UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

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REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

REPLY TO THE ATTENTION OF:

March 16, 2022

WW-15J

Col. Karl Jansen

District Commander

U.S. Army Corps of Engineers

St. Paul District, Regulatory Branch

180 Fifth Street East, Suite 700

Saint Paul, Minnesota 55101-1678

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

Dear Colonel Jansen:

The U.S. Environmental Protection Agency appreciates the opportunity to provide comments in

response to the subject Clean Water Act (CWA) Section 404 public notice issued on

January 6, 2022, for an application (Application) submitted by Enbridge Energy, Limited

Partnership (Enbridge). An overview of EPA’s recommendations is included below, and our

detailed comments and recommendations are enclosed (Enclosure 1).

Enbridge proposes the permanent discharge of fill material into 0.02 acres of waters of the United

States (WOTUS), and temporary discharges of dredged or fill material into 101.08 acres of

wetlands and 0.20 acres of non-wetland WOTUS associated with the construction of the Enbridge

Line 5 Wisconsin segment relocation (WI L5R) project. Enbridge plans to construct 72 pipeline

crossings through federally jurisdictional waterbodies (rivers, streams, ditches, etc.) and impact 534

wetlands along the proposed route. The proposed WI L5R project would begin near the intersection

of State Highway 137 and State Highway 112 in Ashland County, Wisconsin and extend to

approximately the intersection of US Highway 2 and State Highway 169 in Iron County,

Wisconsin. A project overview map is enclosed (Enclosure 2). The project would include impacts

to the following 8-digit HUC watersheds:

•

Bad-Montreal (HUC 04010302)

Beartrap-Nemadji (HUC 04010301)

Consistent with the provisions of the 1992 CWA Section 404(q) Memorandum of Agreement

between the EPA and Department of the Army 1, Part IV paragraph 3(a), and based on the

CWA Section 404(q): Memorandum of Agreement between EPA and Department of the Army, August 11, 1992,

https://www.epa.gov/cwa-404/cwa-section-404q-memorandum-agreement-between-epa-and-department-army-text#2,

last visited March 10, 2022.

Application and related information that EPA reviewed, we believe that the proposed project

“may result in substantial and unacceptable adverse impacts” to the Bad River and the KakagonBad River Sloughs wetland complex, which EPA has identified as aquatic resources of national

importance (ARNIs) and that are located within both the Bad-Montreal (HUC 04010302) and

Beartrap-Nemadji (HUC 04010301) watersheds.

At present, EPA does not believe there is sufficient information to enable a conclusion that the

proposed project is the least environmentally damaging practicable alternative (LEDPA), that the

project would not result in violation of water quality standards or significant degradation of

aquatic resources, or that the project would appropriately mitigate for unavoidable impacts to

waters of the United States (WOTUS). EPA’s comments address avoidance and minimization of

pipeline installation related discharges to WOTUS; recommendations to address water quality and

significant degradation concerns; and options for improving mitigation for any unavoidable

impacts.

Impacts to Aquatic Resources of National Importance

An ARNI is a resource-based threshold used to determine whether a dispute between EPA and the

Corps regarding individual permit cases are eligible for elevation under the 1992 MOA. Factors

used to identify ARNIs include economic importance of the aquatic resource, rarity or uniqueness,

and/or importance of the aquatic resource to the protection, maintenance, or enhancement of the

quality of the Nation’s waters. 2 The Bad River and the Kakagon-Bad River Sloughs are ARNIs

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. The Kakagon-Bad

River Sloughs wetland complex is designated as a Ramsar International Treaty Convention

Wetland of International Importance. 3

Economic Factors

EPA recognizes wetlands as important economic assets for the Nation. EPA notes that there is

a wealth of natural products from wetlands, including fish and shellfish, blueberries,

cranberries, timber and wild rice. Some medicines are derived from wetland soils and

plants. Many of the nation's fishing and shellfishing industries harvest wetland-dependent

species. In the Southeast, for example, nearly all the commercial catch and over half of the

recreational harvest are fish and shellfish that depend on the estuary-coastal wetland

system. 4

The Ramsar Treaty Convention designation for the Kakagon-Bad River Sloughs as a Wetland of

International Importance notes that this area includes a “largely undeveloped wetland complex

EPA, Clean Water Act Section 404(q) Dispute Resolution Process, https://www.epa.gov/sites/default/files/202101/documents/404q.pdf, last visited March 10, 2022.

Bad River and Kakagon Sloughs, https://rsis.ramsar.org/ris/2001, last visited March 10, 2022.

EPA, Why are Wetlands Important? https://www.epa.gov/wetlands/why-are-wetlands-important, last visited March

10, 2022.

composed of sloughs, bogs, and coastal lagoons that harbor the largest natural wild rice bed on the

Great Lakes.” The designation further notes that these wild rice beds

are becoming increasingly fragmented on Lake Superior - as the only remaining extensive

coastal wild rice bed in the Great Lakes region, it is critical to ensuring the genetic diversity

of Lake Superior wild rice. Tribal members frequent the area primarily for subsistence

trapping, hunting, fishing, and to retain historic harvesting techniques; access to the area is

strictly limited to Bad River tribal members and Bad River Natural Resources staff. 5

In addition to the economic and cultural value of wild rice to the Bad River Band, the sloughs

provide important habitat supporting many fish species integral to Lake Superior recreational and

commercial fishing. 6 Bad River Band noted in 2019: “Comprising a significant portion of the

remaining Lake Superior coastal wetlands, the Kakagon and Bad River Sloughs is critical to

supporting the biodiversity of Lake Superior fisheries.” 7

Recognition of waterbodies as rare or unique

The Kakagon-Bad River Sloughs wetland complex is a Ramsar International Wetlands Convention

site of International Importance. 8 According to the U.S. Fish and Wildlife Service, the Kakagon

Slough is also a Nature Conservancy Priority Conservation area, a Wisconsin Legacy Place, a

Wisconsin Bird Conservation Initiative Important Bird Area, a Wisconsin Wetlands Association

Wetland GEM, and a Wisconsin Coastal Wetland Primary Inventory Site. 9 The Bad River Band

has designated waters potentially impacted by this proposed project as having significant

ecological and cultural significance. These waters upstream of and transecting the reservation have

been designated as “Outstanding Tribal Resource Waters.” 10

Role of Kakagon-Bad River Sloughs as Integral to Nation’s Waters

The Kakagon-Bad River Sloughs wetland complex has been recognized as performing important

and irreplaceable functions within the Lake Superior Watershed. According to the Wisconsin

Department of Natural Resources (WDNR), “The Bad River originates in Caroline Lake in eastcentral Ashland County and runs a meandering course northward to empty into Lake Superior.” 11

The WDNR further notes, “The stream is considered a warm water sport fishery important for

spawning walleye and lake sturgeon, as well as supporting migratory runs of trout and salmon

https://rsis.ramsar.org/ris/2001.

WDNR, Kakagon Slough, https://dnr.wi.gov/lakes/lakepages/LakeDetail.aspx?wbic=2891700, last visited March 10,

2022.

Bad River Band, “Kakagon and Bad River Sloughs Recognized as a Wetland of International Importance,” August

22, 2019, http://www.badriver-nsn.gov/kakagon-and-bad-river-sloughs-recognized-as-a-wetland-of-internationalimportance/, last visited March 10, 2022.

https://rsis.ramsar.org/ris/2001, last visited March 10, 2022

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at 99.

https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

Bad River Band, “Kakagon and Bad River Sloughs Recognized as a Wetland of International Importance”; Bad

River Band, Water Quality Standards, Table 1, Specific Designated Uses of the Tribe’s Water Resources,

https://www.epa.gov/sites/default/files/2014-12/documents/bad_river_band_wqs.pdf, last visited March 10, 2022.

WDNR, Copper Falls State Park, Geology, https://dnr.wisconsin.gov/topic/parks/copperfalls/geology, last visited

March 10, 2022.

species. Other fish found in the lower portion of the river include muskellunge, northern pike, rock

bass, pumpkinseeds, bullheads, black crappies, smallmouth bass and yellow perch.” 12 Based on

information contained in the Application and the WDNR draft Environmental Impact Statement

(DEIS), conducted in compliance with the Wisconsin Environmental Policy Act (WEPA) 13, EPA

has concerns that the introduction of excess sediment, fuels, lubricants, and drilling fluids

associated with the 72 federally jurisdictional waterbody crossings, as currently proposed in the WI

LR5 project, could enter the Bad River and Kakagon-Bad River Sloughs through the connected

tributary streams, and may permanently and negatively impact water quality, aquatic life, and

native habitat. 14

Marengo River, a tributary to the Bad River, along with Trout Brook Creek are listed on the 303(d)

list in Wisconsin as impaired for fecal coliform. 15 The Bad River Watershed Association’s

management plan for the Marengo River employs a management strategy, called “slow the flow”

that recognizes that “reducing the volume and velocity of runoff to streams is critical to improving

watershed health. 16 Bay City Creek (which flows directly to Lake Superior) is listed on the

Wisconsin CWA section 303(d) list as impaired for phosphorus. 17

EPA believes that the Kakagon-Bad River Sloughs and the Bad River are especially vulnerable to

adverse impacts from the proposed project because several waters with a nexus to this watershed

are already impaired and/or are susceptible to receiving high loads of sediment. Consistent with the

provisions of the 1992 CWA Section 404(q) Memorandum of Agreement between the EPA and

Department of the Army, Part IV paragraph 3(a), and for the reasons provided below, EPA believes

the proposed project may have “substantial and unacceptable adverse impacts” on the KakagonBad River Sloughs wetland complex and the Bad River, as ARNIs.

