’” Red

Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers, 2021 WL 430054, *3 (D.D.C.

Feb. 7, 2021) (citing 40 C.F.R. § 230.10(a)). The Corps must ensure that the alternatives analysis

in the EIS meets the requirements of NEPA. There should only be one no action alternative, which

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is to decommission the current Line 5, and a full range of alternatives must be considered and fully

analyzed.

a. The No Action Alternative Must Be Decommissioning Line 5

One of the alternatives that must be considered in the EIS is the “No Action” alternative.

33 C.F.R. pt. 325, App. B.7.a. The current statement of the No Action alternative in the Public

Notice include[es] “continued transport of oil and gas through Line 5, and discontinued transport

of oil and gas through Line 5.” Public Notice at 6. However, the “No Action” alternative for the

EIS must be limited to the decommissioning and removal of the current Line 5 pipeline. Enbridge

is currently operating Line 5 through the Bad River Reservation in trespass. See Section II. supra.

Enbridge has failed to secure easements from both the Bad River Band, as well as individuals,

along the pipeline route. The no action alternative must reflect this severe legal defect and be

limited to decommissioning the current Line 5 pipeline.

The permit application contemplates two “No Action Alternatives.”

Enbridge

Environmental Impact Report, Section 3.1.1, at 22 (March 2020) (“EIR”). Enbridge first assumes

that if the reroute were not constructed, that the “No Action Alternative” would be “Continued

operation of Line 5 within the Bad River Reservation.” Id. The second “No Action Alternative”

is “Decommissioning Line 5.” Id. Although the application states that “Which scenario would

occur under the No Action Alternative depends on the outcome of the lawsuit to remove Line 5

from the Bad River Reservation,” it flagrantly ignores the purpose of the lawsuit. Bad River

Complaint, at 4 (Attachment F). The Enbridge application also ignores that the Bureau of Indian

Affairs has also rejected Enbridge’s requests to renew easements for continued operation of the

pipeline due to objections from both the Bad River Band and failure to get consent from individual

landowners. See Bureau of Indian Affairs Right of Way Determination Letters for Tract No. 430

R 154 & 430 3H308 (Attachments R & S). The Band’s lawsuit is not the only impediment

Enbridge is facing for continued operation. The status quo described in the No Action Alternative

should be the decommissioning of Line 5 through the Bad River Reservation, recognizing

Enbridge’s failure to secure several easements through those lands.

The continued operation of Line 5 is also a continuation of Enbridge’s trespass on the Bad

River Reservation and the illegal operation cannot be a viable No Action Alternative. Indeed, even

Enbridge acknowledges that to continue operating Line 5, it “would have to reach an agreement

with the Bad River Band regarding the easements on the [Reservation] parcels and the associated

lawsuit.” EIR at 22. The Corps must limit the No Action Alternative to decommissioning Line 5

not just because it is the only lawful option, but also because it is quite possibly inevitable in the

event Bad River prevails in its lawsuit. It is also possible given than the State of Michigan has

revoked Enbridge’s easement to operate a segment of Line 5 across the Straits of Mackinac.

The failure to accurately curtail the No Action Alternative to decommissioning the current

Line 5 pipeline has the rippling effect of undermining any analysis of the effects of the No Action

Alternative. Even if the No Action Alternative assumed that Enbridge could continue the illegal

operation of Line 5 through the Reservation, this would severely skew the alternatives analysis

because the No Action Alternative establishes the baseline against which the effects of the action

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alternatives are measured. The Corps must limit the No Action Alternative for the EIS and analyze

the appropriate range of alternatives based on a broader project purpose and need.

b. The EIS Must Analyze a Reasonable Range of Alternatives

The artificially narrowed purpose and need severely limited the range of alternatives

Enbridge considered in its permit application. Enbridge did not develop other possible alternatives

that did not meet Enbridge’s very specific “purpose and need” but might meet other possible

alterations of the purpose and need. These alterations of the purpose and need could include not

disrupting energy supplies or ways to get the products currently traveling through Line 5 to market.

If the purpose and need were drawn more broadly, such as to transport oil and Natural Gas Liquids

(“NGLs”), then there are other alternatives that Enbridge and the Corps must consider meeting

those needs. The Corps must address the range of practicable alternatives in the EIS.

The study and development of alternatives must be described in adequate detail in an EIS.

40 C.F.R. § 1502.14(a), (c). “NEPA requires agencies to ‘rigorously explore and objectively

evaluate all reasonable alternatives” to a proposed plan of action that has significant environmental

effects.” Nat. Res. Defense Council v. U.S. Forest Service, 421 F.3d 797, 813 (9th Cir. 2005)

(internal citations omitted).

Enbridge’s alternatives analysis very broadly, and briefly, discusses three pipeline route

alternatives and “system alternatives” that mentions other modes of transportation. Of the pipeline

route alternatives, all three of them were rejected from further consideration without any analysis

of the actual impacts. EIR at 27-28. Enbridge similarly concludes that the system alternatives –

such as transportation via other pipelines, truck, rail, and tanker – are not feasible with only a

cursory analysis. Id. at 22-24. The conclusory dismissal of system alternatives further highlights

how the narrow purpose and need improperly skewed the range of alternatives considered and

analyzed. For example, Enbridge summarily dismissed the alternative of switching to an existing

pipeline “due to geographic considerations, capacity limitations, and infeasibility of

reconfigurations to transport the additional Line 5 volumes of light crude and NGLs.” Id. at 22.

Other entities, however, have developed possible alternatives that were wholly rejected by

Enbridge. A report prepared in January 2022 for Environmental Defence Canada examines

Alternatives for Crude Oil Supply to Ontario and Quebec Refineries and possible impacts on

Eastern Canadian Refined Product Markets in the event of the shutdown of Line 5. Meyers

Consulting, LLC, Potential Enbridge Line 5 Closure: Alternatives for Crude Oil Supply to Ontario

and Quebec Refineries and Associated Impacts on Ontario and Quebec Refined Product Markets

(Jan. 2022) (“Alternatives Report”) (Attachment T). This report highlights the possibility of using

Enbridge’s Line 78 as an existing alternative to transport part of the product traveling through Line

5 in the event of shutdown. The Alternatives Report notes that both Line 5 and Line 78 deliver

product to Sarnia, Ontario. Id. at 8. The Alternatives Report then evaluates the possibility of Line

78 to increase capacity in the event of a Line 5 shut down to continue delivery of product to Sarnia.

Id. at 12-13. Ultimately, the Alternatives Report concludes that Line 78 will be able to pick up

some, if not most, of the product that Line 5 transports into Ontario. Id. at 13. Enbridge, however,

summarily rejects the possibility of using other pipeline systems because “[t]here is currently no

pipeline system that services the same product delivery and receipt points that Enbridge’s Line 5

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system services and/or existing pipeline systems designed to accommodate both crude oil and NGL

products.” EIR at 22. Enbridge did not consider the use of Line 78. Instead, Enbridge concluded

that “[t]o fulfill the same purpose as Enbridge’s existing Line 5 system, including deliveries to

Rapid River, MI and receipts at Lewiston, MI, a new pipeline and/or multiple pipelines would be

required.” Id. at 22. This conclusion highlights that the purpose and need is so specific, which is

to maintain operation of Line 5, such that Enbridge’s preferred alternative is preordained. Any

existing pipeline alternatives are unnecessarily and summarily dismissed.

Enbridge similarly dismisses other system alternatives in broad strokes. Significantly,

Enbridge dismisses the possibility of transportation by rail wholesale because “there are no

existing railroad routes that connect Enbridge’s Superior Terminal to delivery locations, such as

the Plains Midstream De-propanization Facility in Rapid River, Michigan or receipt locations,

such as the Lewiston, Michigan facility.” Id. at 23. This again highlights how the narrow purpose

and need of the project has unduly influenced the consideration and analysis of alternatives to the

proposed project. Ultimately, the narrow purpose and need also stunted the development of

practical alternatives that might incorporate multiple transportation systems. The Alternatives

Report acknowledged that perhaps not all of Line 5’s product could be transported by Line 78 and

proposed other options, such as transport by rail and other methods, to make up the difference.

Alternatives Report at 13-15. Enbridge conveniently ignored practical solutions such as this as an

alternative to the Line 5 re-route.

The narrow purpose and need also artificially limited the consideration of alternatives to

those that would singularly transport both crude oil and NGLs, and to those that would service

unspecified locations in upper and lower Michigan. EIR at 22. This is an insincere and meritless

limitation. Although Enbridge may not be thinking of creative solutions for alternatives to

transport crude oil and NGLs in the event of a Line 5 shut down, the customers that Enbridge is

purporting to protect in Michigan are doing just that. The State of Michigan published a MI

Propane Security Plan in March 2021 as part of the State’s consistent goal to protect water

resources by shutting down a segment of Line 5. Mich. Pub. Serv. Comm’n, Michigan Propane

Security Plan: Ensuring Resilience Without Line 5 (Mar. 11, 2021) (Attachment U). “The State

of Michigan has a comprehensive, five-step plan to ensure a secure propane supply for Michigan

families and businesses when Line 5 shuts down.” Id. at 2. This plan identifies several state

agencies and stakeholders who are addressing Michigan’s propane independence in the event of a

Line 5 shut down. This list includes conducting a Statewide Energy Assessment, establishing an

Upper Peninsula Energy Task Force, and establishing an inter-department Workgroup on Propane

Energy Security. Id. at 1. The five-step Plan includes steps to find alternative sourcing options,

coordinate responses to potential propane shortages and price gouging, and maximizing propane

efficiency through weatherization and transitioning to renewable energy and electrification. Id. at

2-6.

The Upper Peninsula Energy Task Force also developed Recommendations for Propane

Supply in April 2020 to address possible propane shortages. Dep’t of Environment, Great Lakes,

and Energy, Upper Peninsula Energy Task Force Committee Recommendation: Part 1 – Propane

Supply (April 17, 2020) (Attachment V). The Michigan Department of Environment, Great Lakes,

and Energy developed the Task Force Report and it made 14 recommendations that Michigan

could take in response to a disruption of propane supply in Michigan. The recommendations

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include addressing storage capacity, diversifying supply infrastructure, such as building out

railroads to increase supply, monitoring disruptions, and protecting consumers from high costs and

price gouging resulting from disruptions. The Task Force recommendations also attached a report

detailing an analysis of propane supply alternatives for Michigan. Id. at 31-147 (PDF pagination).

In examining other alternatives to Line 5, the Michigan Department of Transportation

(MDOT) also prepared a report to examine Propane by Rail in Michigan’s Upper Peninsula in

November 2021. Mich. Dep’t of Transportation, Propane by Rail in Michigan’s Upper Peninsula

(Nov. 30, 2021) (“MDOT report”) (Attachment W). The MDOT report identified ways to increase

delivery of propane by rail with existing and new infrastructure. Id. at 26-33. As part of the report,

the MDOT found that “pipeline transportation provides fewer options.” Id. at 13. In fact, Line 5

limited propane delivery to the Upper Peninsula. “The Plains LPG Service plant in Rapid River

is the only access point to the pipeline in the Upper Peninsula. Natural gas liquids must be

sequenced with oil shipments. Retailers interviewed for this study mentioned instances where the

Rapid River facility ran out of propane and closed for periods of time. According to these

individuals, reliability has at times been an issue.” Id. It seems then that the development of

alternative modes of transport for propane, separate from the transport of crude oil, would better

serve communities in Michigan currently serviced by Line 5. In comparing the costs of developing

the rail system to meet the needs of the Upper Peninsula, MDOT found that “[r]ail is not

necessarily more expensive than pipeline if it allows retailers to benefit from a more direct supply

chain.” Id. at 14.

