Chippewa Ottawa Resource Authority

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179 W. Three Mile Road

Sault Ste. Marie, MI 49783

Ph: 906-632-0043

Fax: 906-632-1141

July 14, 2020

Kerrie E. Kuhn

Chief, Permit Evaluation Western Branch

Regulatory Office

Department of the Army

Detroit District, Corps of Engineers

477 Michigan Avenue

Detroit, MI 48226-2550

VIA ELECTRONIC TRANSMISSION to Katie.L.Otanez@usace.army.mil

Re:

Enbridge Pipelines Permit Request Army Corps File Number LRE-2010-00463-56-A19.

Dear Chief Kuhne:

On behalf of the Chippewa Ottawa Resource Authority (CORA), I am submitting the following

comments and attachment in response to the Enbridge Energy joint permit application for tunnel

construction beneath the Straits of Mackinac, Army Corps permit number LRE-2010-00463-56-A19.

CORA fully supports the attached comments by the Bay Mills Indian Community and is requesting that

the Army Corps deny this application outright.

CORA is composed of five Indian Tribes signatory to the March 28, 1836 Treaty of Washington (7 Stat.

491): Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Grand Traverse Band

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

Odawa Indians. In the 1836 Treaty these tribes reserved off-reservation fishing rights in the Great Lakes

including the Straits of Mackinac that have been confirmed by the federal courts, see United States v.

Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), aff'd. 653 F.2d 277 (6th Cir. 1981), cert. denied, 454

U.S. 1124 (1981).

Chief Kerrie E. Kuhne

July 14, 2020

Page 2

CORA asserts that the application submitted by Enbridge is grossly inadequate and lacks the critical

information required to grant a permit. As stated in comments submitted by the non-profit group For

Love of Water (FLOW) and co-signed by CORA, the purpose, scope and nature of the federal action is

major, complex and highly controversial and will significantly affect the human and natural environment

and therefore a full environmental impact statement must be required pursuant to the National

Environmental Policy Act (NEPA).

Impacts to the Treaty fishery shared by the five CORA tribes are thoroughly outlined in the attached

comments by Bay Mills Indian Community and CORA reiterates the requirement by Army Corps to

conduct government-to-government consultation with the CORA tribes.

CORA is asking the Army Corps to carefully consider the information supplied by Bay Mills Indian

Community and FLOW. If you have any other questions or would like more information, please do not

hesitate to contact me or Mike Ripley (906)632-0043 or via email jteneyck@chippewaottawa.org or

mripley1@chippewaottawa.org .

Respectfully,

Jane A. TenEyck, Executive Director

Chippewa Ottawa Resource Authority

Cc:

CORA Board

COMMENTS OF BAY MILLS INDIAN COMMUNITY

SEEKING THE DENIAL OF ENBRIDGE’S APPLICATION FOR A PERMIT FOR THE LINE 5 TUNNEL

AND PIPLELINE PROJECT UNDER SECTION 404 OF THE CLEAN WATER ACT AND SECTION 10 OF

THE RIVERS AND HARBORS ACT

Application Number LRE-2010-004653-56-A19

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................................... 1

II.

BACKGROUND AND DESCRIPTION OF THE PROJECT ............................................................................ 4

III. REQUEST FOR GOVERNMENT-TO-GOVERNMENT CONSULTATION ..................................................... 7

Consultation ...................................................................................................................................... 8

Regular Meetings and Consultation Record ..................................................................................... 9

Best Management Practices ............................................................................................................. 9

IV. PUBLIC PARTICIPATION AND PUBLIC HEARING REQUEST .................................................................. 10

THE CORPS MUST COMPLETE AN EIS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT BEFORE

APPROVING THIS PROJECT.................................................................................................................. 11

Legal Background ............................................................................................................................ 11

The Context of the Enbridge Project Requires the Corps to Prepare an EIS. ................................. 13

The Intensity of the Project Requires Preparation of an EIS. ......................................................... 15

The cumulative impacts and precedential impact of this action are significant. ....................... 16

Continued operation of dual pipelines pending tunnel construction..................................... 16

Climate change impacts from fossil fuels ............................................................................... 19

Risks associated with housing other utilities in tunnel ........................................................... 21

Other pending projects on Line 5 and ongoing impacts of Line 5 .......................................... 22

The effects on the quality of the human environment are likely to be highly controversial. .... 22

Project construction poses a significant, potential threat to fish spawning grounds. ............... 23

Potential wetlands impacts require further consideration in an EIS. ......................................... 25

Potential floodplain impacts require further consideration in an EIS. ....................................... 31

The Project involves unique and uncertain risks that require further consideration. ............... 33

The Project threatens a violation of federal, state, and local laws............................................. 33

VI. CULTURAL RESOURCES ....................................................................................................................... 35

The Corps must undertake consultation with Bay Mills and other Tribal Nations under Section 106

of the NHPA. ................................................................................................................................... 36

Bay Mills’ spiritual, cultural, and economic dependence on the Straits of Mackinac and the Great

Lakes is threatened by the Project. ................................................................................................ 36

The Corps must undertake additional evaluation of the impacted cultural resources before

deciding whether a permit is appropriate. ..................................................................................... 38

VII. THE ENBRIDGE PROJECT WILL ADVERSELY IMPACT ENDANGERED AND THREATENED SPECIES AND

MUST NOT BE APPROVED UNTIL FURTHER EVALUATION. ................................................................. 41

The Endangered Species Act ........................................................................................................... 41

The Corps Must Evaluate the Project’s Impact on Endangered and Threatened Species. ............. 45

The Corps must communicate with FWS to identify all protected species that might be adversely

affected by the proposed project. .............................................................................................. 45

The Corps must prepare or supervise preparation of a biological assessment of the effects the

project will have on protected species in the area..................................................................... 46

The Corps must consult with FWS and the FWS must prepare a biological opinion. ................. 47

Enbridge’s application raises significant concerns about the Project’s impact on federally-listed

species that the Corps must address in consultation with FWS. ................................................ 47

NEPA requires the Corps to consider the impact on species protected by the Michigan

Endangered and Threatened Species Act. .................................................................................. 49

VIII. THE PROJECT DOES NOT COMPLY WITH SECTION 404 OF THE CLEAN WATER ACT. ......................... 51

The Application is Grossly Deficient and Fails to Demonstrate that the Proposed Project Meets Any

of the Requirements of Section 404. .............................................................................................. 51

Enbridge’s Wholly Inadequate Alternatives Analysis Does Not Demonstrate that a Tunnel Beneath

the Great Lakes is the Least Environmentally Damaging Practicable Alternative. ......................... 52

Enbridge has made inconsistent statements about the Project’s purpose. ............................... 53

If the Project’s purpose is to alleviate an environmental concern to the Great Lakes, then

there are less damaging alternatives. ..................................................................................... 54

If the Project’s basic purpose is to transport oil, it is not water dependent and the Corps must

presume there are less damaging alternatives....................................................................... 54

Enbridge has not provided sufficient descriptions of the alternatives. ...................................... 57

In its application to the Corps, Enbridge inaccurately assumes a tunnel under the Straits is the

only alternative. ...................................................................................................................... 58

Enbridge’s presentation of the “no action” alternative is misleading. ................................... 58

Enbridge fails to compare the impacts to aquatic resources of all appropriate alternatives. 60

Prior considerations of alternatives prepared in the context of the Tunnel Agreements are

also incomplete and inadequate. ........................................................................................... 60

The Application Does Not Demonstrate that the Project Likely Will Comply With Water Quality

Standards. ....................................................................................................................................... 63

The Project will disrupt an extremely sensitive freshwater ecosystem: The Great Lakes and

shoreline wetlands...................................................................................................................... 63

The Project’s construction will impact water quality. ................................................................ 65

The potential for an oil pipeline spill in the Great Lakes is an unacceptable risk. ...................... 66

There is No Showing that the Project is in the Public Interest. ...................................................... 69

Enbridge failed to provide the Corps with the information it needs to determine that the benefits

of the Project outweigh the costs............................................................................................... 69

The Corps should not rely on the Tunnel Agreements to determine whether the Project is in the

public interest. ............................................................................................................................ 70

Permitting this Project extends the lifetime of the entire Line 5 Pipeline, maintaining

unacceptable oil spill risks and perpetuating harmful greenhouse gas emissions. ................... 71

Lack of need for oil and gas over the lifespan of the Project undermines any statement of

benefits. ...................................................................................................................................... 73

The Corps Must Independently Verify All Information Provided by Enbridge. .............................. 74

IX. SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 .................................................................. 75

CONCLUSION ....................................................................................................................................... 78

I. INTRODUCTION

On May 15, 2020, the Corps issued a public notice inviting the public to comment on an

application for the Enbridge Line 5 tunnel and pipeline relocation project (“Enbridge Project” or

“Project”), submitted by Enbridge Energy, Limited Partnership (“Enbridge”) pursuant to section

404 of the Clean Water Act, 33 U.S.C. § 1344, and section 10 of the River and Harbors Act, 33

U.S.C. § 403. On May 28, 2020, the Corps extended the comment deadline from June 4 to July

14, 2020.

On behalf of the Gnoozhkekaaning, “Place of the Pike,” or Bay Mills Indian Community

(“Bay Mills”), we request that the Corps deny the permit application outright. Alternatively, the

Corps should pause consideration of the application until it gathers critical information needed

to make a decision consistent with its obligations for government-to-government consultation,

and ensures compliance with the Clean Water Act, the National Environmental Policy Act, the

National Historic Preservation Act, the Endangered Species Act, and Bay Mills’ treaty rights.

Bay Mills has a long-standing and critical interest in the waters of the Great Lakes, the

Straits of Mackinac, and the surrounding region. As one of the signatories to the 1836 Treaty of

Washington, which ceded territory to the United States for the creation of the State of

Michigan, Bay Mills reserved the right to fish, hunt, and gather throughout the territory—

including in the Great Lakes and the Straits of Mackinac. Furthermore, as described in detail

below, the area has deep cultural, religious, and economic significance to the Tribe. As a result,

Bay Mills is very concerned about the implications of Enbridge’s application.

As an initial matter, Bay Mills urges the Corps to deny the permit based on Enbridge’s

poor handling of its June 18, 2020 pipeline accident1 in the Straits involving significant damage

to an anchor support. Many questions remain unanswered about the accident including when it

happened, what happened, how it happened, what environmental impacts resulted, and what

measures will be taken to ensure that a spill does not occur. Available information reveals

Enbridge’s failure to cooperate with officials and share required communications with the State

of Michigan2 or Tribal Nations, and its singular focus on prioritizing profits over people and

precious resources. The Ingham County Circuit Court deemed the situation so pressing that it

issued a Temporary Restraining Order shutting down Line 5 on June 25, 2020. In reaching its

decision to grant the request for emergency relief, the Court reasoned that “the severe risk of

harm” from an oil spill was “so substantial and irreparable, and endangers so many

communities and livelihoods and the natural resources of Michigan, the danger far exceeds the

risk of financial loss to the defendants.”3

1 Letter, Governor Gretchen Whitmer to CEO Al Monaco, Enbridge Energy (June 19, 2020),

Exhibit A.

2 Id.

3 Temporary Restraining Order, Nessel v. Enbridge Energy, Ltd., et al, No. 19-474-CE (Ingham

County Cir. Ct. Michigan, June 25, 2020), Exhibit B. See also Brief in Support of Motion for

While Enbridge may present the tunnel as the solution to the risks posed by the current,

aging, and precarious pipeline, the Corps should be wary of this Trojan Horse. Along with the

purported gift of the tunnel comes (1) the continued operation of the existing, risky pipeline for

at least 5 more years, (2) the ongoing harms to the treaty-protected rights and resources

caused by the repeated spills and leaks along the length of the Line 5 pipeline, (3) a 99-year

commitment to fossil fuels and the resultant climate change, and (4) the environmental

consequences attendant with constructing a tunnel beneath the Straits, withdrawing millions of

gallons of water from and then discharging treated wastewater into the Straits, and filling

wetlands. Enbridge’s rushed, chaotic, and incomplete submission of its permit materials and

the ongoing safety problems with its Line 5 pipeline operation do not instill confidence in

Enbridge’s ability to proceed with this Project in a way that protects the precious Great Lakes

resource.

Enbridge’s Joint Permit Application, submitted to the Michigan Department of

Environment, Great Lakes, and Energy (“EGLE”) and the Corps, reflects a disregard to the

application requirements and, more importantly, the protection of the precious Great Lakes

ecosystem. Indeed, EGLE sent Enbridge a letter on May 4, 2020 deeming the application

incomplete and seeking additional information.4 The Corps also requested that Enbridge

provide basic information that was missing, including: clarifying the purpose and need for the

proposed fill in one of the wetlands; providing key drawings of the proposed tunnel; and,

providing a decommissioning plan for the existing dual pipelines.5 In response, Enbridge

submitted a series of updated materials—halfway through the allotted public comment

period—that are not clearly labeled or easily accessible on the EGLE website6 and, most

importantly, do not correct the defects identified by EGLE and the Corps.

Preliminary Injunction, Exhibit C and Motion For a Temporary Restraining Order, Nessel v.

Enbridge Energy, Ltd., et al, No. 19-474-CE (Ingham County Cir. Ct. Michigan), Exhibit D. Note

that while the Court subsequently allowed the west line of the dual pipelines to open

temporarily for investigation purposes, it has not yet ruled on the pending preliminary

injunction motion.

4 Letter from Joseph Haas, District Supervisor to Paul Turner, Enbridge (“EGLE May 4 Letter”)

(May 4, 2020), Exhibit E.

5 Letter from Kerrie Kuhne, Army Corps of Engineers to Paul Turner, Enbridge Energy, Limited

Partnership (“Corps April 14 Letter”) (April 14, 2020), Exhibit F.

6 An agency must make available to the public, “in a form that allows for meaningful comment,”

the information it relies on in reaching a permitting decision. Gerber v. Norton, 294 F.3d 173,

179 (D.C. Cir. 2002) (quoting Engine Mfrs. Ass’n v. E.P.A., 20 F.3d 1177, 1181 (D.C. Cir. 1994)). It

is not obvious that is happening here.

Before the Corps reaches a decision on the Enbridge Project permit application, the

Corps should require Enbridge to submit substantially more detail about its plans. And then,

before reaching a decision on a revised application, the Corps must:

Complete the required government-to-government consultation with Bay Mills and

other Tribal Nations, including consultation on the Project’s impact to treaty and

cultural resources and threatened and endangered species.

Undertake formal consultation with the U.S. Fish and Wildlife Service (“FWS”) about

the impacted threatened and endangered species that inhabit the area.

Prepare an environmental impact statement (“EIS”), consistent with the National

Environmental Policy Act (“NEPA”).

Indeed, Courts have made clear that the NEPA process and ESA consultation must occur prior to

the authorization of a pipeline.7

Furthermore, Enbridge’s application must be denied because it fails several aspects of

the analysis required under the Clean Water Act (“CWA”). First, Enbridge’s analysis of

alternatives to the Project is woefully deficient. For this Project, the CWA requires the Corps to

presume that there are alternatives to this Project that are less damaging to aquatic resources.

Enbridge’s permit application does not include an alternatives analysis sufficient to overcome

this presumption—including its failure to consider the alternative of decommissioning pipelines

through the Straits entirely.

Enbridge also fails to demonstrate that the Project is in the public interest. Indeed, the

opposite is true—the reasonably foreseeable detriments far outweigh any possible benefit of

the tunnel. Approval of this project would be a commitment to the continued operation of Line

5 in the region and through the Straits. The Great Lakes basin is home to more than 30 million

people, holds 84% of North America’s fresh surface water, and 20% of the world’s fresh water.8

The risk of a catastrophic oil spill is real, especially considering that Line 5 currently crosses 290

7 See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, -- F.Supp.3d --, 2020 WL

3634426, *8 (D.D.C. July 6, 2020) (vacating the Corps’ decision to grant Dakota Access an

easement and ordering DAPL shut down within 30 days); Standing Rock Sioux Tribe, et al. v. U.S.

Army Corps of Engineers, et al., -- F. Supp.3d --pray 2020 WL 1441923 (D.D.C. March 25,

2020)(requiring the Corps to prepare a full Environmental Impact Statement); Army Corps of

Engineers, et al. v. N. Plains Res. Council, et al., 591 U.S. -- (S. Ct. July 6, 2020)(upholding the

application of lower court’s injunction to the Keystone XL pipeline for failure of the Corps to

undertake Section 7 consultation under the ESA before approving Nationwide Permit 12).

