MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES

STATE OF MICHIGAN

MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES

IN THE MATTER OF:

Docket No.:

21-008197

Petition of Bay Mills Indian

Community on the Water Resources

Permit issued for Enbridge Energy,

Limited Partnership.

Administrative

Law Judge:

David L. Pulter

Agency No.:

HNY-NHX4-FSR2Q

Part(s):

303, Wetlands Protection

325, Great Lakes Submerged

Lands

Agency:

Department of Environment,

Great Lakes, and Energy

Case Type:

Water Resources Division

PETITIONER BAY MILLS INDIAN COMMUNITY’S SUPPLEMENTAL BRIEF ON

DISTURBANCE OF ANCESTOR

Petitioner, Bay Mills Indian Community (“Bay Mills”), submits this supplemental brief on

the disturbance 1 of a likely ancestor in support of the claims raised in its petition for a contested

case hearing and to supplement Petitioner’s Combined Response to Respondent Michigan

Department of Environment, Great Lakes, and Energy (“EGLE”) and Intervenor Enbridge Energy,

Limited Partnership’s (“Enbridge”) Motions for Summary Disposition dated December 13, 2021.

Bay Mills’ Petition challenges EGLE’s issuance of Water Resources Permit WRP027179

(“Permit”) to Enbridge, which authorizes the construction of a tunnel under the lakebed of the

Straits of Mackinac and the installation of a pipeline within the tunnel to transport light crude oil

and liquid natural gas (the “Tunnel Project” or “Project”).

1

While the discovery of this ancestor has been described as “unanticipated,” Bay Mills has long

expected that remains would be found in this area. See Carrick Aff. ¶ 8.

The Tunnel Project is a massive project that will adversely impact the Straits of Mackinac

and the Great Lakes. The Project will take several years to complete with the aim to continue

transporting crude oil and natural gas through its Line 5 pipeline across the Great Lakes for up to

99 years. Nothing like this tunnel has ever been constructed in the Great Lakes or anywhere else

in the world. This Project raises serious concerns about the impact that pre-construction work and

tunnel construction will have on the environment as well as cultural and archaeological resources

in the Straits area.

The Straits of Mackinac are an important cultural site for all Anishinaabe people, including

Bay Mills. The discovery of a likely ancestor supports the claim that EGLE failed to gather critical

information related to cultural resources that is required for its public interest determination as set

out in Bay Mills’ petition for a contested case hearing. This supplemental briefing provides new

information that further bolsters Bay Mills’ position that the motions for summary disposition must

be denied because material factual disputes exist that require an evidentiary hearing.

I.

Background

Bay Mills filed this petition for a contested case challenging EGLE’s decision to issue

Water Resources Permit WRP027179 for a massive tunnel project for several reasons, including

that critical information needed to determine the Project’s impacts on historic and cultural

resources, as required by MCL 324.30311(1), had not yet been gathered.

In November 2021, Enbridge and EGLE filed motions for summary disposition. On

February 18, 2022, this Tribunal held that Bay Mills’ petition for a contested case hearing was not

filed timely but did not rule on the other grounds set out in the motions. Bay Mills appealed this

decision to the Environmental Permit Review Commission and on July 11, 2022, the

Environmental Permit Review Commission reversed and remanded the matter to this Tribunal to

proceed with the contested case.

2

On September 2, 2022, during pre-construction surveys associated with the Project, 2

Enbridge contractors disturbed human remains. Carrick Aff. ¶ 6. The remains were located in an

area that has been previously identified in Bay Mills’ filings before this Tribunal. Id. ¶ 7. The

remains were assessed to most likely be over 200 years old. Id. ¶ 8. The remains were found in

close proximity to items known to be placed in graves with Anishinaabe ancestors and in the

vicinity of known burial grounds and are thus likely to be those of an Anishinaabe ancestor to Bay

Mills. Id.

During a site visit on September 9, 2022, after the suspected ancestor discovery, Bay Mills

staff also observed wetland indicators in close proximity to the location of the likely ancestor

remains. See Wesolek Aff. ¶ 5. These indicators included “the presence of a protected plant

species—the Houghton’s Goldenrod—that is wetland dependent, as well as surface soil cracks

where ponded water had dried, and wet soil in a two-track dirt road despite that week’s weather

being hot and dry.” Id. ¶ 5.

On October 7, 2022, this Tribunal held a status conference where the parties agreed to a

supplemental briefing schedule focused on the discovery of the suspected ancestor. This brief

supplements Bay Mills’ Combined Response to Enbridge and EGLE’s Motions for Summary

Disposition, which this Tribunal has not yet ruled on.

II.

ARGUMENT

Enbridge and EGLE’s Motions for Summary Disposition should be denied because

genuine issues of material fact exist with regard to the impact of the Project on historic and cultural

resources. Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). As Bay Mills argued

in its Combined Response, any cultural studies that had been prepared in advance of the permit

2

These surveys are a part of the Army Corps of Engineers’ process, as required under Section

106 of the National Historic Preservation Act.

3

decision lacked sufficient information needed for EGLE to make a determination about the

probable effects of the Project on cultural resources. Pet’r’s Combined Resp. to Resp’t EGLE and

Intervenor Enbridge’s Motions for Summ. Disposition (“Combined Resp.”) at 10-11. The recent

disturbance of likely ancestor remains reinforces Bay Mills’ arguments that, contrary to EGLE and

Enbridge’s assertions, the permit was issued without adequate information about the Project’s

impacts on historic and cultural resources. It also shows that the Project will have probable effects

on historic and cultural resources. In fact, the Project already has harmed cultural resources.

A. The Disturbance of a Likely Ancestor Supports Bay Mills’ Claim That EGLE Failed

to Gather Critical Information Required for Its Public Interest Determination

Before issuing a wetlands permit, EGLE must determine whether the issuance of the permit

is in the public interest, that the permit is necessary to realize the benefits derived from the activity,

and that the activity is otherwise lawful. MCL 324.30311(1). In determining whether a project is

in the public interest, EGLE must consider as one of the factors, “the probable effects on

recognized historic and cultural values.” MCL 324.30311(2)(e); In re Petition of Tom Boerner,

Menominee Indian Tribe of Wisconsin, and Coalition to SAVE the Menominee River, (MOAHR

Docket No. 18-013058), Final Decision and Order at 62.

EGLE blatantly disregarded the calls by experts—including the SHPO, a sister government

agency, as well as Bay Mills and other Tribal Nations—for further archaeological and cultural

studies before making a decision on the permit application. Bay Mills specifically communicated

its expectation that remains would be found in the area based on the proximity to known burial

grounds. Carrick Aff. ¶ 8; Combined Resp. at 4-5. The Michigan State Historic Preservation

Office (“SHPO”) also indicated that there are likely additional sites, necessitating further

study. SHPO Comments regarding Enbridge Energy Line 5 Straits of Mackinac, 1 (November 10,

4

2020). Despite calls by SHPO, Bay Mills, and others for EGLE to require Enbridge to complete

additional cultural resource investigation before issuing the Permit, EGLE did not do so.

In September 2022, Enbridge contractors disturbed human remains during pre-construction

work on the Project. Carrick Aff. ¶ 6. The remains were located in an area that has been previously

identified in Bay Mills’ filings before this Tribunal and are likely to be those of an Anishinaabe

ancestor. Id. ¶¶ 7-8. At a minimum, further study is required to minimize further disturbance of

any ancestors, to understand the full impact of the Permit, and to understand whether this Permit

is in the public interest. 3

B. The Tunnel Project will have probable effects on and has already affected historic

and cultural resources.

The recent disturbance of suspected ancestor remains bolsters Bay Mills’ claim that the

Project will have probable effects on cultural resources, and shows that, unfortunately, the Project

already has harmed cultural resources. Black’s Law Dictionary defines probable as “likely to exist,

be true, or happen.” Probable, Black’s Law Dictionary (11th ed. 2019); see also Moll v. Abbott

Laboratories, 444 Mich. 1, 22; 506 NW2d 816 (1993) (probable means likely to occur). The

impacts are not merely speculative. The pre-construction survey work is happening within the

area that Bay Mills deems a Traditional Cultural Property, Carrick Aff. ¶ 11; the disturbance of a

likely ancestor’s remains, the harm caused to threatened species of importance to Bay Mills, and

the harm to wetlands in the pre-construction surveys must be considered by EGLE as part of its

public interest analysis. Further, the Project will involve boring a tunnel underneath the Straits of

Mackinac. The tunnel construction will require a massive disturbance of land and involve

3

Bay Mills staff identified multiple indications of additional wetlands within the project area and

near the recently discovered ancestor. See Wesolek Aff. ¶ 5. These additional wetlands

demonstrate relevance and reinforce the need to consider the presence of and potential impacts to

the suspected ancestor.

5

construction and the placement of structures on the bottomlands within the Straits; this activity

will threaten the significant onshore and bottomlands cultural and historic properties within the

Straits of Mackinac area, as well as permanently and adversely impacting those resources due to

the proximity of the pipeline and associated disturbance. See e.g., Exhibit 1.

The Straits and the Great Lakes are central to Bay Mills’ cultural, traditional, and spiritual

identity. Combined Resp., Gravelle Aff. ¶ 3; Carrick Aff. ¶ 11 (discussing Bay Mills’ efforts to

list the Straits on the National Register of Historic Places).