Overall, Enbridge failed to analyze a proper range of alternatives to the project. The Corps

must consider a full range of alternatives to the project as part of an EIS. As presented in

Enbridge’s EIR, the alternatives analysis is unduly narrow and contrary to the purposes of NEPA.

If the purpose and need are drawn more broadly, and in compliance with NEPA, then a more

appropriate range of reasonable alternatives can be considered. These may include product sent

through other companies’ pipelines, transportation by rail, a mix of different system alternatives,

or replacing the product running through Line 5 with renewables, that would meet the purpose and

need.

4. Pipeline Construction, Operation, and Decommissioning

The scope of the federal EIS must include the lifetime of the pipeline, including

construction, operation, and decommissioning of the proposed project. As explained throughout

this letter, the impacts to the area resulting from project construction can be severe. So can the

impacts from the operation of the pipeline. The current Line 5 pipeline running through the Bad

River Reservation is over 70 years old and operating well past its predicted life. The threat of an

oil spill is imminent. The risks of the current Line 5 pipeline are part of the reason why the Bad

River Band declined to renew Enbridge’s easements. See Section II. supra. The Band’s 2017

resolution acknowledged that the threat of an oil spill would be catastrophic to traditional cultural

and sacred places, as well as to the flora, fauna, and other resources that rely on those waters and

places. Decommissioning the current pipeline only alleviates the risk of an oil spill if the proposed

relocation segment is not built. If the proposed relocation segment is built, however, the risk of

an oil spill to the watershed remains.

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The Corps has a duty to analyze and consider the impact an oil spill have on the entire

project area. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101,

132 (D.C.C. 2017). The Corps also has a duty to consider the impacts an oil spill will have on

treaty-protected resources. Id. at 134. Enbridge’s EIR does not provide any information on the

likelihood of a spill, spill modeling, or an analysis on the risks an oil spill will have on the affected

area. To the extent the EIR addresses spills, it is only in the context of spill prevention through

monitoring and using “intelligent valve placement.” EIR at 55-59. The Corps has a duty to

evaluate the actual spill risks and impacts and cannot rest on prevention as a means to avoid

discussing the environmental impacts from an oil spill in the watershed.

The Corps must also consider the effects of decommissioning the proposed Line 5 segment

as part of its NEPA review. There is no mention in the application materials of how long the

pipeline is proposed to be operational, nor is there any discussion of how long the pipeline will

physically be able to operate. Enbridge is in the process of attempting to replace several aging

pipelines throughout the Midwest built 50 to 70 years ago – or more. Line 3 in Minnesota was

originally built in 1968 and the portion of Line 5 that goes through the Straits of Mackinac in

Michigan was originally built in 1953. Indeed, Line 5 running through the Reservation was also

built in 1953 and its age may be a risk factors for an oil spill. Yet, when faced with the likelihood

of decommissioning the current Line 5 pipeline due to its unlawful presence on Reservation lands,

Enbridge has failed to produce a plan that evaluates and considers the environmental impacts of

the pipeline’s removal. The EIS must consider and evaluate when the proposed project will cease

to be operational and what plans or measures Enbridge is taking to remove the infrastructure at the

end of its operational life.

5. Environmental Justice

The Corps’ evaluation of environmental impacts requires a framework to include the

disproportionate exposures for Native American and Indigenous communities to pollutants from

the oil and gas industry. This includes the need for a public health risk assessment on the impacts

that pipeline construction, and its changes to land and water resources, has on Indigenous

communities. This includes, for example, developing a framework to evaluate food consumption.

Without a formal framework for evaluating the importance of daily and seasonal consumption

patterns of wild caught or gathered foods and medicines, the Corps will miss assessing

environmental justice risks to Band members who rely on those food sources. This framework

must extend to examining the types and frequencies of religious events or ceremonies and on-site

non-consumptive uses. Without this framework or analysis, the Corps will avoid analyzing

environmental justice impacts to the most highly exposed communities. A concerted effort is

required to capture important data and translate this information for environmental justice and

public health risk assessments.

The Corps’ environmental review necessarily requires separate considerations under the

United States trust responsibility to protect tribal members. Specifically, the Corps must address

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the growing problem of violence against Indigenous women and girls. 3 Because of the watershed’s

geographic location, the U.S. interstate highway, and the local history of violence against

Indigenous women and girls, the Band is especially concerned about the welfare of our

community.

None of the applicant’s draft Human Trafficking Awareness and Prevention Program

evaluate local data to assist in the prevention and repatriation of Indigenous women and girls,

including trafficked women and girls. Nor does the draft Program analyze the impact the location

of the proposed project will have on human trafficking. The draft Program even lacks any

evaluation of coordinating law enforcement, providing victim services, or outreach and

communications responses. In fact, the proposed Program is only a virtual training which informs

Enbridge employees on ways to identify and report human trafficking.

The Corps must take seriously its trust responsibility to the Bad River Band, and it cannot

delegate this serious issue to the state. Representatives of the Wisconsin MMIW task force have

cited concerns about the proportional increase in violence in the Bakken Oil Fields as oil and gas

operations increased. The state DEIS, however, dismissed this concern as a scaling issue: “In

terms of scale and duration, the proposed Line 5 relocation project is significantly smaller than the

oil and gas extraction operations in the Bakken oil fields. Enbridge indicates that they would

employ approximately 700 workers for the proposed project and that many of these would be hired

from the local area.” DEIS at 312. This response wholly misses the mark. Violence against

Indigenous women and girls is violence against Indigenous women and girls. There must be a

zero-tolerance policy regarding violence against women, the trafficking of women, and any form

of sexual violence. The Corps must evaluate these impacts and consult with the Bad River Band

and the MMIW Task Force as part of its permitting process.

This evaluation is further crucial because rural communities lack the infrastructure,

leadership capacity and expertise to effectively respond to what would be a rapid change to social

situations. 4 This was evident in the experience of the Three Affiliated Tribes at Fort Berthold

Indian Reservation in North Dakota. The Tribes experienced an explosion in crimes against

women and girls following the development of the Bakken oil fields, many of which went

unpunished, and even uninvestigated. 5

In Ashland and Iron Counties, without the United States exercising its trust responsibility

as outline above, the state and counties retain criminal jurisdiction over sex crimes, including

crimes occurring on reservation lands. The last two decades have seen significant increases in

prosecutions for drug crimes and a corresponding narrowed focus and expertise of local law

Olivia Richardson, Sex Trafficking Case Rise in Wisconsin, Which Kaul Says Could be Due to More Victims

Coming Forward, WUWM.com, Jan. 10, 2020; Rachel Monaco-Wilcox & Daria Mueller, Under the Radar, Human

Trafficking in Wisconsin, 90 Wis. Law. (Oct. 2017); Mary Spicuzza, Hundreds of Sex-Trafficking Cases Have Been

Reported in Wisconsin, But the Real Number May be Higher According to a New Report, Milwaukee Journal

Sentinel, Jan. 9, 2020; and Diana Dombroski, Human Trafficking Is All Over Wisconsin, But Subtle. You Might

Have Seen Victims and Never Known, Sheboygan Press (June 9, 2019).

4

Kathleen Finn, Erica Gajda, Thomas Perin, and Carla Fredericks, Responsible Resource Development and

Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation, 40

HARV. J.L. & GENDER 1 (2017) 8, available at https://scholar.law.colorado.edu/articles/629.

5

See id., generally.

3

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enforcement to drug crimes, almost exclusively. The capacity of local law enforcement to respond

to rapid social change and an uptick in crimes of sexual violence, including trafficking was not at

all addressed in the state DEIS. Moreover, the strategies used by local law enforcement to respond

to drug crimes, including the use of confidential informants, specifically, has eroded the trust of

the community in the effectiveness and impartiality of law enforcement. The lack of followthrough on the prosecution of crimes of violence, within tribal communities, is often attributed to

law enforcement confidentially protecting a confidential witness. More specifically, the Ashland

County Sheriff's Department was recently subject to an internal investigation regarding the sexual

misconduct of staff against female inmates in the jail and a federal lawsuit in which the county

entered into a settlement agreement with several assault victims. The failure of that department to

effectively police itself is a serious impediment to effective policing, which requires community

trust.

The proposed project, if approved, would most certainly create conditions associated with

increased demand for commercial sex trafficking. The DEIS fails to acknowledge the likelihood

of increased sexual violence that the proposed project would facilitate. The DEIS further fails to

acknowledge that American Indian women and girls from the Bad River, Red Cliff, Lac Courte

Oreilles and Lac du Flambeau Tribal Nations are likely to be targeted as victims of sex trafficking

associated with this project. Finally, insufficient analysis has been performed of the infrastructure

and other systems in place to prevent the victimization of local girls and women, and especially

American Indian girls and women, through trafficking, and the overall capacity of local law

enforcement to effectively punish crimes of sexual violence. The Corps must conduct a clear-eyed

assessment of this issue, in consultation with the Band, as part of developing a federal EIS.

6. Cumulative Impacts

The Corps must take into account that the purpose of this project is to extend the life of

Line 5 well into the future. The Corps must disclose and analyze the cumulative impacts that this

extension will have on the region. This proposal comes as habitat and water quality are declining

regionally and greenhouse gas emissions are rapidly warming the global climate. See e.g., Great

Lakes Indian Fish & Wildlife Commission, Climate Change Vulnerability Assessment V.1 (April

2018) (Attachment X). The Reservation and watershed are already facing numerous

environmental stressors from other impending projects and past industrial contamination. The

Corps must describe the cumulative impact of this project on top of these other adverse

environmental effects from other projects and past pollution. 40 C.F.R. § 1508.7.

Specifically, the Corps must address (1) this project in the context of other ongoing

projects, (2) the project’s construction methods, (3) the emissions this project will create and

extend, (4) this project’s harmful impacts to the exercise of treaty rights and the resources that

support them, (5) sediment deposition that will result from pipeline construction and maintenance

and its effect on water quality, (6) this project’s plan to fragment forests and the habitats they

support, (7) and reasonably foreseeable future construction on the Line 5 system.

Federal courts have identified five components of meaningful cumulative impacts analysis.

For the Line 5 segment relocation project the Corps must analyze:

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(1) the area in which the effects of the proposed project will be felt;

(2) the impacts expected in that area from the proposed project;

(3) Other actions—past, present, and reasonably foreseeable—that have had or are

expected to have impacts in the same area;

(4) Impacts or expected impacts from these other actions;

(5) The overall impact if individual actions are permitted to accumulate.

Grand Canyon Tr., 290 F.3d at 345

The Corps’ analysis cannot be conclusory and the agency cannot follow a “checkbox”

approach to analyzing the cumulative impacts of the project. Klamath-Siskiyou Wildlands Ctr. v.

Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004). The Corps “must give a realistic evaluation

of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.” Grand Canyon

Tr., 290 F.3d at 342. This includes analyzing “the damage already wrought by the construction”

of the pipeline and other projects. Am. Rivers v. FERC, 895 F.3d 32, 55 (D.C. Cir. 2018). The

Corps’ analysis should include the impacts associated with potential oil spills or hazardous liquid

releases and the project’s emissions.

As noted throughout this comment letter, the Public Notice and the application materials

are woefully deficient, which hinders an informed assessment of the cumulative impacts the

project will have. Cumulative impacts are an important and necessary consideration in the NEPA

process. The Bad River Band hopes the Corps adequately considers the serious cumulative

burdens this project will impose on the Band and the public at large. The following is a nonexhaustive list of cumulative impacts the Corps must consider as part of a federal EIS.

a. Other Ongoing Construction Projects

The Corps must assess cumulative impacts of this project on top of the adverse

environmental impacts of other projects in the region. The extractive industry is already causing

harm to Reservation lands, the Bad River watershed, ceded territories, and regional animals, birds,

fish, insects, plants, trees, air, water, and soils. The Corps must assess the impacts of this project

in the context of the following projects and environmental stressors. The following list is an

example of projects within ceded territory that the Corps must consider:

6

•

The Wisconsin Public Service Commission is currently considering a permit that would

enable the construction of the Xcel Transmission Line which will also degrade habitat

around the perimeter of the Reservation. See MNRD Tribal Historic Preservation Officer

Report (Attachment LL) (“THPO Report”), Attachment #4. Such degradation will

impact cultural and historic properties important and necessary to Ojibwe culture.

•

In 2018 there was an explosion at the Husky Energy oil refinery in Superior, WI. Husky

Energy Refinery Explosion and Fire, Chemical Safety and Hazard Investigations Board,

2018 (Attachment #8 to THPO Report). 6 This explosion released toxic discharge into

https://www.csb.gov/husky-energy-refinery-explosion-and-fire/

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Lake Superior, negatively affecting waters important to the economy and culture of the

Band.

•

There are numerous existing and new mining operations that are contaminating ceded

territory waters in Lake Superior with mercury and toxic runoff. Metallic Mineral

Mining: The Process and the Price, Great Lakes Indian Fish and Wildlife Comm’n

(GLIFWC) (2016) (Attachment #6 to MNRD THPO Report); see also Project

Descriptions and Maps, (Attachment # 7 to THPO Report).

The severe impacts of the project will accumulate atop the impacts of other projects. The Corps

must acknowledge and assess these cumulative impacts in detail.

b. Construction Methods

Rather than provide site-specific data or identify areas where specific construction

techniques will be used, Enbridge’s application materials default to a generalized table or equation

of the environmental impacts from construction. For example, Enbridge plans to use blasting near

numerous wetlands and this could have serious impacts on their water quality. See e.g., T&A at

50 (Attachment O). The application also contemplates using HDD or Direct Bore methods under

154 wetlands and waterways. Appx. K to Line 5 Segment Relocation Project Application. The

applicant also states that it plans to use open cut or open trench construction methods through 237

streams and other waterways. Id. In isolation these numbers might not mean much. But

considering that the proposed pipeline project is 41 miles, the number of wetlands and waterway

crossings are densely compacted. The Corps must evaluate and analyze the cumulative impacts to

wetlands, waterways, and groundwater resulting from construction of the proposed project in the

watershed.

c. Cumulative Impacts to Global and Regional Climate

The Public Notice does not mention the project’s greenhouse gas emissions or any of the

detrimental effects they have on the global and regional climate. The Corps cannot avoid that

extending the life of the Line 5 system has serious climate consequences. The Corps must analyze

this project in terms of Line 5’s historical and continuing GHG emissions and contributions to

climate change. Line 5 already facilitates the emission of tens of millions of metric tons of CO2e

into the atmosphere every year. See Testimony of Peter A. Erickson, Michigan Public Service

Commission, Case No. U-20763, 6:12-13 (Attachment Y). The cumulative burden of this project

should not be measured in terms of the amount of new consumption. Rather, the Corps should

focus on the cumulative impacts to the environment associated with allowing Line 5’s shipment

of fossil fuels and their subsequent combustion to continue. This project is contributing to climate

change by locking in the current rate of consumption of fossil fuels for decades to come. Scientists

warn that we must stop consuming climate warming fuels all together and as soon as possible in

order to ensure the sustainability of our planet. See e.g. Letter from Peter Kalmus, et al., to Joseph

R. Biden, Jr., President of the United States (Oct. 7, 2021) (Attachment Z). This project prevents

that from happening and thus contributes to the continued emission of greenhouse gasses and

resulting cumulative contributions to climate change. Climate change is a global problem that has

grievous regional environmental effects. The Corps does not acknowledge, much less analyze,

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these effects in the Public Notice. The Corps must consider the cumulative effects of the project

on climate change in a federal EIS.

d. Exercise of Treaty Rights

The project also inflicts cumulative burdens on the exercise of treaty rights. As previously

described, the Corps has a federal trust relationship with Tribal Nations, including the Bad River

Band. See Section I. supra. This relationship requires that the Corps not diminish treaty rights

and resources. Id. This project may have a chilling effect on the exercise of tribal treaty rights

and harm to species of flora and fauna that tribal members depend on for that exercise. Id. The

Corps must analyze the impacts that the project will have on access to treaty resources, both

directly and cumulatively, in consultation with the Bad River Band. Further, the project’s

contribution to climate change has a cumulative effect on the Band’s ability to continue to use

treaty resources and continue to maintain the Reservation as a viable homeland. See Section I.

supra; Section IV. infra. The Corps must evaluate the impacts the project will have on treaty

resources and the Reservation as a homeland as part of a federal EIS and in accordance with its

trust responsibility to the Bad River Band.

e. Sedimentation

Enbridge will use many construction methods for this project that will cause sedimentation

and contribute to the cumulative degradation of water quality in this region. Sedimentation, even

unintended, has the potential to lower water quality and degrade habitat in Tribal OTRWs, ORWs,

and ERWs. See Ann McCammon Soltis, Great Lakes Indian Fish and Wildlife Comm’n, Great

Lakes Indian Fish and Wildlife Commission Environmental Monitoring Relevant to Lake Superior

Basin (Nov. 19, 2014) at 8 (discussing importance of sediments in determining water quality and

ongoing need to assess Lake Superior for sediment contamination) (Attachment AA). The project

applicant discusses the sedimentation risks associated with HDD, grading, and exposing bare

ground, construction on various types of soil, river crossings, erosion in waterways, and clearing

vegetation. EIR at 107-108. However, the applicant does not discuss the cumulative impacts of

these discharges. The cumulative impacts analysis should assess whether sedimentation and

erosion control are sufficient to prevent water quality reduction given background water quality

in-stream and downstream. The Corps must include an evaluation of the project’s cumulative

effects on water quality given the immense sediment loading it could cause. The Corps should

conduct this evaluation in a federal EIS.

f. Forest Fragmentation

The project will cause forest fragmentation by permanently converting forested wetlands

into emergent wetlands along the entirety of the pipeline route. See MNRD Wetlands Report at 9.

The Corps cannot view this conversion in a vacuum – climate change and continuing land

development are causing a biodiversity crisis. Grand Canyon Tr., 290 F.3d at 342. This project’s

proposal to change 41 miles of Wisconsin’s forest ecosystem in such a drastic way merits

appropriate analysis. The Public Notice discusses possible impacts to wildlife resulting from forest

fragmentation in a general way, see e.g., Public Notice Table 1 and Section 3, but this analysis

does not account for this project’s contribution to rapidly declining global and regional biodiversity

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(Attachment X). For example, this project may increase deer populations around the reservation

by expanding the forests edge around the reservation boundary. See T&A at 12 (Attachment O);

see also Alverson, Waller, Solheim, Forests too deer: Edge Effects on northern Wisconsin,

Conservation Biology 2:348–358, (1988) (Attachment BB). Deer overpopulation leads to

diminished forest cover, biodiversity, and habitat quality through effects such as preferential

browsing. Id. Deer are already overpopulated in this region and allowing them to expand their

habitat will result in diminished forest regeneration and biodiversity. See also Section IV.C. infra.

Any diminishment in forest habitat as a direct or indirect effect of this project will be cumulative

to the biodiversity impacts of other projects in the region. This proposal is incomplete without an

analysis that details the cumulative impacts of forest fragmentation on biodiversity and habitat in

the project area.

g. Extending the Life of Line 5

If this project is approved, it will extend the life of this aging pipeline system well into the

future. It is almost a certainty that other segments of this pipeline will need to be replaced in the

near future given the declining integrity of the Line 5 system. The environmental impacts of these

future segment replacement projects will be cumulative to the impacts of the project now under

consideration.

7. Connected Actions

Finally, the project should be considered in conjunction with the proposed Line 5 Tunnel

project. See Public Notice for Proposed pipeline tunnel under the Straits of Mackinac between

Mackinaw City and Saint Ignace, U.S. Army Corps of Engineers (May 15, 2020) (Attachment

CC). NEPA regulations define connected actions as two proposals that “are closely related and

therefore should be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(1). The

reroute project is connected to the tunnel project, and vice versa, because neither can proceed

without the other. Oil from Alberta, Canada will not be able to reach its destination in Sarnia,

Ontario without the ability to cross through or around both the Bad River Reservation and the

Straits of Mackinac. Further, the Environmental Protection Agency noted in a March 16, 2022,

letter to Col. Karl Jansen that “[the EPA] believe[s] removal, decommissioning in place, or a

combination thereof, of the existing pipeline is connected to the routing of the pipeline.” EPA

Letter, Encl. 1 at 19 (Attachment J). The project “cannot or will not proceed unless other actions

are taken previously or simultaneously” on the Line 5 Tunnel project and therefore the Corps

should consider the projects together in a single EIS. 40 C.F.R. § 1508.25(a)(1)(ii).

IV.

THE PROPOSED PROJECT DOES NOT MEET THE STANDARDS OF THE CLEAN

WATER ACT

Initially, the Corps must clearly identify all the waters of the U.S. that will be impacted by

the proposed project. The Corps’ previous jurisdictional determination left out multiple waters

that should have been considered jurisdictional under the Clean Water Act. Further, a federal court

decision from August 2021 vacated the previous rule that the Corps’ jurisdictional determination

was based on. Although the Public Notice states that Enbridge asked the Corps to treat all waters

as jurisdictional, the Corps has yet to map out all the jurisdictional waterways that the project

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would impact. Importantly, such a determination and map must not only include all waterways

directly impacted by the project along the route, but also all secondary impacts related to the

project, including impacts in the right-of-way, access roads, pumping stations, and construction

staging sites.

The Corps cannot issue a Section 404 or Section 10 permit unless the proposed project

meets the requirements set forth in the Clean Water Act Section 404(b)(1) Guidelines. 33 U.S.C.

§ 1344(b). The Guidelines require the Corps to make factual determinations and means to prevent

or minimize the effects of the proposed project. 40 C.F.R. §§ 230.10, 230.11. The Guidelines

recognize that “the degradation or destruction of special aquatic sites, such as filling operations in

wetlands, is considered to be among the most severe environmental impacts covered by these

Guidelines.” 40 C.F.R. § 230.1(d). “The guiding principle should be that degradation or

destruction of special sites may represent an irreversible loss of valuable aquatic resources.” Id.

