By Michele Bourdieu
DETROIT -- Environmental and tribal groups have welcomed the June 23, 2021, decision that the US Army Corps of Engineers (USACE) will conduct an Environmental Impact Statement (EIS) for Enbridge’s proposed Line 5 oil tunnel through the Straits of Mackinac, but these groups have expressed some continued concerns that the EIS include a thorough review and respect treaty rights.
A June 23 article from the US Army cites Acting Assistant Secretary of the Army for Civil Works as saying, "'USACE will ensure all potential impacts and reasonable alternatives associated with this project are thoroughly analyzed and will ultimately support a decision on the permit application. The USACE received thousands of public comments and tribal input on the proposed project, which warrant further review through an EIS, including potential impacts to navigation.'"*
Oil and Water Don't Mix (OWDM) -- a coalition of community groups, organizations and businesses concerned with the threat of Enbridge's Line 5 through the Straits of Mackinac -- calls the June 23 decision a major development. The coalition states that a project of this magnitude requires a full review under the National Environmental Protection Act (NEPA), something Enbridge has resisted.
"Serious concerns about this massive project in the heart of the Great Lakes have been raised by engineers and other scientists," said Sean McBrearty, OWDM Coordinator.
OWDM notes the following on their Web site:
"Annual greenhouse gas emissions attributable to the oil and natural gas liquids transported by Line 5 are in the millions of metric tons and would contribute to greenhouse gas emissions for the next century if Enbridge’s plans are approved.
"The Army Corps should also take a hard look at the impacts of the Line 3 and Dakota Access pipelines, which also threaten clean water, Indigenous rights, and the climate. Boring an unprecedented tunnel through the bedrock and soils of the Great Lakes threatens to violate a host of federal, state, or local laws or requirements imposed for the protection of the environment. It is difficult to imagine how Enbridge’s tunnel project can survive the kind of thorough, independent evaluation that is now possible with this recent Army Corps decision."
Jeffrey Towner of Negaunee Township, who is a retired Corps of Engineers regulatory program supervisor, told Keweenaw Now he believes the Army Corps is making the right decision in requiring an EIS for the tunnel project. He also expressed hope for more public input.
"An EIS provides a much more detailed analysis and public interest review than the more cursory environmental assessment process," Towner said. "In order to issue a permit, among other things, the Corps must find that the project construction and operation will not be contrary to the public interest. In addition to the comment period allowing written comments, I would certainly hope that the Corps will hold several public hearings, including in communities adjacent to the Straits of Mackinac, to accept comments from agencies, non-governmental organizations, Tribes, and individual citizens."
FLOW (For the Love of Water), a Great Lakes law and policy center in Traverse City, Michigan, protecting the magnificent, shared waters of the Great Lakes Basin through public trust solutions, posted this on their Facebook page:
"This is big news! The Army for Civil Works, which oversees the U.S. Army Corps of Engineers, announced Wednesday (June 23) that it would require the corps to develop an environmental impact statement regarding the Enbridge permit application for a Line 5 oil tunnel in the Straits of Mackinac because of 'the potential impacts significantly affecting the quality of the human environment.'
"FLOW's legal team aided in this effort by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority (CORA), Clean Water Action - Michigan, FLOW for Water, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350."**
The Chippewa Ottawa Resource Authority (CORA) -- a coalition of five 1836 Treaty fishing tribes in Michigan -- Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, and Sault Ste. Marie Tribe of Chippewa Indians -- issued in 2017 a "Resolution in Opposition to Placing an Oil Pipeline in Trenches or Tunnel Beneath the Straits of Mackinac," stating, in part, that "both trenching and tunneling beneath the Straits of Mackinac will have significant adverse effects to the Treaty Fishery in that area including significant disruptive effects on the bottomlands, water quality, fish spawning shoals and will require disruption of tribal commercial and subsistence fisheries" and "construction of new pipelines in the Straits of Mackinac, be they in trenches or tunnels, will not eliminate the risks of an oil spill in the 1836 Treaty ceded lands and waters." CORA is also a member of the Oil and Water Don't Mix coalition.