Bay Mills views the Straits of

Mackinac area as an interconnected landscape. The Project and the issuance of the Permit will

adversely affect the historic and cultural resources, and the values associated with these resources,

in and near the Project area.

C. “Historic and Cultural Values” is Broad and Must Include All Cultural Resources

That May Be Impacted by the Project.

EGLE must consider impacts to cultural resources in proximity to the Project, not just those

impacts directly within the permitted filled wetlands. In a previous case before this Tribunal, a

mining project threatened the cultural and historic values associated with dozens of recognized

archaeological sites located inside and outside of the project area. Boerner, Final Decision and

Order at 62-65. Like the instant case, where the Straits are the center of Bay Mills’ creation story

and their ancestral home, the cultural sites at issue in Boerner are important to the Menominee

Tribe of Wisconsin because the area is an ancestral home of the Menominee people. Id. at 63.

There, as here, the Menominee used the area for cultural, spiritual, and ceremonial reasons. Id.

And there, as here, the area surrounding the project site contains burial mounds. Id. In Boerner,

there were cultural resources both inside the project disturbance area and outside the project

boundaries. With regard to the cultural resources located outside the project boundaries, this

Tribunal provided the astute analogy that a mining project in close proximity to the Colosseum in

6

the City of Rome would affect its values. Id. at 65. The Tribunal in Boerner found that, in

accordance with MCL 324.30311(2)(e), the values associated with the archaeological sites both

within and outside of the mining project area would be adversely affected by the proximity of the

mine. Id.

This case presents very similar facts. EGLE has limited its scope of consideration to the

small areas of the permitted filled wetlands. This level of analysis is inconsistent with this

Tribunal’s holding in Boerner. EGLE should consider the values of the cultural sites that have

been and will be impacted due to the proximity of the Project even if they are not within the

permitted filled wetlands. See also Subject: Part 303, Wetlands Protection, of the Natural

Resources and Environmental Protection Act, 1994 Pa 451, As Amended (NREPA) Petition of

Wallace Huggett, 2005 WL 858218, 11–13 (finding that the operation had the potential to

negatively affect the ecology and surrounding resources of the area).

The Tribunal’s approach in Boerner makes sense because the Michigan Legislature

specifically chose the word “values” to use in the statute, which is defined in the Merriam Webster

Dictionary as “something (such as a principle or quality) intrinsically valuable or desirable.” 4 The

use of the term values supports analyzing the impacts of the project on historic and cultural

resources beyond the specific boundaries of the permitted filled wetlands. Here, the qualities of

the recognized cultural and historic properties will be reduced merely by the proximity to this

massive industrial Project and thus these reductions should be considered by EGLE in issuing the

Permit.

4

Values, Merriam-Webster, https://www.merriam-webster.com/dictionary/value (last accessed

October 21, 2022).

7

EGLE has failed to complete the appropriate cultural resources studies that would

demonstrate that this Permit is in the public interest. 5 The disturbance of suspected ancestor

remains reinforces Bay Mills’ claims that it has made throughout this proceeding: This entire area

is the historical home of the Anishinaabe and EGLE has failed to adequately consider the probable

effects (or the actual effects caused by the disturbance of the remains) on recognized historic and

cultural values, which would have revealed that the project is not in the public interest. See Carrick

Aff. ¶ 11. EGLE and Enbridge urge this Tribunal to adopt a site-specific analysis that is not

congruent with the inquiry required by Part 303; the inquiry is concerned with a Project’s effect

on cultural and historic “values,” which goes beyond the mere inquiry of whether a particular site

will or will not be destroyed. Boerner, Final Decision and Order at 65.

This discovery is an important part of the historic and cultural resources of the area.

Carrick Aff. ¶ 10. Because the Anishinaabe believe that one’s journey continues after death, for

thousands of years they have buried ancestors overlooking water, just as they placed their villages

overlooking water because water is life and sustains the Anishinaabe. Id. Anishinaabe lived along

the Straits of Mackinac because it was their highway to visit family and collect foods such as

berries and maple syrup. Id. It is said in Anishinaabe that “home is where the dead lie buried.”

Bay Mills has a duty to continue to protect their ancestors on the waters that sustain them. Id.

It is expected that EGLE and Enbridge will claim that the disturbance is not relevant to

these proceedings as the suspected ancestor was not located within the boundaries of the permitted

5

As set out in Bay Mills’ petition for contested case hearing, EGLE has abdicated its statutory

obligation to evaluate historic and cultural resources, and instead, merely included a “special

instruction” or “specification” in the Permit noting that the Army Corps of Engineers would

undertake cultural resource studies in the future. See Pet’r’s Addendum to Petition for a

Contested Case at 30-31. If anything, the finding of a likely ancestor’s remains should trigger

EGLE’s request for more cultural resources studies and the re-consideration of the public interest

analysis.

8

filled wetlands area. EGLE and Enbridge have urged this Tribunal to adopt a site-specific analysis

that is not congruent with the inquiry required by Part 303; the inquiry is concerned with a Project’s

effect on cultural and historic “values,” which goes beyond the mere inquiry of whether a particular

site will or will not be destroyed. Boerner, Final Decision and Order at 65. However, the relevance

of the disturbance to this proceeding is supported by this Tribunal’s holding in Boerner. When

presented with similar facts as set out above, this Tribunal held that the impacted historic and

cultural resources – both inside and outside of the project area – were not only relevant, but that

historic and cultural resources would be adversely impacted and that the permit was unlawful as

written. Boerner, Final Decision and Order at 65.

EGLE must consider the “the probable effects on recognized historic and cultural values.”

MCL 324.30311(2)(e). As discussed above, these effects cannot be limited to the small areas of

the filled permitted wetlands when the impacts of those actions will be felt far beyond those areas.

The facts presented in the instant case are closely aligned to the facts that the Tribunal found

relevant in Boerner. This Tribunal should similarly accept the relevancy of the impacts to the

historic and cultural resources in the instant case.

III.

Conclusion

The pre-construction surveys that disturbed the human remains in September 2022 have

already adversely affected historic and cultural values within the Project area and, if the Tunnel

Project is allowed to move forward, the adverse impacts will become more pronounced. The

probable effects threshold of MCL 324.30311(2)(e) has been met.

At a minimum, the disturbance further proves that there are material factual disputes that

require an evidentiary hearing. Bay Mills requests that this Tribunal deny EGLE and Enbridge’s

motions for summary disposition and set an evidentiary hearing in this matter.

9

In addition to denying the motions for summary disposition related to EGLE’s failure to

adequately consider impacts to historic and cultural resources, Bay Mills also urges the Tribunal

to review its Combined Response and reject the other arguments in the motions for summary

disposition.

DATE: October 21, 2022

Kathryn L. Tierney (P24837)

BAY MILLS INDIAN COMMUNITY

12140 West Lakeshore Drive

Brimley, MI 49715

candyt@bmic.net

Attorney for Petitioner

David Gover*

NATIVE AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

dgover@narf.org

Attorney for Petitioner

Respectfully submitted,

/s/ Laura Berglan

Laura Berglan*

Debbie Chizewer*

Adam Ratchenski*

EARTHJUSTICE

311 S. Wacker Drive, Suite 1400

Chicago, IL 60606

lberglan@earthjustice.org

dchizewer@earthjustice.org

aratchenski@earthjustice.org

Attorneys for Petitioner

*Admitted Pro Hac Vice

10

INDEX OF EXHIBITS:

Exhibit 1

SHPO scoping comments, Notice of Intent to Prepare a Draft Environmental

Impact Statement for the Line 5 Tunnel Project, Mackinac and Emmet Counties,

Michigan (Oct. 14, 2022)

Exhibit 1

2

S TATE OF M ICHIGAN

MICHIGAN STRATEGIC FUND

S TA TE H I ST O RI C P RESE RV ATI ON O FFI CE

G RE TC HE N WH I TM E R

GOVERNOR

QUE NT IN L. M ES SE R, J R .

PRESIDENT

October 14, 2022

KATIE L. OTANEZ

U.S. ARMY CORPS OF ENGINEERS – DETROIT DISTRICT

477 MICHIGAN AVENUE

DETROIT, MICHIGAN 48226

RE:

SHPO scoping comments, Notice of Intent to Prepare a Draft Environmental Impact

Statement for the Line 5 Tunnel Project, Mackinac and Emmet Counties, Michigan

Dear Ms. Otanez,

Under the authority of Section 106 of the National Historic Preservation Act, as amended, and as a

Cooperating Agency under the National Environmental Policy Act (NEPA), the Michigan State Historic

Preservation Office (SHPO) has reviewed the above-cited Notice of Intent (NOI) prepared by the

Department of Army, Corps of Engineers, Detroit District (USACE), which was published on August 15,

2022. The NOI reports a proposal to construct a tunnel within the bedrock below Lakes Michigan and

Huron at the Straits of Mackinac (Straits) for the purpose of housing a segment of the Line 5 oil and gas

pipeline. The Line 5 pipeline, which is owned and operated by Calgary based Enbridge Inc. (Enbridge), is

645 miles in length and runs through the state of Michigan en route to Sarnia, Canada. SHPO appreciates

the opportunity to provide scoping comments on the proposal and to make recommendations for the

forthcoming Draft Environmental Impact Statement (DEIS).