The Guidelines also prohibit a permit if the discharge of dredged or fill material “will cause or

contribute to significant degradation of the waters of the United States.” Id. at (c). A permit also

may not be issued “unless appropriate and practicable steps have been taken which will minimize

potential adverse impacts of the discharge on the aquatic ecosystem.” Id. at (d). The Public Notice

and the materials in the application do not provide enough information for the Corps to make the

required considerations set forth in the 404(b)(1) Guidelines. The application and Public Notice

are severely deficient in disclosing and examining the direct and secondary effects of the proposed

project. Significantly, “[i]nformation about secondary effects on aquatic ecosystems shall be

considered prior to the time final section 404 action is taken by permitting authorities.” Id. at

§230.11(h)(1) (emphasis added). The Corps cannot issue a Section 404 permit based on the

information available. The Corps must solicit accurate data from the applicant such that the Corps,

the Band, and the public in general, can comment on the impacts the proposed project will have

under the Section 404(b)(1) Guidelines. Accordingly, the Corps should prepare its own EIS.

A. The Public Notice Does Not Accurately Describe or Consider Impacts to Wetlands.

The Corps’ Public Notice must contain an accurate description of wetlands through the

entire project area to make factual determinations on the effects of the project as required by the

404(b)(1) Guidelines. Only when the Corps has the underlying information can it evaluate the

impacts and whether they result in an “irreversible loss of valuable aquatic resources.” The lack

of wetland data is also concerning because an incomplete or inaccurate picture of wetland impacts

has the domino effect of resulting in inadequate mitigation of wetland impacts, which is explicitly

required under the 404(b)(1) Guidelines. 40 C.F.R. §§ 230.41, 230.91 et seq. The current

mitigation plan is based on incomplete information and is deficient.

The Public Notice, and the documents used to inform it, inadequately assesses wetlands.

These failures mean that Public Notice commenters are unable to meaningfully comment on these

discussions beyond pointing them out. As importantly, these failures deprive Corps

decisionmakers of essential information when considering whether to permit Enbridge to discharge

dredged or fill material into wetlands. Without this information the Corps is unable to “[d]etermine

the nature and degree of effect that the proposed discharge will have, both individually and

cumulatively, on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. §

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230.11(e). The Corps’ environmental review must reconsider wetland as well as related impacts

and proposed mitigation in light of these many deficiencies.

The Public Notice inadequately describes the wetlands that exist in the area of the proposed

project. Deficiencies in the Notice and underlying data include gaps in data; flaws in functional

assessments; undervaluing of wetlands quality, diversity, and function; and unexplained

differences in wetland delineations. Further Corps environmental review must resolve these

issues.

1. There Are Numerous Gaps in Data and Maps

Numerous data gaps exist in the Public Notice and the underlying documents informing it.

Most fundamentally, no comprehensive list of wetland delineations exists. Multiple surveys

require synthesis by any person reviewing the Public Notice or the state DEIS, revealing

discrepancies between datasets. T&A at 2-3 (Attachment O); MNRD Wetlands Report at 2-3, 7

(Attachment N). The Corps, WDNR, and the applicant’s sources reach different totals of wetland

acres impacted, calling into question the true extent of acres impacted. See Bad River Band March

4, 2022, letter to Corps (discussing wetland and waterway discrepancies) (Attachment B); T&A at

34 (Attachment O). In fact, the Corps’ Public Notice identifies two different numbers of acres of

wetlands that will be impacted – 101.10 acres and 59.3 acres – with no clear distinction between

the two. Public Notice (compare Tables 1 and 4); see Bad River Band March 4 letter (Attachment

B); T&A at 33 (Attachment O).

MNRD, GLIWFC, and outside contractors documented additional wetland acres and

waterways within the survey boundary that were left off wetland delineations, as well as additional

occurrences of Wisconsin’s Natural Heritage Inventory species not reported by the company.

MNRD Wetlands Report at 1 (Attachment N). MNRD and GLIFWC also submitted field data to

both the Corps and WDNR indicating that the numbers of wetlands and waterway crossings are

greater than those identified by the applicant or either agency, well before the state DEIS and the

Public Notice were published. Memoranda from Great Lakes Indian Fish & Wildlife Comm’n

(June 8, 2021) (Attachment DD). Yet, despite this documented field data, neither the Corps nor

WDNR have updated their maps or estimates of impacts to wetlands and waterways to reflect the

actual impacts on the ground.

The Public Notice and underlying reports also rely on outdated or inappropriate data

sources. These include reliance on the Wisconsin Wetland Inventory rather than actual wetland

delineations to determine acreage impacts, MNRD Wetlands Report at 2, and reliance on Madeline

Island Weather Station rather than closer, longer running, and more representative stations to get

a picture of Ashland County rainfall. MNRD Wetlands Report at 4 (Attachment N).

Prior to the Corps’ development of an EIS, the Band asks that the Corps meet with MNRD

staff to discuss data staff possess and data still needed, all of which should be incorporated into a

federal EIS. MNRD Wetlands Report at 1 (Attachment N). After meeting to discuss these issues,

the Corps should conduct or require any additional data gathering and analysis necessary to

develop a thorough federal EIS.

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2. Wetland Functional Assessments Fail to Transparently Assess Function

No table in the Corps Public Notice or the state DEIS summarizes the value of a wetland

into high, medium, or low function, meaning Band staff and contractors cannot see the overall

assessment used to assign mitigation value. T&A at 33 (Attachment O). MNRD and contractor

field work revealed further errors in functional assessments of Iron County Forest land. These

include misidentifying parcels as private land and failing to value local microtopography,

groundwater recharge, and human use. T&A at 4-24 (Attachment O). A Corps EIS must require

and incorporate transparent assessment of wetland functional values.

3. Wetlands are Undervalued in Quality, Diversity, and Function

The Public Notice, and the data it relies upon, undervalue wetland quality, diversity, and

function. This has a serious effect on any evaluation of the impacts the project will have on the

function of the aquatic ecosystem as required by the 404(b)(1) Guidelines. For example, fieldwork

in Iron County Forest land showed that the Public Notice’s description of “isolated hardwoods and

conifers in better drained areas adjacent to incised drainageways,” Public Notice at 6, “in no way

captures” many wetlands in the area. T&A at 24 (Attachment O). The Corps must conduct a field

analysis and update the description of wetlands before it can make factual determinations on the

project’s impacts to them.

The Public Notice is also misleading in presenting the wetland qualities. The wetland

assessment and mitigation scheme lumps medium and low-quality wetlands together. See T&A at

25-31 (Attachment O). This systematic undervaluing of wetland quality and function undermines

the assessment and mitigation process. Such undervaluing exposes forested wetlands with little

disturbance or invasive species, see EPA letter, Encl. 1 at 16 (Attachment J), to numerous impacts,

including disruption of mucky soils, changes in subsurface hydrology, soil compaction, and loss

of microtopography. T&A at 25, 30-31 (Attachment O). Commenters cannot evaluate the overall

value assigned to each wetland, and permit decision makers cannot ascertain realistic impact levels

and necessary mitigation levels. T&A at 31 (Attachment O); see EPA letter, Encl. 1 at 16-19

(Attachment J). The Corps should develop documents for its EIS that summarize impacts based

on wetland function as well as list each wetland’s assigned quality. MNRD Wetlands Report at 45 (Attachment N).

The Corps must also gather information on and discuss high-quality wetlands. See EPA

letter, Encl. 1 at 17 (“Lack of Adequate Identification of High-Quality Wetlands”) (Attachment J).

The state DEIS contains multiple flaws in its description and designation of high-quality wetlands.

These flaws include the system used to determine high quality and the lack of attention to available

data. The failure to accurately and adequately assess wetlands highlights the importance of the

Corps conducting a separate environmental review of the proposed project.

First, the DEIS considers a wetland high quality based on global and state rankings

deeming the wetland imperiled or critically imperiled. DEIS at 204. This is nonsensical; such a

ranking does not equate to, nor even describe a wetland’s quality. The Corps must not rely on this

same flawed approach in its own analysis. The DEIS also relies on this flawed method to claim

no significant loss of high-quality wetlands. The underlying logic is that converting a forested

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wetland deemed only “vulnerable” to an emergent wetland of that same quality designation

maintains wetland quality. Id. However, forested wetlands provide unique functions and species

communities that emergent wetlands do not. See e.g., EPA letter, Encl. 1 at 15-16 (Attachment J).

The DEIS provides an alternative method to determine quality: “Also, wetlands would be

considered high-quality if they contain a representative complement of native species.” DEIS at

204. While this is a more appropriate method, neither the WDNR nor the applicant conducted the

review necessary to base a high-quality determination on species composition. Id.; EPA letter,

Encl. 1 at 17 (Attachment J). This is a startling admission with no stated rationale. In order to base

a decision on this more accurate method for determining high quality wetlands, the applicant, the

Corps, and/or WDNR must actually conduct field reviews to support their conclusions. The Corps

must also make the underlying data to support those determinations public.

The application materials overlook other wetland qualities too. These qualities include

downstream benefits of wetlands, and the wooded uplands that abut them, that extend and connect

beyond the proposed pipeline corridor. See e.g., T&A at 34 (Attachment O). The Corps must

more robustly consider the quality and functions of wetlands in developing a federal EIS. Any

conclusions must be based on field work or other supporting evidence and the underlying data

must be made available to the public.

4. There are Unexplained Differences in Wetland Delineations

There are unexplained differences in wetland delineations provided to the Corps. This

issue is made worse due to the lack of a single, comprehensive delineation dataset. See Section

IV.A.1. supra. Some wetlands delineated in 2019 were re-delineated in 2020 without explanation.

For example, Enbridge re-delineated a farmed wetland in Iron County. While the 2019 delineation

shows a single, larger wetland (wird 017), the 2020 delineation instead shows two much smaller

wetlands (wird1012e and wird1009e). T&A at 31-32 (Attachment O). The new delineation

paperwork failed to explain the decision to re-delineate, appeared not fully filled out, and seemed

to miss or ignore key indicators of a farmed wetland. T&A at 32 (Attachment O); MNRD

Wetlands Report at 7 (Attachment N). Apart from this example, “LiDAR topography and aerial

imagery data suggest wetlands may exist where there is no evidence of data collection by the

wetland delineation contractors.” MNRD Wetlands Report at 7 (Attachment N). The Corps must

require clear explanations for re-delineations and lack of delineations and incorporate that into its

EIS.

Without a baseline analysis and full, accurate, and supported wetland delineations, the

Corps, other governmental entities, and the public are unable to assess the wetland impacts of the

proposed projects. Failure to provide this information is contrary to NEPA. The Corps must

require a single wetland delineation data set for the entire project—including reasoning for any redelineations or missing delineations—and correct the other baseline deficiencies in data and

analysis necessary to describe wetlands before releasing a federal EIS.

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B. The Corps and the applicant inadequately define specific impacts to wetlands.

The information the Corps relies on inadequately defines specific environmental impacts

to wetlands. This information fails to include impacts to wetlands from blasting and horizontal

directional drilling (“HDD”) and disturbance of wetland soils and microtopography. The Corps

must resolve these issues as part of its EIS.