8 EPA Website, “Facts and Figures about the Great Lakes,”

https://www.epa.gov/greatlakes/facts-and-figures-about-great-lakes

rivers and streams.9 A spill would have devastating direct, indirect, and cumulative

environmental impacts and would impair or destroy the hunting, fishing, gathering, and other

rights of the 1836 Treaty Tribes. Further, the life-cycle greenhouse gas emissions associated

with the continued transportation of oil and gas through the pipeline would contribute

significantly to climate change at a time when oil prices are declining10 as a result of many

factors including the recognition that it is necessary to accelerate the move away from fossil

fuels to clean energy. Even if it was necessary or made sense for Enbridge to continue

transporting oil and gas through the region, Enbridge has not earned the requisite level of trust

to risk the well-being of “communities and livelihoods and the natural resources” in the

region.11

II. BACKGROUND AND DESCRIPTION OF THE PROJECT

Enbridge’s Line 5 is part of Enbridge’s Lakehead Pipeline System, a network of fourteen

pipelines carrying Canadian tar sands and crude oil nearly 2,000 miles.12 Line 5 is a 645-mile

pipeline that originates in Superior, Wisconsin and terminates in Sarnia, Ontario, Canada.13 Line

5 transports almost 23 million gallons per day of light crude oil, light synthetic crude, and

natural gas liquids. Enbridge has not indicated the maximum capacity of Line 5. At the Straits of

Mackinac, Line 5 splits into two 20” pipelines that extend 4.5 miles along the lakebed of Lake

Michigan (the “dual pipelines”). This section of Line 5 was built in 1954. The pipeline is showing

its age with portions of the protective coating wearing away and other cracks and leaks along

the length of it.14 In 2017, Enbridge acknowledged that its maintenance activities damaged Line

9 Great Lakes Indian Fish and Wildlife Commission, “Cumulative Impacts of Pipeline

Construction Draft Report,” 9 (June 24, 2020) (unpublished manuscript) (on file with Great

Lakes Indian Fish and Wildlife Commission).

10 See, e.g., Hiroko Tabuchi, Fracking Firms Fail, Rewarding Executives and Raising Climate

Fears, NEW YORK TIMES (July 12, 2020), https://www.nytimes.com/2020/07/12/climate/oilfracking-bankruptcy-methane-executive-pay.html (“Almost 250 oil and gas companies could file

for bankruptcy protection by the end of next year, more than the previous five years combined,

. . . [and] oil demand will begin falling permanently by decade’s end.”); David Sheppard, Why

the Market is Not Buying the Idea of a Big Rebound in Oil, FINANCIAL TIMES (July 8, 2020).

https://www.ft.com/content/27d2f876-61d4-4995-ab5e-73553a44ccd9 (noting that any

upcoming oil growth—if it occurs—is likely to be short).

11 Temporary Restraining Order, Nessel v. Enbridge Energy, Ltd., supra 3, p.5.

12 Enbridge Lakehead Pipeline System Map,

https://insideclimatenews.org/sites/default/files/Enbridge-Lakehead-System-529px.png

13About Line 5-Enbridge Inc, https://www.enbridge.com/projects-and-infrastructure/publicawareness/line-5-michigan/about-line-5

14 Attorney General Nessel’s Brief in Support of Motion for Preliminary Injunction, Nessel v.

Enbridge, supra 3, p.2, n.1 (citing

https://www.freep.com/story/news/local/michigan/2017/11/14/enbridge-discloses-dozens-

5 in the Straits of Mackinac.15 In September 2019, in the process of conducting geological work

for the proposed Line 5 tunnel, Enbridge got a drill rod stuck and did not report it to EGLE for

two months.16 Most recently, on June 18, 2020, Enbridge reported to the State of Michigan that

an anchor support was damaged and resulted in Enbridge shutting down the pipeline.17

Concerns about the safety of the aging Line 5 became more pressing in 2010, in the

aftermath of Enbridge’s catastrophic Line 6B pipeline spill of approximately 840,000 gallons of

crude oil near Marshall, Michigan. The Line 6B spill contaminated Talmadge Creek, a 30-35 mile

span of the Kalamazoo River, and floodplains, wetlands, and islands.18 The cleanup of the

Kalamazoo River spill cost at least $1.2 billion dollars over a six-year period and required more

than 2000 personnel.19 In the consent decree settling the enforcement action for Enbridge’s

Line 6B spill, the federal government required that Enbridge take action to reduce the risk of an

oil spill into the Great Lakes from Line 5.20 Required steps included the installation of anchor

supports to keep the pipeline stable in light of shifting lakebed conditions that have caused the

pipeline to be suspended above the lakebed in several places. The installation of the anchor

supports has led to its own set of problems, 21 most recently the June 18, 2020 accident which

led Enbridge to shut down a portion of Line 5.

In an effort to maintain its preferred routing of Line 5 under the Straits of Mackinac, and

respond to safety concerns, Enbridge proposed building a tunnel under the lakebed to house

the pipeline. The massive, proposed Project would run underneath the Straits of Mackinac in

Lake Michigan at the juncture of Lake Michigan and Lake Huron. The project entails the

complete replacement of the dual pipelines with a new 30” pipeline and the relocation of the

pipeline in a $500 million tunnel to be constructed underneath the lakebed. The tunnel, which

would span approximately 3.6 miles, would cross the Straits of Mackinac and connect at Point

La Barbe in Michigan’s Upper Peninsula to McGulpin Point in Michigan’s Lower Peninsula.

more-gaps-straits-mackinac-pipelines-protective-coating/863490001/). Disclosures of worn off

pipeline coating have happened on multiple occasions, including in 2017 and in 2020.

15 Id.

16 Id. at 2.

17 Id.

18 EPA, Region V, Pollution/Situation Report #166 8 (Oct. 29, 2012),

https://archive.epa.gov/region5/enbridgespill/pdfs/web/pdf/20121025_sitrep_166.pdf.

19 Comments on Enbridge Line 3 Permit Application (filed by Earthjustice on behalf of Sierra

Club, Honor the Earth, Friends of the Headwaters, Minnesota Interfaith Power & Light and

MN350) (citing Carol Linnitt, Official Price of the Enbridge Kalamazoo Spill, A Whopping

$1,039,000,000, The Narwhal (Aug. 26, 2013), https://thenarwhal.ca/official-price-enbridgekalamazoo-spillwhopping-1-039-000-000), Exhibit G, p. 2.

20 US v. Enbridge Energy, Civ. No. 1:16-cv-00914, Consent Decree,

https://www.epa.gov/sites/production/files/2017-06/documents/enbridgeentered-cd_0.pdf

21 Letter, President Levi D. Carrick Sr., Bay Mills Indian Community to Lt. Col. Dennis P. Sugrue,

District Commander, U.S. Army Corps of Engineers, Detroit District, Exhibit H.

According to Enbridge, the tunnel would be 18- to 21-feet-in diameter and would sit

underneath the lakebed of the Straits of Mackinac at depths at least 10 feet below the top of

rock or 60 feet below the mud line, whichever is shallower. Notably, in other permit

submissions and in public representations, Enbridge has indicated that the tunnel would sit at

least 60 feet below the lakebed and up to 250 feet below the lakebed.22

As explained in Enbridge’s application materials and the Corps’ public notice, Enbridge

would remove approximately 364,000 cubic yards of material from underneath the lakebed to

construct the tunnel.23 The material would be disposed of in an upland location. The tunnel

would be constructed using a tunnel boring machine. Pre-cast concrete segmental lining would

be installed as the tunnel is constructed, and the annular space outside the tunnel’s concrete

lining would be filled with low-permeability grout.

The Enbridge Project would involve the filling and disturbance of wetlands and other

land. A launch portal would be constructed in the southern work area to provide for the tunnel

boring machine’s entry point at McGulpin Point and a circular shaft would be constructed on

the northern side, Point La Barbe, for the tunnel boring machine’s exit. In addition, the Project

would involve widening of an existing road, Boulevard Drive, and the filling of a wetland to

provide a construction and staging area to the north of the North Straits facility.

The Project also requires securing several other permits including a National Pollution

Discharge Elimination System (“NPDES”) permit, for the withdrawal of four million gallons of

water per day from Lake Michigan and the discharge of five million gallons of wastewater to

Lake Michigan.24 To facilitate this use of lake water, Enbridge will construct four water intake

structures—two on each side of the Straits.25 One of the southern water intake structures

would also include a discharge pipe that would “intermittently” discharge treated water. In

addition, in Wetland 8, two outfall structures would be constructed for treated water. Outfall

002 would require 55 cubic yards of aggregate fill in a wetland area. Outfall 003 would require

44 cubic yards of aggregate fill in a different wetland area. According to Enbridge’s application,

the two outfalls would result in a fill of 0.02 acres of wetland. In total, according to Enbridge,

the Project will impair .10 acres of wetlands permanently and .03 acres of wetlands

temporarily. Enbridge initially asserted that wetland mitigation was unnecessary, but then EGLE

requested the submission of a wetland mitigation plan. As a result, Enbridge supplemented its

22 In re Enbridge Energy, Limited Partnership, Application for the Authority to Replace and

Relocate the Segment of Line 5 Crossing the Straits of Mackinac into a Tunnel Beneath the

Straits of Mackinac, 3, Case No. U-20763, Michigan Public Service Commission (Apr. 17, 2020),

https://mi-psc.force.com/sfc/servlet.shepherd/version/download/068t000000BRSuOAAX

23 Army Corps of Engineers, Public Notice Re Enbridge Energy, LP No. LRE-2010-00463-56-A19,

at 2 (“Public Notice”) (May 15, 2020).

24 See Enbridge Energy Tunnel Project NPDES permit application (HNY-TBJC-PNK8V) (Apr. 15,

2020).

25 Public Notice, 2.

application on June 8, 2020 to provide a plan to reduce the invasive species, Phragmites

australis, and install perimeter barriers to prevent unauthorized off-road vehicle damage.26

In addition to constructing the tunnel and a new pipeline, Enbridge proposes two

options for decommissioning the dual pipelines—both of which leave some portion of the

pipeline in the lake bottom:

the pipeline would be purged, cleaned, and abandoned in place, or . . . the pipeline

would be cleaned, and exposed portions of the pipeline between the 65-foot

depth contours would be removed.27

To date, Enbridge has not submitted a biological assessment or completed a Cultural

Resources Phase II or Phase III Report. Neither Enbridge nor the Corps has completed a

biological assessment to date; Enbridge has indicated that several endangered and threatened

species may be or will likely be adversely impacted by the Project, including the Northern LongEared Bat (threatened), Dwarf Lake Iris (threatened), Houghton’s Goldenrod (threatened); Gray

Wolf (endangered); Rufa Red Knot (threatened); and the Piping Plover (endangered).28 The

Corps has not completed an environmental assessment or environmental impact statement for

the Project.

III. REQUEST FOR GOVERNMENT-TO-GOVERNMENT CONSULTATION

As one of the signatories to the 1836 Treaty of Washington (7 Stat. 491), which ceded

territory to the United States for the creation of the State of Michigan, Bay Mills has requested,

and continues to request consultation with the Corps about the proposed Project. Under the

1836 Treaty, the Tribes reserved the right to hunt, fish, and gather throughout the territory—

including in the Great Lakes and the Straits of Mackinac. The 1836 Treaty is a legally binding

agreement between sovereign nations that acknowledges and establishes respective political

and property relations as well as confirms each nation’s rights and privileges.29 Bay Mills’

reserved off-reservation treaty rights in the Great Lakes, including the Straits of Mackinac, have

been confirmed by federal courts.30

Due to the magnitude of the proposed construction and the far reaching impacts that

the construction and continued operation of Enbridge’s Line 5 will have on Bay Mills’ treaty

26 Letter, Paul Turner, Enbridge, to Joseph Haas, EGLE (June 8, 2020), Exhibit E.

27 Public Notice, 2-3.

28 Enbridge Energy Supplemental Information: Great Lakes Tunnel Project, (“Supplemental

Information”), 12-14 and Appendix A, GLTP_JPA_Supplemental Info_20200406_Final.pdf.

29 See, Herrera v. Wyoming, 139 S. Ct. 1686, 1699, 203 L.Ed. 2d 846 (2019) (A treaty is

“essentially a contract between two sovereign nations.”).

30 See United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), aff'd. 653 F.2d 277 (6th

Cir. 1981), cert. denied, 454 U.S. 1124 (1981).

protected resources, Bay Mills restates its request for ongoing government-to-government

consultation between the Corps, Bay Mills, and other impacted Tribal Nations.31

A. Consultation

Consultation is a process that supports Tribal sovereignty and self-determination and

affirms the rights of Indian Tribes to self-governance. Consultation helps ensure that the United

States is meeting its federal trust responsibilities to Tribal Nations. The United States’

obligations and unique legal relationship with Tribal Nations begins with the U.S. Constitution,

Article I, Section 8 and Article IV and extends through treaties, statutes, executive orders, and

court decisions.

The Corps’ Tribal Consultation Policy, October 4, 2012, reflects many of the key

principles articulated in the statutes, court decisions, and policy directives addressing

consultation:

[o]pen, timely, meaningful, collaborative and effective deliberative

communication process that emphasizes trust, respect and shared responsibility.

To the extent practicable and permitted by law, consultation works toward mutual

consensus and begins at the earliest planning stages, before decisions are made

and actions are taken; an active and respectful dialogue concerning actions taken

by the Corps that may significantly affect tribal resources, tribal rights (including

treaty rights) or Indian lands.32

Similarly, Bay Mills considers consultation as the process of seeking, discussing, and seriously

considering the views of Bay Mills, and seeking agreement with Bay Mills on the development

of regulations, rules, policies, programs, projects, plans, property decisions, and activities that

may affect Tribal Resources, historic properties, contemporary cultural practices, and those

persons under Tribal jurisdiction. This requires true government-to-government contact

between the agency, government, or department and Bay Mills, where high level Agency

representatives meet with Tribal leaders as well as staff.

These definitions are consistent with federal court rulings and describe direct

interaction with the affected Tribal Nation, an exchange of views on the project or decision, and

the aspiration to reach agreement on a course of action.33 To be sure, a letter inviting

31 Letter, President Bryan Newland, Bay Mills Indian Community, to Charles Simon, Chief,

Regulatory Office, Army Corps of Engineers, Detroit District (May 27, 2020), Exhibit I. The first

consultation meeting is scheduled for July 21, 2020.

32 See US Army Corps of Engineers Tribal Consultation Policy Mem. §3(b) (Oct. 4, 2012),

https://planning.erdc.dren.mil/toolbox/library/MemosAndLetters/MemoTribalConsultationPoli

cy1Nov2012.pdf.

33 See 2013 US Army Corps of Engineers Tribal Consultation Policy and Related Documents:

Corps’ Tribal Nation Community of Practice and the Corps Tribal Policy Principles,

https://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/.

consultation followed by a briefing given to Bay Mills by the Corps does not constitute

consultation.

B. Regular Meetings and Consultation Record

Bay Mills seeks regular meetings at an agreed upon interval. These Coordination

Meetings will serve to clarify how Bay Mills’ and the Corps’ jurisdictions or responsibilities apply

to this given issue. Coordination Meetings will serve as fora for sharing data or making

agreements on data sharing responsibilities and data collection. Coordination Meetings may

also be used as an opportunity for Bay Mills to provide input on processes such as development

of agency, government, or departmental plans. Coordination Meetings may at times involve

only staff and may also involve Bay Mills decision makers and government officials.

The parties should agree that meeting notes, minutes, shared documents, and any

recorded audio or video files will be maintained in common between the Tribe and the Corps.

Culturally or spiritually sensitive information provided by Bay Mills should remain confidential

or returned to Bay Mills upon request unless otherwise agreed to in writing by Bay Mills.

C. Best Management Practices

In addition to the above requirements for consultation, Bay Mills suggests the following

Best Management Practices for the Corps’ engagement:

Multiple contacts that begin early in the planning process and continue throughout

the evaluation of the Project.

Multiple convenient venues for consultation, such as the local Corps’ office and

locations close to Bay Mills’ headquarters and the area of the proposed Project.

Formal and informal meetings.

Designation and active engagement of a Corps Tribal Liaison.

The Corps staff continue to foster and value relationships with relevant Tribal staff.

An early effort to identify the areas of concern to Bay Mills.

Provide Bay Mills full and candid information and data prior to the first meeting and

each meeting thereafter.

An open-ended and flexible agenda.

A successful result is viewed as partners arriving at an agreement, although reaching

an agreement is not an end in and of itself.

IV. PUBLIC PARTICIPATION AND PUBLIC HEARING REQUEST

Bay Mills restates its request for a public hearing, as previously made in writing.34 The

Clean Water Act establishes an expectation of public participation in permitting decisions.

Section 404 allows the Corps to issue permits “after notice and opportunity for public

hearings.”35 The Corps’ implementing regulations further provide: “[A]ny person may request,

in writing, . . . that a public hearing be held . . . . Requests for a public hearing under this

paragraph shall be granted, unless the district engineer determines that the issues raised are

insubstantial or there is otherwise no valid interest to be served by a hearing.”36 In addition, the

Corps’ public notice indicates that “[a]ny person may request, in writing, within the comment

period specified in this notice, that a public hearing be held to consider this application.” 37

Bay Mills notes that Enbridge has made public participation more difficult here by

submitting voluminous, and often inappropriate, documents; EGLE noted its concerns with the

submissions in its May 4, 2020 letter to Enbridge,

The materials, as submitted when compiled, total over 350 pages in length and

are 86 MB in size. This is a very large sized document. EGLE requests that Enbridge

edit submitted materials for precision and relevance to actual proposed

construction . . . .

EGLE is requesting refining of materials for appropriate public noticing.38

In addition, the continuous addition of documents to the file during the public comment period

and the lack of coherent organization of the documents on either the Corps’ website or EGLE’s

website has hampered public participation. Further, none of the documents, including the

public notice, were available in languages other than English.

Based on the significant impacts involved and the controversial nature of the Enbridge

Project, a public hearing should be held. To ensure accessibility of the meeting, it should be

held in person when it is safe to do so. Failure to provide an in-person hearing will deprive

members of the public of opportunities to effectively communicate their concerns, engage in

dialogue with the Corps, and draw support from others physically present in the same room.