Cultural resources, under NEPA, include historic properties as defined by Section 106 of the National

Historic Preservation Act of 1966, as amended (NRHP). In addition to architectural resources,

archaeological sites, shipwrecks, cemeteries, statues and other objects, cultural resources also include

cultural uses of physical and natural environments, cultural and social institutions, religious practices, and

lifeways. The USACE is considering cultural resources as defined under NEPA; therefore, SHPO expects

that the agency will consider all cultural resources in the DEIS. SHPO hopes to offer guidance to identify

possible cultural resources that may be viewed as cultural landscapes and Traditional Cultural Properties

(TCPs) and to inform the potential impacts of the proposed project to all cultural resources within the area

of the Straits.

The “primary Federal involvement” as stated in the introduction of the NOI involves “the discharge of

dredged or fill material into waters of the United States, and the construction of structures and/or work

that may affect navigable waters”. It is the opinion of SHPO that this definition of the involvement of

USACE in the proposed tunnel project is highly constrained. The characterization does not capture the

scale and complexity of the proposed project, as the agency will potentially permit the construction of a

tunnel that measures approximately 21 feet in diameter and will be excavated within the bedrock that lies

below the lakebed of Lakes Michigan-Huron in the Straits of Mackinac.

To summarize the NOI, the proposed action would include the use of boring machinery to tunnel below

the Straits to remove approximately 364,000 cubic yards of rock that would be transported via truck on

local roadways to offsite upland disposal sites. Tunnel boring discharge would be intermittently released

into the Straits. To construct the tunnel, temporary and permanent facilities would be constructed in the

30 0 N O R T H W AS H I N G T O N SQ U A R E  LA N SI N G , MI C H I G A N 4 89 13

m ic hi g a n . gov / s hp o  ( 5 1 7) 3 3 5- 9 8 40

Exhibit 1

uplands as well as offshore. It is the understanding of SHPO that temporary terrestrial facilities would

include stormwater ponds, spoil storage and management areas, water treatment plant(s), intake

structures, discharge pipe(s), materials storage and staging areas, access drives, offices and parking

facilities, power substation(s), generators, and industrial lighting. Permanent terrestrial facilities would

include stormwater ponds, outfall structures, access drives, and ventilation structures. Upon completion of

the tunnel, the existing Enbridge Line 5 dual pipeline would be abandoned in place and a new 30-inch

Enbridge pipeline would be constructed within the tunnel. The NOI mentions the possibility of colocation of other utilities within the tunnel after it is completed.

The above-listed range of actions related to the proposed project are extensive and raise several questions

for SHPO regarding the impacts of the action on historic properties and traditional cultural landscapes

within the Limits of Disturbance, the Straits of Mackinac, and the Great Lakes region. The enclosed

SHPO Scoping Comments contain recommendations to assess, analyze, disclose, and commit to

protective measures related to potential impacts on (1) the Straits as comprising an apparent TCP for

multiple Tribes (2) the Straits as essential for the ability to exercise of Tribal treaty rights and Tribal

traditional lifeways; (3) terrestrial archaeological sites, (4) submerged cultural sites, and (5) architectural

and above-ground historic sites. Additionally, enclosed is a table entitled Possible Interested Parties

which contains of list of organizations and institutions that should receive a copy of the DEIS from

USACE to allow these groups the opportunity to provide comment if they should choose, as they may be

affected by the proposed undertaking. If permitted, the construction of the tunnel would be irreversible.

SHPO strongly urges the USACE to ensure that the DEIS assesses and analyzes the lifespan of the tunnel

and long-term implications of the undertaking, including the potential impacts of spills and possible risks

that could potentially impact cultural resources and TCPs.

As a Cooperating Agency and consulting party, SHPO appreciates this opportunity to offer scoping

comments on the NOI. We would also welcome an opportunity to further discuss our scoping comments

with USACE and the other Cooperating Agencies. Sarah Surface-Evans, SHPO Senior Archaeologist

(SurfaceEvansS1@michigan.gov) and Scott Slagor, Cultural Resources Protection Manager

(Slagor2@michigan.gov) are the primary contacts for coordination and review.

Sincerely,

Martha MacFarlane-Faes

Deputy State Historic Preservation Officer

MMF:SSE:AK:SES:KK

Enclosures:

(1) SHPO Scoping Comments

(2) Possible Interested Parties

copy:

Jason Radcliffe, U.S. Coast Guard (jason.a.radcliffe2@uscg.mil)

Melanie Burdick, EPA (burdick.melanie@epa.gov)

Charlie Simon, U.S. Army Corps of Engineers-Detroit (charles.m.simon@usace.army.mil)

Scott Hicks, U.S. Fish and Wildlife Service-East Lansing (scott_hicks@fws.gov)

Whitney Gravelle, Bay Mills Indian Community (wgravelle@baymills.org)

Aubrey Maccoux-LeDuc, Bay Mills Indian Community (ammaccoux-leduc@baymills.org)

Paula Carrick, Bay Mills Indian Community THPO (paulacarrick@baymills.org)

Exhibit 1

Debbie Chizewer, Earthjustice (dchizewer@earthjustice.org)

David Gover, Native American Rights Fund (dgover@narf.org)

Wes Furlong, Native American Rights Fund (wfurlong@narf.org)

Allison Smart, Little River Band of Ottawa Indians (allisonsmart@lrboi-nsn.gov)

Lakota Hobia, Match-e-be-nash-she-wish Band of Potawatomi Indians of Michigan THPO

(Lakota.Hobia@glt-nsn.gov)

Liz Binoniemi-Smith, Match-e-be-nash-she-wish Band of Potawatomi Indians of Michigan

(Elizabeth.Binoniemi-Smith@glt-nsn.gov)

John Swimmer, Nottawaseppi Huron Band of the Potawatomi (john.swimmer@nhbp-nsn.gov)

Amy Wesaw, Nottawaseppi Huron Band of the Potawatomi (amy.wesaw@nhbp-nsn.gov)

Jamie Stuck, Nottawaseppi Huron Band of the Potawatomi (jamie.stuck@nhbp-nsn.gov)

Douglas R. Taylor, THPO Nottawaseppi Huron Band of the Potawatomi (Douglas.Taylor@nhbpnsn.gov)

Sammie McClellan-Dyal, Cultural Department Manager, Grand Traverse Band of Ottawa & Chippewa

Indians (Sammie.dyal@gtbindians.com)

Regina Gasco-Bentley, Little Traverse Bay Bands of Odawa Indians (tribalchair@ltbbodawa-nsn.gov)

Spencer McCormack, Little Traverse Bay Bands of Odawa Indians (smccormack@ltbbodawa-nsn.gov)

Melissa Wiatrolik, THPO Little Traverse Bay Bands of Odawa Indians (MWiatrolik@LTBBODAWANSN.GOV)

Matthew J.N. Bussler, THPO Pokagon Band of Potawatomi Indians (Matthew.Bussler@pokagonbandnsn.gov)

DJ Hoffman, Sault Ste. Marie Tribe of Chippewa Indians (djhoffman@saulttribe.net)

Austin Lowes, Sault Ste. Marie Tribe of Chippewa Indians (alowes@saulttribe.net)

Marie Richards, Sault Ste. Marie Tribe of Chippewa Indians (mrichards@saulttribe.net)

Kathie Brosemer, Sault Ste. Marie Tribe of Chippewa Indians (kbrosemer@saulttribe.net)

Larry Romanelli, Little River Band of Ottawa Indians (larryromanelli@lrboi-nsn.gov)

Jonnie "Jay" Sam II, Little River Band of Ottawa Indians (jsam@lrboi-nsn.gov)

Cory Sagataw, Hannahville Indian Community (csagataw@hicservices.org)

Alden Connor, THPO Keweenaw Bay Indian Community of the Lake Superior Band of Chippewa

Indians (aconnor@kbic-nsn.gov)

Alina Shively, THPO Lac Vieux Desert Band of Lake Superior Chippewa Indians (alina.shively@lvdnsn.gov)

Exhibit 1

Enclosure 1: SHPO Scoping Comments

Table of Contents for SHPO Scoping Comments

I.

II.

III.

IV.

V.

VI.

VII.

VIII.

IX.

X.

XI.

Comments on Project Scope

A. Geographic Definition

B. Cultural Definition

C. Economic Definition

D. Scope Recommendations for the DEIS

Impacts of Continued Operation of Line during Tunnel Construction to

Cultural Resources

A. Recommendations for the DEIS

Impacts of Abandonment in Place to Cultural Resources

A. Recommendations for the DEIS

Impacts of the Irreversible Nature of the Proposed Action

A. Recommendations for the DEIS

Impacts to Cultural Resources due to Vibrations

A. Recommendations for the DEIS

Impacts to Cultural Resources due to Noise

A. Recommendations for the DEIS

Impacts to Cultural Resources due to Light Pollution

A. Recommendations for the DEIS

Impacts to Cultural Resources due to Sediment Disposal

A. Recommendations for the DEIS

Impacts to Cultural Resources due to Discharge

A. Recommendations for the DEIS

Impacts to Indigenous Treaty Rights and Cultural Resources due to

Disturbance and Infilling of Wetlands

A. Recommendations for the DEIS

Comments on Alternatives and Need

A. Recommendations for the DEIS

2

2

2

5

7

8

8

9

9

10

10

10

10

11

11

11

11

12

12

12

13

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Exhibit 1

Enclosure 1: SHPO Scoping Comments

I. Comments on Project Scope: SHPO recommends that UASCE define the scope of the

project by the environmentally, culturally, and economically understood definition of the

Straits of Mackinac region, which includes the Lakes Michigan-Huron watershed.