Enbridge proposes bedrock blasting in wetlands with seeps, springs, microtopography, and

a state threatened plant. See e.g., T&A at 12, 14, 25-28 (discussing many examples of wetlands

proposed for blasting) (Attachment O). Blasting in these locations is very likely to harm seeps

and water flow, sensitive soils, and a state threatened plant. T&A at 12, 24, 32-33, 36, 39, 44

(Attachment O). For example, Thompson & Associates found that “[b]lasting and trenching this

wetland [wirb1007] will drastically harm the rare features it presents.” T&A at 24 (Attachment

O). It appears neither the applicant nor the Corps attempted to quantify, minimize, or mitigate the

short- and long-term impacts of blasting. T&A at 44 (Attachment O); see EPA letter, Encl. 1 at 89 (Attachment J). The Corps must assess the specific impacts to each wetland targeted for blasting.

The Corps must more robustly consider the many risks of HDD on wetlands. HDD carries

a high risk—perhaps even expectation—of drilling fluid releases, which can harm fish and aquatic

species and constitutes fill of waterways and wetlands. T&A at 45-46 (Attachment O); Jeffrey

Broberg, Report on Line 5 at 7 (“Broberg Report”) (Attachment EE). Enbridge’s current fluid

release response plan “is geared more towards terrestrial clean up with waterbody clean up seeming

like an afterthought.” MNRD Fisheries Report at 2 (Attachment FF). A lost drilling bit or leak

underground may require excavation of an HDD site, including wetlands. T&A at 46 (Attachment

O). The three-page, bare bones plan for the “inadvertent release” of drilling fluid lacks any site

specificity. Id. The plan must consider aquatic resources at risk in streams, and the unique

topography and varying site conditions that make areas proposed for HDD difficult to access. Id;

see also EPA letter, Encl. 1 at 12 (Attachment J). The Band has not seen the contractor’s plan in

the event of a release. T&A at 51. Yet, as a sovereign government located downstream of this

proposed project, the Band would also need to respond to any such release. Finally, HDD requires

brush removal for a pipeline’s lifetime, continually disturbing forested and shrub wetlands. T&A

at 46 (Attachment O). The many risks of HDD must be considered in a Corps EIS.

The applicant and the Corps fail to adequately consider disturbances to wetland soils and

microtopography. “[M]any wetlands in the project corridor exhibited mucky mineral, muck, or

peat soils.” T&A at 44 (Attachment O). Movement of construction equipment, movement and

storage of soils, trenching, and blasting all will harm these soils, and their impacts may extend

beyond the project corridor and far into the future. Id. Relatedly, microtopography “will be lost

during construction by vegetation clearing, trenching, soil disturbance and construction equipment

access. Sedimentation will also fill low points and level soils surfaces.” Id. These disturbances

will take many decades to recover, if at all. T&A at 45 (Attachment O). The Corps must assess

these disturbance risks and impacts.

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C. The Corps inaccurately describes wetland impacts as temporary.

The Corps and Enbridge improperly classify many impacts as temporary. Wetland

conversion, tree clearing, blasting, and soil disturbance all have long term, if not permanent,

impacts. Pipeline maintenance corridors require permanent conversion of forested wetlands to

emergent. See e.g., EPA letter at 6, Encl. 1 at 15 (Attachment J). “[T]he use of the word

“temporary” is misleading as the construction techniques of blasting and trenching will cause

permanent (in our lifetime) impacts to existing functions in the workspace. Soils, hydrology, and

topography will be altered despite the companies’ assertions otherwise. The only permanent

impact acknowledged is the fill of 0.02 acres of emergent wet meadow. This is a very narrow view

of wetland loss.” T&A at 32-33 (Attachment O). In other cleared areas, old growth trees such as

northern white cedar and black ash may not regrow in our lifetimes—if at all—due to factors such

as increased deer browse and the northern shift of climatic zones. T&A at 4-24, 46 (Thompson &

Associates’ review of Iron County Forest land shows the many permanent impacts from

maintenance corridor conversion to emergent wetland, including the loss of northern white cedar,

black ash, and sugar maple) (Attachment O). These shifts also impact wildlife. Id. Similarly,

impacts to wetland quality and functions can be just as detrimental to the overall environment and

should be discussed and analyzed as impacts. See e.g., EPA Letter, Encl. 1 at 6, 7, 12, 16, 18-19

(Attachment J). The loss of forested wetlands also harms flood protection. MNRD Wetlands

Report at 5 (Attachment N).

Before the Corps can classify any impacts as temporary, the Corps must fully examine all

impacts to wetlands. The 404(b)(1) Guidelines outline several factors to consider in determining

loss of values to a wetland. These include damage or destruction of habitat, adversely affecting

biological productivity, and altering substrate and water movement. Altering a wetland can also

interfere with filtration functions or aquifer recharge. 40 C.F.R. § 230.41(b). None of the factors

to consider are distinguished between permanent and temporary. The Guidelines further recognize

that wetlands impacts can have trickledown effects: “[w]hen disruptions in flow and circulation

patterns occur, apparently minor loss of wetland acreage may result in major losses through

secondary impacts.” Id. The Corps must evaluate the project’s impacts to wetlands before

determining which impacts are temporary. As demonstrated above, and as the Guidelines

contemplate, some of the impacts may have long lasting effects. See id. at § 230.11(g), (h)

(determination of cumulative effects on the aquatic ecosystem and determination of secondary

effects on the aquatic ecosystem). Only after the Corps has reviewed and disclosed all impacts to

wetlands can it examine whether and which impacts are temporary or long term. The Corps’ EIS

must also disclose how it determined which impacts are temporary or long term and how it

evaluated each impact.

D. The Corps Must Reassess the Mitigation Requirements for the Proposed Project due

to the Insufficient Assessment of Wetlands and Wetland Impacts.

The Corps’ environmental review must completely reassess what mitigation the proposed

project requires. The severely deficient assessment of wetlands and wetland impacts creates

uncertainty as to how many wetland acres must be mitigated for, as well as what wetland qualities

and functions must be compensated. This also calls into question the proper mitigation ratios.

Based on the current information in the Public Notice and the application materials regarding

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mitigation, the Corps cannot issue a permit: “no discharge of dredged or fill material shall be

permitted unless appropriate and practicable steps have been taken which will minimize potential

adverse impacts of the discharge on the aquatic ecosystem.” 40 C.F.R. § 230.10(d). The proposed

mitigation is not enough to minimize the potential adverse impacts of the project on the aquatic

ecosystem. Further, the Corps has not made, and cannot make, the mitigation findings required

by Subpart J of the 404(b)(1) Guidelines without accurate baseline information. Id. at §

230.93(a)(1) (“The district engineer must determine the compensatory mitigation to be required in

a DA permit, based on what is practicable and capable of compensating for the aquatic resource

functions that will be lost as a result of the permitted activity”) (emphasis added). Once the Corps

has accurate baseline data, it must turn to a full assessment of mitigation requirements.

Because of the outstanding questions on the acres of wetlands present and impacted, the

appropriate mitigation plan is impossible to determine. See EPA letter, Encl. 1 at 16. First, the

discrepancy between Army Corps and WDNR figures on wetlands make the number of mitigation

acres required even more unclear. Second, the state DEIS appears to disregard many impacts to

wetland type, quality, and function, thus undercounting the need of mitigation acreage. T&A at

32-36 (Attachment O). The Public Notice also lumps medium and low-quality wetlands together,

which further undermines any accounting of wetland quality, function, and acreage. Public Notice

at 8-9. Third, the lack of clarity around whether and to what extent impacts to wetlands are

temporary or permanent compounds the issue. See MNRD Wetlands Report at 2, 3, 9 (Attachment

N); EPA letter, Encl. 1 at 6 (Attachment J). Fourth, the Public Notice and application materials

contemplate Enbridge being able to alter, and increase, wetland impacts after permit approval.

Their ability to adjust the work corridor width in wetlands without Corps approval creates further

uncertainty in the number of total impacts to wetlands. See T&A at 35 (Attachment O); EPA letter,

Encl. 1 at 12 (Attachment J).

The failure to separately identify wetlands based on wetland qualities and functions has the

additional problem of clouding the appropriate mitigation ratios required. This further undermines

the connection of any current mitigation proposals to reality. See EPA letter, Encl. 1 at 16 (“the

plan does not provide any scientific evidence or rationale for use of the proposed mitigation ratios,

nor does the mitigation plan explain how those ratios were developed or determined.”)

(Attachment J); T&A at 34 (Attachment O). This conflation undermines any attempt to mitigate

the “highest potential overall general functional value.” Enbridge, Compensatory Wetland

Mitigation Strategy at 6; see also T&A at 33 (Attachment O). This leads to mitigation ratios that

are not commensurate with the wetland impacts proposed.

Enbridge also proposes buying credits for scrub-shrub wetland or in-lieu fee credits to

mitigate the loss of forested wetlands. This is because not enough forested wetland mitigation

credits are available, even to meet the undervalued mitigation ratios currently proposed. See DEIS

at 206. However, purchasing scrub-shrub credits for forested wetland impacts will result in a loss

of forested wetlands in the watershed and the time lag to fulfill in-lieu fee credits is too great. See

MNRD Wetlands Report at 9-10 (Attachment N).

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Finally, the Corps must consider how or even whether impacts to treaty rights from wetland

disturbance can be mitigated. The proposed project risks harming numerous treaty-protected

species, including:

•

•

•

•

•

•

•

•

•

•

giizhik or northern white cedar

godotaagaagaans or blue bead lily

jiibegob or leatherwood

miishijiiminagaawanzh or swamp red currant

pegyunagakwitz or balsam fir

siba’ or woodland horsetail

ska’agonmins or muscle wood

wica’ or big-leaved avens

wiigwaas or paper birch

wiisagaak or black ash

T&A at 7-9 (Attachment O). The Corps must discuss with the Band, GLIFWC, and other tribes

with treaty rights in ceded territory how, and even if, impacts to such species might be mitigated

and if greater than de minimis impacts to treaty rights can be avoided.

All of these issues create great uncertainty in trying to set a mitigation plan for the proposed

project. In the Corps’ review, “[t]he wetland mitigation section should clearly articulate how not

only wetland type, but wetland function will be replaced on the landscape to ensure proper

mitigation of impacts.” MNRD Wetlands Report at 5 (Attachment N).

Current Corps and applicant documents lack sufficient information and analysis for the

Corps to make 404 permitting findings, necessitating further review. The Corps must examine the

deficiencies related to wetlands identified here and in the attached reports. To ameliorate these

deficiencies, the Corps must ensure collection of any additional data needed and properly analyzed

all data to determine the full extent of wetland impacts in a Corps EIS.

E. The Public Notice Does Not Accurately Describe or Consider Impacts to Waterways.

Discussion of surface waters by the Corps lacks details and relies on incomplete

environmental data. Because of this, the applicant and the Corps discuss environmental effects to

all waterways in very general terms. Reliance on this overly general analysis would result in

greater impacts than anticipated, and unknown impacts, due to limited data and analysis. The

404(b)(1) Guidelines require the Corps to make factual determinations on water circulation,

downstream flows, and normal water fluctuation. 40 C.F.R. § 230.11(b). These include potential

diversion, obstruction of flow, alterations of bottom contours, and other significant changes in the

hydrologic regime. Id. Based on the Public Notice and the application materials, the Corps does

not have enough data to make these factual findings.