Moreover, virtual hearings do not allow for full public participation, especially in communities

34 Letter, President Bryan Newland, Bay Mills Indian Community, to Charles Simon, Chief,

Regulatory Office, Army Corps of Engineers, Detroit District (May 27, 2020), Exhibit I; Letter, Bay

Mills Indian Community, et al, to Kerrie Kuhne (May 26, 2020), Exhibit J.

35 33 U.S.C. § 1344(a).

36 33 C.F.R. § 327.4(b).

37 Public Notice, 4.

38 EGLE May 4 Letter, supra 4.

along the pipeline route, because rural communities lack full access to high speed internet and

cell phone service.39

V. THE CORPS MUST COMPLETE AN EIS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT

BEFORE APPROVING THIS PROJECT.

Before a decision can be made regarding Enbridge’s 404 permit application, the National

Environmental Policy Act40 (“NEPA”) requires that the Corps prepare an environmental impact

statement (“EIS”) to fully understand the environmental impacts of this major federal action. To

date, the Corps has not prepared an environmental assessment or an EIS. The Project threatens

the Great Lakes ecosystem; tribal hunting, fishing, and gathering rights; endangered and

threatened species; cultural resources; and much more. The EIS will also provide an opportunity

to consider the cumulative impacts of this project including the possibility of oil spills along the

entire Line 5 and the climate change impacts of continued reliance on fossil fuels.

As a federal district court recently stated with respect to the Corps’ permitting an oil

pipeline beneath water resources, “[w]hen it comes to NEPA, it is better to ask for permission

than forgiveness.”41 Here, too, the Corps must prepare an EIS before proceeding any further

with Enbridge’s permit application.

A. Legal Background

NEPA is our “basic national charter” for environmental protection.42 NEPA implements

the precautionary principle to think first, then act by requiring agencies, “to the fullest extent

possible . . . [u]se all practicable means, consistent with the requirements of [NEPA] and other

essential considerations of national policy, to restore and enhance the quality of the human

environment and avoid or minimize any possible adverse effects of their actions upon the

quality of the human environment.”43 Among the statute’s goals are to “insure that

environmental information is available to public officials and citizens before decisions are made

and actions are taken,” and to “help public officials make decisions that are based on [an]

39 See Ted Roelofs, Need Broadband in Michigan? Rural Life Can Mean You’re Out of Luck,

BRIDGE, Nov. 28, 2017, https://www.bridgemi.com/michigan-government/need-broadbandmichigan-rural-life-can-mean-youre-out-luck (showing, for example, that in Mackinac County,

60 percent of the population lacks broadband access); see also Josephine Wolff, Our Internet

Isn’t Ready for Coronavirus, NEW YORK TIMES, March 17, 2020,

https://www.nytimes.com/2020/03/17/opinion/coronavirus-broadband-internet-work-fromhome.html.

40 42 U.S.C. § 4321-4347.

41 Standing Rock Sioux Tribe, -- F.Supp.3d --, 2020 WL 3634426, *8.

42 40 C.F.R. § 1500.1.

43 Id. § 1500.2(f).

understanding of environmental consequences, and take actions that protect, restore, and

enhance the environment.”44

To achieve these objectives, NEPA requires all federal agencies to prepare an EIS for all

“major Federal actions significantly affecting the quality of the human environment.”45

According to regulations promulgated by the Council on Environmental Quality (“CEQ”), an

agency created by Congress to implement NEPA, the term “major Federal action” includes

“actions with effects that may be major and which are potentially subject to Federal control

and responsibility.”46 Major federal actions include “[a]pproval of specific projects,” such as

“actions approved by permit or other regulatory decision as well as federal and federally

assisted activities.”47 The term “Major reinforces but does not have a meaning independent of

significantly.”48

The EIS must describe, among other things: (1) the environmental impact of the

proposed action, and (2) any adverse environmental effects that cannot be avoided should the

proposal be implemented.49 CEQ regulations require that the “lead agency” supervise the NEPA

analysis,50 and determine whether a proposed action significantly affects the environment and

whether an EIS is required. The lead federal agency may first prepare an environmental

assessment (“EA”).51 An EA must provide sufficient evidence and analysis to determine whether

to prepare an EIS.52 The lead agency must take a ‘hard look’ at the relevant environmental

concerns and alternatives to the proposed action.53 If an EA concludes that there are no

potentially significant impacts to the environment, the federal agency must provide a detailed

statement of reasons why the project’s impacts are insignificant and issue a finding of no

significant impact (“FONSI”).54

NEPA requires federal agencies to analyze a project and all of its connected, cumulative,

and similar actions together in a single EA or EIS before the project is allowed to proceed.55

44 40 C.F.R. § 1500.1(b)–(c).

45 42 U.S.C. § 4332(2)(C).

46 40 C.F.R. § 1508.18 (2020).

47 Id. § 1508.18(b)(4).

48 Id. § 1508.18.

49 42 U.S.C. § 4332(2)(C)(i), (ii).

50 Lead agencies are selected according to the following factors, among others: “(1) Magnitude

of the agency’s involvement; (2) Project approval/disapproval authority; (3) Expertise

concerning the action's environmental effects; (4) duration of the agency’s involvement; and

the (5) Sequence of the agency’s involvement.” 40 C.F.R. § 1501.5(c).

51 Id. § 1508.9.

52 Id.

53 Id.

54 Id. § 1508.13.

55 Id. § 1508.25.

“Actions are connected if they: (ii) [c]annot or will not proceed unless other actions are taken

previously or simultaneously; or (iii) [a]re interdependent parts of a larger action and depend

on the larger action for their justification.”56 If the agency concludes in an EA that a project may

have significant impacts on the environment, then an EIS must be prepared. 57 To determine

whether a proposed action may significantly affect the environment, the agency must consider

both the context and intensity of the proposed action, including whether the project will take

place in “ecologically critical areas,” and whether the project will affect endangered species.58

NEPA also mandates that the lead agency consider “the degree to which the action is

related to other actions . . . with cumulatively significant impacts . . . .”59 NEPA defines

“cumulative impact” to mean “the impact on the environment which results from the

incremental impact of the action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency (Federal or non-Federal) or person

undertakes such other actions.”60 A federal action will significantly affect the environment “if it

is reasonable to anticipate a cumulatively significant impact on the environment. Significance

cannot be avoided by terming an action temporary or by breaking it down into small

component parts.”61 NEPA requires that a reviewing agency consider in the same EIS any

“connected” actions, including actions that are “interdependent parts of a larger action” and

“depend on the larger action for their justification.”62

The CEQ regulations require a give and take between an agency and members of the

public.63 Federal agencies must give the public as much information as is practicable, so that

the public has a sufficient basis to address those areas that the agency must consider in

preparing the environmental assessment.64

B. The Context of the Enbridge Project Requires the Corps to Prepare an EIS.

In determining whether to prepare an EIS as opposed to an EA, the Corps must consider

a range of factors to determine whether the impacts would be “significant” enough to warrant

56 Id. § 1508.25 (a)(1).

57 Id. § 1501.4.

58 Id. §§ 1508.27 (a), (b).

59 Id. § 1508.27(b)(7).

60 Id. § 1508.7.

61 Id. § 1508.27(b)(7).

62 Id. § 1508.25(a)(1)(iii).

63 Id. § 1500.1(b) (“public scrutiny [is] essential”); id. § 1500.2(d) (the agency must “encourage

and facilitate public involvement”); id. § 1506.6 (the agency must “[m]ake diligent efforts to

involve the public” in preparing environmental documents, give “public notice of . . . the

availability of environmental documents so as to inform those persons . . . who may be

interested or affected,” and “solicit appropriate information from the public.”).

64 Id. § 1501.4.

a full EIS.65 NEPA regulations require consideration of two broad factors: “context and

intensity.”66 Context refers to the setting in which the proposed action takes place.67 When

evaluating “context,” the Corps must consider “society as a whole (human, national), the

affected region, the affected interests, and the locality.”68 An assessment of context includes

considerations of short- and long-term effects.69

The Enbridge Project is part of the Line 5 pipeline which transports fossil fuels from

northern Wisconsin through Michigan and into Canada. The Line 5 pipeline currently crosses

290 streams and rivers and the Straits of Mackinac at the connection of Lake Michigan and Lake

Huron.70 The Lake Michigan-Huron system “forms the largest lake in the world by volume,

containing 8% of the world’s surface freshwater.”71 And, the Great Lakes provide the largest

source of surface freshwater in the United States. The Straits is also a critical place for

recreation, commercial shipping, and fishing.72 The Project area is also home to several

threatened and endangered species and “species of concern,” as discussed below.

As discussed throughout these comments, the Great Lakes are an integral part of Bay

Mills’ identity and play a fundamental role in the economic, cultural, traditional, spiritual, and

historical significance of tribal Treaty rights in the Great Lakes. Since time immemorial, the robust

ecosystem of the Great Lakes has allowed for trading and harvesting of many different traditional

medicines and food sources. Maple sugar, berries, mushrooms, and wild rice (manoomin) are

staples to traditional diets of Bay Mills Indian Community.73 In addition, many other important

plants such as Northern white cedar (giizhik), a sacred plant, and black ash (aagimaak) (both

been used for medicine and making canoes), items of clothing, baskets, and ricing sticks (for

harvesting manoomin) are found throughout many of the wetland habitats along the 645 miles

of land and water that the Enbridge Line 5 pipeline traverses.74

65 Id. § 1508.27.

66 42 U.S.C. § 4332(2)(C).

67 40 C.F.R. § 1508.27(a).

68 Id.

69 Id.

70 Great Lakes Indian Fish and Wildlife Commission, “Cumulative Impacts of Pipeline

Construction Draft Report,” 9 (June 24, 2020) (unpublished manuscript) (on file with Great

Lakes Indian Fish and Wildlife Commission).

71 Complaint, Nessel v. Enbridge, No. 19-474-CE (Ingham County, June 26, 2019) (quoting

Independent Risk Analysis, 26,

https://mipetroleumpipelines.com/sites/mipetroleumpipelines.com/files/document/pdf/Straits

_Independent_Risk_Analysis_Final.pdf).

72 Michigan Technological University, Independent Risk Analysis for the Straits Pipelines, 26

(September 15, 2018).

73 M. Nieves Zedeño, et al., Univ. of Ariz. Tucson, Bureau of Applied Research in Anthropology,

Traditional Ojibway Resources in the Western Great Lakes 49 (2001).

74 Id. at 51.

The affected interests include the protection of the right to fish, hunt, gather, and pray,

and the protection of the fisheries and wildlife habitat, held by Bay Mills. As described below,

the fisheries—protected by Treaty—not only could be devastated by an oil spill, but also will be

impacted by the Enbridge Project plan to withdraw 4 million gallons per day and discharge 5

million gallons per day of wastewater during the course of the tunnel construction. In addition,

local residents and tourists who use the resource would be impacted by a spill or other impacts.

Considering the unique and sensitive Project area and the broad reliance on the resource, the

context of the Project necessitates the preparation of an EIS.

C. The Intensity of the Project Requires Preparation of an EIS.

According to NEPA regulations, intensity means “the severity of the impact,” and

involves examining ten factors:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist

even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or

cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers,

or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are

likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly

uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions

with significant effects or represents a decision in principle about a future

consideration.

(7) Whether the action is related to other actions with individually insignificant

but cumulatively significant impacts. Significance exists if it is reasonable to

anticipate a cumulatively significant impact on the environment. Significance

cannot be avoided by terming an action temporary or by breaking it down into

small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways,

structures, or objects listed in or eligible for listing in the National Register of

Historic Places or may cause loss or destruction of significant scientific, cultural,

or historical resources.

(9) The degree to which the action may adversely affect an endangered or

threatened species or its habitat that has been determined to be critical under the

Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or

requirements imposed for the protection of the environment.75

The presence of even “one of these factors may be sufficient to require preparation of an EIS in

appropriate circumstances.”76

Several of the intensity factors are relevant to the Enbridge Project and require further

consideration and support the need to prepare an EIS. In addition to the issues raised in this

section, the impacts to cultural resources (see infra, VI) and threatened and endangered species

(see infra, VII) necessitate preparation of an EIS.

1. The cumulative impacts and precedential impact of this action are significant.

The Corps must consider the “impact on the environment which results from the

incremental impact of the action when added to other past, present, and reasonably

foreseeable future actions.”77 It must consider other foreseeable actions, even if they will be

undertaken by another agency.78 Further, the Corps must consider whether the proposed

action “may establish a precedent for future actions with significant effects.” 79

When viewed in the context of past, present, and reasonably foreseeable actions, the

Enbridge Project poses many concerns that merit further review. First, the approval of the

tunnel will result in the continued use of the dual pipelines for the next five to ten years.

Second, the commitment to a tunnel with a 99-year lease will result in a continued reliance on

fossil fuels in a time of climate change. Third, Enbridge currently has several other pending

permit applications for Line 5 in the region, and this permit approval must be considered in the

context of the cumulative impacts of the other Line 5 impacts.

a. Continued operation of dual pipelines pending tunnel construction

The Corps must consider the impact that approving the Enbridge Project will have on

the use of the existing, aging, and problematic dual Line 5 pipelines that sit under the Straits of

75 40 CFR § 1508.27(b).

76 Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005).

77 40 CFR § 1508.7.

78 Id.

79 40 CFR § 1508.27(b)(6); see Anglers of the Au Sable v. US Forest Service, 565 F. Supp. 2d at

832 (concluding that the “Forest Service has engaged in none of the sophisticated analysis of

precedent” exemplified by City of Sausalito v. O’Neill, 386 F.3d 1186, 1211 (9th Cir. 2004)).

Mackinac for several more years before the tunnel is constructed.80 Enbridge’s inadequate

maintenance of the pipeline in Lake Michigan and problematic events have been documented,

and include, in part:

Anchor supports have been damaged and caused the shutdown of the pipeline.81

Anchor strike or strikes have damaged the pipeline.82

The pipeline coating has worn off leaving the pipeline less protected.83

Abandoned bore rods pose uncertain risks.84

The potential environmental impacts posed by allowing the existing pipeline to continue

transporting oil for the next 5-10 years must be considered. The ecological and economic

consequences of an oil spill in the Great Lakes are staggering, as documented extensively in

multiple reports,85 and discussed infra at VIII.C.3. Moreover, the Project’s decommissioning

plan for the dual pipelines includes keeping (at least in part) the dual pipelines in place. The

potential impacts of leaving the dual pipelines in the Straits requires careful evaluation.

The Corps has a well-recognized obligation under NEPA to analyze oil spills when

considering a Section 404 permit application. In Stop the Pipeline v. White, the Corps was

required to analyze oil spills in issuing a Section 404 permit for an oil pipeline.86 In Sierra Club v.

Sigler, the court struck down a Corps EIS for a dredging project that would allow increased oil

tanker access in a port because the spill analysis did not analyze the “worst case” scenario of an

oil tanker spill.87 In Standing Rock v. Army Corps of Engineers, the Corps was required to

80 The December 2018 Third Tunnel Agreement between Governor Snyder, state agencies and

Enbridge provides that Enbridge may continue its use and operation of the existing Line 5 until

the tunnel and new tunnel pipeline is operational. Third Agreement, Sec. 4.1, 4.2d

81 See Temporary Restraining Order, Nessel v. Enbridge Energy, Ltd., supra 3.

82 Attorney General Nessel’s Brief in Support of Motion for Preliminary Injunction, Nessel v.

Enbridge, supra 3, p. 2, n.2 (citing

https://www.mlive.com/news/2017/10/enbridge_line_5_damage_2014_de.html)

83 Id. at 2 n.1 (citing https://www.freep.com/story/news/local/michigan/2017/11/14/enbridgediscloses-dozens-more-gaps-straits-mackinac-pipelines-protective-coating/863490001/).

Disclosures of worn off pipeline coating have happened on multiple occasions, including in 2017

and in 2020.

84 “Enbridge won’t clean up debris left in Straits of Mackinac until spring,” MLIVE (December 6,

2019), https://www.mlive.com/news/grand-rapids/2019/12/enbridge-wont-clean-up-debrisleft-in-straits-until-spring.html

85 David J. Schwab, Statistical Analysis of Straits of Mackinac Line 5: Worst Case Spill Scenarios

(2016), http://graham.umich.edu/media/pubs/Mackinac-Line-5-Worst-Case-Spill-Scenarios.pdf.

86 233 F. Supp. 2d 957, 967 (S.D. Ohio 2002).

87 695 F.2d 957, 968 (5th Cir. 1983).

prepare an EIS and account for the limitations in a pipeline’s leak detection system, an

“operator’s serious history of incidents,” and the worst-case scenario of an oil discharge.88

Enbridge has a very troubling record of oil spills and an unimpressive record of pipeline

maintenance. In addition to being responsible for the largest terrestrial spill of crude oil in U.S.

history,89 the catastrophic Kalamazoo spill on Line 6B, described above, Enbridge has had more

than 30 spills along Line 5.90 Many of these spills have occurred in close proximity to

waterways, including Lake Superior, Lake Michigan, and Lake Huron.

As noted above, the section of Line 5 that crosses the Straits of Mackinac has had a

history of problems including the most recent problem on June 18, 2020, when Enbridge

reported that one of the anchor supports, installed in 2018, had been significantly damaged.