By its nature, the Straits is an interrelated landscape composed of both water and land that

has deep historical and cultural significance as a place people have occupied for millennia.

The DEIS scope should address possible impacts to the Straits region as one of the most

prominent cultural landscapes in the State of Michigan. The Straits contains an extremely

high concentration of terrestrial and submerged archaeological, and above-ground cultural

sites, as well as being considered an apparent Traditional Cultural Property (TCP) among

Indigenous communities in the Great Lakes region. The unique concentration of cultural

heritage sites in the Straits region also makes heritage tourism the principle economic driver

in the region.

A. Geographic Definition: The Straits are defined as the geographic area where

Lakes Michigan and Huron meet. The waters of the Straits are roughly 70 km

wide and span from the DeTour Point on the east side in Lake Huron to Beaver

Island on the west side in Lake Michigan.1 The Straits are approximately 5-7 km

wide across and include Mackinac Point in the Lower Peninsula and St. Ignace in

the Upper Peninsula. From an environmental perspective, multiple independent

models have demonstrated the interconnectedness of the Straits with the larger

Great Lakes watershed due to currents and hydrological factors.2 The impact of

oil spills or leakages originating from the Straits to the Great Lakes watershed has

been modeled by several independent scholars.3

B. Cultural Definition: Historic and cultural data also support an enlarged DEIS

scope.

1. The SHPO State Archaeological Site File (SASF) indicates that there are

358 previously identified terrestrial archaeological sites located in the

Straits region along the shores of Lakes Michigan and Huron or within 1mile of waterways directly connected to the Straits. These resources

represent more than 1.5% of all known archaeological sites in the State of

Michigan and are concentrated in this one small portion of the state. Of the

Straits archaeological sites, one is a National Historic Landmark (NHL)

designated site and 8.6% of the sites are determined eligible for or are

1

Dalrymple, Robert. (2022). A review of the morphology, physical processes and

deposits of modern straits. Geological Society, London, Special Publications (2022), 523 (1).

https://www.lyellcollection.org/doi/pdf/10.1144/SP523-2021-76

2

https://www.glerl.noaa.gov/res/straits/

3

Schwab, David J. (2016) Statistical Analysis of Straits of Mackinac Line 5: Worst Case Spill Scenarios. University of

Michigan, Water Center. https://graham.umich.edu/media/pubs/Mackinac-Line-5-Worst-Case-Spill-Scenarios.pdf;

Independent Risk Analysis for the Straits Pipelines - Final Report. (2018).

https://mipetroleumpipelines.org/document/independent-risk-analysis-straits-pipelines-final-report

2

Exhibit 1

Enclosure 1: SHPO Scoping Comments

listed in the National Register of Historic Places (NRHP). The vast

majority (76.4%) of these sites are unevaluated. Archaeological sites of

the Straits span the entire period of human habitation in the region, from

Paleoindian, ca. 10,000 BP to historic mid-twentieth century periods.

Roughly 45% of the sites date to the pre-contact or prehistoric periods and

50% date to the post-contact or historic periods.

2. The Straits are also designated as a Michigan Underwater Preserve.4 The

Straits of Mackinac Shipwreck preserve includes a dozen documented

shipwrecks. There are 90 shipwrecks or submerged cultural sites known

within the Straits region and an additional 182 submerged sites within the

Lakes Michigan-Huron watershed. More than 18% of known submerged

cultural resources in the State of Michigan are located within the Straits

region. The larger watershed includes the Thunder Bay National Marine

Sanctuary and the DeTour Passage Underwater Preserve. The Thunder

Bay National Marine Sanctuary covers 4,300 square miles of northern

Lake Huron and includes over 100 documented shipwrecks 5, as well as

unique submerged cultural landscapes. 6 Because of the concentration of

submerged cultural resources, and many associated terrestrial resources

pertaining to maritime history, the Straits could be considered a Maritime

Cultural Landscape (MCL). MCLs include the constellation of sites,

places, and objects related to human use of maritime spaces. This includes

ports, harbors, lighthouses, fishing and trade routes, ships and shipwrecks,

settlements, and any other cultural relationship to the water. The Straits as

a MCL requires additional study and consideration. Additionally, due to

isostatic rebound and changing lake levels during the post-glacial period,

there is the possibility for pre-contact submerged cultural landscapes to be

located within the Straits. Currently, researchers are utilizing recently

published data from NOAA hydrographic surveys7, to identify submerged

anomalies that may be cultural in origin. These unevaluated sites could

prove to be as significant as those discovered on the Alpena-Amberly

Ridge.8

4

Michigan Underwater Preserves -Sites, Department of Environment, Great Lakes, and Energy:

https://www.michigan.gov/egle/about/organization/Water-Resources/shipwrecks/michigan-underwaterpreserves-sites

5

Thunder Bay National Marine Sanctuary: https://thunderbay.noaa.gov/

6

Pre-historic Archaeology on the Alpena-Amberly Ridge: https://sites.lsa.umich.edu/lakehuron-arch/pre-historicarchaeology-on-the-alpena-amberly-ridge/

7

Hydrographic Survey Data, Office of Coast Survey, National Oceanic and Atmospheric Administration,

https://nauticalcharts.noaa.gov/data/hydrographic-survey-data.html

8

O’Shea, John and Guy Meadows (2009). Evidence for early hunters beneath the Great Lakes. Proceedings of the

National Academy of Sciences 106(25):10120-3.

https://www.researchgate.net/publication/26275965_Evidence_for_early_hunters_beneath_the_Great_Lakes

3

Exhibit 1

Enclosure 1: SHPO Scoping Comments

3. The Straits also contains a high concentration of significant above-ground,

architectural sites that are National Historic Landmarks (NHL) or listed in

or eligible for listing in the NRHP. There are 58 above-ground cultural

sites in the Straits. Of these, 52% are NHLs or contributing elements to

NHLs. An additional 31% of the sites are listed in the NRHP, with 8.6%

eligible for the NRHP. Roughly 7% are listed in the Michigan State

Register of Historic Sites. The larger Lake Michigan-Huron watershed

hosts an additional 41 above-ground cultural sites. The vast majority

(63.4%) of these resources are also listed in the NRHP. Many of these

above-ground cultural sites include lighthouses and associated

navigational structures, iconic places that are central to Great Lakes

cultural identity and the Straits as an MCL.

4. The Straits appear to have the characteristics of a TCP. The Straits have

“association with cultural practices or beliefs of a living community that

(a) are rooted in that community’s history, and (b) are important in

maintaining the continuing cultural identity of the community.”9 The

Straits are the ancestral homeland to the Anishinaabek, specifically the

Ottawa and Chippewa nations who ceded the land in the 1836 Treaty of

Washington. There are two historic Native American reservations with

boundaries in the Straits region, Les Cheneaux Reservation and Little

Traverse Reservation. Other tribes that have historic connections to the

Straits region include the Mississauga, Menominee, Potawatomi, Ojibwa,

Huron, and Fox and Sauk. The Bay Mills Indian Community, Grand

Traverse Band of Ottawa and Chippewa Indians, Little River Band of

Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, and Sault

Ste. Marie Tribe of Chippewa Indians all retain treaty rights to waters

ceded in the 1836 treaty. Their tribal treaty rights were reaffirmed by the

2000 Consent Decree.10 These treaty rights include tribal fisheries and

other traditional economies supported by natural resources in the Straits

region.

As indicated in the independent analysis published by Michigan

Technological University, an oil spill in the Straits could have devastating

consequences for fisheries in Lakes Michigan and Huron.11 In an effort to

recognize tribal sovereignty and cultural connection to the waters of the

Great Lakes, Governor Granholm signed the Intergovernmental Accord

between the Federally Recognized Tribes in Michigan and the Governor

9

King, Thomas F. (2005). What are Traditional Cultural Properties? The Applied Anthropologist, 25(2),125-130.

https://www.academia.edu/4326442/What_Are_Traditional_Cultural_Properties

10

2000 Great Lakes Consent Decree (michigan.gov)

11

Independent Risk Analysis for the Straits Pipelines - Final Report. (2018).

https://mipetroleumpipelines.org/document/independent-risk-analysis-straits-pipelines-final-report

4

Exhibit 1

Enclosure 1: SHPO Scoping Comments

of the State of Michigan Concerning the Protection of Shared Water

Resources12 in 2004. Actions of concern specifically called out in the

Accord include dredging, wastewater treatment, and wetland development

– all of which are planned in this proposed action.

Another concern for Indigenous communities is the ability to continue to

access and harvest culturally significant resources from the region, such as

maple sugar, wild rice, birch bark, clay for pottery, fish and other animals

and water from the Straits itself13. In Traditional Ecological Knowledge

(TEK) these resources are intertwined with cosmology and spiritual

practice.14 Place-based cultural and ecological knowledge is an essential

characteristic of a TCP.15 The myriad of pre-contact and post-contact

Indigenous archaeological sites in the Straits, which includes villages,

cemeteries, earthworks, trading outposts, and other types of sites,

illustrates the persistent use of this apparent cultural landscape over many

millennia. These places remain locales that tribal members know and

continue to visit, care for, and protect in culturally prescribed ways.