The importance of an accurate baseline of waterways in the project area cannot be

understated. The proposed project is within watersheds that are very interconnected. As such,

impacts to specific waterways may have impacts to other waterways or other water resources.

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These interactions cannot be generalized within the project area. The 404(b)(1) Guidelines require

the Corps to consider cumulative effects and secondary effects of the proposed project on the

ecosystem. Id. at § 230.11(g), (h). Given the numerous impacts to waterways involved with this

project, as well as the hydrology of the region, the consideration of cumulative and secondary

effects is paramount. “Although the impact of a particular discharge may constitute a minor

change in itself, the cumulative effect of numerous such piecemeal changes can result in a major

impairment of the water resources and interfere with the productivity and water quality of existing

aquatic ecosystems.” Id. at § 230.11(g)(1). This proposed project is a prime example where

piecemeal changes can have a big impact. The project also has the potential to permanently alter

the hydrology in the region. Id. at § 230.11(h)(2) (“Some examples of secondary effects on an

aquatic ecosystem are fluctuating water levels”). A Corps EIS must be prepared to assess site- and

activity-specific waterway data and analysis. The Corps must also use site-specific data to evaluate

both cumulative and secondary effects the project will have on the region.

F. The Discussion of Waterways Lacks Necessary Details.

The Corps’ and the applicant’s discussions of waterways lack necessary details to form

either a baseline analysis or to model how the project may impact waterways. See EPA letter,

Encl. 1 at 15 (Attachment J). Missing elements include basic characteristics such as waterway

quality, use, and size; robust consideration of unique waters such as Lake Superior and the

Kakagon-Bad River Sloughs; and adequate consideration of HDD and potential petroleum spills.

A federal EIS must improve the discussion of each of these topics.

1. Basic Waterway Characteristics Are Lacking

The Corps must collect and incorporate sufficient basic waterway characteristics to enable

it—and other government entities and the public—to then assess impacts. Necessary information

includes more baseline information on waters affected, a complete list of water features impacted,

water uses and cultural resources, a comparison of impacts of project alternatives, and discussion

of watersheds. MNRD Other Waters Report at 3, 6 (Attachment H); see also MNRD

Environmental Report at 6 (Attachment GG). Other important elements include the presence of

groundwater recharge zones and the erosion potential at soil transition zones. MNRD Other

Waters Report at 2 (Attachment H). The Wetland and Waterbody Crossing Table should “clearly

show…proposed impact type, waterbody identifier, size of impact, and a notes section that details

changes to proposed activities that might lead them to be included/excluded from permitting and

the date those changes were made and the date information was shared with the Corps.” MNRD

Other Waters Report at 6 (Attachment H). This basic information is essential to then understand

project impacts and avoid or mitigate for such impacts.

2. The Public Notice Lacks Robust Consideration of Unique Waters

The Public Notice materials lack consideration commensurate with unique waters such as

Lake Superior and the Kakagon-Bad River Sloughs. Lake Superior requires a description of

current conditions appropriate for this body of water that is important on multiple scales, from

local to international, from spiritual and cultural to economic. Additionally, the Corps’

environmental review must discuss specific petroleum spill risks and consequences—short and

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long term—to the lake, including in different seasons. The Sloughs must receive accurate and

robust description, including their full size, many uses, and waterways that flow in and out. Just

as with Lake Superior, the international significance of the Sloughs necessitates greater

examination of potential effects from a pipeline spill, including the role of seiche hydrology and

impacts to manoomin (wild rice). MNRD Other Waters Report at 2, 8 (Attachment H); see also

EPA letter at 2-6 (discussing determination that the Sloughs are an Aquatic Resource of National

Importance) (Attachment J).

3. The Public Notice Lacks Adequate Consideration of Waterway Impacts

The Public Notice and application materials lack adequate consideration of impacts to

waterways from pipeline construction and operation. This includes impacts from HDD and

potential petroleum spills. The 404(b)(1) Guidelines specifically require an analysis of

contaminants that may be introduced to the ecosystem as a result of the proposed project. 40

C.F.R. § 230.11(d). Although Enbridge, in its optimism, claims that the risk of an oil spill is low,

the risk is not zero. Further, the construction methods for HDD introduce foreign liquids into the

ground as part of the process. The serious dangers of HDD to waterways require specific

evaluation and accurate description, including potential impacts on downstream waters and lands

from complications and failures of HDD. See Section IV.B. supra; EPA letter, Encl. 1 at 12

(Attachment J). The Corps must also consider the real risks of an aquifer breach or release of

drilling fluid from HDD construction. See Section IV.B. supra. There is a high probability of

frac-outs that may result in inadvertent mud loss into the ground. This is based on review of the

soils and sediments and bedrock composition. Broberg Report at 8-9 (Attachment EE). The risk

of an aquifer breach resulting from HDD construction is not hypothetical. The Enbridge Line 3

replacement project resulted in three aquifer breaches to artesian wells that resulted in over 262

million gallons of water lost. The Minnesota DNR has not yet disclosed the impacts those breaches

have had on area groundwater and the Band has not yet had the opportunity to review the technical

reports that accompanied Minnesota’s press release. It is evident, however, that the HDD

construction method was flawed and resulted in two breaches, and boring resulted in one breach.

These punctures collectively drained millions of gallons from aquifers that supply community

members, including the Fond du Lac Band of Lake Superior Chippewa, with drinking water. The

Corps must require an inventory of the material injected as part of the construction process in order

to evaluate the possible impacts and adverse effects of a loss of drilling mud during construction.

The grave risks and impacts of an oil spill require specific, quantitative assessment. A sitespecific and quantitative analysis of potential environmental impacts due to oil spills must cover a

range of scenarios, including size and location of potential spills along with a range of

environmental and weather conditions (e.g., high flows, ice conditions, combined ice and flowing

water in waterways, etc.). MNRD Other Waters Report at 8 (Attachment H). The federal EIS also

must consider in detail the risks and impacts of relocating the pipeline to an area with much greater

groundwater recharge than the existing pipeline route. MNRD Other Waters Report at 2, 3

(Attachment H); Broberg Report at 1, 11 (Attachment EE).

The Corps must also analyze the overall impacts that pipeline construction can have on the

waters throughout the project area, including aquifers and other groundwaters. Project

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construction can change the waterway hydrology. One of the proposed construction methods

includes trenching 8 to 10 feet deep in areas where groundwater may reach the surface. Broberg

Report at 2 (Attachment EE). Trenching may also change stream flow: Annual and ephemeral

streams could have their waterways diverted, changing the hydrology of perennial streams. This

could add additional sedimentation to perennial streams during large rain and snow melt events.

Another proposed construction method is blasting. In addition to impacting wetlands, blasting can

have severe impacts to groundwaters. The Public Notice and the application do not disclose sitespecific impacts or analyses of blasting. This omission is startling given the risks associated with

blasting, such as creating new surface water and groundwater inactions, with the possibility of

redirecting groundwater flow. Broberg Report at 6 (Attachment EE). The Corps must also gather

data and consider the impacts of construction debris. Blasting without appropriate cover can

increase dust and other sediments in the area. Broberg Report at 5 (Attachment EE). “Added

sedimentation could greatly affect the populations of fish downstream.” MNRD Fisheries Report

at 2 (Attachment FF). The Corps must require a site-specific analysis for each crossing method to

evaluate the impacts construction will have on waterways. This includes soil sampling and

gathering other data to determine whether blasting will be needed as part of construction, sitespecific data on whether trenching will be required, and site-specific analyses of whether HDD

can or should be used for certain waterway crossings.

Rather than collect site specific data, Enbridge has punted the review down the road in its

application materials by failing to identify areas where blasting may be required up front. EIR at

39. Even though Enbridge claimed it would collect soil borings in its EIR, id. at 52, no such data

is included in the Corps’ Public Notice or in any other application materials. And rather than

providing an analysis of the likely adverse impacts of these construction methods, Enbridge instead

points to minimization and mitigation for each method. EIR at 44 (“In each case and for each

method, Enbridge will adhere to the measures specified in the [Environmental Protection Plan]

and additional requirements identified in applicable permits and approvals from the USACE and

the WDNR”). Unfortunately, Enbridge’s failure to follow environmental laws during the

construction of its Line 3 pipeline in Minnesota shows that the Corps cannot reasonably assume

Enbridge, if granted permits, will abide by and successfully implement its construction plan and

all required environmental protections (see Attachment HH). 7

The Corps must develop an EIS which provides adequate detail on the potential impacts of

the proposed project to waterways. This must include gathering of site-specific data and an

analysis of the impacts of each proposed construction method at each waterway crossing.

G. The Corps and Applicant Rely on Incomplete Waterways Data.

The Corps and applicant rely on incomplete waterways data. The Corps must require

additional data gathering that is made available to the public. The Corps must also fully review

and incorporate existing sources of data as part of the EIS.

7

See e.g. Nicholas Pfosi, Enbridge fined $3.32 mln for failings in Line 3 replacement project, Reuters (Sept. 16,

2021), available at Jennifer Bjorhus, Enbridge crews punctured three aquifers during Line 3 oil pipeline

construction, DNR says, Star Tribune (March 21, 2022), available at https://www.startribune.com/enbridge-crewspunctured-three-aquifers-during-line-3-oil-pipeline-construction-dnr-says/600158140/; Kirsti Marohn, DNR releases

details of two more Line 3 aquifer breaches, MPR News (March 21, 2022), available at

https://www.mprnews.org/story/2022/03/21/dnr-releases-details-of-2-more-line-3-aquifer-breaches.

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1. The Corps Must Gather Additional Data

The Corps must require additional waterways data on many fronts. These additional data

needs include potential impacts to waters meeting the definition of Areas of Special Natural

Resource Interest, see MNRD Other Waters Report at 2, unknown water conditions, uses of waters,

id. at 7, and site-specific analyses on construction, operation, and maintenance impacts. Id. at 2,

8; see also EPA letter, Encl. 1 at 15 (Attachment J). Perhaps most essential, the Corps and the

applicant must gather baseline water quality data, especially for those waters classified as

Outstanding Tribal Resource Waters, Outstanding Resource Waters, or Exceptional Resource

Waters by the Band or Wisconsin. See EPA letter, Encl. 1 at 4-5, 13-16 (Attachment J).

Additionally, the Corps must resolve the still-conflicting waterway crossing data. See MNRD

Other Waters Report at 6 (Attachment H). The Corps must gather all these lacking data for

inclusion in a federal EIS.

2. The Corps Must Review and Fully Incorporate Existing Sources

The Corps can draw on numerous existing sources to improve the assessment of waterway

conditions and impacts in a federal EIS. These include:

•

USGS 2015 report about studying and modeling the groundwater and surface water

interactions in the Bad River watershed. See id. at 3. (Attachment #4 to MNDR Other

Waters Report).

•

Marengo River Watershed Action Plan. See id. at 4. (Attachment #6 to MNDR Other

Waters Report).

•

Lake Superior Biodiversity Conservation Strategy, A Biodiversity Assessment for Lake

Superior, Volume I: Lakewide Assessment and the relevant Regional Plans 8 See id.

(Attachment #8 & #9 to MNDR Other Waters Report).

•

Other websites that describe designations that apply to the Kakagon and Bad River

Sloughs complex should be referenced, including:

o

o

National Park Service’s National Natural Landmark webpage:

https://www.nps.gov/subjects/nnlandmarks/site.htm?Site=KASL-WI (Attachment

#2 to MNDR Other Waters Report).