Beverly Carrick, CORA’s Interim Executive Director, stated CORA's reaction to the decision for an Army Corps EIS:
"CORA has been urging the Army Corps to conduct an EIS on Line 5 for many years now and we are pleased to see that they are finally going to follow through. CORA will be carefully following the EIS development to ensure that tribal treaty rights are protected. We believe that the best alternative to a tunnel and continued operation of Line 5 is to simply shut it down and decommission it."
The Bay Mills Indian Community, a CORA member, has also opposed Line 5 and the tunnel consistently and is in litigation against Enbridge.
Whitney Gravelle, Bay Mills Executive Council chairwoman, told Keweenaw Now the decision for the Army Corps to require an EIS has great significance because of treaty rights.
"The decision by the Army Corps of Engineers to require an Environmental Impact Statement for the proposed Enbridge Line 5 pipeline carries enormous significance because it will require an in-depth analysis of the pipeline tunnel's environmental impacts," Gravelle said. "Tribal Nations are encouraged to see that the Army Corps of Engineers heeded our call to undertake a more rigorous analysis of these environmental impacts, because that also requires a more rigorous analysis of how the tunnel project will impact our treaty-protected interests in the Straits of Mackinac. As part of this EIS process, the Corps will need to honor its treaty obligations to Bay Mills and other Tribal Nations, including considering the impact of the tunnel project on tribal resources."
Concerning Bay Mills' involvement in litigation, Gravelle, noted the following: "Yes, we are an intervening party before the Michigan Public Service Commission and have filed a contested case petition against the Environment Great Lakes and Energy Department (EGLE) as well for issuance of the permits in January 2021. We have also filed an amicus brief in Governor Whitmer v. Enbridge, et. al and are actively involved in tribal consultation with several state and federal agencies."***
Lisa Patrell, spokesperson for the Michigan Anishinaabek Caucus, said the Army Corps EIS must include Treaty Rights, a prehistoric site, and endangered and threatened species.
"This (decision) satisfies one of the demands of many Tribal citizens and water advocates," Patrell stated. "Unfortunately, there is no guarantee that a completed EIS will result in the denial of the permit, but it is a delay. The delay could be several years."Patrell pointed out that the Corps' own general definition of what areas an EIS should address leaves out facts and specifics, such as Treaty Rights.
The Corps states the following on what an EIS should consider:
"Although requirements differ between situations, an EIS must address the total impact on the environment and consider numerous factors. Examples of factors considered are:
- the environmental impact of the proposed action
- any adverse environmental effects which cannot be avoided should the proposal be implemented
- alternatives to the proposed action
- the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."****
Patrell added, "Neither are endangered or threatened species explicitly mentioned, although the first and second bullet point could be construed to include them. Endangered and threatened species are the purview of the U.S. Department of Fish and Wildlife."
While Treaty Rights guarantee the right of Tribal citizens to hunt, fish and gather in the Great Lakes ecosystem, an additional concern is the September 2020 discovery of a submerged prehistoric indigenous site under the Straits just west of Line 5.
"The Corps’ EIS generic scope does not include prehistoric, historic, or cultural sites," Patrell said. "The Michigan Anishinaabek Caucus recognizes that the Corps customizes an EIS scope for every study. Thus, the Michigan Anishinaabek Caucus requests that the Corps explicitly include Treaty Rights, endangered and threatened flora and fauna, and the submerged indigenous prehistoric site in the EIS scope."
NOTES:
* See: "Acting Army assistant secretary announces USACE will conduct an EIS for Enbridge Line 5."
** You can read those joint comments here:
Dec. 15, 2020 -- Supplemental Comments to USACE permitting on proposed tunnel
July 14, 2020 -- Comments to USACE permitting on proposed tunnel
*** See our Feb. 9, 2021, article, "EGLE approves some permits for Enbridge tunnel project; tribal, environmental groups challenge EGLE decision."
**** See USACE's "What is an Environmental Impact Statement?"
***** See our Oct. 17, 2020, article by Terri Wilkerson, "Ancient underwater tribal cultural site discovered in Mackinac Straits near Line 5."
See also the Detroit Free Press article, "Group thinks it has found proof of 10,000-year-old, Ice Age culture in Straits of Mackinac."
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