Enbridge was forced to shut down the pipeline. Then, despite the State of Michigan’s request

that the pipeline remain shut down until Enbridge shared the findings of its accident

investigation with Michigan, Enbridge opened a portion of the pipeline without further

consultation.

This unacceptable response to a significant pipeline event is particularly concerning in

light of the very serious, likely consequences of a “worst case” discharge from Line 5 into the

Straits of Mackinac. As discussed infra at VI.C.4, the “worst case” spill would impair water

quality, damage significant portions of the Great Lakes shoreline, harm key fisheries, and

impact tourism.

In addition, Enbridge has shown a lack of regard for its commitments established in the

2017 Consent Decree with the federal government, which required maintenance work along

the entire Lakehead Pipeline system. Recently, EPA fined Enbridge $6.7 million for failing to

meet its obligations, stating in part:

In addition, EPA identified numerous instances in which Enbridge failed to comply

in a timely manner with Consent Decree provisions relating to certain intersecting

or interacting features on Lakehead System pipelines. More specifically, Enbridge

88 -- F. Supp. 3d --, 2020 WL 1441923, at *9-16 (D.D.C. Mar. 25, 2020). Similarly, the Minnesota

Court of Appeals deemed a state agency’s approval of an environmental impact statement

about the construction of another Enbridge pipeline project in the Great Lakes to be arbitrary

and capricious because no modeling had been done to address the impact of an oil spill into the

Lake Superior watershed. In re Enbridge Energy, 930 N.W.2d 12, 27-28 (Minn. App. 2019).

89 Grobbel Environmental & Planning Associates, Comments on Application No. 2014-01071-TJH

(Feb. 21, 2019) at 19, Exhibit K.

90 Using Pipeline Hazardous Materials Safety Administration (“PHMSA”) data, Beth Wallace,

National Wildlife Federation, compiled an interactive ArcGIS map of the spill locations along

Enbridge’s Line 5:

https://www.arcgis.com/apps/View/index.html?appid=f817f5abad9a4cb09e942c1941fd0060

(last accessed June 24, 2020).

failed to complete timely identification and evaluation of thousands of “shallow

dent” features on Lakehead System pipelines to determine whether such dents

met dig selection criteria specified in Paragraph 58 and Table 5 of the Consent

Decree. As a result, Enbridge failed to excavate and repair or mitigate shallow

dents with indications of metal loss, cracking, or stress risers, as contemplated by

Paragraph 58 of the Consent Decree. Between the date of entry of the Consent

Decree and March 30, 2019, Enbridge conducted at least ten different ILIs that

triggered a duty to look for intersecting dent/corrosion features. EPA assessed

stipulated penalties in the amount of $3,075,000 for such violations (“the Third

Set of Stipulated Penalties”).91

Enbridge’s conduct should give the Corps pause and requires a deeper evaluation of the

potential impacts of this project through an EIS.

b. Climate change impacts from fossil fuels

A key characteristic of the Project is that it carries fossil fuels that contribute to

greenhouse gas emissions, which harm Michigan’s natural resources and exacerbate climate

change. With this Project, Enbridge would extend the lifetime of Line 5, and its corresponding

greenhouse gas emissions, for 99 years. Further, it remains unclear whether Enbridge will

expand the capacity of the pipeline with this Project, increasing the intensity of corresponding

emissions for each of those years. Greenhouse gas emissions are a proper subject of NEPA

analysis—and a necessary subject of a cumulative impacts analysis when an agency considers

permitting a pipeline.92 An EIS is necessary to address impacts from climate change.

The Line 5 pipeline carries light crude oil, light synthetic crude, and natural gas, which

each place a major carbon burden on the environment.93 Without major reductions in these

emissions, the increase in annual average global temperatures relative to preindustrial times

91 Letter, Matthew Russo, Assistant Regional Counsel, EPA Region 5 to Steptoe & Johnson

(Counsel to Enbridge), US v. Enbridge Energy, Civ. No. 1:16-cv-00914, Consent Decree, Demand

for Payment of Stipulated Penalties (May 8, 2020), attached as Exhibit L.

92 Indigenous Envtl. Network v. U.S. Dept. of State, 347 F. Supp. 3d 561, *578-79 (D. Mont.

2018); see also Indigenous Envtl. Network v. U.S. Dep’t. of State, 2019 WL 652416, *4-5 (D.

Mont. Feb. 15, 2019) (recognizing that omitting an analysis of greenhouse gas emissions from

pipelines in an EIS was an “error [that precluded informed decision-making and public

participation based on complete information”).

93 It is also unclear whether Enbridge might consider transporting tar sands oil through Line 5; a

potential spill involving tar sands oil would further harm the Great Lakes ecosystem and this

possibility of its transport through Line 5 must be clarified and studied. See, e.g., Keystone XL

FSEIS at 3.13-10 (2014) (noting the difference between tar sands oil and other forms of crude

because it precipitates out of water and leaves behind heavy bitumen which can sink to the

bottom), https://keystonepipeline-xl.state.gov/finalseis/.

could reach 5°C or more by the end of this century.94 Even with major reductions, there will

likely be a 2°C increase.

Climate change is not just about rising global temperature. Climate change also impacts

seasonal precipitation in the Great Lakes, likely leading to wetter winters and springs, which

lead to an increase in flooding. In turn, flooding causes structural damage to properties and

homes and limits the ability to recreate in outdoor places where there is a higher water level.

The Great Lakes are starting to see the impacts of climate change with rapid changes in

the water levels.95 Water levels of Lake Michigan and Lake Huron have already risen above their

peak monthly water level last year.96 The record lake levels from the summer of 2019 led to

increased height of the wave impact and accelerated erosion. As the Corps acknowledged,

“[m]any homeowners and communities have been caught off-guard with the dramatic increase

in erosion along the coastline, with numerous homes lost to the collapsing bluff.”97

With fluctuations in the lake levels and temperature as a casualty of climate change,

there likely will be habitat alteration. Several endangered and threatened species, discussed

infra at VII, may suffer from climate-related habitat loss, habitat fragmentation, competition

from invasive species, threats from new and emerging diseases, and altered ecological

processes.98 There likely also will be changes in fish productivity and the physiological state of

fish because fish are sensitive to changes in water temperature. Climate change likely will

exacerbate existing stressors on fishing, such as invasive species and contamination. Tribal and

recreational fishing will be impacted. Subsistence and commercial fishing of tribal members are

discussed infra at V.C.3. Recreational fishing in the region provides ecosystem services values

ranging from $0.3 to over $1.0 billion per year, according to recent estimates.99 Similarly,

94 Environmental Law & Policy Center, An Assessment of the Impacts of Climate Change on the

Great Lakes, 7 (2019), available at http://elpc.org/wp-content/uploads/2019/03/Great-LakesClimate-Change-Report.pdf (hereinafter “ELPC Climate Change Report”) (citing U.S. Global

Change Research Program (USGCRP) (2017). Climate Science Special Report: Fourth National

Climate Assessment, Volume I, [Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, D.J. Dokken, B.C.

Stewart, and T.K. Maycock (eds.)]. Washington, DC: USGCRP. doi: 10.7930/J0J964J6).

95 US Army Corps of Engineers Detroit Dist., Monthly Bulletin of Lake Levels for the Great Lakes,

July 2020, available at http://lre-wm.usace.army.mil/ForecastData/MBOGLWLcombined_bulletin_and_backpage.pdf.

96 See id. at 2.

97 US Army Corps of Engineers Detroit Dist., High Water Impacts on Coast Erosion (2020),

available at https://www.lre.usace.army.mil/Media/News-Stories/Article/2190986/high-waterimpacts-on-coastal-erosion/.

98 ELPC Climate Change Report at 34.

99 ELPC Climate Change Report at 44 (citing Loomis, J. & Richardson, L. (2008)). Technical

documentation of benefit transfer and visitor use estimating models of wildlife recreation,

species and habitats. Department of Agricultural and Resource Economics. Fort Collins, CO:

recreational birding in the Great Lakes, which has an annual value of over $3 billion per year,

could be negatively impacted by climate change by altering habitats and migratory patterns. 100

Lack of snow and ice from the warming of increased emissions lessens the public’s ability to

participate in winter activities like snowshoeing, snowboarding, snowmobiling, skiing, and ice

fishing.101 And, indeed, climate change “increasingly threatens indigenous communities’

livelihoods, economies, health, and cultural identities by disrupting interconnected social,

physical, and ecological systems.102

The Project’s transport of fossil fuels will perpetuate and exacerbate climate change.

Enbridge’s application, however, lacks consideration of the greenhouse gas emissions that are

associated with the oil and gas that the pipeline will transport. Also missing are the effects from

the other possible third-party companies that would locate utilities within the tunnel.103 Both

the Corps and the public need more information from Enbridge about the potential emissions

associated with the Project.

c. Risks associated with housing other utilities in tunnel

Enbridge states that the tunnel would potentially house other utilities.104 However,

American Transmission Company (“ATC”), an electric utility with lines currently crossing the

Straits, has suggested that the addition of electric lines is not economical, practical, or safe:

Safety. ATC does not believe that installing high voltage electric lines in close

proximity to high pressure oil or gas lines is a good idea.

Practicality. A cable capable of transmitting 138,000 volts is physically large and

would need several splices or joints to cross the entire Straits. Each splice location

would need significant space in the tunnel for welders. Nothing we have seen

suggests that a reasonably sized tunnel would be feasible.

Colorado State University, available at http://dare.colostate.edu/tools/benefittransfer.aspx;

Melstrom, R.T. & Lupi, F. (2013). Valuing recreational fishing in the Great Lakes. North American

Journal of Fisheries Management, 33(6), 1184-1193; Ready, R.C., Poe, G.I., Lauber, T.B.,

Connelly, N.A., Stedman, R.C., & Rudstam, L.G. (2018). The potential impact of aquatic nuisance

species on recreational fishing in the Great Lakes and Upper Mississippi and Ohio River Basins.

Journal of Environmental Management, 206, 304-318).

100 ELPC Climate Change Report at 45.

101 Id.

102 Fourth National Climate Assessment, Vol. 2, Summary Findings, 7 (2018),

https://nca2018.globalchange.gov/

103 Application at 34.

104 Public Notice, Sheet 33 of 38.

Economics. Increasing the size of the tunnel to accommodate both oil and electric

lines would dramatically increase its cost.105

The Corps needs to gather more information about the potential risks and environmental

impacts of having electric wires in the tunnel.

d. Other pending projects on Line 5 and ongoing impacts of Line 5

The Corps should not consider this Enbridge Project in isolation but, instead, consider it

in the context of other pending or recent projects, permit applications, and impacts of Line 5.

Currently, there are multiple other pending permit approvals for other pipeline work on Line 5,

including (1) an application for re-location of a 41-mile-long portion of Line 5 pipeline in

Wisconsin, in response to a lawsuit filed by the Bad River Band;106 (2) an application for a

special use permit in the Chequamegon-Nicolet National Forest;107 and (3) permits for stream

crossings and other pipeline activity in Michigan.108 Like the Project, each of these projects has

impacts on wetlands, shoreline, and aquatic ecosystems. The Corps should consider the

cumulative impacts of these projects collectively before approving the Enbridge Project.

2. The effects on the quality of the human environment are likely to be highly

controversial.

The Corps must consider “[t]he degree to which the [the project’s] effects on the quality

of the human environmental are likely to be controversial.”109 When courts consider the

controversial nature of the impacts to the human environment, they evaluate conflicting

opinions about the size, nature, and impacts of the project.110 First, as discussed below, there is

105 ATC Letter to CORA re Straits Cable Replacement Project (April 30, 2019), Exhibit M.

106 Multiple Wisconsin agencies are considering permits relating to this pipeline relocation. For

instance, the Wisconsin Department of Natural Resources will evaluate a wetland fill and

waterway impact/crossing permit application, https://dnr.wi.gov/topic/eia/enbridge.html;

Public Service Commission of Wisconsin is reviewing proposed real estate acquisitions related

to the relocation.

107

Troy R. Thompson, US Forest Service Hydrogeological Assessment of the Enbridge Pipeline

Section on the Chequamegon-Nicolet National Forest: Technical Report at 1, USDA Forest

Service, Region 9 (2019).

108 See e.g., 36-Enbridge Tributary to Paint River HDD-Crystal Falls Twp.(pipeline replacement),

https://miwaters.deq.state.mi.us/nsite/map/results/detail/8046601131437211620/documents; Enbridge Line 5 West Mile Creek Geohazard Mitigation

Project-Garfield Twp (installation of boulder riffles in floodplain),

https://miwaters.deq.state.mi.us/nsite/map/results/detail/7869628370450812816/documents

109 40 C.F.R. § 1508.27(b)(4).

110 See Partners in Forestry Co-Op, Inc. v. U.S. Forest Serv., 638 Fed. Appx. 456 (6th Cir. 2015)

(action is “controversial” when there is a disagreement as to the size, nature, or effect of an

action that casts substantial doubt on the adequacy of the agency’s methodology and data);

well-documented controversy surrounding alternatives analyses for the tunnel prepared by

Enbridge and the State of Michigan.111 Multiple lawsuits have challenged the safety of the Line

5 crossing and the proposed tunnel at the Straits of Mackinac,112 including two lawsuits

involving the Michigan Attorney General. In addition, approximately 3,000 commenters have

already expressed opposition to the Enbridge Project through the pending Michigan Public

Service Commission permit application process;113 many of these comments raise concerns that

will prove relevant in the Corps’ analysis of the scope, nature, and impact of the project.

Further, while Enbridge has consistently downplayed the impacts of the Project and risks

associated with Line 5, both the Corps and EGLE have requested more information about the

impacts, highlighting the need to get more information. An EIS will enable the Corps to flesh out

the analysis and document more clearly the environmental impacts of the alternatives.

3. Project construction poses a significant, potential threat to fish spawning grounds.

As discussed above, in exchange for the agreement to cede territory to the United

States, the Tribes reserved the right to hunt, fish, and gather throughout the territory—

including in the Great Lakes and the Straits of Mackinac. The right to fish has been fiercely

protected by the Bay Mills Indian Community and other tribes, including through litigation that

resulted in critical legal decisions upholding that right.114 Bay Mills defends its legal right

because the right to fish, and the need for a natural environment in which fish can thrive, is of

the utmost importance to the tribe and its members.

Consistent with the Tribal Nations’ legal right to fish, the State of Michigan and the

signatory tribes to the 1836 Treaty entered into a consent judgment in 1985 regarding

management of the Great Lakes fishery. That agreement affirmed that the State and the Tribal

Nations must work together to protect the Tribal Nations’ treaty fishing rights and manage the

Nat’l Parks Conservation Ass’n v. Semonite, 916 F.3d 1075, 1078-80 (D.C. Cir. 2019); Standing

Rock Sioux Tribe, et al. v. U.S. Army Corps of Engineers, et al., -- F. Supp.3d --, 2020 WL 1441923

(D.D.C. March 25, 2020).

111 See infra, VIII.B.

112 See, e.g., In the Matter of Petitions of Straits of Mackinac Alliance, et al., No. 18-010808

(EGLE admin.) (challenging the permits to install screw anchors); Natl. Wildlife Fed’n. v. Dept. of

Transp., Case No: 2:17-cv-10031 (E.D. MI) (challenging approval of spill response plans); Nessel

v. Enbridge Energy, No. 19-474-CE (Ingham County Cir. Ct. MI) (seeking to cease operation of

the pipeline).

113 Case Docket, Michigan Public Service Commission, Case No. U-20763, https://mipsc.force.com/s/case/500t000000UHxxLAAT/application-for-the-authority-to-replace-andrelocate-the-segment-of-line-5-crossing-the-straits-of-mackinac-into-a-tunnel-beneath-thestraits-of-mackinac-if-approval-is-required-pursuant-to-1929-pa-16-mcl-4831-et-seq-and-rule447-of-the-michigan-publ

114 See People v. LeBlanc, 248 N.W. 2d 199 (Mich. 1976); United States v. Michigan, 471 F. Supp.

192 (W.D. Mich. 1979).

Great Lakes fishery in a manner that respected tribal and state interests. The Tribal Nations and

the State have worked together to protect the Great Lakes ever since.

Commercial and subsistence fishing remain the primary occupation of members of Bay

Mills. More than half of Bay Mills member households rely on fishing for their income.115 Bay

Mills’ fishing rights in the area of the Project likely will be impacted by Project construction,

including the large volumes of water withdrawals and discharges of the wastewater and the

shoreline disturbances. Lake whitefish (Coregonus clupeaformis) is a primary target species of

the Chippewa Ottawa Resource Authority (“CORA”), which includes Bay Mills, Grand Traverse

Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, the Sault St.

Marie Tribe of Chippewa Indians, and the Little River Band of Ottawa Indians. CORA tribes rely

on the region for its commercial fishery. As explained in a declaration by Dr. Mark Ebener,

Fishery Assessment Biologist, Inter-Tribal Fisheries and Assessment Program, CORA,

Nearly the entire area of Northern Lake Michigan and Northern Lake Huron is lake

whitefish habitat that is used by all life stages. Lake whitefish eggs are laid on

shallow rocky/gravel areas in water less than 10 ft. deep typically from late

October through early December where they incubate throughout the winter.