Beyond this, the Straits is viewed as a sacred place because it is tied to

deeply held cultural beliefs, such as the Ottawa and Chippewa origin

stories and their cosmology.

C. Economic Definition: The Straits region has the highest rate of heritage tourism

in the state. In 2018 the Straits region “was named as the number one North

American destination by TripAdvisor.”16 Tourism in Michigan represents a 13.5

billion dollar industry that is generated by 121.2 million person-trips annually, as

of 2021.17 The Straits region includes three of Michigan’s ten economic

Development Regions.18 Data published by the Michigan Economic Development

Corporation in the Michigan Travel USA Overnight 2021 Report19 demonstrates

that cultural and heritage tourism make up a substantial share of tourism dollars

12

Intergovernmental Accord between the Federally Recognized Indian Tribes in Michigan and the Governor of the

State of Michigan Concerning Protection of Shared Water Resources, May 12, 2004: https://www.michigan.gov//media/Project/Websites/formergovernors/Folder6/Accord.pdf?rev=d7a94f31d2354b659a7901919a4855ed

13

Independent Risk Analysis for the Straits Pipelines - Final Report. (2018).

https://mipetroleumpipelines.org/document/independent-risk-analysis-straits-pipelines-final-report

14

Traditional Ecological Knowledge is defined through reinterpretation of culture and history, and can be distorted

by political, social, and cultural objectives of the time. From, Integrated Coastal Management in the Japanese

Satoumi, 2019. https://www.sciencedirect.com/topics/earth-and-planetary-sciences/traditional-ecologicalknowledge

15

King, Thomas F. (2005). What Are Traditional Cultural Properties? The Applied Anthropologist

25:2:125-130. https://www.academia.edu/4326442/What_Are_Traditional_Cultural_Properties

16

Nelson, Elliot. (2020). The Straits of Mackinac: Connecting People, Places and so Much More

https://www.canr.msu.edu/news/the-straits-of-mackinac-connecting-people-places-and-so-much-more-msg20nelson20

17

Pure Michigan: https://www.michigan.org/industry/researchandreports

18

https://www.michigan.gov/mdard/business-development/grow-your-business

19

https://www.michigan.org/industry/researchandreports

5

Exhibit 1

Enclosure 1: SHPO Scoping Comments

generated within the Straits. On average, cultural and heritage tourism is more

prevalent in this region than compared with other parts of Michigan, and the

country.

In Mackinac County in the Upper Peninsula, “the largest seasonal employer is the

Grand Hotel on Mackinac Island, and the largest year-round employer is the Sault

Tribe of Chippewa Indians. The growing tourism industry is currently built

around the many attractions in St. Ignace and on Mackinac Island, National

Forests, Lakes Huron and Michigan, numerous rivers, streams, inland lakes,

public and private campgrounds”20. “In Michigan, Mackinac Island is ranked 5th

of 1091 cities in Visitors Centers per capita.”21 Based on data from 2016,

Mackinac County generates a total of 219.98 million dollars of revenue from

visitor spending.22 Of this, roughly 25% or 54.51 million dollars of that spending

is on the recreation sector, which includes visits to cultural heritage sites and

museums.

In Emmet County in the northwest Lower Peninsula, “the region’s diversified

economy is a mix of successful retail, industrial, tourism-oriented, agricultural,

building trades and health and medical professions.”23 In addition, all of Emmet

County Parks in the Straits region, including Cecil Bay, Headlands Dark Sky

Park, and McGulpin Point Lighthouse, are centered on historic sites and offer

cultural and heritage tourism experiences.24 Data published on 2016 visitor

spending indicates that 363.39 million dollars are spent annually in Emmet

County25. Approximately 27% or 97.99 million dollars are spent within the

recreation sector.

Cheboygan County, located in the northeast Lower Peninsula, “is ranked 9th of 83

counties in Visitors Centers per capita.”26 The Village of Mackinaw City is

located in Cheboygan County, and “Mackinaw City is ranked 4th of 1091 cities in

Visitors Centers per capita.”27 This tourism translated to 89.9 million dollars of

visitor spending in 2016.28 Of that spending, 13.14% or 11.81 million dollars

were in the recreation sector.

To understand the significance of these tourism dollars to these counties, it is

useful to examine the overall economic security of their residents. Like many of

20

https://www.mackinaccounty.net/county-information/

https://www.countyoffice.org/mackinac-island-mi-visitors-center/

22

https://www.michigan.org/industry/researchandreports

23

https://www.emmetcounty.org/connect-with-emmet/doing-business-in-emmet-county/

24

https://www.emmetcounty.org/parks-recreation/

25

https://www.michigan.org/industry/researchandreports

26

Visitors Centers - Cheboygan County, MI (Travel Guides & Tours) (countyoffice.org)

27

Visitors Centers - Mackinaw City, MI (Travel Guides & Tours) (countyoffice.org)

28

https://www.michigan.org/industry/researchandreports

21

6

Exhibit 1

Enclosure 1: SHPO Scoping Comments

Michigan’s northern, rural counties, Mackinac, Emmet, and Cheboygan Counties

have higher poverty and unemployment rates and lower household incomes than

the urban counties in the southern portion of the state.29 Because these counties

have relatively high economic insecurity, any action that could negatively impact

the tourism economy in the region would have a profound effects on the well

being of people in this region. Based on the tourism data, there is a clear

relationship between cultural heritage sites and regional economic prosperity in

the Straits.

D. Scope Recommendations for the DEIS:

1. Ensure that the scope is sufficient to capture direct, indirect, and

cumulative impacts to cultural resources in the entire Straits watershed, as

delineated in the 1-2 day and 5-10 day scopes outlined in University of

Michigan 2016 report.30 As a complex waterscape and landscape, the

Straits are tied to social, economic, and cultural issues for many different

communities. Therefore, any proposed action in the Straits should weigh

the potential impact of the action within the entire region.

2. Ensure that the DEIS examines all potential impacts that could result from

the proposed action to (1) terrestrial archaeological sites, (2) submerged

cultural sites, (3) architectural and above-ground historic sites, and (4)

TCPs and Native American sacred sites.

3. Describe in detail what measures will be made to mitigate the impacts to

cultural resources.

4. Ensure that every effort is made to avoid adverse effects to the significant

cultural resources in the Straits region, including exploring all reasonable

project alternatives, including the No Action Alternative(s), within the

DEIS. The cultural and scientific significance of archaeological sites,

above-ground historic buildings and structures, and TCPs cannot be

restored once they are damaged or negatively impacted.

5. Ensure that the DEIS includes a third-party analysis of the risk of a spill

from the existing Line 5 dual pipeline during the proposed action and after

the completion of the tunnel.

6. Identify and analyze the short-, long-term, and cumulative effects of the

proposed action and risks associated with the action to traditional use of

the Straits as a cultural landscape and TCP, and the ability of Tribes to

exercise treaty rights.

7. Identify all Federally-recognized Tribes that may be impacted by the

project.

29

Michigan - Indicators by State and County (tradingeconomics.com)

Schwab, David J. (2016) Statistical Analysis of Straits of Mackinac Line 5: Worst Case Spill Scenarios. University of

Michigan, Water Center. https://graham.umich.edu/media/pubs/Mackinac-Line-5-Worst-Case-Spill-Scenarios.pdf

30

7

Exhibit 1

Enclosure 1: SHPO Scoping Comments

8. Ensure that all Federally-recognized Tribes with historic treaty rights to

the waters of the Great Lakes are meaningfully consulted to understand

how the project may impact Tribal treaty rights.

9. Identify and analyze the short-, long-term, and cumulative effects of the

proposed action and risks associated with the action to heritage tourism in

the Straits and Lakes Michigan-Huron region.

10. Fully explore and assess the economic impacts to the rural communities in

the Straits region if the significant economic driver of cultural and heritage

tourism is impacted by the proposed action.

11. Consider the impacts of the project to a variety of stakeholders that have

cultural and economic connections to the Straits region, including

Federally recognized tribes, local residents (which includes an unusually

high proportion of economically disadvantaged and vulnerable

populations), landowners, state/national/international tourists, business

owners, the State of Michigan (particularly, the Mackinac State Historic

Parks Commission), local municipalities, parks and nature preserves,

historical societies and friends of groups for heritage sites.

i. Enclosure 2 includes a table of Possible Interested Parties.

II.

Impacts of Continued Operation of Line during Tunnel Construction to Cultural

Resources: If the existing Line 5 dual pipeline is left in place during the proposed action,

vibrations or other activities related to the proposed action could impact the existing dual

pipeline and cause leakage or spill of oil.

In data published by the University of Michigan Water Center, hydrodynamic models were

constructed to understand the trajectory and rate of spread in the event of an oil spill.31

Such data-informed models are instrumental for understanding the scope of the area

potentially impacted by a leak from the active Line 5 dual pipeline. A multi-authored study

published in 2018 by Michigan Technological University provides multidisciplinary insight

into factors such as: oil dispersal, clean-up and containment, public health and safety

impacts, fire and explosion risks, impacts on natural, ecological, and cultural resources, and

economic damages, in the case of an oil spill in the Straits region.32 These models are the

basis for our proposed scope for the consideration of cultural resources that may be

impacted by this proposed action.

