# UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Abad_river_chippewa%3A9d4992a2d29403f8

## Record

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

## Text

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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.
1

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.
3
Bad River and Kakagon Sloughs, https://rsis.ramsar.org/ris/2001, last visited March 10, 2022.
4
EPA, Why are Wetlands Important? https://www.epa.gov/wetlands/why-are-wetlands-important, last visited March
10, 2022.
2

2

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.
7
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.
8
https://rsis.ramsar.org/ris/2001, last visited March 10, 2022
9
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.
10
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.
11
WDNR, Copper Falls State Park, Geology, https://dnr.wisconsin.gov/topic/parks/copperfalls/geology, last visited
March 10, 2022.
5
6

3

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.
13
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
14
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.
15
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.
16
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.
17
See U.S. EPA, How’s My Waterway, Bay City Creek, https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI6936105/2020), last visited March 10, 2022
12

4

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

18
WDNR, Water Detail, Bay City Creek, Fish Creek Watershed,
https://dnr.wi.gov/water/waterDetail.aspx?key=17627, last visited 3/11/22.

5

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.

6

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
7

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

8

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)

1

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).
20
EPA, “Connectivity of Streams and Wetlands to Downstream Waters: A Review & Synthesis of the Scientific
Evidence.”
21
https://rsis.ramsar.org/ris/2001, last visited March 10, 2022
22
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.
23
https://www.wisconsinwetlands.org/wp-content/uploads/2015/06/Kakagon-Bad-River-Sloughs.pdf , last visited
March 10, 2022
19

2

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.
26
WDNR, Copper Falls State Park, Geology, https://dnr.wisconsin.gov/topic/parks/copperfalls/geology, last visited
March 10, 2022.
27
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.
28
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).
29
See WDNR, Copper Falls Website, https://dnr.wi.gov/topic/Lands/naturalareas/index.asp?SNA=399, last visited
March 10, 2022.
24
25

3

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.
31
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.
32
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.
30

4

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.
34
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.
35
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.
36
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.
33

5

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
6

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 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.
38
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.
39
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.
40
See U.S. EPA, How’s My Waterway, Bay City Creek, https://mywaterway.epa.gov/waterbodyreport/WIDNR/WI6936105/2020), last visited March 10, 2022.
37

7

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

41
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.
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.

8

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.
44
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.
43

9

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.
45

10

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
1.
2.
3.
4.
5.
6.

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.
46

11

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.
48
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.
47

12

“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.
50
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.
51
http://www.badriver-nsn.gov/naturalresources/threats/#:~:text=The%20Kakagon%2DBad%20River%20Sloughs,%2Dhead%20lady%2Dslipper%20orch
id, last visited March 10, 2022.
52
https://dnr.wisconsin.gov/topic/Lands/FisheriesAreas/2850whiteriverbayfield.html, last visited March 10, 2022.
49

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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.
54
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.
55
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.
56
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.
53

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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.
58
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.
59
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
57

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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.
16

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.
61
Letter from Naomi Tillison, Natural Resources Director, Bad River Band, to Ben Callan, WDNR, July 11, 2020.
60

17

•
•

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.
62

18

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,
63

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.

19

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.
66
https://glifwc.org/TreatyRights/TreatyChippewa07291837Web.pdf, and
https://glifwc.org/TreatyRights/TreatyChippewa10041842Web.pdf, last visited March 10, 2022.
64
65

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abad_river_chippewa%3A9d4992a2d29403f8. Public record. Not legal advice.