CWA 404 (b)(1) Guidelines, 40 C.F.R. § 230.10 (a)

Fundamental to the CWA Section 404(b)(1) Guidelines (Guidelines), 40 C.F.R. § 230.10(a), is that

no discharge of dredged or fill material may be permitted if a practicable alternative to the

proposed discharge exists that would have a less adverse impact on the aquatic environment. Based

on our review of the Application, EPA believes there may be practicable alternatives to avoid and

minimize impacts through revisions to the proposed pipeline installation plans that have not been

fully evaluated. Such alternatives would include for all waterbodies, the use of trenchless

WDNR, Water Detail, Bad River, Lower Bad River, Upper Bad River,

https://dnr.wi.gov/water/waterDetail.aspx?WBIC=2891900, last visited March 10, 2022.

This WDNR DEIS was prepared under the Wisconsin Environmental Policy Act; see Draft Environmental Impact

Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

199. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

See U.S. EPA, How‘s My Waterway, Marengo River https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI10008273/2020; Trout Brook, https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI10005887/2020), last visited March 10, 2022.

See WDNR, Nonpoint Pollution Webpage, Bad River Watershed Association, Marengo River Watershed Partnership

Project, Watershed Action Plan, https://dnr.wi.gov/topic/nonpoint/documents/9kep/Marengo_Watershed-Plan.pdf, last

visited March 10, 2022.

See U.S. EPA, How’s My Waterway, Bay City Creek, https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI6936105/2020), last visited March 10, 2022

waterbody crossings which do not require disturbing streambeds; this alternative would be

especially important to evaluate for waterbodies that provide important ecological functions to the

watersheds (e.g., trout streams, cold water streams). Waterbodies with ecologically important

functions include: Beartrap Creek, Camp Four Creek, Feldcher Creek, tributaries of the Marengo

River, Brunsweiler River, Trout Brook, Silver Creek, Krause Creek, Bad River, Gehrman Creek,

and Vaughn Creek, all of which contribute to Kakagon-Bad River Sloughs. Additional

geotechnical investigation on expanding the use of Horizontal Directional Drilling (HDD) should

be explored to further reduce the potential of sedimentation impacts. We also recommend

consideration of additional measures to reduce crossing-related impacts to project area waterbodies

and wetlands, including, but not limited to: further minimizing the width of the Right of Way

(ROW) in wetland and waterbody areas; using bio-engineering techniques, such as living-shoreline

type features instead of riprap along with constructed features instead of riprap, at all waterbody

crossing restorations; and water-inflated cofferdams where damming may be necessary to divert

flow.

We request that the Corps evaluate the recommendations provided in the enclosure to determine

whether modifications to the proposed pipeline installation plan can be made to avoid and

minimize aquatic resource impacts to the maximum extent practicable. We look forward to

continuing to work with you in identifying practical alternatives to reduce the environmental

impacts of the project as currently proposed.

CWA 404 (b)(1) Guidelines, 40 C.F.R. §§ 230.10 (b) and 230.10 (c)

The Guidelines state that a discharge of dredged or fill material may not be permitted if it

causes or contributes to violations of applicable water quality standards and no discharge

should be allowed if it will cause or contribute to significant degradation of WOTUS. EPA

believes that the proposed impact of the project to 101.08 acres of 534 wetlands along the

proposed route and the construction of 72 federally jurisdictional waterbody crossings may

have “substantial and unacceptable adverse effects” through the permanent and temporary

diminishment of wetland and waterbody functions.

The Marengo River (a tributary to the Bad River) along with Trout Brook Creek are listed on the

303(d) list in Wisconsin as impaired for fecal coliform. Bay City Creek (which flows directly to

Lake Superior) is listed on the 303(d) list in Wisconsin as impaired for Phosphorus. Lake

Superior is listed on the CWA 303(d) list in Wisconsin as impaired for mercury and PCBs. EPA

has concerns that proposed additional impacts to these aquatic resources and contributing

waterbodies within the project area would exacerbate their already stressed condition and lead to

further degradation. Bay City Creek is considered a Coldwater, Cool-Cold Headwater,

Macroinvertebrate stream per the State of Wisconsin’s Natural Community Determinations. 18 If

the excess sediment causes a rise in water temperature, it could have an adverse impact through

changes to the macroinvertebrate population that can strive in the stream. Excess sedimentation

can affect Lake Superior Basin streams by potentially smothering important fish spawning areas

for species such as brook trout and lake sturgeon and by altering stream hydrologic function that

WDNR, Water Detail, Bay City Creek, Fish Creek Watershed,

https://dnr.wi.gov/water/waterDetail.aspx?key=17627, last visited 3/11/22.

contributes to habitat degradation and can reduce a stream’s ability to buffer effects from extreme

flood events.

During pipeline installation, sediment concentrations and load rates can increase significantly

compared to the baseline condition. Increased erosion and transport of sediments and other

pollutants associated with pipeline installation can alter the flow rate of stream channels

downstream, transport chemicals downstream, and adversely affect downstream aquatic

ecosystems. Therefore, we recommend that the Corps require a monitoring plan to conduct

biological and water quality sampling before construction, during construction and after

construction until the site stabilizes, as part of a revised Application. Compliance with the

monitoring plan should be included as a condition of CWA section 404 permit for this project.

We also recommend that a condition be included that requires the permittee to develop a

corrective action plan as part of their monitoring program, to address potential local and

downstream impacts to aquatic communities from the pipeline installation and maintenance. We

would like to continue working with you on these and other effective measures to better ensure

protection of water quality, consistent with the Guidelines.

CWA 404 (b)(1) Guidelines 40 C.F.R. § 230.10(d)

Based on the information included with the Application, EPA is concerned that the mitigation

proposed in the Application may not adequately compensate for the direct, cumulative, and

temporal impacts to aquatic resources. EPA recommends the Applicant revise the proposed

wetland mitigation plan to include a scientifically-based rationale for the mitigation ratios

proposed. Further, we recommend that the Corps require a formal compensatory

mitigation/waterbody restoration plan for impacts at all 72 federally jurisdictional waterbody

crossings. Requiring this specificity in plans for compensatory mitigation/waterbody restoration

will ensure adequate mitigation for all impacts to waterbodies to offset any potential functional

losses and ensure consistency with the Guidelines. Additional detailed comments and

recommendations on proposed mitigation are provided in Enclosure 1.

Next Steps

EPA appreciates the opportunity to comment on this Application and remains committed to

continuing to work collaboratively with the Corps and the Applicant to address identified

concerns. The intent of this letter is to continue coordination and communication between the St.

Paul Corps District (Corps) and EPA Region 5 and provide a means to resolve any concerns

about the project’s ability to demonstrate compliance with the CWA Section 404(b)(1)

Guidelines. EPA understands that the Corps will continue to analyze this project under the

National Environmental Policy Act (NEPA). EPA would welcome the opportunity to serve as a

cooperating agency as the Corps prepares their NEPA document.

I appreciate the attention that you and your staff have provided to this project. We welcome the

opportunity to arrange a discussion of our comments. Should you have any questions, please do

not hesitate to contact me directly by phone at (312) 886-6735 or by email at fong.tera@epa.gov

or your staff contact Melissa Blankenship of my staff by phone at (312) 886- 9641 or by email at

blankenship.melissa@epa.gov with any questions.

Sincerely,

Digitally signed by TERA

FONG

Date: 2022.03.16

17:02:31 -05'00'