A. Recommendations for the DEIS:

1. Ensure that third-party analysis will be conducted to evaluate the potential

for damage to the existing pipeline and potential for leakage of petroleum

31

Schwab, David J. (2016) Statistical Analysis of Straits of Mackinac Line 5: Worst Case Spill Scenarios. University of

Michigan, Water Center. https://graham.umich.edu/media/pubs/Mackinac-Line-5-Worst-Case-Spill-Scenarios.pdf

32

Independent Risk Analysis for the Straits Pipelines - Final Report. (2018).

https://mipetroleumpipelines.org/sites/mipetroleumpipelines.org/files/document/pdf/Straits_Independent_Risk_

Analysis_Final.pdf

8

Exhibit 1

Enclosure 1: SHPO Scoping Comments

2.

3.

4.

5.

III.

products into the fresh waters of the Straits Mackinac during tunnel

construction and associated activities.

Disclose and assess all potential impacts of the project, including a worstcase scenario spill for existing Line 5, and how such a spill would restrict

the ability of Tribal citizens to exercise treaty rights.

Disclose and assess all potential impacts of the project, including a worstcase scenario spill from existing Line 5 during tunnel construction, to (1)

terrestrial archaeological sites, (2) submerged cultural sites, (3)

architectural and above-ground historic sites, and (4) TCPs and Native

American sacred sites.

Describe what measures will be made to mitigate and remediate the

impacts to cultural resources in the event of an oil leakage from the

existing Line 5 dual pipeline.

Fully explore and assess the economic impacts to the rural communities of

the Straits region in the event of a worst-case scenario spill from existing

Line 5 during construction of the tunnel.

Impacts of Abandonment in Place to Cultural Resources: Currently, as stated in the

NOI, at the completion of the proposed tunnel construction the Line 5 dual pipeline will be

decommissioned and abandoned in place. As previously discussed, a large number of

submerged archaeological sites are found in the Straits, some of which are very close to the

existing Line 5 dual pipeline. Additionally, the Straits may be considered a Maritime

Cultural Landscape (MCL). SHPO has concerns about the threat posed by the abandoned

pipeline if it were to break, dislodge, or move along the lakebed. In addition, if the

abandoned tunnel poses a risk of petroleum products leaking into the Straits, Tribal treaty

rights may be impacted.

A. Recommendations for the DEIS:

1. Ensure a third-party study of how abandonment of the tunnel could impact

cultural resources in the event of:

a. Leakage of any petroleum products remaining in the pipeline into

the Great Lakes watershed after abandonment,

b. The abandoned pipeline breaking loose from the lakebed and

potentially impacting underwater sites

c. Some combination of scenarios a) and b).

2. Disclose the financial liability of Enbridge in the event of oil leakage from

the abandoned pipeline after abandonment.

3. Describe what measures will be made to mitigate and remediate the

impacts to cultural resources in the event of oil leakage from the

decommissioned pipeline after abandonment.

4. Disclose and assess the impact of an oil leak from the decommissioned

pipeline on the ability of Tribal citizens to exercise treaty rights.

9

Exhibit 1

Enclosure 1: SHPO Scoping Comments

5. Disclose and assess the impact of an oil leak from the decommissioned

pipeline on the Straits as a possible MCL.

6. Explore all reasonable alternatives to abandonment in place of the

decommissioned Line 5 dual pipeline, such as complete removal, burial in

place with aggregate, or other alternatives.

IV. Impacts of the Irreversible Nature of the Proposed Action: Unlike the existing Line 5

dual pipelines, the tunnel is not removable or reversible and represents a permanent

construction within Michigan bedrock. As a result, SHPO strongly urges that the possible

long-term impacts of the tunnel to the Straits be considered.

A. Recommendations for the DEIS:

1. Clarify the operational lifespan of the Line 5 pipeline.

2. Clarify the operational lifespan of the proposed tunnel.

3. Ensure third-party analysis of the impacts to cultural resources in the

Straits in the event of tunnel subsides or failure.

4. Ensure third-party analysis of the effectiveness of the concrete lining in

the tunnel as a form of “secondary containment” in the event of a pipeline

leak within the tunnel.

5. Evaluate the potential risks to cultural resources associated with

explosions originating within the tunnel.

6. Ensure third-party analysis of the safety risks associated with potential

utilities that may be co-located in the tunnel. Evaluate if utility co-location

presents any additional risks to tunnel failure.

7. Ensure a third-party model for the potential for a leak/spill due to tunnel

failure while the pipeline is operating.

V.

Impacts to Cultural Resources due to Vibrations: It is the understanding of SHPO that

tunnel boring below the waters of the Straits of Mackinac has the potential to create

vibrations that could impact cultural resources long-term and create short-term disruptions

to the Straits as a heritage tourism destination and possible TCP.

A. Recommendations for the DEIS:

1. Ensure third-party analysis of the potential effects of boring vibrations to

terrestrial and submerged cultural resources and traditional cultural

landscapes.

2. Ensure third-party research of potential adverse effects to the Mackinac

Bridge, a National Historic Civil Engineering Landmark, which could result

from tunneling and other activities related to the creation and/or utilization of

the proposed tunnel.

3. Ensure third-party research of potential adverse effects to submerged

archaeological sites and shipwrecks that could result from tunneling and

activities related to the creation and/or utilization of the proposed tunnel.

10

Exhibit 1

Enclosure 1: SHPO Scoping Comments

4. Ensure third-party research of the long-term impacts of vibrations to cultural

resources, as it appears that the proposed boring may take several years.

5. Describe what measures will be made to mitigate the impacts of vibrations to

cultural resources.

VI. Impacts to Cultural Resources due to Noise: Boring and other construction activities, as

well as tunnel operation, will produce noise both day and night during tunnel building and

utilization. Transportation related to the project will proliferate noise during the movement

workers, equipment, bedrock and other fill material, and maintenance-related items and

people. Ventilation fans to aerate the tunnel once operatable will create constant noise

during the lifespan of the tunnel. Noise could have a negative impact on nearby residents,

the traditional use of cultural landscapes and ability to exercise Tribal treaty rights, the

historic integrity of setting and feeling of significant historic sites, as well as heritage

tourism at cultural sites.

A. Recommendations for the DEIS:

1. Ensure third-party analysis of the potential effects of noise relating from the

proposed project area on nearby historic properties and cultural landscapes,

particularly those that are currently actively utilized (e.g., Headlands Dark

Sky Park, McGulpin Point Lighthouse, the waters of the Straits, established

National Historic Landmarks, and NRHP listed or eligible sites, and local

historic districts).

2. Ensure third-party analysis of traffic and noise along the transportation routes

to fill disposal sites. Particular attention should be paid to where these routes

intersect with NRHP eligible or listed sites, as well as established National

Historic Landmarks.

3. Ensure that the planned Ethnographic study will assess how noise may impact

traditional use of the Straits as a cultural landscape and possible TCP.

4. Map and disclose to all stakeholders and interested parties the decibel level of

noise generated by the proposed project.

5. Describe what measures will be made to ensure the impacts from noise will be

mitigated.

VII. Impacts to Cultural Resources due to Light Pollution: Construction activities and both

temporary and permanent facilities for the proposed tunnel will be operational day and

night. Because of this, light pollution is a serious concern for Headlands Dark Sky Park,

which was certified as an International Dark Sky Park in 2011. Light pollution is also

potentially a concern for traditional uses of the Straits of Mackinac as an apparent cultural

landscape and TCP, as well as the ability to exercise Tribal treaty rights.

11

Exhibit 1

Enclosure 1: SHPO Scoping Comments

A. Recommendations for the DEIS:

1. Ensure third-party analysis of light pollution viewshed and the potential

effects of light pollution (during all four seasons) for the Straits of Mackinac

(including both the south and north tunnel entrances).

2. Assess the light pollution impacts of temporary and permanent constructions

on the International Dark Sky park as “land possessing an exceptional or

distinguished quality of starry nights and a nocturnal environment that is

specifically protected for its scientific, natural, educational, cultural heritage,

and/or public enjoyment.”33

3. Ensure that the planned Ethnographic study will assess how light pollution

may impact traditional use of the Straits as an apparent cultural landscape and

TCP.

a. Assess the effect that industrial light during nighttime hours on

culturally important plants that grow within and around the

construction areas.

4. Describe what measures will be made to ensure the impacts from light

pollution will be mitigated.

VIII. Impacts to Cultural Resources due to Sediment Disposal: The amount of rock and

bedrock to be removed from the proposed 3.6 mile long, 21 feet in diameter tunnel is

estimated as 364,000 cubic yards. Due to the substantial amount of fill to be discarded,

SHPO recommends that offsite disposal locations be evaluated for potential impacts to

cultural resources. Even existing quarries or previously disturbed areas should be

investigated, unless it can be determined that they were surveyed within the last decade.

Many older quarries pre-date the National Historic Preservation Act or National

Environmental Policy Act and are unlikely to have been previously surveyed.

A. Recommendations for the DEIS:

1. Ensure that Cultural Resource Surveys are conducted for all the disposal sites

and transportation routes.