National Audubon Society’s Important Bird Area (IBA) webpage:

https://www.audubon.org/important-bird-areas/kakagon-bad-river-wetlandsforest-corridor (Attachment #3 to MNDR Other Waters Report).

Current Corps and applicant materials lack details and adequate data in discussing

waterways. The Corps must examine the deficiencies related to waterways identified here and in

the attached reports. To remedy these deficiencies, the Corps must collect—or require the

All of these documents are available on Nature Conservancy Canada’s webpage:

https://www.natureconservancy.ca/en/where-we-work/ontario/our-work/lake-superior-assessment.html

8

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applicant to collect—the additional data needed and properly analyze and discuss each issue in

detail to determine the full extent of waterway impacts in a Corps EIS.

H. The Proposed Project Does Not Meet Other Requirements in the 404(b)(1)

Guidelines.

Further, the application and the Public Notice fail to consider the other impacts as required

by the Section 404(b)(1) Guidelines. These include cumulative impacts (§ 230.11(g)), secondary

effects on the aquatic ecosystem (§ 230.11(h)), threatened and endangered species (§ 230.30),

impacts to fish and aquatic organisms (§230.31), other wildlife (§ 230.32), drinking water supplies

(§ 230.50), recreational and commercial fisheries (§ 230.51), water-related recreation (§ 230.52),

aesthetics (§ 230.53), and national parks (§ 230.54). The MNRD staff have identified specific

areas where there is a lack of data and where more information is needed for these considerations.

I. The Project May Violate the Bad River Band’s Water Quality Standards.

The project, as proposed, will go through, over, and under numerous waters that flow

directly into or are directly connected to the waters within the Bad River Band’s Reservation. The

impacts from construction, maintenance, and operation may violate the Band’s established water

quality standards. The waters within the Band’s Reservation are of high quality (as designated

uses under the Band’s antidegradation policy) and support numerous tribally designated uses. The

Corps must follow procedures set out in the Clean Water Act designed to protect the Band’s water

quality, and functions and uses supported by the waters, and must deny the permit for this project

if no mitigating conditions can satisfy the Band’s water quality standards.

1. Bad River has TAS and approved WQS.

The Corps and Enbridge must comply with the Band’s duly promulgated water quality

standards (WQS). See Bad River Water Quality Standards, (Attachment #1 to MNRD WQS

Report (Attachment I)) (“MWQS”); 33 U.S.C. § 1341(a)(2); 40 C.F.R. § 230.10(b)(1); see also 33

U.S.C. § 1313 (state water quality program). The EPA approved the Band for “treatment as a

state” (“TAS”) under the CWA in 2009. See MNRD WQS Report (Attachment I); see also 33

U.S.C. § 1377(e). EPA approved the Band’s water quality standards in 2011. See id; see also

Water Quality Standards Regulations: Bad River Band of the Lake Superior Chippewa Tribe,

EPA. 9 The Band has numerous water quality criteria derived to protect designated uses, which in

turn protects the use and enjoyment of on-reservation resources by Bad River Band members. See

MWQS Section F (Attachment #1 to MNDR WQS Report (Attachment I)). These uses include

usual and customary uses of Reservation waters such as fishing and recreation, as well as spiritual

and cultural uses. See id.

The project has the potential to violate the Band’s water quality standards based on the

information available. The Band’s standards have three components: (1) designated uses of

Water Quality Standards Regulations: Bad River Band of the Lake Superior Chippewa Tribe, Environmental

Protection Agency, https://www.epa.gov/wqs-tech/water-quality-standards-regulations-bad-river-band-lakesuperior-chippewa-tribe (last accessed March 22, 2022).

9

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waterways, (2) water quality criteria derived to protect those uses and existing uses, and (3) an

antidegradation policy preserving the integrity of high-quality waters. Examples of the designated

uses assigned to waters within the Reservation that originate upstream of the Reservation and

which the proposed project would cross or otherwise could be impacted include:

•

Cold water fisheries (F1), such as Potato River, Vaughn Creek, Winks Creek, Trout Brook,

and Tyler Forks River, and cool water fisheries (F2), such as White River and Marengo

River and the other trout streams shown on the Designated Trout Stream map. Attachment

# 3 to MNRD WQS Report.

•

The Kakagon and Bad River Sloughs coastal wetland complex 10 supports manoomin or the

wild rice (W1) use 11 among many other uses. These wetland complexes are Aquatic

Resources of National Importance (ANRI). EPA Letter at 2-5 (Attachment J).

•

The Cultural (C1) designated use applies to all waters within the exterior boundaries of the

Reservation, such as the Bad River and numerous wetlands. This designated use is

described as water-based activities essential to maintaining the Band’s cultural heritage

including, but not limited to, ceremony, subsistence fishing, hunting, and harvesting. This

use includes primary and secondary contact and ingestion.

•

The Bad River, Potato River, and many other watercourses support the navigation (N) use.

•

The Commercial (C2) designated use supports the use of water in propagation of fish fry

for the Tribal Hatchery and/or irrigation of community agricultural projects. Kakagon

Sloughs is an example of a surface water with this use.

•

The majority of waters support the recreational (R) use.

MWQS Section G (specific waterbody classification) (Attachment #1 to MNRD WQS Report

(Attachment I)).

The Corps, in coordination with the Bad River Band, must evaluate whether this project

will cause or contribute to a violation of these designated uses and their established water quality

criteria. Although the Corps and the applicant have not provided enough data for the proposed

project to fully assess the scale of water quality violations it will cause, examples of criteria that

MNRD anticipates this project would violate include, but are not limited to, the following:

•

Water quantity and quality that may limit the growth and propagation of, or otherwise cause

or contribute to an adverse effect to wild rice, wildlife, and other flora and fauna of cultural

importance to the Tribe shall be prohibited (refer to criterion MWQS Section E.6.ii.c.

One of the many designations that the Kakagon and Bad River Sloughs coastal wetland complex has is a Wetland

of International Importance under the Convention on Wetlands (also known as a Ramsar site):

https://rsis.ramsar.org/ris/2001 (see Attachment #1 to MNRD Other Waters Report (Attachment H))

11

The lower reaches of Bear Trap Creek support manoomin and is part of the Kakagon/Bad River Sloughs coastal

wetland complex.

10

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•

Temperature as described in MWQS Section E.6.ii.g.

•

Turbidity as described in MWQS Section E.7.iii.

•

Pollutants or human-induced changes to waters, the sediments of waters, or area hydrology

that results in changes to the natural biological communities and wildlife habitat shall be

prohibited as described further in MWQS Section E.6.ii.e.

See MNRD WQS Report at 4 (Attachment I); see also attachment #1 to MNRD WQS Report

(Attachment I).

The examples provided above should not be construed as a comprehensive summary of the

Band’s water quality criteria that may be impacted by the proposed project.

Finally, the Band’s water quality standards also have an antidegradation component that

the project will likely interfere with. The Band’s antidegradation policy is meant to prevent

interference with the quality of special aquatic sites. MNRD considers any lowering of the quality

of these waters that does not meet the requirements of the Band’s antidegradation policy and

procedures to be a violation of the Bad River Band water quality standards. The antidegradation

policy of the Band’s WQS (Attachment #1 to MNRD WQS Report, at 8 (Attachment I)) describes

three categories of high-quality waters and designates waters within the Reservation Boundaries.

There are numerous waters that the Band designated as high-quality on the Reservation that this

project will impact through construction and operation:

•

Chi minosingbii or Outstanding Tribal Resource Waters (OTRWs), which are roughly

equivalent to EPA’s regulatory definition of Tier 3 waters. Waters designated as OTRWs

include surface waters of the Reservation that are identified as high quality and constitute

a significantly important cultural and ecological resource. These waters are recognized as

being largely pristine and important for the cultivation of wild rice or the spawning of lake

sturgeon, or have other special resource values, and, therefore, that water quality shall be

maintained and protected in all cases without degradation. New or increased discharges

will not be permitted. Waters designated as Chi minosingbii (OTRWs) include: Kakagon

Slough and the lower wetland reaches of its tributaries that support wild rice, Kakagon

River, Bad River Slough, Honest John Lake, Bog Lake, a portion of Bad River, from where

it enters the Reservation through the confluence with the White River, and Potato River

(refer to provision E.2.iii. of MWQS).

•

Chi minosibii or Outstanding Resource Waters (ORWs), which are roughly equivalent to

EPA’s regulatory definition of Tier 2.5 waters. Waters designated as ORWs include

surface waters of the Reservation that are identified as high quality and culturally important

to the Band for the fisheries and ecosystems they support. New or increased discharges

may be permitted provided that the new or increased discharge is necessary in accordance

with the Band’s Antidegradation Policy and does not result in a change in background

conditions or negatively impact designated uses or existing uses; however, no new or

increased discharges of bioaccumulative chemicals of concern will be permitted. Waters

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designated as Chi minosibii (ORWs) include: a portion of Bad River, from downstream the

confluence with the White River to Lake Superior, White River, Marengo River, Graveyard

Creek, Bear Trap Creek, Wood Creek, Brunsweiler River, Tyler Forks, Bell Creek, and

Vaughn Creek (refer to provision E.2.ii. of MWQS).

•

Anishinaabosibiing or Exceptional Resource Waters (ERWs), which are roughly

equivalent to EPA’s regulatory definition of Tier 2 waters. Any surface waters not

specifically classified as OTRWs (Chi minosingbii) or ORWs (Chi minosibii) are classified

as ERWs (Anishinaabosibiing). Exceptional Resource Waters are of high quality and

culturally important for the ecosystems they support. Additional details are provided in

provision E.2.i. of the WQS. Examples of ERWs include tributaries to Brunsweiler and

Marengo Rivers and many wetlands. 12

•

Additionally, a map prepared by Great Lakes Indian Fish and Wildlife Commission

(GLIFWC) is attached that shows the high-quality watercourses designated under the

Band’s WQS or the State’s WQS and the proximity to the proposed project (Attachment

#6 to MNRD WQS Report). Please note that this map does not include the other waters

designated as high quality under the Band’s WQS or the State’s WQS, such as high-quality

wetlands. Also note that this map only includes the distances (in river miles) between the

proposed project and the larger watercourses within the Reservation boundaries, such as

the Mashkii-ziibii (Bad River, an OTRW), and it does not include the distances between

the proposed project and the smaller watercourses within the Reservation boundaries, such

as Trout Brook (an ERW), Zhooniyaa-ziibiins (Silver Creek, an ERW) and Billy Creek (an

ERW).

See also, MNRD WQS Report at 2 (Attachment I).

The Clean Water Act requires the Corps and the applicant to comply with the Bad River

Band Water Quality Standards. Section 401 of the CWA mandates the Corps follow a specific

process aimed at ensuring that the project does not interfere with the Reservation’s water quality

and uses supported by them. The Corps must evaluate the project’s impacts to the waters that flow

through the Bad River Reservation as part of its environmental review.