Tera L. Fong

Division Director, Water Division

Enclosures

e-cc: Chad Konickson, Regulatory Branch Chief-St. Paul District

Rebecca Graser, Deputy Division Chief-St. Paul District

Bill Sande, Project Manager-St. Paul District

Ben Callan, Chief-Integration Services Section, Wisconsin DNR

Catherine Chavers, Chairwoman-Bois Forte Band of Chippewa

Kevin Dupuis, Chairman-Fond du Lac Band of Chippewa

Robert Deschampe, Chairman-Grand Portage Band of Chippewa

Faron Jackson, Sr., Chairman-Leech Lake Band of Ojibwe

Robert L. Larsen, President-Lower Sioux Indian Community

Melanie Benjamin, Chief Executive Officer-Mille Lacs Band of Ojibwe

Catherine Chavers, President-Minnesota Chippewa Tribe

Johnny Johnson, President-Prairie Island Indian Community

Darrell Seki, Sr., Chairman-Red Lake Band of Chippewa

Keith B. Anderson, Chairman-Shakopee Mdewakanton Sioux Community

Sara Dobesh, Coordinator- Shakopee Mdewakanton Sioux Community

Kevin Jensvold, Chairman-Upper Sioux Indian Community

Michael Fairbanks, Chairman-White Earth Band of Chippewa

Michael Wiggins, Chairman-Bad Rive Band of Lake Superior Cheippewa

Ned Daniels, Jr., Chairman-Forest County Potawatomi Community

Marlon WhiteEagle, President-Ho-Chunk Nation

Louis Taylor, Sr., Chairman-Lac Courte Oreilles Band of Lake Superior Chippewa

John Johnson, President-Lac du Flambeau Band of Lake Superior Chippewa

Ronald Corn, Sr., Chairman-Menominee Indian Tribe of Wisconsin

Tehassi Hill, Jr., Chairman-Oneida Nation of Wisconsin

Christopher Boyd, Chairman-Red Cliff Band of Lake Superior Chippewa

Robert VanZile, Chairman-Sokaogon Chippewa Community

William Reynolds, Chairman-St. Croix Chippewa Indians of Wisconsin

Shannon Holsey, President-Stockbridge-Munsee Community

Whitney Gravelle, Chairwoman-Bay Mills Indian Community

David M. Arroyo, Chairman-Grand Traverse Band of Ottawa and Chippewa Indians

Kenneth Meshigaud, Chairman-Hannahville Indian Community

John L. Lufkins, Executive Director-Inter-Tribal Council of Michigan

James Williams, Chairman-Lac Vieux Desert Band of Lake Superior Chippewa

Larry Romanelli, Ogema-Little River Band of Ottawa Indians

Regina Gasco-Bentley, Chairwoman-Little Traverse Bay Bands of Odawa Indians

Bob Peters, Chairman-Match-E-Be-Nash-She-Wish (Gun Lake) Band of Pottawatomi

Jamie Stuck, Chairman-Nottawaseppi Huron Band of the Potawatomi

Rebecca Richards, Chairwoman-Pokagon Band of Potawatomi

Theresa Jackson, Chief-Saginaw Chippewa Indian Tribe

Aaron A. Payment, Chairman-Sault Ste. Marie Tribe of Chippewa Indians

Enclosure 1-Detailed EPA comments on the Section 404 Permit Application for the

Enbridge Line 5 Wisconsin Relocation Project

1. Project Background and Summary

The Applicant, Enbridge, is proposing the permanent discharge of fill material into 0.02 acres of

Waters of the United States (WOTUS), and temporary discharges of fill material into 101.08

acres of wetlands and 0.2 acres of non-wetland WOTUS associated with the construction of the

Enbridge Line 5 Wisconsin segment relocation project (WI LR5). Enbridge plans to construct 72

pipeline crossings through federally jurisdictional waterbodies and impact 534 wetlands along

the proposed route. The project would replace 20 miles of existing pipeline, including 12 miles

of existing pipeline within the Bad River Indian Reservation (reservation), with approximately

41 miles of new pipeline routed around the exterior of the Reservation. In addition, the

Applicant proposes horizontal directional drilling (HDD) under the White River, a navigable

WOTUS. Enbridge proposes to cease pipeline operation within the reservation once the

proposed WI L5R pipe is in service.

The project would include impacts to the following 8-digit HUC watersheds:

•

Bad-Montreal (HUC 04010302)

Beartrap-Nemadji (HUC 04010301)

The following 12-digit HUC subwatersheds fall within the project area and are upstream of

and transect the Bad River Reservation:

•

Fish Creek – Frontal Chequamegon Bay (HUC 040103011105)

Beartrap Creek – Frontal Chequamegon Bay (HUC 040103011101)

Deer Creek – White River (HUC 040103020611)

Meadow Creek (HUC 040103020610)

Troutmere Creek-Marengo River (HUC 040103020404)

Lower Brunsweiler River (HUC 040103020403)

Marengo River (HUC 040103020405)

Hardscrabble Creek – Bad River (HUC 040103020305)

Lower Tyler Forks (HUC 040103020203)

Potato River (HUC 040103020506)

Vaughn Creek (HUC 040103020505)

Devils Creeks – Bad River (HUC 040103020304)

EPA’s longstanding position regarding the importance of tributary streams has been that

Scientific literature unequivocally demonstrates that streams, individually or

cumulatively, exert a strong influence on the integrity of downstream waters. All

tributary streams, including perennial, intermittent, and ephemeral streams, are

physically, chemically, and biologically connected to downstream rivers via channels and

associated alluvial deposits where water and other materials are concentrated, mixed,

transformed, and transported. 19

Wetlands provide numerous functions that benefit downstream water quality. These functions

include storage of floodwater, recharge of ground water that sustains baseflow, retention and

transformation of nutrients, metals, and pesticides, and export of organisms or reproductive

propagules to downstream waters. Wetlands can be connected to downstream waters through

surface-water, shallow subsurface-water, and groundwater flows and through biological and

chemical connections. 20

2. The Proposed Project will Impact Aquatic Resources of National Importance

EPA believes the WI LR5 may have “substantial and unacceptable adverse impacts” on the

Kakagon-Bad River Sloughs and the Bad River, aquatic resources of national importance

(ARNIs). In addition to the discussion in our cover letter, EPA notes that watersheds impacted

by this proposed project include international, national, tribal, and state-designated areas of

importance.

The proposed project route would cross the White River, Billy Creek, and the Bad River. These

waters enter Lake Superior through the Bad River Slough. Specifically, the White River enters

the Bad River Slough approximately 26.3 river miles from the project site. The proposed route

also crosses Beartrap Creek which enters Lake Superior through the Kakagon Slough,

approximately 19 river miles downstream from the project site. The Kakagon-Bad River Sloughs

wetland complex is a Ramsar International Wetlands Convention site of international importance

and a National Landmark. 21 According to the U.S. Fish and Wildlife Service, the Kakagon

Slough is also a Nature Conservancy Priority Conservation area, a Wisconsin Legacy Place, a

Wisconsin Bird Conservation Initiative Important Bird Area, a Wisconsin Wetlands Association

Wetland GEM, and a Wisconsin Coastal Wetland Primary Inventory Site. 22

Wetlands that may be indirectly impacted by WI LR5 are habitat for several rare plants and

animals. The project is situated upstream of a wetland complex that comprises more than 16,000

acres of diverse wetland habitats that support numerous species of rare plants and animals. 23

U.S. Environmental Protection Agency, “Connectivity of Streams and Wetlands to Downstream Waters: A

Review & Synthesis of the Scientific Evidence.” EPA/600/R-14/475F (2015).

EPA, “Connectivity of Streams and Wetlands to Downstream Waters: A Review & Synthesis of the Scientific

Evidence.”

https://rsis.ramsar.org/ris/2001, last visited March 10, 2022

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

99. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

https://www.wisconsinwetlands.org/wp-content/uploads/2015/06/Kakagon-Bad-River-Sloughs.pdf , last visited

March 10, 2022

According to the Ramsar International Convention on Wetlands webpage outlining the

designation of the Kakagon and Bad River Sloughs as Wetlands of International Importance:

The endangered Gray Wolf (Canis lupus) and threatened Canada Lynx (Lynx

Canadensis) are two rare and elusive species known to inhabit the site. It provides

necessary and rare feeding, resting, and nesting habitat for both migrating and local

populations of birds, and one of the two remaining sites for the endangered Piping Plover

(Charadrius melodus) is located immediately to the north at Long Island. The site also

protects wild rice beds that are becoming increasingly fragmented on Lake Superior - as

the only remaining extensive coastal wild rice bed in the Great Lakes region, it is critical

to ensuring the genetic diversity of Lake Superior wild rice. 24

Based on the Application and the Wisconsin Environmental Policy Act (WEPA) Draft

Environmental Impact Statement (DEIS) prepared by the Wisconsin Department of Natural

Resources (WDNR), EPA believes that sediment laden runoff from the WI LR5 project could

enter the sloughs through the connected tributary streams, and may permanently and negatively

impact water quality, aquatic life, and native habitat. 25

According to the WDNR, “The Bad River originates in Caroline Lake in east-central Ashland

County and runs a meandering course northward to empty into Lake Superior.” 26 The WDNR

further notes, “The stream is considered a warm water sport fishery important for spawning

walleye and lake sturgeon, as well as supporting migratory runs of trout and salmon species.

Other fish found in the lower portion of the river include muskellunge, northern pike, rock bass,

pumpkinseeds, bullheads, black crappies, smallmouth bass and yellow perch.” 27

Copper Falls State Park (Copper Falls) is owned by the WDNR and was designated a State

Natural Area in 2003. 28 Bad River enters the park approximately one river mile downstream of

the closest proposed pipeline crossing of Bad River. According to the WDNR, Copper Falls

landscape includes northern dry and dry-mesic forest along the shores of the Bad River. On the

low terraces of the river are two oxbows, that support dry-mesic forest dominated by large white

pine, sugar maple, red maple, and white ash. Other trees include hemlock, white cedar, paper

birch, red oak, balsam fir, and white spruce. The understory is diverse because of the variation in

topography. The steep slope along the west side of the river supports a sugar maple-hemlock

forest, which has not been disturbed since at least 1916. 29 “There are 8.5 miles of river in the

https://rsis.ramsar.org/ris/2001, last visited March 10, 2022.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

199. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

WDNR, Copper Falls State Park, Geology, https://dnr.wisconsin.gov/topic/parks/copperfalls/geology, last visited

March 10, 2022.

WDNR, Water Detail, Bad River, Lower Bad River, Upper Bad River,

https://dnr.wi.gov/water/waterDetail.aspx?WBIC=2891900, last visited March 10, 2022.