Young lake whitefish hatch just after ice out from mid to late April through mid to

late May. These young lake whitefish occupy very shallow sandy areas less than 5

ft. deep adjacent to the spawning shoals through roughly early July. Thereafter,

the young lake whitefish move to deeper water. Juvenile and adult lake whitefish

live throughout Northern Michigan and Northern Huron occupying waters of

typically 30 to 200 ft. deep.

Northern Lake Michigan and Northern Lake Huron are very productive areas for

lake whitefish with biomass levels typically exceeding 10 million pounds annually.

Statistical catch-at-age estimates of the total biomass of lake whitefish age-4 and

older in Northern Lake Michigan and Northern Lake Huron ranged from 10 to 47

million pounds annually and averaged 28 million pounds during 1986-2014. The

annual CORA commercial harvest from Northern Lake Michigan and Northern

Lake Huron ranged from 1 to 4 million pounds and averaged 3 million pounds

during 1986-2014. Lake whitefish harvests from Northern Lake Michigan and

Northern Lake Huron made up 37% to 76% of the total annual CORA commercial

lake whitefish harvest from the 1836 ceded waters and averaged 58% during

1986-2014. Thus, Northern Lake Michigan and Northern Lake Huron are very

important fishing grounds for the CORA fishery and the habitat in these areas

produces more than ten millions of pounds of lake whitefish annually for harvest

by the tribes.

Lake whitefish sustain themselves solely through natural reproduction, but

spawning does not take place throughout Northern Lake Michigan and Northern

115 Affidavit of Bryan T. Newland, Petition to Intervene by Bay Mills Indian Community in MPSC

Case No. U-20763, Exhibit N.

Lake Huron. Rather lake whitefish spawning is concentrated in shallow rock and

gravel areas adjacent to the shorelines. As such, lake whitefish spawning sites

would be highly vulnerable to an oil spill. In the Northern Lake Michigan area

specific spawning locations include the areas around Green Island, Pt. aux Chenes,

and Epoufette along the southern shore of the Upper Peninsula of Michigan and

along the shoreline of the northern Lower Peninsula of Michigan from Cecil Bay

and Big Stone Bay west to Waugoshance Point and then south through Sturgeon

Bay. In Northern Lake Huron lake whitefish spawn along nearly the entire southern

Upper Peninsula shoreline from Detour west to just north of St. Ignace wherever

there are small rocky and gravel areas. Lake whitefish also spawn in large

aggregations from Cheboygan, Michigan southeast along the northeastern

portion of the Lower Peninsula of Michigan to 40 Mile Point; again wherever rocky

and gravel areas are found along the shoreline. 116

Lake whitefish spawning sites would be highly vulnerable to a spill, because whitefish

egg and larval whitefish are highly susceptible to changes in water temperature, chemistry,

oxygen, and turbidity. Spilled oil makes it physically difficult for fish and eggs to breathe and

simultaneously poisons them. Lake whitefish are not the only species with spawning sites that

would be highly vulnerable to a spill.117 Spawning grounds and nearshore nursery habitats of

many species may be permanently degraded by these water quality changes. The Corps should

prepare an EIS to fully evaluate the impacts to tribal fisheries.

4. Potential wetlands impacts require further consideration in an EIS.

The Corps should prepare an EIS to thoroughly analyze the direct and indirect impacts of

this Project on emergent, forested, and coastal wetlands. Enbridge’s Joint Permit Application

and supplemental submissions do not provide sufficient information to determine the impact of

the Project on wetlands. Similar to its treatment of several application issues, Enbridge also has

provided conflicting information across permit materials and application processes.

Initially, Enbridge asserted that, the Project will only impact a total of .11 acres of

wetlands—with .08 acres of wetlands suffering permanent impacts and .03 acres of temporary

impacts.118 Then, Enbridge revised its figures to indicate that 0.10 acres would be permanently

116 Mark P. Ebener, Fishery Assessment Biologist, Inter-Tribal Fisheries and Assessment

Program, CORA, Declaration (July 14, 2016), 3-4, (“Ebener Report”), Exhibit O.

117 Goodyear Spawning Atlas for the Great Lakes, ArcGIS map available at

https://www.arcgis.com/home/webmap/viewer.html?webmap=8e951782d20340708ced55627

4a18941 (last modified Jan. 29, 2018). Species occurrence data were collected from the Atlas of

Spawning and Nursery Areas of Great Lakes Fishes (Goodyear et al. 1982) and compiled into an

interactive map by Lacey Mason, Institute for Fisheries Research at the University of Michigan.

118 Application, 11.

impacted and .03 acres would be temporarily impacted, for a total of .13 acres.119 Enbridge also

acknowledges that it has not completed surveys for 5.2 acres of the south side and planned to

do so in spring 2020; to date, Bay Mills has not seen any updated reports on wetland impacts.

This missing information is critical because it will determine Enbridge’s obligations under its

Section 404 permit and Section 401 certification before EGLE.120

Second, Enbridge downplays the impact of the project to coastal wetlands. As identified

by the Great Lakes Coastal Wetland Monitoring Program (GLCWMP), there are four coastal

wetlands adjacent to the Project area—two of which lie mere feet from the boundary (Figure

1). The farthest of the coastal wetlands is only approximately 0.4 miles from the Project

boundary. Though not directly in the Project area, it is apparent that these sensitive ecosystems

will be impacted by the proposed construction. Although Enbridge is not asking to directly fill

portions of these wetlands, disturbance from heavy machinery and blasting, and effluent

discharge would disrupt these ecosystems.

119 In fact, Enbridge’s updated Joint Permit Application, actually contains both the 0.11 figure

and the .13 figure. See HNY-NHX4-FSR2Q V4, 10, 12 (June 17, 2020),

https://miwaters.deq.state.mi.us/nsite/site/2746869251480183093/documents

120 As noted in the Public Notice Joint Permit Application form, “EGLE may impose as a

condition of any wetland permit, . . . , compensatory mitigation. The wetland mitigation

requirement may be waived for projects affecting less than one-third of an acre of wetland if no

reasonable opportunity for mitigation exists.” Public Notice, 13.

GLCWMP Site# 1598,

Point St. Ignace Wetland,

54.6 acres

GLCWMP Site# 1802,

Point la Barbe Wetland,

8.0 acres

GLCWMP Site# 1804,

Green

Island

Wetland, 0.8 acres

GLCWMP Site# 1803,

Green Island Wetland,

0.6 acres

Figure 1. Recognized Great Lakes coastal wetlands (green polygons) and Environmental Areas

(signified by white arrows) adjacent to north side project area.121

Third, the wetlands within the project area on the north side could also be considered

coastal alvar. The coastal alvar habitats found in several places around the Great Lakes region

are covered by thin layers of soil or consist of bare limestone rock (Figure 2). Alvars occur

mainly in the Great Lakes region from the Upper Peninsula of Michigan to northern Lake Huron

east across Manitoulin Island, following the escarpment to New York. Variations of alvars exist

with shoreline alvars occurring at the water’s edge. Because of erosion, and relatively less

severe and shorter periods of drought, the vegetation of shoreline alvars is different from that

of plateau alvars. The shoreline’s alvars have many mesic prairie or prairie/fen species including

the dominant grasses. The Project area also includes Great Lakes cobble beach. Both of these

ecotypes include a host of rare, endemic plant species, including, but not limited to Houghton’s

Goldenrod and Dwarf Lake Iris. According to Michigan Natural Features inventory, alvar is state

ranked: S1 – critically imperiled.122

121 Coastal Wetlands Website, www.coastawetlands.org and

https://www.michigan.gov/documents/deq/lwm_ea_list_by_county_268678_7.pdf

122 Albert, D.A., J.G. Cohen, M.A. Kost, B.S. Slaughter, and H.D. Enander. 2008. Distribution

Maps of Michigan’s Natural Communities. Michigan Natural Features Inventory, Report No.

2008-01, Lansing, MI. 166 pp.

Figure 2. Prevalence of alvar within Michigan.

The wetland delineation reports from the north shore project area document the potential

existence of alvar. More investigation is needed to determine the presence of alvar and the

potential impacts of the project on alvar. Many soil borings from these wetlands reference very

shallow limestone gravel, thin layers of duff followed by limestone gravel, thin layers of muck

followed by refusal of the soil corer (perhaps because of limestone bedrock), and in one

instance, no soil core/soil pit was dug because too many Dwarf Lake Iris were present.

Fourth, Enbridge does not adequately describe the impacts of increasing the base and

surface width of Boulevard Drive. Enbridge has not provided plans depicting the final grade of

Boulevard Drive and where surface runoff will be siphoned and drained. Enbridge does not

discuss how runoff will be treated to remove debris. Nor does Enbridge address how the rate of

runoff will be controlled for erosion and sedimentation. Enbridge fails to explain how it will

minimize the harmful effects of road expansion along the Straits’ northern coast and emergent

wetlands. Detailed construction plans will enable the Corps to evaluate how the movement of

water in the system will change, impacting wetlands, the floodplain, and Lake Michigan.

Fifth, the dewatering process used to create the tunnel shaft may result in a drawdown

of groundwater and could have impacts on groundwater wells and wetlands. Enbridge’s

application barely mentions these issues. The Corps must consider these potential impacts in an

EIS before the Corps approves the Project.

Sixth, Bay Mills is concerned about the impacts of the Project on Wetland 3 (“W3”). As

described in the Stantec Wetlands and Waterways Delineation Report, submitted by Enbridge:

Wetland W3 is a large wetland consisting of PEM, PSS, and PFO wetland types.

This wetland begins within the Line 5 ROW approximately 2,000 feet south of

Highway US 2. It extends south along a former lake plain that slopes gently toward

the Straits. Scattered uplands are present within this large wetland complex.

These upland areas were not mapped due to the complexity associated with areas

that contain wetland/upland mosaic.123

Enbridge plans to fill W3 but has not provided sufficient justification of the need to fill this

wetland. It merely provides that it will “provide access around the existing North Straits Facility

to a construction and staging area to the north of the facility.”124 In addition to the lack of

justification for filling W3, Enbridge’s original application failed to address its methods of

trenching for W3. In response, the Corps requested further information;125 it is unclear whether

Enbridge provided it.

Regarding restoration, Enbridge stated: “The crossing of Wetland 3 will be restored to

original contours, seeded with an emergent wetland seed mix, and is expected over time to

return to its natural state. Enbridge will monitor disturbed areas for invasive species.”126 But, in

Appendix B of its Environmental Protection Plan, Enbridge provides examples of its seed mix of

generic non-native species.127 Given the extensive wetland surveys, Enbridge should be able to

provide a local native seed list, and provide maps as to where site-specific mixes would be used.

The Corps indicated concern with Enbridge’s potential use of open trench methods in

W3. Specifically, the Corps wrote:

Clarify whether open trench methods may be used within Wetland 3. If you

propose to use open trench methods within Wetland 3, clarify why directional

123 Stantec, Wetlands and Waterways Delineation Report—Great Lakes Tunnel Project, 6

(October 22, 2019), GLTP_Wetland_Report_Final_20191022 v.1.

124 Public Notice, 2.

125 Corps April 14 Letter.

126 Public Notice, 37.

127 Enbridge Environmental Protection Plan, Appendix B.

drilling under the wetland is not practicable, and provide drawings of the trench

and temporary spoils sidecasting areas in the wetland, with all dimensions

shown.128

The public notice indicates that “tie-ins may be performed via traditional open trench or

trenchless methods (e.g., HDD).”129 It then states, “[i]f the north side tie-in is completed via a

trenchless technique, it may extend outside the LOD, under W3” and will result in “no ground

disturbance to W3.”130 There is no discussion of the possible impacts to W3 caused by the

activity under W3 even if there is no ground disturbance. The Corps cannot approve the Section

404 permit without further consideration of the impacts to W3.

Seventh, Enbridge’s permit application also is incomplete because it lacks an adequate

wetland mitigation plan notwithstanding EGLE’s and the Corps’ request. Michigan law

“require[s] mitigation to compensate for unavoidable wetland impacts” in the form of

restoration of previously existing wetlands, the creation of new wetlands, the acquisition of

approved credits from a wetland mitigation bank, or, in some circumstances, the preservation

of existing wetlands.131 Under Michigan law, EGLE may waive the mitigation condition here only

if “[t]he permitted wetland impact is less than 1/3 of an acre and no reasonable opportunity for

mitigation exists.”132

As part of its permit application, Enbridge was required to provide a detailed conceptual

mitigation plan or an explanation of why the mitigation requirement should be waived. Instead,

Enbridge stated that the total wetland impact area is 0.13 acres and requested a waiver,

ignoring the requirement to provide a mitigation plan or an explanation of why mitigation is not

required. EGLE considered this insufficient, and the agency asked for a mitigation plan. 133 Deep

into the public comment period, Enbridge provided some additional—and conflicting—

information. In one document dated June 17, 2020, Enbridge explained why it was not

proposing mitigation.134 But in a letter to EGLE dated June 8, 2020, Enbridge suggested that it

would perform a modest mitigation—the removal of Phragmites australis, an invasive

128 Corps April 14 Letter, p. 2.

129 Public Notice, 37.

130 Public Notice, 32.

131 Mich. Admin. Code R. 281.925(4).

132 Mich. Admin. Code R. 281.925(3)(a)(1) (emphasis added).

133 EGLE May 4 Letter, supra 4.

134 Enbridge Energy Tunnel Project NPDES permit application (HNY-TBJC-PNK8V) (June 17,

2020). While the document is dated June 17, 2020, it does not appear to have been added to

MiWaters.deq.state.mi/us, where EGLE keeps permit application materials and makes them

available for the public, until June 23, 2020. See

https://miwaters.deq.state.mi.us/nsite/site/2746869251480183093/documents. This is

representative of the moving target that is Enbridge’s application and the way that materials

are difficult for members of the public to adequately review during the comment period.

species.135 Much like other parts of Enbridge’s application materials, this is unclear and

insufficient. If Enbridge removes Phragmites, it should do so before any disturbance to the area

is permitted. Enbridge conducted plant surveys for their geotechnical boring in 2018,

identifying invasive plant areas. These areas should get special consideration regardless of

disturbance or fill, and the public and the agencies would benefit from having access to the

plant meander survey data and species lists generated from these assessments.

Wetlands mitigation itself is a last resort—required where impacts are “unavoidable”—

and yet Enbridge takes the waiver of mitigation for granted.136 Enbridge’s approach is especially

troubling here because there are at least two threatened species in the vicinity of the Project:

Houghton’s Goldenrod and Dwarf Lake Iris.137 Under the CWA, the Corps cannot condone

noncompliance with state water quality requirements, including wetlands protection.138

5. Potential floodplain impacts require further consideration in an EIS.

An EIS is also needed to consider the impacts of the Project on floodplains in the area.

The floodplain surrounding the north project area has been classified and protected as part of

the Coastal Barrier Resources System (“CBRS”). The Coastal Barrier Resources Act139 (“CBRA”)

135 Letter from Paul Turner, Enbridge Energy, to Joseph Haas, Michigan Department of

Environment, Great Lakes, and Energy, dated June 8, 2020.

136 Mich. Admin. Code R. 281.925(4). In contrast, when Enbridge prepared the 2018 Report for

Michigan, it acknowledged potential mitigation measures for wetlands, including restoration

and compensatory mitigation. 2018 Report at 55. Even then, “[g]enerally accepted engineering

practices and common wetland policy regulations” call for mitigation “such as near-site

replacement wetland construction and/or wetland preservation at compensation ratios

resulting in a net increase in wetland acreage.” Grobbel Environmental & Planning Associates,

Comments on Application No. 2014-01071-TJH (Feb. 21, 2019) at 7, Exhibit K. The Detroit

District of the Corps also generally requires mitigation “at a ratio greater than 1:1” to

“adequately compensate for unavoidable adverse impacts.” 2008 Mitigation Guidelines and

Requirements, Detroit District, U.S.A.C.E (2008) at 1.

137 EGLE May 4 Letter, supra 4.

138 See 40 C.F.R. 230.10(b).

139 16 U.S.C. § 3501. The Coastal Barrier Improvement Act of 1990 (CBIA), Pub. L. No. 101-591,

104 Stat. 2931 (codified as amended at 16 U.S.C. § 3503 (2012)) expanded the Coastal Barrier

Resources System (CBRS) to include undeveloped coastal barriers along the Florida Keys, Great

Lakes, Puerto Rico, and U.S. Virgin Islands. § 3, 104 Stat. at 2931. The CBIA also created a new

category of coastal barriers called “otherwise protected areas” (OPAs), which are held and

managed by a qualified organization, primarily for wildlife refuge, sanctuary, recreational, or

natural resource conservation purposes. § 12, 104 Stat. at 2940; U.S. Fish & Wildlife Serv., CBRA

Legislation and Testimony, http://www.fws.gov/ecological-services/habitatconservation/cbra/Act/Legislation.html (explaining legislative changes to the CBRA).

was designed to protect biologically rich coastal barriers/communities by prohibiting the use of

federal dollars to develop such coastal features.

Figure 3. Map of CBRS area available in FEMA’s National Flood Hazard Layer (NFHL) Viewer.

Enbridge’s failure to demonstrate the requisite understanding and care for Michigan’s

unique and treasured natural resources is reflected in its plans for this area that has earned

federal distinction as part of the Coastal Zone Barrier System. Enbridge simply notes:

Construction activities in these areas involve cut and fill for road improvements of

the existing Boulevard Drive for construction access. Enbridge will comply with

local floodplain development permitting requirements and coordinate with the

local floodplain manager.

