# Chippewa Ottawa Resource Authority

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A8fa6bd3d562c58b0

## Record

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

## Text

Chippewa Ottawa Resource Authority
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

I.

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

II.

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

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

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

B.

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

C.

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

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

THE CORPS MUST COMPLETE AN EIS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT BEFORE
APPROVING THIS PROJECT.................................................................................................................. 11
A.

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

B.

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

C.

The Intensity of the Project Requires Preparation of an EIS. ......................................................... 15
1.

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

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

b.

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

c.

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

d.

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

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

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

The Corps must undertake consultation with Bay Mills and other Tribal Nations under Section 106
of the NHPA. ................................................................................................................................... 36

B.

Bay Mills’ spiritual, cultural, and economic dependence on the Straits of Mackinac and the Great
Lakes is threatened by the Project. ................................................................................................ 36

C.

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
A.

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

B.

The Corps Must Evaluate the Project’s Impact on Endangered and Threatened Species. ............. 45
1.

The Corps must communicate with FWS to identify all protected species that might be adversely
affected by the proposed project. .............................................................................................. 45

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..................................................................... 46

3.

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

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. ................................................ 47

5.

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
A.

The Application is Grossly Deficient and Fails to Demonstrate that the Proposed Project Meets Any
of the Requirements of Section 404. .............................................................................................. 51

B.

Enbridge’s Wholly Inadequate Alternatives Analysis Does Not Demonstrate that a Tunnel Beneath
the Great Lakes is the Least Environmentally Damaging Practicable Alternative. ......................... 52
1.

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

If the Project’s purpose is to alleviate an environmental concern to the Great Lakes, then
there are less damaging alternatives. ..................................................................................... 54

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....................................................................... 54

2.

C.

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

In its application to the Corps, Enbridge inaccurately assumes a tunnel under the Straits is the
only alternative. ...................................................................................................................... 58

b.

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

c.

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

d.

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
1.

The Project will disrupt an extremely sensitive freshwater ecosystem: The Great Lakes and
shoreline wetlands...................................................................................................................... 63

2.

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

3.

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

D.

There is No Showing that the Project is in the Public Interest. ...................................................... 69
1.

Enbridge failed to provide the Corps with the information it needs to determine that the benefits
of the Project outweigh the costs............................................................................................... 69

E.

2.

The Corps should not rely on the Tunnel Agreements to determine whether the Project is in the
public interest. ............................................................................................................................ 70

3.

Permitting this Project extends the lifetime of the entire Line 5 Pipeline, maintaining
unacceptable oil spill risks and perpetuating harmful greenhouse gas emissions. ................... 71

4.

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
X.

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

1

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.

2

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

3

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-

4

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.

5

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.

6

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).

7

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/.
8

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.

9

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.

10

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).

11

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.

12

“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.

13

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.
14

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.

15

(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)).

16

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).

17

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).

18

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/.

19

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:

20

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.

21

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);

22

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).

23

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.
24

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.

25

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.

26

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.
27

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

28

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.

29

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.

30

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).

31

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.

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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.

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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.

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“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.”).

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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
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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

37

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).

38

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).

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American burial ground at Point La Barbe, within one mile of the North Straits Project are

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A8fa6bd3d562c58b0. Public record. Not legal advice.