WDNR, Wisconsin State Natural Areas Program, Copper Falls,

https://dnr.wi.gov/topic/Lands/naturalareas/index.asp?SNA=399, last visited March 10, 2022 (hereafter WDRN,

Copper Falls Website).

See WDNR, Copper Falls Website, https://dnr.wi.gov/topic/Lands/naturalareas/index.asp?SNA=399, last visited

March 10, 2022.

park. One-half mile of river is closed to public access due to its high erosion potential and its

value as a unique scenic resource for future generations.” 30

Bad River Band Outstanding Tribal Resource Waters and Outstanding Resource Waters

The Bad River Band has designated waters potentially impacted by this proposed project as

having significant ecological and cultural significance. These waters upstream of and transecting

the reservation have been designated as “Outstanding Tribal Resource Waters.” 31 They would be

crossed using the wet trench or dry crossing pipeline installation methods and include the Potato

River and the Bad River.

Surface waters of the reservation that are identified as high quality and constitute a

significantly important cultural and ecological resource are designated as Outstanding

Tribal Resource Waters (Chi minosingbii) and are roughly equivalent to EPA's regulatory

definition of Tier 3 waters under the Agency's antidegradation policy. These waters are

recognized as being largely pristine and important for the cultivation of wild rice or the

spawning of lake sturgeon, or have other special resource values, and, therefore, that

water quality shall be maintained and protected in all cases without degradation. New or

increased discharges will not be permitted. 32

The Bad River Band has designated waters potentially impacted by this proposed project as

being culturally important to the Tribe for the fisheries and ecosystems they support. Waters

designated as “Outstanding Resource Waters” that would be crossed using the wet trench or dry

crossing pipeline installation method include tributaries of the Marengo River, Bear Trap Creek,

Tyler Forks Creek, Brunsweiler River, and Vaughn Creek. The Band’s federally approved water

quality standards provide:

Surface waters of the Reservation that are identified as high quality and culturally

important to the Tribe for the fisheries and ecosystems they support are Outstanding

Resource Waters (Chi minosibii) and could be described as roughly equivalent to EPA's

regulatory definition of Tier 2.5 waters under the Agency's antidegradation policy. New

or increased discharges may be permitted provided that the new or increased discharge

does not result in a change in background conditions or negatively impact designated

uses or existing uses; however, no new or increased discharges of Bioaccumulative

Chemicals of Concern will be permitted. Where the quality of the water exceeds that

necessary to support the designated use, that quality shall be maintained and protected, or

improved, unless the Tribe finds, after full satisfaction of inter-governmental

coordination and public participation provisions of the Tribe's continuing planning

process that allowing lower water quality is necessary to accommodate important

economic or social development in the area in which the waters are located. In allowing

See WDNR, Copper Falls Website, https://dnr.wisconsin.gov/topic/parks/copperfalls/geology, last visited March

10, 2022.

U.S. EPA, Bad River Band of Lake Superior Chippewa, Water Quality Standards,

https://www.epa.gov/sites/default/files/2014-12/documents/bad_river_band_wqs.pdf, Table 1, Specific Designated

Uses of the Tribe’s Water Resources, last visited March 10, 2022.

U.S. EPA, Bad River Band of Lake Superior Chippewa, Water Quality Standards, E.2.ii,

https://www.epa.gov/sites/default/files/2014-12/documents/bad_river_band_wqs.pdf, last visited March 10, 2022.

such degradation or lower water quality, the Tribe shall assure water quality adequate to

protect existing uses fully. 33

Wisconsin Outstanding Resource Waters and Exceptional Resource Waters

Waters Wisconsin designated as “Outstanding Resource Waters” that would be crossed using the

wet trench or dry crossing pipeline installation method include tributaries of the Brunsweiler

River, Marengo River, Tyler Forks Creek, and the Potato River. According to Wisconsin’s Water

Quality Standards, waters designated as Outstanding Resource Waters may not be lowered in

water quality. 34

Surface waters which provide valuable fisheries, hydrologically or geologically unique features,

outstanding recreational opportunities, unique environmental settings, and which are not

significantly impacted by human activities may be classified in Wisconsin as “Exceptional

Resource Waters.” 35 Waters designated as Exceptional Resource Waters that will be crossed

using the wet trench or dry crossing pipeline installation method include tributaries of the Bad

River and Vaughn Creek. Waters designated as Exceptional Resource Waters that will be crossed

using the HDD pipeline installation method include the White River.

3. Proposed Project Impacts and EPA Recommendations (40 C.F.R. §§ 230.10(c), 230.11)

Based on our review of the Application, it does not currently include adequate characterization

of the project’s secondary effects. This has resulted in significant underestimation of the scope of

proposed project impacts.

Direct Wetland Impacts (40 C.F.R. §§ 230.10(c), 230.11(a) and (b))

According to the Application, once activities resulting in temporary discharges are completed,

the Applicant proposes to allow 67.13 acres of wetlands (28.06 emergent, 32.76 forested, 6.30

scrub shrub) to revert to the original cover type. The remaining 33.95 acres of wetlands

(originally forested (30.06) and scrub-shrub (3.89)) are proposed to be maintained as emergent

wetland within the permanently maintained right-of-way:

Following construction, Enbridge would maintain the permanent 50-foot-wide [Right of

Way] ROW clear of woody vegetation to conduct aerial inspections and facilitate access

for maintenance. In areas where the pipeline was installed via HDD and direct bore

methods, the permanent operational ROW would be reduced from 50 feet to 30 feet. 36

U.S. EPA, Bad River Band of Lake Superior Chippewa, Water Quality Standards,

https://www.epa.gov/sites/default/files/2014-12/documents/bad_river_band_wqs.pdf, last visited March 10, 2022.

Chapter 102: Water Quality Standards for Wisconsin Surface Waters,

https://www.epa.gov/sites/default/files/2014-12/documents/wiwqs-nr102.pdf. last visited March 10, 2022.

U.S. EPA, State of Wisconsin Water Quality Standards, https://www.epa.gov/sites/default/files/201412/documents/wiwqs-nr102.pdf, last visited March 10, 2022.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

22. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

Recommendation: Impacts to 33.95 acres of wetlands resulting in permanent conversion of

forested and scrub-shrub wetlands to emergent wetlands should be considered as a permanent,

not temporary impact, especially if the wetlands will be permanently maintained by the

Applicant as emergent wetland within the right-of-way. We note additional comments below

related to mitigation.

Direct Waterbody Impacts (40 C.F.R. §§ 230.10(c), 230.11(a) and (b))

The open cut (wet trench) and dry crossing methods of pipeline crossings result in temporary

discharges of fill material into waters of the United States (WOTUS) pursuant to Section 404 of

the Clean Water Act. According to the Application, the regulated activities include temporary

discharges into approximately 0.20 acres below the plane of the ordinary high-water mark as part

of pipeline construction activities, including trench backfill and the placement of temporary

dams. The Applicant estimated the anticipated volume impact for each waterbody crossing based

on a standard trench width of 18 feet wide at the top, 6 feet wide at the bottom, and 7 feet deep.

This estimation does not account for crossings that will be more or less than exactly

perpendicular to the waterbody. EPA notes that the actual volume will be dependent on sitespecific conditions.

Recommendation: The Application should more accurately quantify and characterize the

impacts for each of the specific 72 federally jurisdictional waterbody crossings. We also

recommend the Application present an alternative for each crossing or certain groups of

crossings where arriving at the proposed method is determined to not be feasible in the field.

While the determination of the use of the alternative crossing method will not be determined

until construction, the use of such alternative methods could result in significant changes to

waterbody impacts as proposed in the Application. A summation of potential impacts that could

result from these alternative crossing methods would be an important addition to the Application

because high impact crossing methods have the potential to result in permanent waterbody

functional loss. This information is necessary in determining adequate compensatory mitigation

for impacts under the Clean Water Act Section 404 (b)(1) Guidelines.

Impacts to Impaired waters (40 C.F.R. §§ 230.10(c), 230.11(c) and (d))

Based on the Application and the WEPA DEIS prepared by WDNR, EPA believes that sediment

laden runoff from the WI LR5 project could enter the Kakagon-Bad River sloughs through

connected tributaries, and may negatively impact water quality, aquatic life, and native habitat.

This sedimentation may impact and permanently degrade the watershed surrounding the

proposed project. EPA believes that the Kakagon-Bad River Sloughs wetland complex and the

Bad River are especially vulnerable because several waters with a nexus to this watershed are

already impaired and/or susceptible to receiving high loads of sediment.

Pipeline installation can cause substantial erosion and sedimentation, which may increase

instream turbidity and alter hydrology at the project site and downstream, negatively impacting

aquatic life and habitat. Wetland conversion resulting from pipeline installation can often cause

the loss of vital wetland functions and values.

The proposed project does not account for increased sedimentation and other discharges of

pollutants that will occur in waters already impaired. For example, the Marengo River, a

tributary to the Bad River, along with Trout Brook Creek are listed on the 303(d) list in

Wisconsin as impaired for fecal coliform. 37 The Marengo River Watershed is a significant focus

area for highlighting important management strategies to reduce sedimentation in Wisconsin’s

Lake Superior Basin. The Bad River Watershed Association’s management plan employs a

management strategy, called “slow the flow” that recognizes that “reducing the volume and

velocity of runoff to streams is critical to improving watershed health. 38 The Bad River

Watershed’s geologic characteristics, particularly the combination of steep topography and

highly erodible soils, make the watershed more susceptible to receiving and transporting high

loads of sediment. 39Additionally, Bay City Creek (which flows directly to Lake Superior) is

listed as impaired for Phosphorus on the Wisconsin CWA section 303(d) list. 40 EPA notes that

the Application does not account for increased sedimentation and potential increased nutrient

loading to Bay City Creek.