A section of Boulevard Drive that is proposed for improvements in the eastern

portion of the north side LOD is located within a Coastal Barrier Resources System

(CBRS) buffer zone . . . .140

Then, after acknowledging that the CBRA prohibits federal funding in these designated areas,

Enbridge asserts, “Development can still occur within the CBRS, as long as private developers or

other non–federal parties bear the full cost (FEMA 2019).”141

In other words, Enbridge essentially will pay to avoid the underlying purpose of the

CBRA. Enbridge proposes to bury these features—the very ones the CBRA meant to protect—

under 16 inches of fill. Enbridge has not explained the need for filling this area. Enbridge’s

application states that 3,630 cubic yards of material would be used to fill much of the project

area within the 100-year floodplain. Enbridge does not adequately justify the need for this

140 Supplemental Information, 8-9.

141 Id.

activity, nor does it provide any assurance that construction site runoff, even in the event of

severe rain and flooding, will not lead to direct discharge (either via direct overland flow or via

the mapped state and federally regulated stream) of excessive sediment, slurry, oils/grease,

etc. The Corps should not approve this Project without gathering more information and

analyzing the impacts of the activity in the floodplain. There should be continual state and

federal oversight, documentation, and reporting set up for these concerns.

6. The Project involves unique and uncertain risks that require further consideration.

Tunnel construction under the Straits of Mackinac raises additional and uncertain risks

that necessitate preparation of an EIS. First, as a cross-section profile of the Straits [Figure 4]

submitted by Enbridge illustrates, Enbridge will drill through and place the tunnel in a valley

deep in the middle of the Straits. Enbridge has indicated that it will locate the tunnel at a depth

between ten feet below the top of the rock and sixty feet below the mud line—whichever is

shallower. As the cross-section shows, this means that where the tunnel is in the valley of the

Straits, the drilling and tunnel likely will be in sediment (glacial till) above the bedrock layer.

More information and assessment are needed to understand how Enbridge will drill through

that area safely, particularly considering the relatively high water pressures at that point in the

Straits. The Corps also needs to evaluate the potential release of drilling fluids into Lake

Michigan during the tunnel drilling process through fractures caused by the pressure of the

drilling process.

Figure 4. Profile of Straits at Project location. The green area shows where the tunnel might be

built. The dotted line that makes a sharp “v” into the green area in the center indicates the

approximate top of bedrock.142

7. The Project threatens a violation of federal, state, and local laws.

Considering that the proposed Enbridge Project may lead to violations of several

applicable federal and state environmental standards, an EIS is needed to further evaluate the

142 Enbridge Application, GLTP_JPA_figures_20200402 v4.pdf, 4.

proposal. This section highlights some, but likely not all, of the laws that the Corps should

consider before approving the Project.

Michigan Water Quality Standards: As discussed in the CWA section, infra,

Michigan’s water quality standards include antidegradation rules which protect

existing uses—including fish consumption and indigenous aquatic life and wildlife.

Enbridge’s permit application materials do not demonstrate that the Enbridge

Project will satisfy Michigan’s antidegradation rules.

Endangered Species Act: See VII, infra. Prior to approving the Project, the Corps

should undertake consultation with the FWS and should ensure that the impacted

endangered and threatened species can be appropriately protected or it should

deny the permit application.

Endangered and Threatened Species Act of Michigan: In addition to the species in

the project area that are protected under the ESA, several more species in the area

are protected under the Endangered and Threatened Species Act of Michigan. The

Corps should undertake a deeper analysis and work with the Michigan Department

of Natural Resources to ensure that there will not be a “take” of the Michiganspecific protected species. Further, the Corps should make sure that the Project will

not result in violations of the Michigan statutory and regulatory protections for

species that are listed on both the federal and state lists.

Coastal Barrier Resources Act:143 As discussed, supra at V.C.6, Enbridge’s plans will

occur in close proximity to protection coastal barrier zones, which means the Corps

should ensure compliance with the CBRA through a deeper review of the impacts

through the preparation of an EIS.

Michigan Environmental Protection Act (“MEPA”):144 It is possible that approval of

the Project will interfere with the State of Michigan’s ability to protect its natural

resources and the public trust in those resources. MEPA mandates that the

administrative agencies and courts determine the “alleged pollution, impairment, or

destruction of the air, water, or other natural resources, or the public trust in these

resources” and to identify “a feasible and prudent alternative consistent with the

reasonable requirements of the public health, safety, and welfare.”145

Great Lakes Submerged Lands Act (“GLSLA”):146 Boring a tunnel through the bedrock

and soils beneath the Straits is an excavation, alteration, or modification of the lake

bottomlands subject to the GLSLA, which requires permitting. The unpermitted

143 16 U.S.C. § 3503 (2018).

144 MCL 324.1705.

145 MCL 324.1705(2).

146 MCL 324.32501.

“excavat[ion] or fill[] or in any manner alter[ation] or modifi[cation of]” any of those

unpatented lake bottomlands is prohibited.147 Michigan holds in public trust the lake

bottomlands and made lands in the Great Lakes,148 including lands accessed by

drilling149 and soils underlying the Great Lakes.150 “[P]ermission given by the

Corps . . . has no effect upon the separate right and duty of [Michigan] to protect

and conserve the submerged lands.”151

1836 Treaty of Washington: Bay Mills maintains treaty right in the entire region that

Line 5 crosses, including the Straits. The Corps must consider the impact the

Proposal will have on Bay Mills’ treaty rights and protect those rights.

VI. CULTURAL RESOURCES

Before the Corps can grant Enbridge’s permit application, which threatens Bay Mills’

identity and its way of life and is centered in the Straits of Mackinac, it must consider the

impacts of the Project on cultural resources;152 it must also consult with Bay Mills concerning

the impacts and mitigate the impacts to cultural resources under the NHPA and NEPA.

Due consideration of tribal resources should be grounded in Bay Mills’ expertise and

understanding of its connection to the resource.153 The Straits, and the Great Lakes more

broadly, are central to Bay Mills’ spiritual history and current way of life, and are not valued on

the basis of individual sites alone but on the interconnectedness of the land, water, and people.

To look at it any other way is like ‘missing the forest for the trees.’

147 MCL 324.32510.

148 MCL 324.32502.

149 MCL 324.32503.

150 Glass v. Goeckel, 703 N.W.2d 58, 65, 88 (Mich. 2005) (citing Illinois Central R. Co. v. Illinois,

146 U.S. 387, 452 (1892).

151 Obrecht v. Nat'l Gypsum Co., 105 N.W.2d 143, 147 n.4 (Mich. 1960).

152 Although neither NEPA nor the NHPA define cultural resources by regulation, the National

Park Service describes cultural resources as “an aspect of a cultural system that is valued by or

significantly representative of a culture, or that contains significant information about a culture.

A cultural resource may be a tangible entity or a cultural practice. Tangible cultural resources

are categorized as districts, sites, buildings, structures, and objects for the National Register of

Historic Places, and as archeological resources, cultural landscapes, structures, museum

objects, and ethnographic resources for NPS management purposes. See National Park Service

Management Policies, 157 (2006), https://www.nps.gov/policy/MP_2006.pdf#page=167.

153 See id. at § 800.4(c)(1) (“The agency official shall acknowledge that Indian tribes and Native

Hawaiian organizations possess special expertise in assessing the eligibility of historic properties

that may possess religious and cultural significance to them.”).

The Corps currently lacks adequate information to assess the impacts of Enbridge’s

Project on cultural resources.

A. The Corps must undertake consultation with Bay Mills and other Tribal Nations under

Section 106 of the NHPA.

The NHPA was created to “foster conditions under which our modern society and our

prehistoric and historic resources can exist in productive harmony.”154 The NHPA has been

characterized as a “stop, look, and listen” statute that requires agencies to fully consider the

effects of its actions on historic, cultural, and sacred sites.155 Section 106 of the NHPA requires

that prior to issuance of any federal funding, permit, or license, agencies must take into

consideration the effects of that “undertaking” on historic properties.156 The Advisory Council

on Historic Preservation (“ACHP”) promulgated rules to implement the NHPA, and it authorized

federal agencies to develop “counterpart regulations” and obtain ACHP’s approval; notably, the

Corps’ implementing regulations have never been approved by the ACHP, which means that the

ACHP regulations govern.157

Agencies “must complete the section 106 process prior to the approval of the expenditure

of any Federal funds on the undertaking or prior to the issuance of any license.”158 Section 106

requires the Corps to consult with Tribal Nations before it makes a decision on a federal

undertaking.159 Agency officials must consult with tribes “that attach religious and cultural

significance to historic properties that may be affected by an undertaking. This requirement

applies regardless of the location of the historic property.”160 Consultation is also designed to

“seek ways to avoid, minimize or mitigate any adverse effects on historic properties.”161

B. Bay Mills’ spiritual, cultural, and economic dependence on the Straits of Mackinac and

the Great Lakes is threatened by the Project.

The Great Lakes and the Straits of Mackinac have profound cultural significance to Bay

Mills. According to the oral histories of the tribe, the creation of North America began with a

flooded Earth. The animals that survived that Earth received instructions from the Creator to

swim deep beneath the water and collect soil that would be used to recreate the world. All of

154 CTIA-Wireless Ass’n v. FCC, 466 F.3d 105 (D.C. Cir. 2006) (citing 16 U.S.C. § 470-1(1)); Comm.

To Save Clevelands Huletts v. US Army Corps of Engineers, 263 F. Supp.2d 776, 788 (N.D. Ohio

2001)(citing 36 CFR § 800.15).

155 See, e.g., Te-Moak Tribe of Western Shoshone v. Nevada v. U.S. Dep’t of Interior, 608 F.3d

592, 606 (9th Cir. 2010).

156 54 U.S.C. § 306108; 36 CFR § 800.1

157 Comm. To Save Clevelands Huletts, 263 F. Supp.2d at 791.

158 36 C.F.R. § 800.1 (emphasis added).

159 36 C.F.R. § 800.2(c)(2)(i); see also Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800,

805 (9th Cir. 1999).

160 36 CFR § 800.2(c)(2)(ii) (emphasis added).

161 36 CFR § 800.1

the animals failed, but the body of the muskrat, the last animal that tried, resurfaced carrying a

small handful of wet soil in its paws.

According to the history, the Creator used the soil collected and rubbed it on the Great

Turtle’s back, forming the land that became known as Turtle Island, the center of creation for

all of North America. It is believed that the Great Turtle emerged from the flood in the Straits of

Mackinac. Because the creation of North America took place in the Great Lakes, the Great Lakes

are considered the heart of Turtle Island and as such, the heart of North America. The word

“Mackinac” is, in fact, derived from the original name of the Great Turtle from the Ojibwe story

of Creation. The Straits is more than a waterway; they are a place of ongoing spiritual

significance to the way of life of Bay Mills since time immemorial.

The Straits and the Great Lakes watershed play a fundamental role in the economic,

cultural, traditional, and spiritual identity of Bay Mills. Considering the religious and cultural

significance of Bay Mills’ relationship to the broader ecosystem and the potential impact that

an oil spill could have on these special resources, the entire area should receive special

protection.

The ACHP has recognized that large scale properties, comprised of multiple, linked

features” can constitute a “cohesive ‘landscape.’”162 Accordingly, the ACHP committed to

working with the National Park Service (“NPS”) to “[p]romote the recognition and protection of

Native American traditional cultural landscapes both within the federal government and the

historic preservation community . . . .”163 The NPS defines “cultural landscapes” as “a

geographic area, including both cultural and natural resources and wildlife or domestic animals

therein, associated with a historic event, activity, or person or exhibiting other cultural or

aesthetic values.”164 The Corps should respect that, for Bay Mills, the Straits of Mackinac is a

cultural landscape, and the Corps should prioritize consultation and information-gathering.

162 Native American Traditional Cultural Landscapes Action Plan (2011),

https://www.achp.gov/sites/default/files/guidance/201806/NativeAmericanTCLActionPlanNovember232011.pdf

163 Id.

164 NPS, Preservation Briefs # 36. Two particularly relevant examples of cultural landscapes

relate to the Straits of Mackinac and the surrounding area. First, “historical vernacular

landscapes” have “evolved through use by the people whose activities and occupancy shaped

that landscape.” Second, “ethnographic landscapes” contain “a variety of natural and cultural

resources that associated people define as heritage resources.” https://www.nps.gov/tps/howto-preserve/briefs/36-cultural-landscapes.htm

C. The Corps must undertake additional evaluation of the impacted cultural resources

before deciding whether a permit is appropriate.

The Corps must undertake consultation and gather more information prior to issuing the

permit. The first step is for the Corps to determine the “area of potential effects”165 (“APE”) of

the federal undertaking. The APE includes the area within which an undertaking “may directly

or indirectly cause alterations in the character and use of historic properties . . . “166 When

defining the APE, the Corps must look to the ACHP regulations for guidance.167 Then, the Corps

must identify historic properties168 within the APE that could potentially be affected.169 Next,

the Corps must evaluate the historic significance of such sites, and determine whether they are

included or eligible for inclusion in the National Register of Historic Places. 170 To complete a

proper evaluation of cultural resources under NHPA and NEPA, the Corps should undertake

consultation with Bay Mills. In addition, under NEPA, the Corps must take a “hard look” at the

cultural resources and other unique characteristics of the project area,171 and should proceed

with preparation of an EIS accordingly. As explained below, at a minimum, it is likely that the

Project will directly impact a burial ground.

165 36 CFR § 800.4(a)(1).

166

Id. at § 800.16(d).

167 See Comm. To Save Clevelands Huletts, 263 F. Supp.2d at 792 (“The Corps, accordingly,

cannot rely on its own regulations to define the scope of its notice obligations or to define the

“permit area” governing the circumstances giving rise to those obligations.”)(citations omitted);

see also Colo. River Indian Tribes, 605 F.Supp. 1425, 1437 (C.D. CA 1985)(finding that the Corps

could not rely upon its own regulations, under 33 C.F.R. § 325, App. C, in place of the ACHP's

regulations, because the “permit area” was more narrowly defined than the area to be

considered under the ACHP's regulations.).

168 Historic property is defined as “any prehistoric or historic district, site, building, structure, or

object included in, or eligible for inclusion in, the National Register of Historic Places maintained

by the Secretary of the Interior. This term includes artifacts, records, and remains that are

related to and located within such properties. The term includes properties of traditional

religious and cultural importance to an Indian tribe or Native Hawaiian organization and that

meet the National Register criteria.” 36 C.F.R. § 800.16(l)(1).

169 Id. at § 800.4(b).

170 The criteria for evaluating National Register eligibility are “worded in a manner to provide

for a wide diversity of resources.” Eligible properties include those “associated with events that

have made a significant contribution to the broad patterns of our history,” “associated with the

lives of persons significant in our past,” and “that have yielded, or may be likely to yield,

information important in prehistory or history.” 36 C.F.R. § 60.4.

171 Anglers of the Au Sable v. US Forest Service, 565 F. Supp. 2d 812, 826-827 (2008) (rejecting

the Forest Service assertions that it had taken a “hard look” at the project’s impact on unique

recreational aspects of the area).

Based on Enbridge’s current application materials, the Corps should either deny the

permit now or undertake additional review in consultation with Bay Mills and other Tribal

Nations. First, at this point, there is no delineation of the “area of potential effects,”172 but

Enbridge seems to focus on an area within 164 feet of the existing Line 5 right of way in some

places and one mile of the area in others.173 The Cultural Resources Phase I Report (“Phase I

Report”)—prepared for Enbridge by Commonwealth Heritage Group—acknowledges that the

Corps has not yet independently evaluated the area of potential effects. A Phase I report is

cursory and designed to identify potential sites that are listed on the National Register for

Historic Properties (“NRHP”). Without a proper understanding of the area of potential effects of

the Project, it is impossible to identify and evaluate the relevant cultural resources.

Second, while even Enbridge’s own narrowly defined area of potential effects and the

contents of the Phase I Report demonstrate the rich connection of Bay Mills and other Tribal

Nations to the area; it also substantiates the need for further investigation for the presence of

cultural resources. The Phase I report recognizes that at the time that Europeans entered the

Straits of Mackinac in the 1600s, 6,000-7,000 members of the Chippewa (Ojibwa) and Ottawa

Indians lived there, and there was agricultural activity, a village, and a cemetery.174 In addition,

the Phase I Report discusses the Fort Michilmackinac site and notes that regular archaeological

digs have unearthed over one-million artifacts.175 The Phase I Report also recognizes strong

evidence of fall-spawning fish and gill-net technology.176

The currently available information, as laid out in the Phase I Report, raises concerns

and highlights the need to do more investigation. For instance, Enbridge acknowledges that

background research reveals that there are a total of “nine previously recorded terrestrial

cultural resources” within a one-mile radius of the dual pipelines in the Straits of Mackinac;177 it

also notes that none have been evaluated for NRHP listing.178 In addition, the Phase I Report

indicates that three unverified sites may cross into the project areas and are associated with

tribal cultural traditions.179 The Phase I Report specifically mentions the possibility of a Native

172 The area of potential effects is defined as “the geographic area or areas within which an

undertaking may directly or indirectly cause alterations in the character or use of historic

properties, if any such properties exist. The area of potential effects is influenced by the scale

and nature of an undertaking and may be different for different kinds of effects caused by the

undertaking.” 36 CFR § 800.16(d).