2. Consider that the disposal sites, if they are quarries or industrial locations that

are over 50 years old could be NRHP eligible sites.

3. Address who “owns” the bedrock and material removed for the tunnel from

Michigan bottomlands.

4. Ensure that a visual impact and viewshed analysis is conducted of the

materials proposed to be deposited at disposal sites.

IX. Impacts to Cultural Resources due to Discharge: The proposed action includes the

discharge of dredged or fill material into the fresh waters of the Straits and the installation

of a discharge pipe. The NOI also mentions water treatment facilities, but it does not

describe how these facilities would be utilized and how water will be treated. Cultural

33

https://www.darksky.org/our-work/conservation/idsp/parks/

12

Exhibit 1

Enclosure 1: SHPO Scoping Comments

resources that could potentially be impacted by discharge into the waters of the Straits

include submerged sites, near-shore terrestrial archaeological sites and historic structures,

and traditional indigenous food resources connected to the Straits of Mackinac watershed.

A. Recommendations for the DEIS:

1. Describe how discharged water will be treated and what chemicals will be

used.

2. Disclose if there are environmental contaminants or risks associated with

discharge.

3. Ensure that third-party studies will be conducted to address whether discharge

could impact to cultural resources, both in the short- and the long-term.

4. Specify whether the planned Ethnographic study will assess discharge for

impacts to Indigenous resources protected by treaty rights, such as water, fish,

animals, and plants.

5. Describe what measures will be made to ensure the impacts from discharge on

cultural resources will be mitigated.

6. Describe what measures will be made to ensure the impacts from discharge on

Indigenous resources protected by treaty rights will be mitigated.

X.

Impacts to Indigenous Treaty Rights and Cultural Resources due to Disturbance and

Infilling of Wetlands: The proposed action involves disturbance and infilling to wetlands

that are home to plant species that have cultural and traditional uses to Native American

communities who consider the Straits their ancestral homeland. Wetland disturbance may

impact the ability of Native Americans to exercise Tribal treaty rights.

A. Recommendations for the DEIS:

1. Clarify the origin of the proposed fill placed in wetlands. If fill is coming from

offsite, then ensure this location is evaluated for cultural resources.

2. Discuss how fill will be removed after the tunnel is completed.

3. Discuss how wetlands will be restored. Clarify the success or failure rate of

wetland restoration.

4. Ensure third-party study of:

a. Which traditional indigenous plants will be impacted by the

proposed action,

b. Ethnographic study of how wetland disturbance could impact

Indigenous traditional use of plants during and after the proposed

action.

5. Ensure long-term monitoring of restored wetlands.

XI. Comments on Alternatives & Need: While no alternatives were proposed in the NOI,

SHPO is aware of a 2018 Enbridge Report to the State of Michigan titled Alternatives for

13

Exhibit 1

Enclosure 1: SHPO Scoping Comments

replacing Enbridge’s dual Line 5 pipelines crossing the Straits of Mackinac.34 In this

document, the three alternatives proposed all still involved some form of pipeline crossing

in the Straits region. SHPO recommends that additional alternatives should be considered,

including a no action alternative to the proposed tunnel. The NOI also lacked any data

supporting the purpose and need of the proposed project.

A. Recommendations for the DEIS:

1. Ensure that all reasonable project alternatives are explored and

documented, including alternative routes within the existing Lakehead

system.35

2. Examine the environmental impact of all reasonable project alternatives.

3. Clarify the purpose and need of the proposed action within the foreseeable

lifetime of Line 5.

4. Verify and describe the short- and long-term economic viability of Line 5

to transport petroleum products.

5. Ensure a third-party assessment of the purpose and need of the tunnel

weighed against potential long-term impacts during the operational life of

the tunnel.

34

Enbridge, Report to the State of Michigan Alternatives for replacing Enbridge’s dual Line 5 pipelines crossing the

Straits of Mackinac, June 15, 2018. Alternatives for replacing Enbridge's dual Line 5 pipelines crossing the Straits of

Mackinac (michigan.gov)

35

https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/Lakehead_system.pdf

14

Exhibit 1

Enclosure 2: Possible Interested Parties

Organization

Association for Great Lakes

Maritime History

Address

P.O. Box 260018, Madison,

WI 53726-0018

12140 West Lakeshore Dr.,

Brimley, MI 49715

Telephone

Website

https://www.aglmh.net/

(906) 248-8759

n/a

paulacarrick@baymills.org (Paula

Carrick, THPO)

(231) 448-2300

n/a

n/a

(231) 6347025

n/a

(231) 634-7354

n/a

n/a

http://www.mcgi.state.mi.us/mrbis/Harbor

Detail.aspx?sid=A-49-205

(231) 582-6597

mainstreet@boynecity.com

http://www.cityofboynecity.com/mainstreet-program-38/

(231) 634-7121

n/a

http://www.bbicf.org/

(231) 627-4944

marina@cheboygancounty.net

(231) 627-2151

n/a

(231) 627-9931

(231) 547-3257

pschneider@cheboygan.org

lindseyd@charlevoixmi.gov;

cityofcharlevoix.org

(906) 847-6190

n/a

n/a

https://www.cityofmi.org/historic-districtcommission-18/

n/a

secretary@miarchconference.org

https://www.miarchconference.org

(517) 482-1189

info@micountyroads.org

https://www.micountyroads.org/

East Dock, LLC

Emmet County Parks and

Recreation

n/a

101 S Washington Square

Unit 200, Lansing, MI 48933

6397 Main St., PO Box 220,

Mackinac Island, MI 49757

200 Division St. Petoskey, MI

49770

(906) 430-0095

Veronica@EastDockLLC.com

(231) 330-1055

ryan.bauman@emmetcounty.org

Friends of the Mackinac Bridge

Grand Traverse Band of Ottawa

& Chippewa Indians

n/a

2605 N. West Bay Shore Dr.,

Peshawbestown, MI 49862

n/a

n/a

Sammie.dyal@gtbindians.com

(Sammie McClellan-Dyal, SHPO)

https://www.eastdockllc.com/contact

https://www.emmetcounty.org/parksrecreation/

https://www.facebook.com/friendsofmacki

nacbridge/

Bay Mills Indian Community

Beaver Island Marina

Bois Blanc Island Historical

Society

Bois Blanc Township Marina

Boyne City Local Historic

District/Main Street Program

Coast Guard Chapel

Cheboygan County Marina

Cheboygan County Parks and

Recreation

Cheboygan Main Street

Program, City of Cheboygan

City of Charlevoix DDA

Historic District Commission

City of Mackinac Island,

Historic District Commission

Conference on Michigan

Archaeology

County Road Association of

Michigan

25860 Main St, Beaver Island,

MI 49782

1144-1246 Superior Ave,

Pointe Aux Pins, MI 49775

Unnamed Road, Pointe Aux

Pins, MI 49775

319 Lake Street, Boyne City,

MI 49712

914 E Huron Dr, Bois Blanc

Island, MI 49775

1080 N. Huron St., P.O. Box

70, Cheboygan, MI 49721

400 Cleveland Ave.

Cheboygan, MI 49721

403 North Huron Street,

Cheboygan, MI 49721

210 State Street, Charlevoix,

MI 49720

7358 Market St., PO Box 455,

Mackinac Island, MI 49757

n/a

Email Address

(231) 534-7758

https://www.baymills.org/

https://www.cheboygancounty.net/departm

ents-services/marina/

https://www.cheboygan.org/departments/p

arks-and-recreation/

n/a

http://www.gtbindians.org

Exhibit 1

Enclosure 2: Possible Interested Parties

Organization

Address

Telephone

Grand Traverse Regional Land

Conservancy

Great Lakes Historical

Society/National Museum of the

Great Lakes

Great Lakes Lighthouse Keepers

Association

Groundwork Center for Resilient

Communities

3860 N Long Lake Rd Ste D,

Traverse City, MI 49684

(231) 929-7911

info@gtrlc.org

https://www.gtrlc.org/

(419) 214-5000

n/a

https://www.nmgl.org/great-lakeshistorical-society/

(231) 436-5580

info@gllka.org

https://www.gllka.org/

(231) 941-6584

https://www.groundworkcenter.org/

(906) 723-2272

info@groundworkcenter.org

csagataw@hicservices.org (Cory

Sagataw)