Recommendation: The Application should be revised to include more specific characterization

of expected discharges of sediment to those waterbodies already impaired.

Secondary Impacts (40 C.F.R. § 230.10(c), 230.11(h))

The Application does not adequately discuss or account for secondary impacts as specified by

the Guidelines. 40 C.F.R. § 230.11(h). Secondary impacts on an aquatic ecosystem are

associated with the discharge of dredged or fill material, but do not result from the actual

placement of the dredged or fill material. As proposed, the project would require the filling or

converting of portions of wetlands that extend outside of the project footprint. In situations

where a wetland would be partially filled or converted, EPA remains concerned that the

remaining wetland acreage may experience declines in functions, values, and habitat quality;

including but not limited to changes in hydrology and natural flow within the wetlands and

spread of invasive species. Wetlands that are to be restored to “pre-existing conditions” will also

face the challenges of the introduction of invasive species in their disturbed area, potentially

spreading beyond the work area into the entire wetland complex. During the restoration process,

native seed mixes or planted vegetation may exhibit genetic differences from vegetation onsite

that could jeopardize the natives that have evolved to this site’s specific microclimate, making

the wetlands more vulnerable to degradation. Two plants that are the same technical species can

originate thousands of miles apart and are adapted to exhibit different traits (e.g., key phenotypic

and phenological differences). These impacts would be multiplied every time planned,

preventative, and emergency maintenance would occur. Additionally, the impacts to waterbodies

resulting from proposed crossings will likely affect downstream resources. The Application does

See WDNR, Nonpoint Pollution Webpage, Bad River Watershed Association, Marengo River Watershed

Partnership Project, Watershed Action Plan,

https://dnr.wi.gov/topic/nonpoint/documents/9kep/Marengo_Watershed-Plan.pdf, last visited March 10, 2022.

Bad River Watershed Association, Marengo River Watershed Partnership Project, Watershed Action Plan,

https://dnr.wi.gov/topic/nonpoint/documents/9kep/Marengo_Watershed-Plan.pdf, last visited March 10, 2022.

See U.S. EPA, How’s My Waterway, Bay City Creek, https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI6936105/2020), last visited March 10, 2022.

not clearly consider, describe, or analyze such indirect wetland or waterbody impacts, as required

under the Guidelines.

Recommendation: The Application should be revised to include all of these indirect wetland

and waterbody impacts. Additionally, we recommend that the Corps require monitoring of

adjacent wetlands as a condition of the permit to determine the extent of secondary impacts and

require additional mitigation if the analysis reveals adverse impacts to adjacent resources by the

proposed activities.

The Application should be revised to specifically analyze the potential for effects to downstream

waterbodies, such as, but not limited to, changes to the hydrogeomorphology and impacts of

sedimentation and compaction from construction activities, to better determine if secondary

impacts will occur to the remaining resources. Secondary effects to these downstream resources

should be avoided and minimized to the maximum extent practicable. Should unavoidable

secondary impacts remain, whether temporary or permanent, then EPA recommends additional

compensatory mitigation be provided to offset those effects.

Secondary Impacts from Blasting (40 C.F.R. §§ 230.10(c), 230.11(h))

The draft Enbridge Blasting Plan (Blasting Plan) identifies 139 potential blasting areas, some of

which may be required in-water. The Blasting Plan is general in nature. It currently does not

address specific best management practices that would be employed at each blasting location to

prevent irreversible damage to stream ecology and prevent migration of contaminants

downstream that may result from the blasting. According to Enbridge, this is because “blasting

for excavation or grading purposes is to be used only when deemed necessary by a construction

expert after examination of the site and other reasonable means of excavation have been

attempted and are unsuccessful in achieving the required results” 41 Any site-specific blasting

plan would be submitted by the blasting contractors for Enbridge review. It does not appear that

the Corps would have an opportunity to review each site-specific plan prior to blasting within

federally jurisdictional wetlands and waterbodies. The Blasting plan states that:

preliminary desktop reviews have been completed to identify subsurface conditions along

the proposed route including soil types, rock outcrops, and bedrock formations. Upon

review of these subsurface conditions, there have been locations identified where

conventional trenching techniques will likely be inadequate, and blasting would

potentially be required to install the pipeline…approximately 10 miles of blasting is

assumed to be required for the Project, occurring mostly between construction mileposts

17 and 41. 42

Enbridge Line 5 Wisconsin Segment Relocation Project- Blasting Plan-Preliminary

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/EIR_Att%20E_Blasting%20P

lan.pdf?ver=SjZXYLC9eIeqjGkAsiNGbg%3d%3d, last visited March 10, 2022.

Enbridge Line 5 Wisconsin Segment Relocation Project- Blasting Plan-Preliminary

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/EIR_Att%20E_Blasting%20P

lan.pdf?ver=SjZXYLC9eIeqjGkAsiNGbg%3d%3d, last visited March 10, 2022.

The Blasting Plan goes on to state that a “more accurate prediction of potential blasting locations

will be available closer to the time of construction and when on-site geotechnical data is gathered

and analyzed.” 43

EPA notes that a common blasting agent, ANFO, is a mixture of ammonium nitrate (AN) and

fuel oil (FO). Nitrates and ammonium are readily soluble in water. Release of nitrogen

compounds to surface and groundwater can contribute to spread of invasive species and harmful

algal blooms. Elevated levels of nitrates can be toxic to aquatic freshwater fauna. Furthermore, in

areas where wetlands occur in thin soils over impermeable bedrock, blasting can generate new

preferential soil moisture movement and/or groundwater flow paths that can result in changes to

wetland hydrology or even dewatering of wetland. 44

Recommendation: The Application should be revised to discuss and account for potential

secondary wetland and waterbody impacts from all of the proposed work. This includes the

impacts from use of blasting. We also recommend that the Corps should condition the permit to

require the Applicant to submit site-specific blasting plans where blasting would occur within

federally jurisdictional wetlands and waterbodies.

4. Cumulative Impacts and EPA Recommendations (40 C.F.R. §§ 230.10(c), 230.11(e)

and (g))

The Application does not adequately discuss cumulative impacts as specified in 40 C.F.R. §

230.11(g), which provides:

Cumulative impacts are the changes in an aquatic ecosystem that are attributable to the

collective effect of a number of individual discharges of dredged or fill material.

Although the impact of a particular discharge may constitute a minor change in itself, the

cumulative effect of numerous such piecemeal changes can result in a major impairment

of the water resources and interfere with the productivity and water quality of existing

aquatic ecosystems. Cumulative effects attributable to the discharge of dredged or fill

material in WOTUS should be predicted to the extent reasonable and practical.

Section 7.3.3 Water Resources, of the Enbridge Line 5 Wisconsin Segment Relocation Project

Environmental Impact Report (EIR) concluded that:

the greatest potential for cumulative impacts would be with concurrent construction

projects. Current other projects that may result in temporary water resource impacts that

temporally overlap with the Line 5 Project include culvert replacement and resurfacing

transportation projects, and trail expansion project and a broadband initiative project.

Based on the temporary nature of the majority of the Line 5 Project impacts, the

compensatory mitigation required for permanent Project impacts, and the limited

Enbridge Line 5 Wisconsin Segment Relocation Project-Blasting Plan-Preliminary

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/EIR_Att%20E_Blasting%20P

lan.pdf?ver=SjZXYLC9eIeqjGkAsiNGbg%3d%3d, last visited March 10, 2022.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

166. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

temporary impacts anticipated associated with concurrent projects in the region,

construction and operation of the Project, when combined with other past, present, and

foreseeable future projects, is not expected to result in significant cumulative impacts on

water resources. 45

The cumulative impacts analysis associated with water resources in the Application does not

adequately address cumulative impacts, in part because it appears to mischaracterize many

impacts as only being temporary in nature. The Application should be revised to provide a

complete and thorough cumulative impacts analysis. Such an analysis will allow the Corps and

EPA to make fully informed factual determinations about the project’s compliance with the

Guidelines. Included in the cumulative impact analysis should be the anticipated impact from the

continuous disturbance of wetlands and waterbodies from construction and from planned,

preventative, and emergency maintenance. The cumulative impacts analysis should include

information about modifications to hydrology and degradation of water quality during and

following construction and the associated consequences.

Recommendation: The Application should be revised to include a comprehensive evaluation of

cumulative effects that will fully characterize the proposed watershed impacts, in addition to an

inventory of specific measures that will be undertaken to avoid and minimize cumulative impacts

resulting from this project.

5. Alternatives Analysis and EPA Recommendations (40 C.F.R. §§ 230.10(a) and

230.10(d))

Pipeline construction and installation does not require access to or siting within WOTUS to fulfill its

basic purpose. Therefore, these activities are considered to be non-water dependent. The Guidelines

provide that for non-water dependent activities, practicable alternatives which do not involve fill in

WOTUS are presumed to be available unless clearly demonstrated otherwise in the application.