173 Commonwealth Heritage Group, Phase I Cultural Resources Survey for the Enbridge

Mackinac Straits Project, 1 (August 2019).

174 Id.at 10-11.

175 Id.

176 Id.

177 Supplemental Information, 9.

178 Id.

179 Commonwealth Heritage Group, Phase I Cultural Resources Survey for the Enbridge

Mackinac Straits Project, 20-22 (August 2019).

American burial ground at Point La Barbe, within one mile of the North Straits Project area.180

The Phase I Report also makes clear that there are likely additional sites, which means that

further study is appropriate. Even if the Phase I report had a clear understanding of the existing

sties, it would be inappropriate for an initial report to reach a conclusion about the likelihood of

adverse effects. Eventually, after more clarity is gained about the scope of the project area and

the additional potential NRHP eligible sites, then a Phase II report can be prepared to detail the

likely adverse impacts. Before the Corps can approve this permit, it must undertake a deeper

review of the potential cultural resources impacted by the Enbridge Project.

Third, Enbridge’s various permit submissions provide conflicting information that

necessitates independent assessment. As illustrated below, the figure on the left indicates site

20MK15 to be located on the SE corner of the point, at the corner of the road. “The SHPO

record, which is based on historical documentation, indicates the site was the location of a

precontact (likely Woodland period) Native American burial mound.”181 The figure on the right

indicates that the proposed storm water outfall location (Outfall 002) under the NPDES

permit will be located in the same location. 182

Figure 5 Cultural Resource Phase I Survey

Figure 6. Enbridge NPDES Permit Application183

Within the last week, Bay Mills received access to a map that consolidated all project-related

activity into one master map. The comprehensive, layered map is the only effective way to see

the interaction of the separately permitted activities. This document should have been made

180 Id. at 20.

181 Id.

182 See NPDES GLTP 04152020 (Figures 1-3); Construction Water

Management_NPDES_GLTP_Final_04152020.

183 Id.

widely available from the outset so that the public had adequate information to comment on

Enbridge’s permit application.

VII. THE ENBRIDGE PROJECT WILL ADVERSELY IMPACT ENDANGERED AND THREATENED

SPECIES AND MUST NOT BE APPROVED UNTIL FURTHER EVALUATION.

A. The Endangered Species Act

The Endangered Species Act (ESA) is “the most comprehensive legislation for the

preservation of endangered species ever enacted by any nation.”184 Under the ESA, all federal

agencies must afford ESA-protected species “the highest of priorities,” and “to halt and reverse

the trends toward species extinction, whatever the cost.”185 The ESA requires coordination with

expert wildlife agencies so activities which undermine ESA goals can be avoided.

The ESA is administered by two expert wildlife agencies—the Department of Interior’s

Fish and Wildlife Service (FWS) and the Department of Commerce’s National Marine Fisheries

Service (NMFS). The FWS has primary responsibility for terrestrial and freshwater organisms,

while the NMFS is responsible for marine wildlife such as whales and anadromous fish such as

salmon. Thus, for this Project, FWS is the relevant agency.

To fulfill the ESA’s conservation mission, species in decline must be identified or

“listed.”186 Congress describes five factors that imperil the continued existence of species: (1)

present or threatened destruction, modification, or curtailment of habitat (2) overutilization for

commercial, recreational, scientific, or educational purposes, (3) disease or predation, (4)

inadequacy of existing regulatory mechanisms, and (5) other natural or manmade factors.187

Depending on how dire a species’ status is due to one or a combination of the above factors, a

species will be listed as “threatened” or “endangered.”188

184 Tenn. Valley Authority v. Hill, 437 U.S. 153, 180 (1978).

185 Tenn. Valley Authority, at 174, 184.

186 16 U.S.C §§ 1533(c); 1533(b)(1)(A) FWS and NMFS can independently list a species after

reviewing “the best scientific and commercial data available” concerning the species’ status;

1533(b)(3)(A) Citizens can also petition wildlife agencies to list a species. Wildlife agencies have

90 days to decide whether the petitioned action may be warranted.”; 1533(b)(3)(B) If the FWS

finds action might be warranted, it has 12 months to dismiss the petition or begin the listing

process.

187 16 U.S.C § 1533(a)(1).

188 16 U.S.C § 1533(a); § 1532(6): “The term ‘‘endangered species’’ means any species which is

in danger of extinction throughout all or a significant portion of its range[.]”; § 1532(12): “The

term ‘threatened species’ means any species which is likely to become an endangered species

within the foreseeable future throughout all or a significant portion of its range.”

The ESA recognizes that species conservation is futile without habitat conservation.189

Listing triggers a concurrent obligation on the FWS to designate a species’ “critical habitat.”190

Critical habitat includes the specific geographic areas a species inhabits at the time of listing

which contain “physical and biological features” that are “essential to the conservation of the

species,” and “which may require special management considerations or protection.”191 A

species does not have to occupy an area for it to be designated critical habitat if the FWS

concludes it is essential to the species’ conservation.192

Agencies are responsible for determining if their actions may affect listed species or

designated critical habitat.193 When considering the effects of an action, the agency must

include “the direct and indirect effects of an action on the species or critical habitat, together

with the effects of other activities that are interrelated or interdependent with that action that

will be added to the environmental baseline.”194 The first step in fulfilling this obligation is a

request to the FWS for information on whether any listed species or critical habitat may be

present in the area the agency’s action would effect.195 If the FWS advises listed species and/or

critical habitat may be present, the acting agency must prepare a “biological assessment”

(BA).196 An acting agency may delegate this duty to “any person,” provided the agency

supervises the process.197 Preparing a BA is an investigative exercise, forcing an agency to

catalogue an action’s range of potential adverse effects on listed species and critical habitat.198

Whatever the conclusion, the BA must be communicated to the relevant FWS in writing.199 If, as

a result of preparing a biological assessment, the acting agency finds an action is not likely to

adversely affect listed species or critical habitat, and the FWS concurs with the assessment in

writing, the acting agency has satisfied its ESA obligations.200 If the BA reveals adverse effects

are likely, the acting agency must engage the FWS in formal consultation.201

189 16 U.S.C. § 1531(b): “The purposes of this Act are to provide a means whereby the

ecosystems upon which endangered species and threatened species depend may be

conserved[.]”

190 16 U.S.C § 1533(a)(3)(A).

191 16 U.S.C § 1532(5)(A)(i).

192 16 U.S.C § 1532(5)(A)(ii).

193 16 U.S.C. § 1536(a)(2); (c)(1).

194 Id.

195 50 C.F.R. § 402.02(c).

196 50 C.F.R. § 402.12(d)(2).

197 50 C.F.R. 402.12(b); State of Idaho By & Through Idaho Pub. Utilities Comm'n v. I.C.C., 35 F.3d

585, 597 (D.C. Cir. 1994); Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1253-54 (10th

Cir. 2003).

198 50 C.F.R. 402.12(a)-(b).

199 50 C.F.R. § 402.12(j).

200 50 C.F.R. § 402.14(b)(1).

201 50 C.F.R. § 402.14(a).

Upon receipt of a “likely to adversely impact” BA, the FWS prepares a “biological

opinion.”202 The biological opinion is another investigative process document through which the

FWS determines if an action is likely to jeopardize listed species or destroy or adversely modify

critical habitat.203 A species is jeopardized when the likelihood of its survival and recovery in the

wild are appreciably reduced due to decreased reproduction, population, and distribution.204

Habitat is destroyed or adversely modified when a “direct or indirect alteration . . . appreciably

diminishes the value of critical habitat as a whole for the conservation of a listed species.” 205 If

the FWS issues a “jeopardy” opinion, the acting agency must explore if there are reasonable

alternatives to the action which avoid jeopardy.206 An acting agency “shall make no irreversible

or irretrievable commitment of resources with respect to the agency action” that would

“foreclose the formulation or implementation” of any reasonable alternatives.207 Should the

FWS issue a “no jeopardy” opinion, the action can proceed, usually with recommendations

from the FWS on how to further reduce the action’s negative effects. The FWS may also issue

an “incidental take statement” authorizing a quantified or qualitatively defined amount of

otherwise unlawful “take.”208

“Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.209 The FWS has defined harm, as it

appears in the definition of take, to include “significant habitat modification or degradation

where it actually kills or injures wildlife by significantly impairing essential behavioral patterns,

including breeding, feeding or sheltering.”210 The ESA prohibits any person or entity from

“taking” endangered species.211 The FWS can elect to extend the prohibition on take to

threatened species through blanket rulemaking or on an ad hoc basis.212

Agency action that “may affect” listed species or critical habitat cannot lawfully proceed

until consultation requirements are met.213 The proposed action is conditional on the acting

agency’s receipt, integration, and assessment of the applicable wildlife agency’s feedback on

the proposed project.214 “Following the issuance of a biological opinion, the Federal agency

shall determine whether and in what manner to proceed with the action in light of its section 7

202 50 C.F.R. § 402.14(c)-(g).

203 50 CFR § 402.14(h).

204 50 C.F.R. § 402.02.

205 Id.

206 16 U.S.C. § 1536(b)(3)(A); 50 CFR § 402.14(h)(2).

207 50 C.F.R. § 402.09; 16 U.S.C. § 1536(d)

208 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

209 16 U.S.C. § 1532(19).

210 50 C.F.R § 17.3; 50 CFR § 222.102.

211 16 U.S.C. § 1538(a)

212 16 U.S.C § 1533(d)

213 50 C.F.R. §§ 402.14; 402.15.

214 Id.

obligations and the Service's biological opinion.”215 The feedback may take the form of a “nojeopardy” biological opinion and associated ITS, or a “jeopardy” biological opinion with

reasonable prudent alternatives.216 While awaiting feedback, an acting agency cannot make

permanent commitments with respect to its action that change the baseline conditions that

existed when consultation was initiated.217 Pursuant to the FWS and NMFS joint regulations:

After initiation or reinitiation of consultation required under section 7(a)(2) of the

Act, the Federal agency [acting agency] and any applicant shall make no

irreversible or irretrievable commitment of resources with respect to the agency

action which has the effect of foreclosing the formulation or implementation of

any reasonable and prudent alternatives which would avoid violating section

7(a)(2). This prohibition is in force during the consultation process and continues

until the requirements of section 7(a)(2) are satisfied.218

The requirement that a wildlife agency’s feedback must precede agency action is

reflected in the FWS and NMFS Endangered Species Consultation Handbook (the

“Handbook”).219 The Handbook is clear that consultation is not satisfied until the wildlife agency

has issued its evaluation of a proposed action, concurring or otherwise.220 Before the wildlife

agency’s feedback is communicated to the acting agency, the 7(d) prohibition applies.221

Courts will enforce the consultation requirements if an agency fails to satisfy its

obligations under Section 7(a)(d).222

The Section 7(a)(2) duty to consult does not terminate when a biological opinion is

issued. Both the acting agency and the FWS must reinitiate consultation if an action may affect

215 50 C.F.R. § 402.15(a)(emphasis added).

216 Id.

217 50 C.F.R. 402.09.

218 Id.

219 U.S. FISH AND WILDLIFE SERVICE AND NATIONAL MARINE FISHERIES SERVICE, ENDANGERED SPECIES

CONSULTATION HANDBOOK (1998).

220 Id. at 2-9.

221 Id.

222 See, e.g., Watersheds Project v. Kraayenbrink, 623 F.3d 472 (9th Cir. 2011)(enjoining BLM’s

revised grazing regulations granted because BLM failed to consult with FWS); National Parks

Association Conservation v. Jewell, 62 F. Supp. 32 7 (D.D.C. 2014)(vacating Office of Surface

Mining’s 2008 stream protection rule because it relied on a biological opinion from 1996 and

FWS was not consulted); Conner v. Buford, 848 F.2d 1441 (9th Cir. 1988)(enjoining Forest

Service from allowing surface-disturbing activity in connection with oil and gas leases until FWS

prepared sufficient biological opinion analyzing the effects of the lease, not just the lease sale).

listed species or critical habitat in a manner or to a degree not previously considered because of

changed circumstances, modifications to the action, or new information.223

Finally, it is important to note that, for the entire range of ESA activities, including, but

not limited to, the listing process, Section 7 consultation, habitat conservation planning,

recovery and enforcement, FWS will and must consult with tribal governments when

developing plans and regulations that may affect tribal rights, trust resources, or lands.224

B. The Corps Must Evaluate the Project’s Impact on Endangered and Threatened Species.

Before taking action on Enbridge’s application, the Corps must evaluate the impact the

project will have on species that are protected by the Endangered Species Act. As discussed

above, this obligation flows directly from the ESA which mandates that the Corps first work

with FWS to identify any endangered or threatened species that might be adversely affected by

the project. Then, if it is determined that the proposed project will adversely affect protected

species, the ESA requires the Corps to consult formally with FWS to understand and address

those effects, and to use that information in making its decision to grant or deny Enbridge’s

permit.

The Corps’ obligations under the ESA are also reflected in NEPA. As stated in NEPA,

when determining whether to prepare an EIS, an agency must examine a variety of factors

including “the degree to which the action may adversely affect an endangered or threatened

species or it habitat that has been determined to be critical under the Endangered Species Act

of 1973.”225

1. The Corps must communicate with FWS to identify all protected species that might

be adversely affected by the proposed project.

Under the ESA, the first step in the Corps’ evaluation of the impact of Enbridge’s

proposed project on protected species is requesting information from FWS about what species

may be present in the project area that might be adversely affected.226

Enbridge has already identified fourteen federally-listed species known to occur within

1.5 miles of the proposed site.227 In its application materials, Enbridge includes information

224 U.S. Fish & Wildlife Service Consultation Handbook, October 2018 at 47, 43

https://www.fws.gov/TCG.pdf, https://www.fws.gov/endangered/what-we-do/tribal-faq.html.

22540 CFR § 1508.27(b).

226 16 U.S.C. § 1536(c)(1).

227 See Supplemental Information, pp. 12-14 and Exhibit A. In these materials, Enbridge

identifies an additional 24 species that are listed by Michigan’s Department of Natural

Resources as endangered, threatened or of special concern.

purporting to assess the impact that its project would have on each of the species.228 Enbridge

claims that “[n]o designated critical habitat for federally listed species is present within the

Project area.”229 Enbridge also categorizes each of the federally-listed species according to the

effect Enbridge believes the project will have on them using the categories: “likely to adversely

affect,” “may affect but not likely to adversely affect,” and “no effect.” The six species that

Enbridge identifies in the first two categories are:

Likely to adversely affect

Northern Long-Eared Bat (Myotis septentrionalis) — threatened

Dwarf Lake Iris (Iris lacustris) — threatened

Houghton’s Goldenrod (Solidago houghtonii) — threatened

May affect but not likely to adversely affect

Gray Wolf (Canis rufus) — endangered

Rufa Red Knot (Calidris canutus rufa) — threatened

Piping Plover (Charadrius melodius) — endangered

This information must be independently reviewed and evaluated in concert with FWS and any

additional protected species potentially affected by the project must be identified.

2. The Corps must prepare or supervise preparation of a biological assessment of the

effects the project will have on protected species in the area.

Because Enbridge has already acknowledged that several federally-listed species are in

the vicinity of the project area, a biological assessment evaluating the potential effects of the

project on the federally-listed species is required.230 Indeed, as part of this process, the Corps

has already requested a biological assessment from Enbridge.231

The BA should consider the potential adverse effects on all listed species that the FWS

determines are in the area of the proposed project, including those for which Enbridge has

made a “no effect” determination, as well as any other protected species in the area that are

not included in Enbridge’s analysis. For example, the federally endangered Hine’s Emerald

228 Supplemental Information, Exhibit A.

229 Id. at 12.

230 50 C.F.R. 402.12(a)-(b).

231 Corps April 14 Letter, p.2.

Dragonfly is also present in Mackinac County. 232 The BA must also include an evaluation of the

impact of the project on the protected species’ critical habitats.

Although the Corps must prepare or supervise the preparation of the BA, it is important

to note that Enbridge has already acknowledged that the project may affect at least six

federally-listed species and that the project will likely adversely affect at least three of them.

Thus, the BA will almost certainly conclude that the proposed project is likely to adversely

impact species protected under the ESA.

3. The Corps must consult with FWS and the FWS must prepare a biological opinion.

Because Enbridge has already acknowledged that the Project will adversely affect

federally-listed species, the Corps will have to initiate “formal consultation” with FWS after

completion of the BA.233 Pursuant to the formal consultation process, the FWS must then

prepare a biological opinion about the effects of the project on the federally-listed species

identified as being present in the area.234 No action can be taken on Enbridge’s application until

the formal consultation process has been completed.235

4. Enbridge’s application raises significant concerns about the Project’s impact on

federally-listed species that the Corps must address in consultation with FWS.

Although the full impact of this project on endangered or threatened species will not be

understood until the BA is completed and FWS completes its biological opinion, there are

already significant concerns about the project’s effects on protected species based on the

information that Enbridge has provided to the Corps.

First, Enbridge has acknowledged the project could result in a take of the northern longeared bat. Unlike many of its relatives that prefer to roost upside down, the northern longeared bat prefers to squeeze its body into crevices until only its nose and the tip of its unusually

long ears protrude. In spring and summer, the Northern Long Eared Bat tunnels into

depressions in the bark of dead trees or the loose bark of living trees. An agile flier, this bat

echolocates for insects and is capable of capturing prey in mid-air or resting on vegetation.

