# BAD RIVER BAND OF LAKE SUPERIOR (2022)

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Abad_river_chippewa%3A91864b25fd9e7f9d

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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 eff

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abad_river_chippewa%3A91864b25fd9e7f9d. Public record. Not legal advice.