Therefore, EPA looks to the Application to present a reasonable range of alternatives that avoid and

minimize impacts to aquatic resources on-site. The amount of effort and detail in the analysis must be

commensurate with the level of aquatic resources impacted. The Application presents several

alternatives to the proposed reroute:

•

No Action Alternative (no project alternative), including

o continued transport of oil and gas through Line 5, and

o discontinued transport of oil and gas through Line 5.

System alternatives including switching to another existing pipeline, construct a new

pipeline, and alternatives modes of transport including trucks, rail cars, and barges.

Route Alternatives RA-01, RA-02, and RA-03.

The Guidelines provide the Corps and EPA with discretion for determining the necessary

level of analysis to support a conclusion as to whether an alternative is practicable. Practicable

alternatives are those alternatives that are "available and capable of being done after taking into

Enbridge Line 5 Wisconsin Relocation Project-Environmental Impact Report

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/L5R_EIR_Clean_20200316_Rev1.pdf?ver=I6YlkytZzDTVCc0lVdAumA%3d%3d, last visited March 10, 2022.

consideration cost, existing technology, and logistics in light of overall project purpose." 40

C.F.R. § 230.10(a)(2).

According to the public notice, the Environmental Protection Plan (EPP) describes planning,

prevention, and control measures to minimize impacts resulting from spills of fuels, petroleum

products, or other substances as a result of construction. Construction of the pipeline as

proposed would use trenchless methods known as the HDD and guided bore methods, both

collectively referred to as “drilling.” Other than the proposed crossing of the White River,

these methods do not require authorization from the Corps to cross wetlands or waterways.

The Applicant proposes to minimize wetland disturbance by reducing the construction right-ofway from 120 feet to 95-feet-wide in wetlands, where practicable, based on site-specific

conditions. Additionally, the Applicant proposes to employ various protection measures to

protect water quality during construction. Temporary erosion and sediment controls include but

are not limited to, silt fence, straw bales, biologs, erosion control blankets, and slope breakers

at site specific crossings. The Applicant also proposes to limit the duration of construction

equipment operation within waterbodies to the area necessary to complete the crossing.

Disturbed areas at waterway and wetland crossing would be restored and stabilized as soon as

practical after pipeline installation. The EPP further outlines construction-related

environmental policies, procedures, and protection measures to protect water quality.

Recommendation: First, as referenced in Section 3 above, the Application should be revised to

more accurately quantify and characterize the impacts for each of the specific 72 federally

jurisdictional waterbody crossings and present an alternative for each crossing or certain groups

of crossings where arriving at the proposed method is determined to not be feasible in the field.

While the determination of the use of the alternative crossing method will not be determined

until construction, the use of such alternative methods could result in significant changes to

waterbody impacts as proposed in the Application. This information is vital to evaluating

compliance with the Guidelines.

Second, EPA recommends additional efforts, such as trenchless crossings, be employed to avoid

and minimize impacts to the 14 streams that are either designated trout streams, tributaries to

designated trout streams, and/or designated Area of Special National Resource Interest (ASNRI)

streams by the WDNR, that are proposed to be crossed by the pipeline installation activities.

These include: 46

Beartrap Creek-sasb007i

UNT of Marengo River- sasd011p

UNT of Brunsweiler River- sasc1006p

UNT of Trout Brook- sasc1003p_x1

UNT of Silver Creek- sasd1015p

UNT of Silver Creek- sase005p_x2

USACE Waterbody Crossing Table,

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/USACE%20Waterbody%20C

rossing%20Table%2020220222.pdf?ver=hnPBLFvuRp6ZHvfdU9G8Fw%3d%3d, last visited March 10, 2020.

7. UNT of Silver Creek- sasv004p

8. UNT of Krause Creek- sasv020p

9. UNT of Bad River- sasa008p

10. UNT of Gehrman Creek- sasa004p

11. Camp Four Creek- sasw005

12. UNT of Feldcher Creek- sirb010p

13. Feldcher Creek- WDH-103

14. UNT of Vaughn Creek- sird009p

EPA believes that using the HDD or other trenchless method for an expanded set of waterbody

crossings may reduce sedimentation. Where the Application proposes HDD for waterbody

crossings, the Application should also provide for thorough site analyses, including complete

geotechnical analyses (ex. ground penetrating radar), boring tests, and fracture trace analyses to

help prevent inadvertent returns of bentonite materials. EPA recognizes that sub-surface

conditions are not entirely predictable, so it is imperative that the Applicant have a robust

contingency plan in place to deal with inadvertent returns should they occur.

Finally, EPA recommends that the Applicant consider additional avoidance and minimization

measures including further minimizing the width of the ROW in wetland and waterbody areas,

consideration of bio-engineering techniques along with constructed features instead of riprap at

all waterbody crossing restorations, and water-inflated cofferdams where damming may be

necessary to divert flow.

6. Potential Significant Degradation of WOTUS and EPA Recommendations (40

C.F.R. § 230.10(c))

The Guidelines provide that no discharge of dredged or fill material shall be permitted

if it will cause or contribute to significant degradation of WOTUS. 40 C.F.R. § 230.10(c). The

Applicant proposes the permanent discharge of fill material into 0.02 acres of wetlands,

temporary discharges of dredged or fill material into 101.08 acres of wetlands and 0.20 acres of

non-wetland WOTUS. The proposed project includes plans to construct 72 crossings through

federally jurisdictional waterbodies and impacts to 534 wetlands along the proposed route.

As noted in Section 1, wetlands provide numerous functions that benefit downstream water

quality. These functions include storage of floodwater, recharge of ground water that sustains

baseflow, retention and transformation of nutrients, metals, and pesticides, and export of

organisms or reproductive propagules to downstream waters. Wetlands can be connected to

downstream waters through surface-water, shallow subsurface-water, and groundwater flows and

through biological and chemical connections. 47

According to the WEPA DEIS prepared by WDNR, construction of a pipeline and associated

clearing of vegetation would increase the risk of erosion and sedimentation in stream crossings. 48

U.S. Environmental Protection Agency. 2015. “Connectivity of Streams and Wetlands to Downstream Waters: A

Review & Synthesis of the Scientific Evidence.” EPA/600/R-14/475F.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

196. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

“Impacts to fish and other aquatic species during construction and operation of the pipelines may

include direct mortality from construction, habitat loss and alteration including increased

sedimentation and turbidity, barriers to movement, and entrainment in construction water

intakes.” 49 Furthermore, “streambank erosion during construction has the potential to be a large

contributor to downstream sedimentation and siltation.” 50 EPA is concerned that the proposed

activities may cause significant degradation by disrupting life stages of aquatic life, fish

spawning, and wildlife dependent on these systems. Downstream, the Kakagon-Bad River

Sloughs are home to many threatened and endangered species such as the piping plover,

trumpeter swan, yellow rail, bald eagle, wood turtle, and ram’s-head lady-slipper orchid. 51

Recommendation: Robust site-specific pollution prevention plans, including best management

practices for preserving aquatic resource integrity should be required for all waterbody and

wetland crossings. These plans would ensure that the proper level of consideration is given to

distinctively sensitive resources. We recommend these plans be provided prior to construction as

a condition of the CWA section 404 permit.

7. Potential Violations of Federally Approved State and Tribal Water Quality

Standards and EPA Recommendations (40 C.F.R. §§ 230.10(b)(1), 230.11(a) and

(d))

The Guidelines state that "no discharge of dredged or fill material may be permitted if it

causes or contributes, after disposal site dilution and dispersion, to violations of any applicable

State water quality standards.” 40 C.F.R. § 230.10(b)(1). Under the CWA, tribes who have been

approved for Treatment in a Similar Manner as a State (TAS) under CWA section 303, 401, and

518, are treated in a similar manner as states for purposes of implementing the CWA section

303(c) program. Bad River Band has TAS for CWA sections 303, 401, and 518, and has

federally approved WQS under section 303(c). Based on our review of the Application, we find

that the Application does not adequately consider, mitigate, and address potential impacts to

downstream State and Tribal federally approved WQS. Please reference Section 2 above for a

discussion of the Bad River Band’s Outstanding Tribal Resource Waters and Outstanding

Resource Waters, and Wisconsin’s Outstanding Resource Waters and Exceptional Resource

Waters.

The Applicant proposes that the project cross non-wetland waterways using open cut (wettrench), dry crossing (flume or dam-and-pump), and HDD methods of pipeline installation. The

open cut and dry crossing methods result in temporary discharges of fill material into WOTUS.

The White River, a navigable water of the United States and considered a unique and scenic

high-quality trout stream and watershed 52, will be crossed via HDD. As mentioned above,

blasting also may be necessary in areas with bedrock close to the surface.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

221. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

197. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

http://www.badriver-nsn.gov/naturalresources/threats/#:~:text=The%20Kakagon%2DBad%20River%20Sloughs,%2Dhead%20lady%2Dslipper%20orch

id, last visited March 10, 2022.

https://dnr.wisconsin.gov/topic/Lands/FisheriesAreas/2850whiteriverbayfield.html, last visited March 10, 2022.