(231) 347-0991

ltc@landtrust.org

https://www.landtrust.org/

(231) 427-1001

headlands@emmetcounty.org

(906) 484-3917

n/a

(906) 847-3328

(517) 614-9868

n/a

vernmesler@earthlink.net

https://www.midarkskypark.org/

http://www.clarktwp.org/SERVICES/Hess

elMarina.aspx

https://www.mackinacparks.com/moreinfo/weddings/historic-mission-church/

n/a

Hannahville Indian Community

Hathaway Family's Regina Caeli

Nature Preserve

Headlands International Dark

Sky Park

Hessel/Clark Township Marina

Historic Mission Church

Iron and Steel Preservation

Keweenaw Bay Indian

Community of the Lake Superior

Band of Chippewa Indians

Lac Vieux Desert Band of Lake

Superior Chippewa Indians

Little River Band of Ottawa

Indians

Little Stone Church

Little Traverse Bay Band of

Odawa Indians

Little Traverse Land

Conservancy

Mackinac Bridge Authority

1701 Front St., Toledo, OH

43605

707 N Huron Ave, Mackinaw

City, MI 49701

148 E Front St # 301,

Traverse City, MI 49684

N14911 Hannahville B-1 Rd.,

Wilson, Mi 49896

1263-1277 W Central Ave,

Mackinaw City, MI 49701

15675 Headlands Rd,

Mackinaw City, MI 49701

S Hessel Point Rd, Cedarville,

MI 49719

6670 Lake Shore Dr,

Mackinac Island, MI 49757

n/a

16429 Bear Town Rd, Baraga,

MI 49908

P.O. Box 249, Watersmeet,

MI 49969

2608 Government Center Dr.

Manistee, MI 49660

1590 Cadotte Ave, Mackinac

Island, MI 49757

7500 Odawa Cir., Harbor

Springs, MI 49740

3264 Powell Rd, Harbor

Springs, MI 49740

N 415 I-75 St Ignace, MI

49781

(906) 353-6623

(906) 358-0137

(231) 398-6893

(906) 847-3877

Email Address

aconnor@kbic-nsn.gov (Alden

Connor, THPO)

aliina.shively@lvd-nsn.gov (Alina

Shively, THPO)

jsam@lrboi-nsn.gov (Jonnie "Jay"

Sam II)

Website

https://www.hannahville.net/

https://www.kbic-nsn.gov

https://www.lvd-nsn.gov

https://www.lrboi-nsn.gov

http://www.littlestonechurch.com/

(231) 242-1408

n/a

Mwiatrolik@LTBBODAWANSN.GOV (Melissa Wiatrolik,

THPO)

(231) 347-0991

ltc@landtrust.org

https://www.landtrust.org/

(906) 643-7600

n/a

https://www.mackinacbridge.org/

https://www.ltbbodawa-nsn.gov

Exhibit 1

Enclosure 2: Possible Interested Parties

Organization

Mackinac Island Bible Church

Mackinac Island State Parks

Mackinac Island Tourism

Bureau

Address

6688 Main St, Mackinac

Island, MI 49757

P.O. Box 873 / 207 W.

Sinclair, Mackinaw City, MI

49701

https://www.mibc.org/

(231) 436-4100

n/a

https://www.mackinacparks.com/moreinfo/contact-mshp/

(906) 847-3783

n/a

https://www.mackinacisland.org/

(906) 847-3363

staff@miyachtclub.com

http://www.miyachtclub.com/

(812) 797-6000

n/a

https://www.mackinawhistory.org/

(231) 436-5574

info@mackinawchamber.com

https://www.mackinawchamber.com/

(231) 436-5269

cwest@mackinawcity.org

https://www.mackinawmarina.com/

(586) 372-7039

mackinawshore@gmail.com

http://www.mackinawshores.org/

(269) 397-1780

Lakota.Hobia@glt-nsn.gov;

Mbpi.thpo@glt.nsn.gov (Lakota

Hobia, THPO)

https://www.itcmi.org/home/tribes/matche-be-nash-she-wish-band-of-pottawatomiindians/

(231) 436-5860

info@emmetcounty.org

https://www.mcgulpinpoint.org/

n/a

n/a

WJohnson@sagchip.org

n/a

n/a

313 E Grand River Ave,

Lansing, MI 48906

n/a

maspresident@micharch.org

https://www.miarch.org

(517) 371-8080

n/a

400 North Ingalls, Suite G241,

Ann Arbor, MI 48109

n/a

public_relations@mhpn.org

info@michiganlighthousealliance.

org

https://www.mhpn.org/

https://www.michiganlighthousealliance.or

g/

https://www.michiganseagrant.org;

n/a

1301 T Drive S, Fulton, MI

49052

n/a

miseagrant@umich.edu

Brashlerj@mac.com;

mschurr@nd.edu

Douglas.Taylor@nhbp-nsn.gov

(Douglas Taylor, THPO)

Mackinaw Area Historical

Society Heritage Village

Mackinaw City Chamber of

Commerce

1425 W Central Ave,

Mackinaw City, MI 49701

707 N Huron Ave, Mackinaw

City, MI 49701

Mackinaw City Municipal

Marina

107 S Huron Ave, Mackinaw

City, MI 49701

3925 Pointe Dr, Carp Lake,

MI 49718

McGulpin Point Lighthouse

Michigan Anishinaabek Cultural

Preservation and Repatriation

Alliance (MACPRA)

Michigan Archaeological

Society

Michigan Historic Preservation

Network

Michigan Lighthouse Alliance

Michigan Sea Grant

Midwest Archaeological

Conference

Nottawseppi Huron Band of the

Potawatomi

Website

info@mibc.org

Mackinac Island Yacht Club

Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians

(Gun Lake Tribe)

Email Address

(906) 847-0217

7274 Main St, Mackinac

Island, MI 49757

7006 Main Street, Mackinac

Island, MI 49757

Mackinaw Shores Association

Telephone

2872 mission Dr., Shelbyville,

MI 49344

500 Headlands Road,

Mackinaw City, MI 49701

(517) 353-9748

(269) 704-8347

https://www.midwestarchaeology.org/

https://www.nhbp-nsn.gov

Exhibit 1

Enclosure 2: Possible Interested Parties

Organization

Saginaw Chippewa Indian Tribe

of Michigan

Address

59291 Indian Lake Road/P.O.

Box 180, Dowagiac, MI

49047

P.O. Box 6363, Saginaw, M

48608-6363

Ziibiwing Center of

Anishinabe Culture &

Lifeways, 6650 East

Broadway, Mt. Pleasant, MI

48858

Sainte Anne's Catholic Church,

Mackinac Island

Sault Ste. Marie Tribe of

Chippewa Indians

Sierra Club Canada, Ontario

Chapter

Main St, Mackinac Island, MI

49757

2 Ice Circle Chi Mukwa, Sault

Ste. Marie, MI 49783

PO Box 2007 STN B, Ottawa,

ON K1P 5W3

Pokagon Band of Potawatomi

Indians

Round Island Lighthouse

Preservation Society

Sierra Club, Wisconsin Chapter

109 E César E. Chávez Ave,

Lansing, MI 48906

754 Williamson St, Madison,

WI 53703

Society for American

Archaeology

Society for Historic

Archaeology

Society for Industrial

Archeology

St Ignace United Methodist

Church

1990 K St NW, Suite 401,

Washington DC 20006

13017 Wisteria Drive #395,

Germantown, MD 20874

1400 Townsend Drive,

Houghton, MI 49931-1295

615 US-2 W, St Ignace, MI

49781

Sierra Club, Michigan Chapter

St. Ignace Marina

The Center for Michigan

Tip of the Mitt Watershed

Council

University of Michigan Water

Center, Graham Sustainability

Institute

6 Spring Street, Suite 100, St.

Ignace, MI 49781

221 W. Michigan Ave.,

Ypsilanti MI, 48197

Telephone

Email Address

n/a

Matthew.Bussler@pokagonbandnsn.gov (Matthew Bussler, THPO)

mroundislandlighthousemi@gmail

.com

(989) 775-4751

mlhadden@sagchi.org (Marcella

Hadden, THPO)

(269) 462-4316

(906) 847-3507

Website

https://www.pokagonband-nsn.gov/

http://www. roundislandlightmichigan.com

https://www.sagchip.org

http://www.steanneschurch.org/

(906) 635-6050

steannes@gmail.com

mrichards@saulttribe.net (Marie

R. Richards)

(613) 241-4611

info@sierraclub.ca

https://www.sierraclub.ca/en/ontario

(517) 484-2372

information@sierraclub.org

https://www.sierraclub.org/michigan

(608) 256-0565

wisconsin.chapter@sierraclub.org

https://www.sierraclub.org/wisconsin

n/a

oona_f_schmid@saa.org

https://www.saa.org

(301) 972-9684

hq@sha.org

https://www.sha.org/

(906) 487-1889

sia@siahq.org

(906) 643-8088

stignaceumc@gmail.com

https://www.sia-web.org/

https://www.stignaceumc.wixsite.com/stig

naceumc

(906) 643-6950

info@stignace.com

https://www.saulttribe.com/

(734) 769-4625

jbebow@centerformichigan.org

https://www.stignace.com/

https://www.bridgemi.com/centermichigan

426 Bay Street, Petoskey, MI

49770

(231) 347-1181

info@watershedcouncil.org

https://www.watershedcouncil.org/

625 E Liberty St, Suite 300,

Ann Arbor, MI 48104

(734) 615-8230

graham-water-center@umich.edu

https://www.graham.umich.edu/water

Exhibit 1

Enclosure 2: Possible Interested Parties

Organization

Address

US Coast Guard, Sector Sault

Sainte Marie

US Forest Service (Owners of

Round Island Lighthouse)

337 E Water St, Sault Ste.

Marie, MI 49783

820 Rains Drive, Gladstone

MI 49837

White Shoal Light Historic

Preservation Society

4066 Coors Drive, Traverse

City, MI 49684

Telephone

Email Address

Website

(216) 902-6117

n/a

(906) 428-5800

n/a

https://www.uscg.mil

https://www.fs.usda.gov/recarea/hiawatha/

recarea/?recid=18196

(989) 205-0123

preservewhiteshoal@gmail.com

https://www.preservewhiteshoal.org/

Exhibit 1