232 Fish and Wildlife Service Website,

https://www.fws.gov/midwest/endangered/insects/hed/hedch.html. In 2013, Enbridge was

required to prepare a Habitat Conservation Plan for this species in connection with

maintenance work on Line 5. See Docket No. FWS-R3-ES-2013-N051. The Corps, in consultation

with FWS, must determine whether the Dragonfly, and any other federally protected species,

will be affected by the Project.

233 50 C.F.R. § 402.14(a).

234 50 C.F.R. § 402.14(c)-(g).

235 16 U.S.C. § 1536(d); 50 C.F.R. § 402.09.

Should construction-related tree removal occur in the summer months, Enbridge

concedes it is possible northern-long eared bats will be harassed or killed.236 Enbridge states,

however, that because there are no known roosts or hibernacula within or adjacent to the

project area, any “take” is permitted by the FWS’s “Programmatic Biological Opinion on Final

4(d) Rule for the Northern Long-Eared Bat and Activities Excepted from Take Provisions” issued

in 2016.237 But, Enbridge’s position is based on factual statements about the lack of roosts and

hibernacula in the project area that must be independently evaluated by FWS before the Corps

can determine any possible impact on the northern long-eared bat.

Second, Enbridge also acknowledges that thousands of stems of dwarf lake iris and

Houghton’s goldenrod will be cleared as a result of construction at the project site.238 Dwarf

Lake Iris are petite flowers that only bloom in the porous, sandy soils and moist air of the Great

Lakes Region. Their deep violet petals radiate from a stout stem stretching 2 inches above the

ground, dotting the landscape like ready-cut corsages. Houghton’s Goldenrod is also native only

around the Great Lakes. Neighbor to the Dwarf Lake Iris, Houghton’s Goldenrod grows closer to

the water where wet beach abuts land. Houghton’s Goldenrod towers over the Dwarf Lake Iris

at 2 feet, displaying around 600 completely yellow, tiny flowers in clusters.

Enbridge states that 7,757 dwarf lake iris and 3,777 Houghton’s goldenrod stems will be

lost. Here again, Enbridge’s factual assertions must be independently evaluated and the FWS

must be consulted to determine the true extent of the impact on these plant species. Indeed,

the Corps has requested Enbridge to substantiate its claim about the number of stems of each

species that will be affected.239

With respect to addressing the adverse impact on these plant species, Enbridge simply

states that it will “consider” mitigation measures to compensate for the loss of these protected

species.240 In response, the Corps has requested that Enbridge provide a plan to mitigate the

impact on the dwarf lake iris and Houghton’s goldenrod. This mitigation plan must then be

evaluated in consultation with FWS. Furthermore, if the Corps, in consultation with FWS,

considers imposing mitigation conditions on an approval of Enbridge’s application, such an

approval would amount to significant federal action requiring environmental review under

NEPA.241

236 Id. at 13.

237 Id.

238 Id.

239 Corps April 14 Letter, p.2.

240 Id.

241 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 46 (D.C. Cir. 2015) (reaffirming that

the Corps’ authorization of “take of endangered species in connection with pipeline

construction and operation across jurisdictional waters, and doing so only on the conditions

that Enbridge take mitigating conservation measures and monitor species impact for the

anticipated useful life of the pipeline, was regulatory approval amounting to significant federal

action requiring environmental review under NEPA.”)

The adverse impact on the plant species is important to address because both of the

plants grow on critically imperiled wetlands within the project area. The wetlands within the

project area on the north side could be characterized as coastal alvar. The coastal alvar habitats

found in several places around the Great Lakes region are covered by thin layers of soil or

consist of bare limestone rock. Alvars include a host of rare, endemic plants species including,

but not limited to, Houghton’s Goldenrod and Dwarf Lake Iris. The Michigan Natural Features

Inventory of Michigan State University ranks alvars as “critically imperiled.” Thus, Enbridge’s

proposed project affects critically imperiled wetlands that host rare and threatened plants.

Finally, two of the species that Enbridge claims may be affected but not likely to be

adversely affected—the gray wolf and the piping plover—are endangered and, therefore,

deserve particular consideration. Perhaps the most iconic apex predator of the American

wilderness, the gray wolf plays an important part in maintaining ecosystem health. As gray

wolves hunt, populations of elk, deer, and other prey species are kept in balance. The gray wolf

once roamed two thirds of North America, but human persecution in the lower forty-eight

states nearly obliterated this species. Gray wolves use a sophisticated system of body language

and facial expressions to maintain hierarchal relationships within their family groups.

The Piping Plover is a shorebird that shares the weight and shape of a tennis ball. During

the spring and summer when it breeds, the Piping Plover sports a black collar around its

brownish-gray body and a black-tipped, bright orange, stubby beak. Piping Plovers nest just

beyond the mean high-water line and feed on marine invertebrates. Increasing coastal

development and climate change has impaired this species’ ability to thrive.

With respect to the gray wolf, Enbridge claims that the project area includes “suitable

habitat” but the mobility of the species ensures that there will be no adverse impacts. 242 With

respect to the piping plover, Enbridge states that because no construction activity will occur on

the adjacent shoreline, there will be no impacts on the suitable nesting or foraging habitat for

the piping plover.243 But, Enbridge also concedes that some plovers that use the area as a

stopover or nesting habitat may avoid the area due to construction and increased human

activity. And, Enbridge further concedes that there is some potential for mortality as a result of

collisions with construction equipment.244 The Corps and the FWS must independently evaluate

Enbridge’s claims about the gray wolf and the piping plover and determine the impact that the

proposed project might have on these endangered species.

5. NEPA requires the Corps to consider the impact on species protected by the

Michigan Endangered and Threatened Species Act.

As discussed in Section V.C.7, supra, because the tunnel project may lead to violations of

several applicable federal and state environmental standards, NEPA requires that the Corps

complete an EIS to further evaluate the proposal. The Endangered and Threatened Species Act

242 Id., Exhibit A, p. 32.

243 Id., Exhibit A, p. 29.

244 Id.

of Michigan is one of the statutes that is implicated by this project and should be considered as

part of the EIS.

The Michigan statute provides additional protections to endangered and threatened

species.245 Under Michigan’s law, the Department of Natural Resources conducts investigations

on fish, plants and wildlife to “determine management measures necessary for their continued

ability to sustain themselves successfully.”246 Based on its determinations, the Department

promulgates a list of species that are determined to be endangered or threatened within the

state.247 The Department also identifies species of “special concern.” The “special concern”

designation applies to declining or relict species in the state that need protection to prevent

them from becoming threatened or endangered.

Like the federal ESA, Michigan’s statute prohibits the taking, possessing, transporting,

importing, exporting, processing, selling or destroying endangered or threatened species.248

This prohibition includes species that appear on Michigan’s state list and those that appear on

the federal lists of endangered and threatened species.249

In addition to the fourteen federally-listed species, Enbridge has identified an additional

twenty-four species that are listed by Michigan’s Department of Natural Resources as

endangered, threatened or of special concern.250 As part of an EIS under NEPA, the Corps must

evaluate the adverse effects of the tunnel project on these species.

***********

As demonstrated above, any analysis of the context and intensity of the Enbridge

Project necessitates an EIS and Section 7 consultation with the FWS prior to approval of the

application. When the Corps moves forward with the NEPA analysis, it must undertake a

rigorous analysis of alternatives and their environmental impacts. As discussed below, nothing

245 MCL 324.36501 et seq.

246 MCL 36503(1).

247 Id.

248 MCL 36505(1).

249 Id.

250 Id., Exhibit A. The additional 24 species that are listed by Michigan’s Department of Natural

Resources as endangered (E), threatened (T) or of special concern (SC) are: peregrine falcon (E),

common loon (T), common tern (T), calypso bulbosa (T), Lake Huron tansy (T), hills pondweed

(T), pine-drops (T), Lake Huron locust (T), delicate vertigo (T), American bittern (SC), black tern

(SC), bald eagle (SC), osprey (SC), black-crowned night heron (SC), marsh wren (SC), little brown

bat (SC), lady’s slipper (SC), butterwort(SC), Sprague’s pygarcita (SC), grizzled skipper (SC),

widespread column (SC), vertigo cristata (SC), vertigo pygmaea (SC), Great Lakes physa (SC).

See https://mnfi.anr.msu.edu/species/animals.

that Enbridge has submitted to date includes a willingness to examine alternatives; in the

absence of this critical information, the Corps should deny the permit.

VIII.

THE PROJECT DOES NOT COMPLY WITH SECTION 404 OF THE CLEAN WATER ACT.

The goals of the CWA include “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.”251 To that end, the CWA prohibits the discharge of

soil or other materials into navigable waters unless authorized by a permit issued by the

Corps.252 The CWA provides strict substantive limits on approving projects that degrade water

quality or harm aquatic uses. First, the Corps may not issue a permit under Section 404 if there

is any “practicable alternative” to the project with less impact on the aquatic ecosystem.253

Second, the Corps cannot issue the permit unless there is a demonstration that any discharge

from the project “will not have an unacceptable adverse impact either individually or in

combination with known and/or probable impacts of other activities affecting the ecosystems

of concern,”254 or if any discharge will result in significant adverse effects to water quality,

“including but not limited to effects on municipal water supplies, . . . fish, . . . [and] recreational,

aesthetic, and economic values.”255 Third, the Corps must determine that the project is in the

“public interest” by weighing all “relevant” considerations and balancing all probable impacts of

the proposed action against its alleged benefits.256 Moreover, the Corps must independently

verify all the information in the application.257 Critically, the Corps’ “review may not be

‘piecemeal.’”258 Taken together, these requirements create a “very strong” presumption “that

the unnecessary alteration or destruction of (wetlands) should be discouraged as contrary to

the public interest.”259

A. The Application is Grossly Deficient and Fails to Demonstrate that the Proposed

Project Meets Any of the Requirements of Section 404.

Enbridge’s application consists of generic and conclusory statements that do not provide

the information the Corps needs to evaluate the Project under Section 404. Enbridge has not

clearly defined the purpose of the Project, it has not shown that the Project as proposed is the

practical alternative with the least impact on the aquatic ecosystem, that the Project will

251 33 U.S.C. § 1251(a)(1).

252 33 U.S.C. § 1344(a); 33 C.F.R. §§ 322.3, 323.3.

253 40 C.F.R. § 230.10(a).

254 Id. § 230.1(c).

255 Id. § 230.10(c).

256 33 C.F.R. § 320.4(a).

257 See, e.g., Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269 (10th Cir. 2004); see also

40 C.F.R. §1506.5(a) (“The agency shall independently evaluate the information submitted and

shall be responsible for its accuracy.”).

258 Buttrey v. United States, 690 F.2d 1170, 1180 (5th Cir. 1982).

259 Id.

comply with the CWA, or that the Project is in the public interest. Enbridge must still provide

several descriptions and more complete analyses, including but not limited to:



All reasonable alternatives, including system alternatives, route alternatives, and

alternative construction methods;



Impacts to aquatic resources associated with all reasonable systems alternatives,

route alternatives, and alternative construction methods;



A “no action alternative,” which includes the potential decommissioning of the

dual pipelines without construction of a new pipeline or tunnel;



A wetland mitigation plan in accordance with Mich. Admin. Code R. 281.925(4);



Impacts to water quality, including with respect to the withdrawals and

discharges of millions of gallons of water into and out of the Straits; and



A justification of the public need for the Project for the Corps’ public interest

analysis in accordance with 33 C.F.R. § 320.4(a).

Enbridge has not provided nearly enough information to allow the Corps to even begin

its independent evaluation of the application and independent verification of the claims

therein. The deficiencies in the application also make meaningful comment by the public on

whether the Project complies with Section 404 impossible. The Corps must deny the permit

application or order Enbridge to supplement the application with the necessary information for

evaluation of the Project and provide another opportunity for public review and comment.260

B. Enbridge’s Wholly Inadequate Alternatives Analysis Does Not Demonstrate that a

Tunnel Beneath the Great Lakes is the Least Environmentally Damaging Practicable

Alternative.

Enbridge’s application does not demonstrate that the Project is the least

environmentally damaging practicable alternative, as required by the Corps’ regulations.261 The

Corps must conduct an alternatives analysis and determine what projects “are available and

260 In contrast to the woefully inadequate information presented in Enbridge’s application,

“[p]ublication of an EIS, both in draft and final form, also serves a larger informational role . . .

and . . . significantly, provides a springboard for public comment.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 349 (1989). The “springboard” here is deficient. Not only is there

no EIS, but the application materials Enbridge has provided are insufficient to give the public

the assurance that the Corps is considering the environmental concerns that it must in its

decision-making process. Id.

261 40 C.F.R. § 230.10(a).

capable of being done after taking into consideration cost, existing technology, and logistics in

light of overall project purposes.”262

To conduct an alternatives analysis, the Corps needs more than the six-page summary

Enbridge submitted that assumes one option—the construction of a tunnel—is the only

alternative. Without a complete alternatives analysis, the Corps must reject Enbridge’s

application. Even if Enbridge submits a complete alternatives analysis, the Corps may only grant

a permit if Enbridge shows that there is no practicable alternative with a less adverse aquatic

environmental impacts.

1. Enbridge has made inconsistent statements about the Project’s purpose.

To conduct any review of the Project’s alternatives, the Corps must first determine the

purpose of the Project.263 This is made more difficult by Enbridge’s presentation of different

purported purposes for this Project to different agencies. Even if Enbridge were clear and

consistent in defining the purpose, the Corps would not be bound by Enbridge’s

characterization of the project.264

Enbridge informs the Michigan Public Service Commission (“MPSC”): “The purpose of

the Project is to alleviate an environmental concern to the Great Lakes raised by the State of

Michigan relating to the approximate four miles of Enbridge’s Line 5 that currently crosses the

Straits of Mackinac.”265 The concern referenced therein is the risk of adverse impacts that

would result from an oil spill from Enbridge’s current pipeline through the Straits.266

But, with respect to the Section 404 permits, Enbridge states a different purpose: “The

purpose of the proposed work is to transport light crude oil and liquid natural gas between the

upper and lower peninsulas of Michigan.”267

Regardless of which description—if either—appropriately states the purpose of this

Project, Enbridge has not demonstrated that the Project as proposed is the least

environmentally damaging practicable alternative.

262 Id. § 230.10(a)(2).

263 Id.

264 See Smereka v. Glass, 945 F.2d 405 (6th Cir. 1991); see also Sierra Club v. Van Antwerp, 362

F. App’x 100, 106 (11th Cir. 2010).

265 Enbridge Energy, Application for Authority to Replace and Relocate the Segment of Line 5

Crossing the Straits of Mackinac into a Tunnel Beneath the Straits of Mackinac at 1, MPSC

Docket No. U-20763 (April 17, 2020), https://mipsc.force.com/sfc/servlet.shepherd/version/download/068t000000BRSuOAAX.

266 See id. at 11-12.

267 Public Notice at 3.

a. If the Project’s purpose is to alleviate an environmental concern to the Great

Lakes, then there are less damaging alternatives.

If the Project’s purpose is to reduce the environmental risk associated with an oil spill in

the Straits, there is an obvious alternative: not transporting oil underneath or through the

Straits. An alternative to replacing the dual pipelines with a pipeline in a tunnel is to simply

remove the dual pipelines. This would almost certainly be a less damaging alternative, and

Enbridge must analyze the environmental impacts and practicability of this alternative.

Approving this Project would lock in the short-term risks attendant with the existing

dual pipelines, because Enbridge plans to continue to operate them for at least 5 more years

that it takes to construct the Project. Just looking at the story of the dual pipelines during the

instant comment period reveals the danger inherent to a “build tunnel now, decommission dual

pipelines later” plan. On June 18, 2020, the dual pipelines experienced damage that was still “of

unknown origin” approximately a week later.268 A state court recognized that “[t]he severe risk

of harm that may result” from the continued operation of the dual pipelines “is so substantial

and irreparable, and endangers so many communities and livelihoods and the natural resources

of Michigan, the danger far exceeds the risk of financial loss to defendants if the west pipe of

Line 5 is shut down pending hearing.”269

Moreover, Enbridge has not presented a demonstration of the public need for the

transportation of oil and natural gas at all, let alone in this location.270 This omission

strengthens the case for removing the dual pipelines without replacing them with a tunnel in

the Straits. The oil currently transported through the dual pipelines originates in Canada, joins

Line 5 in Superior, Wisconsin, and then Line 5 terminates in Sarnia, Ontario, Canada; it does not

uniquely serve the communities on either side of the Straits.

b. If the Project’s basic purpose is to transport oil, it is not water dependent and

the Corps must presume there are less damaging alternatives.

Alternatively, if the Project is meant to transport oil and natural gas, then the Corps

must first address whether the Project is “water dependent.” Whether the basic purpose of a

project is “water dependent” guides the Corps’ analysis of alternatives. Projects that are not

“water dependent,” like this one, face a presumption that there are practicable alternatives

with less adverse aquatic environmental impacts.271

268 Temporary Restraining Order, Nessel v. Enbridge Energy, Ltd., supra 3.

269 Id.

270 This omission also derails the required public interest analysis, infra at VIII.F. 33 C.F.R.

§ 320.4(a)

271 Id. § 230.10(a)(3).

For a water dep

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