Horizontal Directional Drilling

It is anticipated that fuels, oils, lubricants, and hydraulic fluids typically used for construction

equipment, as well as drilling fluids could be introduced throughout the project site. The HDD

drilling method includes the use of drilling fluid to lubricate the tunnel created by this method

under a river. According to the public notice, drilling fluid consists primarily of water mixed

with bentonite clay, and possibly also an additive. While normally this drilling fluid remains in

the tunnel after installation, there is a potential for unexpected release of drilling fluid (drilling

mud) into the soil during construction, which may migrate to the stream bed, exists. 53 Enbridge

requires their contractors to implement a contingency plan should there be an inadvertent release,

however they only list what the plan should include in their EPP, without any specific

information about whether the Corps would have an opportunity to review the plans prior to

pipeline construction:

•

Procedure for notification of site, office, and Enbridge personnel

Monitoring procedure for loss of circulation indicators

Procedures for monitoring fluid pressure and ranges for acceptable annular pressure

Decision points and procedures for suspending drilling operations

Detailed descriptions of all monitoring (e.g., the annular pressure tool)

An inventory of equipment and materials to be on‐site for containment

Containment methods in upland and wetland/waterbody locations 54

The White River is the only federally jurisdictional waterway in which the HDD method is

proposed to be used. Violations of state water quality standards for the White River may result if

this method is permitted and not executed properly.

Blasting

As mentioned in Section 3 above, blasting may take place in approximately 139 areas along the

pipeline route. Of the 22 WOTUS where blasting may be implemented in-water, five are listed

as perennial tributaries to trout streams and two were listed as Class II trout streams. Nitrates and

ammonium from the ANFO blasting agent are readily soluble in water. Release of nitrogen

compounds to surface and groundwater can contribute to spread of invasive species and harmful

algal blooms. 55 In areas where wetlands occur in thin soils over impermeable bedrock, blasting

can generate new preferential soil moisture movement and/or groundwater flow paths that can

result in changes to wetland hydrology or even dewatering of a wetland. 56

https://www.researchgate.net/publication/30481881_Review_of_environmental_issues_associated_with_horizonta

l_directional_drilling_at_water_crossings, last visited March 10, 2022.

Enbridge Environmental Protection Plan

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/EIR_Att%20D_Env%20Prot

%20Plan.pdf?ver=RisLLyPzhZ7BubIEZzNEEA%3d%3d, last visited March 10, 2022.

EPA, Harmful Algal Blooms, https://www.epa.gov/nutrientpollution/harmful-algal-blooms#cause, last visited

March 10, 2022; EPA, Nutrient Pollution, https://www.epa.gov/nutrientpollution, last visited March 10, 2022.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

166. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, March 10, 2022.

Conversion of forested wetlands to emergent wetlands

The conversion of 27.6 acres of forested wetlands to emergent wetlands may increase water

temperatures. Removal of riparian vegetation could lead to increased light penetration into the

waterbody, causing increased water temperature which could potentially impact fisheries. 57

Cold Water Fishery stream crossings

The Potato River, Vaughn Creek, Billy Creek, and Tyler Forks Creek are designated as Cold

Water Fishery (CWF) streams by the Bad River Band. These waterways support or have the

potential to support the existence of CWF communities and/or spawning areas. For those waters

designated as a CWF, no measurable increase in temperature from other than natural causes is

allowed. 58 It is unclear whether water temperature monitoring is proposed in the application or

would be required by the Corps as a permit condition.

Wisconsin’s minimum limit for Dissolved Oxygen content in classified trout streams is listed as

7mg/L during the fish spawning season, 59 while Bad River Band has a more stringent Dissolved

Oxygen minimum of 8mg/L for waters designated as a CWF during the early life stages of CWF.

It is currently unknown whether the Corps will require monitoring for Dissolved Oxygen as a

permit condition.

According to the draft EIS, construction could change the stream bottom profile, resulting in

increased sedimentation or erosion at the site or further downstream. Additionally, wetland loss

can lead to increased runoff, which in turn increases flooding and streambank erosion and may

ultimately lead to habitat degradation from sedimentation. Removal of riparian vegetation could

lead to increased light penetration into the stream, causing increased water temperature which

could potentially impact fisheries.

Recommendation: The Application should be revised to include a monitoring plan with a

network of real-time water quality monitoring stations to be installed upstream and downstream

of river, stream, and wetland crossings, including on both State lands and, with the Bad River

Band’s approval, within the Bad River reservation, as a condition of a Corps permit. These

monitoring stations ideally should be installed prior to construction to capture baseline data.

Real-time water quality monitoring data should be made available to the public and accessible

via a public website. At minimum, monitoring should continue until reestablishment of

vegetation, or the wetlands have reverted to the original cover type. Monitoring stations should

measure temperature, turbidity, specific conductance, pH, and dissolved oxygen, at a minimum.

EPA also recommends that the Application be revised to include a plan for biological (fish and

macroinvertebrate) sampling before, during and after pipeline installation activities at important

waterbody crossings to monitor potential impacts to stream communities as a condition of a

Corps permit. Furthermore, EPA recommends that a corrective action plan be developed as a

condition of permit approval to address potential excursions of water quality standards or

negative impacts to aquatic communities. EPA also recommends that any structures used in

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/WI%20Permit%20App_020

62020_Final_Redacted.pdf?ver=EW9ONJxUT69quLJzPx2Saw%3d%3d, last visited March 10, 2022.

U.S. EPA, Bad River Band of Lake Superior Chippewa, Water Quality Standards,

https://www.epa.gov/sites/default/files/2014-12/documents/bad_river_band_wqs.pdf, last visited March 10, 2022.

Chapter 102: Water Quality Standards for Wisconsin Surface Waters https://www.epa.gov/sites/default/files/201412/documents/wiwqs-nr102.pdf, last visited March 10, 2022

constructing waterbody crossings should not impede/prevent the movement of aquatic life

upstream or downstream and should be removed as soon as possible after construction is

complete and after the area is restored. This should be included as a condition of the Corps

permit.

Additionally, EPA recommends that the Corps include a condition in the permit that allows for

review of the detailed HDD contingency plan prior to any HDD work.

Please see Section 3 above for recommendations regarding blasting activities.

8. Mitigation and EPA Recommendations (40 C.F.R. Part 230, 33 C.F.R. Part 332)

The Guidelines provide that an applicant must demonstrate that a sequence of steps will be

followed to avoid and minimize impacts to the maximum extent possible and to compensate for

any unavoidable losses. 40 C.F.R. § 230.10(d). Based on EPA’s review of the Application, we

believe the project as proposed does not adequately demonstrate all practicable avoidance

measures were considered in accordance with 40 C.F.R. Part 230. As such, it is difficult to

determine adequate compensatory mitigation at this time. While EPA has reviewed the proposed

compensatory mitigation plan, we note that 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.

Recommendation: EPA recommends that a more comprehensive avoidance and minimization

analysis be completed as part of the Application. Once this analysis is completed, EPA

recommends that a more detailed and complete compensatory mitigation plan be developed as

part of the Application. EPA requests review of the updated mitigation plan when it is provided

to the Corps. Additionally, EPA has the following comments on the compensatory mitigation

plan.

Lack of Pre- and Post- Work Condition Assessments

The Corps’ public notice states that wetland areas temporarily impacted during construction

would be restored to pre-construction contours and elevations. The Applicant proposes to

provide compensatory wetland mitigation for project related permanent wetland fill, permanent

conversion of scrub-shrub and forested wetlands to emergent wetlands, and temporal loss of

wetland functions. Enbridge evaluated wetlands using the Wisconsin Wetland Rapid Assessment

Method (“WRAM”) value rating but opted out of the Floristic Quality Inventory (FQI)

component of WRAM for each wetland.

While EPA understands that the Applicant attempted to provide conservative evaluations of

resources that they propose to impact, omission of the FQI in the WRAM impedes assessment of

pre- and post- work conditions. Assumption of quality is not a substitute for thorough assessment

of the wetlands, and without an accurate assessment, the wetlands cannot be returned to preimpact conditions. Open trenches are proposed for some high-quality wetlands that appear to be

in a nearly unaltered state, free from invasive species. Based on the information in the

Application, EPA was unable to identify a basis for assurance that the proposed work process

will be able to return these high-quality wetlands to their original condition.

Recommendation: An FQI should be conducted for each wetland so that the diversity, quality,

and community can be recreated and appropriately mitigated if they cannot be restored to preimpact conditions.

Lack of Adequate Identification of High-Quality Wetlands

As stated in the WEPA DEIS prepared by WDNR, “detailed species composition on individual

wetlands has not been reviewed for the proposed route or route alternatives. Therefore, a direct

determination of high-quality based on species composition is not available.” 60 Only dominant

species were described. However, not every species that may be conservative, rare, or unique to

these wetland systems will be a dominant species. Additionally, if only the dominant species are

assessed in pre-impact conditions, restoration after impacts will only focus on those species and

potentially decrease the diversity of those areas. As noted in the Bad River’s Band’s 2020

comment letter, 61 many species of plants are difficult to identify outside of a specific season

(such as spring ephemerals) and outside of their blooming period (such as orchids).

Recommendation: The Applicant should ensure that the FQI is complete by making

supplemental site visits during periods when difficult to identify species are most visible.