2. EPA’s “May Affect” determination and the 401(a)(2) process.

The Band intends on taking part in the process outlined in Section 401(a)(2) of the CWA

to ensure that the project will not violate its water quality standards. After the WDNR decides

whether or not to issue a water quality certification, EPA has the opportunity to determine whether

the project “may affect” downstream water quality for the Band. At that point the Band will review

the state’s data leading up to its water quality certification determination, EPA’s findings, and any

of its own information to make a final determination of whether the project will violate the Band’s

water quality standards. Ultimately, the Corps cannot issue a Section 404 or Section 10 permit if

it will cause or contribute to a violation of the Band’s water quality standards. 40 C.F.R. §

Please note that MNRD will be preparing an additional map (or set of maps) to illustrate the connection between

the proposed project location and wetlands designated as ERWs under the Band’s WQS.

12

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230.10(b)(1), (c). Based on the information currently available in the Public Notice and in the

application, the Band believes that it is very likely that the project would violate the Band’s water

quality standards. See MNRD WQS Report at 5-6 (Attachment I). These preliminary findings

require the Corps to fully evaluate the project’s impacts to the Band’s water quality standards.

That information should be included and further developed in a federal EIS.

J. The Project is Not in the Public Interest

The project is contrary to the public interest. The Corps is obligated to conduct a “public

interest review” as part of the permit process. Holy Cross Wilderness Fund v. Madigan, 960 F.2d

1515, 1524 (10th Cir. 1992); see 33 C.F.R. § 320.4(a). The Corps can deny a Section 404 permit

if the project is not in the public interest. 33 C.F.R. § 323.6(a). The public interest review must

include “an evaluation of the probable impacts, including cumulative impacts, of the proposed

activity and its intended use on the public interest.” 33 C.F.R. § 320.4(a)(1). Most of the public

interest factors weigh against the proposed project. This comment letter incorporates the Band’s

general environmental concerns, high consequences to wetlands, fish and wildlife values,

recreation, water supply and conservation, and water quality. The Band has, through this comment

letter and through its current litigation against Enbridge, demonstrated that the project does not

serve the welfare of the community in the project area. There are also severe risks to the Band’s

cultural and historic resources in the area. Although the public interest analysis involves weighing

factors, Enbridge has not demonstrated that any public interest factors weigh in its favor. The

economic benefits are speculative at best and must be thoroughly analyzed in a federal EIS.

Enbridge has also failed to demonstrate that the project is required to meet energy needs that cannot

be met by other means. Enbridge even fails when it comes to considerations of property ownership

given that its current pipeline is operating through the Bad River Reservation in trespass.

The project’s detrimental effects to the area far outweigh proposed benefits. Enbridge also

has not demonstrated there is an actual need for the proposed re-route. As described in Section

III.C.3. supra, Enbridge has not considered all possible alternatives to the project. See id. at §

320.4(a)(2). Based on the available information in the Public Notice and in the application, the

project is contrary to the public interest.

V.

ENDANGERED SPECIES ACT CONSULTATION IS LACKING AND NOT

TRANSPARENT

The Corps is required to consult with U.S. Fish and Wildlife Service (“FWS”) pursuant to

Section 7 of the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. (“ESA”),

because the Line 5 reroute may affect federally listed endangered/threatened species or designated

critical habitat. In addition, the Corps must analyze impacts associated with the project and any

incidental take of species in its NEPA analysis. See Sierra Club v. U.S. Army Corps of Engineers,

803 F.3d 31, 46 (D.C. Cir. 2015) (the Corps’ authorization of “take of endangered species in

connection with pipeline construction and operation across jurisdictional waters, and doing so only

on the conditions that Enbridge take mitigating conservation measures and monitor species impact

for the anticipated useful life of the pipeline, was regulatory approval amounting to significant

federal action requiring environmental review under NEPA.”). Following formal consultation with

FWS, the agency requesting or initiating consultation must determine “whether and in what

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manner to proceed with the action in light of its Section 7 obligations and the Service’s biological

opinion.” 50 C.F.R. § 402.15(a).

Here, the Corps determined that the Line 5 reroute is not likely to adversely affect the listed

species Canada Lynx, Gray Wolf, and Northern Long-Eared Bat, or critical habitat for these

species. The Corps also stated that the FWS has issued a concurrence. See Letter from William

Sande, USACE, to Sara Quamme, USFWS (Oct. 22, 2020) (Attachment II); Email from Nick

Utrup, USFWS, to William Sande, USACE (Feb 23, 2021) (Attachment JJ). The Corps also

determined that the project would have no effect on Fassetts’ Locoweed, Piping Plover or Rufa

Red Knot, or critical habitat for these species (see Attachment II).

The Corps’ analysis and subsequent determinations about impacts to threatened and

endangered species are incomplete, premature, and inappropriate due to the lack of transparency

about the methodology and data underlying its decisions. In addition, the lack of consultation with

the Bad River Band and other affected tribes is inconsistent with the Corps’ responsibilities under

NEPA, the ESA, Executive Order 13175, and the Memorandum of Understanding Regarding

Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and

Reserved Rights (“Treaty Rights MOU”). For example, had the Corps or FWS consulted with the

Bad River Band, we could have discussed the importance of Lake Sturgeon to the Band and its

members. In response to a listing petition for Lake Sturgeon, the FWS announced “that the petition

presents substantial scientific or commercial information indicating that the petitioned action may

be warranted for the lake sturgeon due to potential threats associated with the following:

…dredging and channelization, and contaminants…habitat fragmentation, [and] the species' lifehistory characteristics.” Endangered and Threatened Wildlife and Plants; 90-Day Findings for

Three Species, 84 Fed. Reg. 41691, 41693 (Aug. 15, 2019). Because of this omission, the Band

has not had an opportunity to analyze this project’s impacts on lake sturgeon.

The Corps must re-initiate consultation with both the FWS and the Bad River Band on

federally listed endangered and threatened species and their critical habitat within ceded territory.

The Corps must also disclose and examine the impacts the project will have on federally listed

endangered and threatened species as part of a federal EIS.

A. Public Notice on Impacts to Threatened and Endangered Species is Inadequate.

As the Band has already informed the Corps in separate correspondence, dated March 4,

2022, the Public Notice was inadequate with respect to potential impacts to listed species and

critical habitat. The materials provided to the public do not include any information on basis for

the FWS’ concurrence on the Corps’ determinations, and Enbridge’s reports on Protected Species

Survey and Consultation were marked confidential and were not provided for public review and

comment. Further, the Corps’ Public Notice does not mention either the gray wolf or Fassett’s

Locoweed. After the Band requested additional information, the Corps did provide further

documentation related to impacts to listed species, but the scant information and analysis was

inadequate to support the Corps’ findings, or for FWS to have issued a concurrence. In addition,

to the extent the Corps plans to rely upon the state’s DEIS, MNRD has determined that the state

DEIS is extremely deficient in data, analysis, and avoidance protocols. See MNRD T&E Report.

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B. Consultation on the Gray Wolf and other Species was Inadequate

The Band also has informed the Corps that additional consultation is required in order for

the Corps to analyze the impacts to off-reservation resources for which the Band, and other Ojibwe

Bands, have retained treaty-protected usufructuary rights. As discussed in Sections I of this

comment letter, the Treaties of 1837 and 1842, and subsequent court cases interpreting those

treaties, have clarified that the Wisconsin Ojibwe Bands are entitled to one-half of the harvestable

surplus of off-reservation natural resources in the territories ceded under these treaties. Lac Courte

Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400, 1426 (W.D.

Wis. 1990). There have been numerous controversies surrounding the exercise of these rights,

most recently related to the Gray Wolf.

The Corps claims that it has already consulted FWS about the project’s impacts to the Gray

Wolf, but there have been a number of dramatic changes in the past 24 months that require

additional consultation with the FWS and the Band. First, FWS acted to remove Gray Wolves in

Wisconsin from the list of endangered and threatened species under the ESA, effective January 4,

2021. Just a few weeks later, on February 22, WDNR held a court-ordered wolf hunt which lasted

only three days but resulted in at least 218 wolves being killed – almost 100 more than the stateissued quota. The result of this disastrous hunt was that WDNR was unable to formulate an

accurate wolf population estimate in 2021, due to disruption of population surveys, uncertainty

with regard to unreported kills, and impact to the population caused by the death of wolves during

breeding season and pack dispersal. See, e.g., Memo from Keith Warnke and David MacFarland

to Preston Cole and Todd Ambs on the Quota and License Numbers for Fall 2021 Wolf Harvest

Season, p.4, Section (h) (Oct. 4, 2021) (Attachment KK). This hunt also subsumed the entire

treaty-reserved share, which the Ojibwe tribes, including the Bad River Band, had sought to protect

from state-licensed hunters.

Despite the poorly regulated hunt in February 2021, as required under state law, WDNR

attempted to hold a second wolf hunt in November 2021. The planned hunt was effectively

stopped by a court order of the Dane County Circuit Court, due to deficiencies in the state’s

regulation and oversight of the wolf hunt. Great Lakes Wildlife All. v. Wis. Nat. Res. Bd.,

2021CV002301 (Dane Cnty. Cir. Ct. Oct. 22, 2021). In February of 2022, the FWS’ rule delisting

the Gray Wolf was overturned by a federal court decision, which resulted in Gray Wolves being

relisted. See Defenders of Wildlife v. Fish and Wildlife Service, 21-cv-003344 (N.D. Cal. Feb. 10,

2022). Because the Gray Wolf has now been relisted, the Corps is required to both consult with

FWS about the project’s impacts to the species, and make the information related to its assessment

of impacts and consultation with FWS accessible to the public.

The rapid changes to the legal status of the Gray Wolf, the disastrous Wisconsin 2021 hunt

and the resultant uncertainty with regard to the population, and the tribes’ interest in the species

both on- and off-reservation as a treaty-protected resource, necessitate additional consultation with

FWS and the Bad River Band. The Gray Wolf, or ma’iingan, is a species of great spiritual, cultural

and ecological significance to the Band. The management of this species has been the subject of

recent and widespread controversy and litigation. Absent additional consultation with both FWS

and the Band, the Corps simply does not have the information necessary to assess the project’s

cumulative impacts on this species and its habitat, and thus its “no effect” determination is

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meaningless. Further, the public does not have the information necessary to provide meaningful

input.

In addition to renewed consultation with both FWS and the Band on the Gray Wolf,

consultation with the Band is required with regard to the project’s potential impact on other listed

species, both on- and off- reservation. MNRD has relevant data about the Canada Lynx, Gray

Wolf, Piping Plover, and Bald Eagle, including data related to habitat for these species. See

MNRD T&E Report (Attachment M). The complete lack of information that was provided by the

Corps and the applicant about the Fassetts’ Locoweed, Piping Plover, and Rufa Red Knot renders

MNRD (and the public) unable to provide meaningful comments on the determinations related to

those species, or on the Karner Blue Butterfly and Rusty Patched Bumblebee. MNRD also has

information that the survey methods used by Enbridge to locate the wood turtle were flawed, likely

resulting in an undercount of the species. Id. at 2. The wood turtle, while not federally listed, is

under review for listing by the FWS, which determined that substantial scientific or commercial

information indicates that listing may be warranted based all five listing factors under Section

4(a)(1) of the ESA. 80 Fed. Reg. 56423, 56431 (Sept. 18, 2015).

Finally, we remind the Corps that it also is required to consult with the Band on other

species that will be impacted, not only those that are listed under the ESA. At the time the

treaties were signed, the Ojibwe made use in

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