Lack of Secondary and Cumulative Impact Assessments

Additionally, FQIs are important to anticipate potential secondary and cumulative impacts as

some wetland areas are expected to be continuously disturbed as maintenance and repair

activities are anticipated to occur on the line and pose a threat of continued wetland degradation.

The Guidelines require an accurate assessment of impacts to aquatic resources in order for the

Corp and EPA to determine adequate compensatory mitigation.

Recommendation: EPA recommends that complete FQIs be taken to ensure that the effect of

secondary cumulative impacts can be properly mitigated.

Wetlands Bank Credits

The Applicant proposes to compensate for the loss of wetland functions by purchasing wetland

credits from the Poplar River Wetland Mitigation Bank and the Bluff Creek Wetland Mitigation

Bank, both located in the Lake Superior Bank Service Area (BSA). The Applicant proposes

purchasing a total of 33.35 mitigation credits, apportioned as 0.94 Palustrine Emergent (PEM)

wetland credit, 2.39 credits Palustrine Scrub-Shrub (PSS) wetland credit, and 30.02 Palustrine

Forested (PFO) wetland credit.

Applicant is proposing to purchase:

•

2.39 wetland bank credits for the 6.85 acres of temporary impact and 3.9 acres of

permanent conversion of scrub-shrub wetlands

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at

204. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

Letter from Naomi Tillison, Natural Resources Director, Bad River Band, to Ben Callan, WDNR, July 11, 2020.

•

30.02 wetland bank credits for the 32.71 acres of temporary impact and 30.03 acres of

permanent conversion of forested wetlands

0.94 wetland bank credits for 0.02 acres of permanent impacts to fresh wet meadow and

28.06 acres of temporary impacts to fresh wet meadow (24.65), sedge meadow (2.82),

shallow marsh (0.28) and seasonally flooded basin (0.23).

The Guidelines require adequate compensatory mitigation to offset environmental losses

resulting from unavoidable impacts to WOTUS and mitigation requirements must be

commensurate with the amount and type of impacts associated with a particular permit. 40

C.F.R. § 230.93(a). The Mitigation Plan62 does not provide any scientific evidence or rationale

for use of the proposed mitigation ratios or how those ratios were developed or determined. The

Mitigation Plan states that:

the Line 5 Project will take place largely within new temporary workspace, which will be

allowed to revert back to the preconstruction wetland type, and new permanent right-ofway, which Enbridge will maintain and convert from one wetland type to another in order

to operate the proposed facilities. Only a small amount of permanent wetland loss will

result from the Project. Based on this, and the mitigation ratio requirements from past

projects, Enbridge has calculated proposed mitigation ratios for the Line 5 Project.

Recommendation: The Mitigation Plan should be revised to include a discussion of why the

mitigation proposed, using the ratios identified, is considered a commensurate amount of

compensation to offset the loss of function and quality of the impacted wetlands.

Lack of Compensation and Mitigation for each Proposed Waterbody Crossing

While the Application provided Stream Restoration Drawings and general channel remediation

methods, no formal compensatory mitigation/waterbody restoration plans are being proposed for

each of the 72 proposed federally jurisdictional waterbody crossings as part of the Application,

despite anticipated functional losses that may occur during and post-construction. Considering

physical, chemical, and biological functions will be lost during and post-construction (i.e.

disrupted floodplain connectivity, disturbed groundwater and surface water interactions and

waterbody flow dynamics, changes in water quality, temperature, nutrients, and disturbance to

fish and macroinvertebrate communities due to waterbody changes and elimination of riparian

buffer), compensatory mitigation for temporary impacts to waterbodies are necessary to offset

any unavoidable adverse impacts to waterbodies and anticipated functional losses.

Recommendation: EPA recommends the Mitigation Plan include a scientifically based rationale

for using the ratios proposed. An FQI should be calculated for each impacted wetland so that the

diversity, quality, and community can be recreated and appropriately mitigated if they cannot be

restored to pre-impact conditions. At minimum, the Mitigation Plan should include a discussion

of why the mitigation proposed using the ratios identified is considered a commensurate amount

of compensation to offset the loss of function and quality of the impacted wetlands. EPA also

Enbridge Compensatory Wetland Mitigation Strategy,

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/L5R_Mitigation_Plan_20211

130.pdf?ver=ICqiMkh86AOT8LxF7Fi2aw%3d%3d, last visited March 10, 2022.

recommends the Corps require formal compensatory mitigation/waterbody restoration plans for

impacts at all 72 federally jurisdictional waterbody crossings to ensure compliance with the

Guidelines and consider mitigation for temporary impacts to waterbodies to offset any potential

functional losses.

9. General Comments

Line 5 Pipeline Disposition within the Bad River Reservation

The WEPA DEIS prepared by WDNR, suggests removal of pipeline from the Bad River Band’s

Reservation will occur at the direction of Bad River pending the outcome of ongoing litigation

between Bad River and Enbridge. 63 We believe removal, decommissioning in place, or a

combination thereof, of the existing pipeline is connected to the rerouting of the pipeline.

Recommendation: EPA recommends that pipeline removal, decommissioning in place, or a

combination thereof, be considered together with the proposed reroute and that these activities

should be discussed with the rerouting as connected actions and part of a single project in the

Corps’ NEPA evaluation. Based on an initial scoping review and analysis in the WEPA DEIS

prepared by WDNR, it appears the proposed action is likely to have significant direct, secondary,

and cumulative aquatic resource impacts resulting from the pipeline removal and/or

decommissioning. If the Corps is unable to identify measures to mitigate the impacts of the

removal to less than significant, an EIS under NEPA may be required.

Memorandum of Understanding Regarding Interagency Coordination and Collaboration for

the Protection of Tribal Treaty Rights and Reserved Rights

Bad River Band, Red Cliff Band, and Keweenaw Bay Indian Community have expressed

concerns about the Enbridge Line 5 project in response to the WEPA DEIS prepared by WDNR,

We note that the WEPA DEIS prepared by WDNR states:

According to Enbridge, removal of the pipeline is outside the scope of their project and given the numerous

considerations affecting the cost of removal, Enbridge was unable to provide a cost estimate for this

hypothetical scope of work. Industry standard and Enbridge’s past practice have been to leave

decommissioned pipe undisturbed unless environmental circumstances require otherwise. Enbridge is

obligated to remove certain segments of Line 5 on BIA trust parcels after easement expiration or two years

of non‐use. This would occur in consultation with interested landholders, and Enbridge anticipates

leaving much of the pipeline in place after it is decommissioned. The remaining tracts have a perpetual

easement and would remain in place after a reroute is constructed and operational. Enbridge has

completed a desktop analysis of the environmental features that are crossed by the existing Line 5

pipeline within the Bad River Tribe’s Reservation based from publicly available information. The results

are provided below in Table 3.1-1. These features would be disturbed if the existing pipeline is physically

removed from the Reservation. Some parcels that overlap segments of Line 5 within the Bad River

Reservation are believed to hold a perpetual conservation encumbrance under the North American

Wetlands Conservation Act (NAWCA), as these lands were acquired with grant funding or used as match

during the early 2000’s. Should the pipeline be removed within these parcels, the proposed land

disturbance (wetlands and uplands) would need to be properly vetted through the U.S. Fish and Wildlife

Service – Division of Bird Habitat Conservation to determine proper mitigation measures.

Draft Environmental Impact Statement: Proposed Enbridge Line 5 Relocation Project, December 2021, Vol. 1 at 61

and 231. https://widnr.widen.net/s/pmjdl6pbpd/el5_drafteis_dec2021_vol1-deis, last visited March 10, 2022.

public notice. EPA has had discussions with the Bad River Band regarding water quality

concerns they have raised to WDNR and the Corps regarding this potential project. 64 We note

that the Great Lakes Indian Fish and Wildlife Commission has also commented on the WEPA

DEIS scoping document prepared by WDNR. 65 We note also that the Brothertown Indian

Nation, a Native American people’s group, has also commented.

Recommendation: EPA recommends that the proposed environmental impacts from this project

on tribal nations and tribal treaty rights should be considered in the context of the 2021

Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the

Protection of Tribal Treaty Rights and Reserved Rights (2021 MOU). Since the Department of

Defense is a signatory to the MOU, we urge the Corps to "integrate consideration of tribal and

reserved rights early into Parties' decision-making and regulatory processes to ensure that agency

actions are consistent with constitutional, treaty, reserved, and statutory rights". We recommend

that the Corps describe what actions it is taking to ensure that the permitting process for this

project is consistent with the 2021 MOU. Specifically, the Corps should continue to engage in

tribal consultation and perform a robust evaluation of potential impacts from this proposed

project on reservation resources and reserved treaty rights in the 1837 and 1842 Treaty areas. 66

https://widnr.widen.net/s/8gwlnwdcpb/enbridgel5badriverbandcommentsjuly2020, last visited March 10, 2022.

https://widnr.widen.net/s/6jgp2nrqxv/enbridgel5glifwccommentsjuly2020, last visited March 10, 2022.

https://glifwc.org/TreatyRights/TreatyChippewa07291837Web.pdf, and

https://glifwc.org/TreatyRights/TreatyChippewa10041842Web.pdf, last visited March 10, 2022.

Enclosure 2-Overview of Line 5 Wisconsin Segment Relocation Project map courtesy of Carl

Sack-GIS Faculty and Program Coordinator-Fond du Lac Tribal and Community College

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.