LANSING -- Since May 15, 2020, the US Army Corps of Engineers has been soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of Enbridge Energy's proposed pipeline tunnel, intended to replace Line 5, under the Straits of Mackinac between Mackinaw City and Saint Ignace, Michigan.
Enbridge has applied for a Department of the Army permit under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. State Authority is also required since Section 401 of the Clean Water Act requires that all discharges of dredged or fill material must be certified by the State as complying with applicable effluent limitations and water quality standards. Coastal Zone Management Certification (or waiver thereof) is required from the State of Michigan if this proposed activity would occur within the designated coastal zone.
The Army Corps public notice on these permit applications includes several diagrams to illustrate Enbridge's plans.
After the Army Corps issued a Public Notice on May 15 with a public comment deadline of June 4, many public comments requesting an extension of the comment period resulted in a 40-day extension, indicated in the revised June 4 Public Notice. The deadline for comments on Enbridge's application for permits for the tunnel is now July 14, 2020.
The following are some excerpts from the June 4 Public Notice:
Enbridge proposes to construct an 18- to 21-foot-diameter tunnel approximately 3.6 miles long, 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. Approximately 364,000 cubic yards of material would be removed from underneath the lakebed to construct the tunnel. The material would be disposed of in an upland location. Upon tunnel completion, the applicant proposes to install a new 30-inch diameter pipeline within the tunnel, for light crude oil and natural gas liquids, to replace the existing Line 5 dual pipelines crossing the Straits of Mackinac. The tunnel would be constructed using a tunnel boring machine (TBM). 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.
Enbridge has stated that impacts to the waters of the United States have been minimized by: 1) locating the tunnel at the shortest distance between the upper and lower peninsulas, 2) siting tunnel entrance, exit, and construction facilities away from existing residential, commercial, recreational areas, 3) maximizing use of uplands, 4) using or improving existing roads for construction access, and 5) minimizing the area that would be disturbed by construction. The Corps has not verified the adequacy of the applicant’s avoidance and minimization statement at this time.
Enbridge has stated that compensatory mitigation is not necessary or appropriate for the proposed work because: "Total wetland impacts are 0.11 acres [revised to 0.10 acre of permanent impact and 0.03 acre of temporary impact] and Enbridge is seeking that wetland mitigation requirements be waived." The Corps has not verified the adequacy of this mitigation proposal at this time.
This activity involves the discharge of dredged or fill material into waters of the United States. Therefore, the U.S. Army Corps of Engineers' evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator of the Federal Environmental Protection Agency, under the authority of Section 404(b)(1) of the Clean Water Act.
Upper Peninsula Environmental Coalition hosts speakers on tunnel, Line 5
On May 12, 2020, the Upper Peninsula Environmental Coalition hosted a Zoom livestream presentation on the controversy over re-permitting Enbridge’s Line 5 oil pipeline. Jeff Towner, U.S. Army Corps of Engineers retired wildlife biologist and UPEC Board member, and Mike Ripley of the Chippewa Ottawa Resource Authority (CORA) were the guests. Towner explained the regulatory path Enbridge has to go through for the Line 5 tunnel approval. Ripley discussed tribal efforts to shut down Line 5 because of the dangers a spill would pose to their fisheries, which they operate under rights recognized by the Treaty of 1836.
Towner, who has extensive experience working with the U.S. Army Corps of Engineers, explained the regulatory path Enbridge has to go through for the Line 5 tunnel approval under the Clean Water Act (Section 404, delegated to the State of Michigan) and Section 10 of the Rivers and Harbors Act of 1899. Section 404 requires a permit for placement of dredged or fill material into the waters of the United States, including wetlands. Section 10 of the Rivers and Harbors Act of 1899 is summarized in this slide from Towner's presentation:
"To me, in this case, the word 'condition' is really what applies more than anything," Towner said of the wording of this 1899 Act.
Towner also pointed out that an Environmental Impact Statement (EIS) is required under NEPA (the National Environmental Protection Act) for "major federal actions significantly affecting the quality of the human environment."
One purpose of the EIS is "to engage the public in the agency deliberative process."
Towner, who also has worked with U.S. Fish and Wildlife Service, pointed out that Section 7 of the Endangered Species Act requires federal agencies, in this case the Army Corps, to consult with U.S. Fish and Wildlife Service for any action they determine "may affect" threatened or endangered species or their critical habitat. He added that listed species in the UP include: Canada Lynx, Gray Wolf, Northern Big-Eared Bat and Piping Plover. Other species, and not necessarily all, may be affected.**
Towner also noted that despite protections under the Migratory Bird Treaty Act, it would no longer hold Enbridge liable for harm to birds from an oil leak because the Trump Administration removed those provisions. However, a permit is required for unavoidable harm to bald or golden eagles.
Towner said the Fish and Wildlife Coordination Act requires the Army Corps to seek the views of the Fish and Wildlife Service and the Michigan Department of Natural Resources (MDNR).
Under Cultural Resources, Towner mentioned the Native American Graves Protection and Repatriation Act, which requires return of grave and cultural items found on reservations, federal land, and project areas receiving federal funding or permits.
Towner, who was one of many concerned citizens to ask the Army Corps to extend the original comment period, more recently sent this comment to the Army Corps on Enbridge's tunnel permit application: "Among other things, the Corps should carefully analyze the potential effects to threatened and endangered species in the area, and obtain concurrence from the U.S. Fish and Wildlife Service. In addition, the potential impacts of this project, to include a risk analysis of the potential for a major pipeline rupture and petroleum leak into the Straits should be conducted, and a full environmental impact statement should be prepared, in accordance with the National Environmental Policy Act."
Mike Ripley, a member of the Sault Ste. Marie Tribe of Chippewa Indians and a representative of 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 -- spoke during the same May 12 UPEC zoom meeting on "Addressing the Threat to Treaty Fisheries."
Beginning with the wake-up call of the 2010 Kalamazoo oil spill from Enbridge Line B, Ripley gave a historical overview of tribal efforts to protect their fisheries from potential oil spills, particularly in the area that would be affected by a Line 5 spill in the Straits of Mackinac -- the "worst possible place for an oil spill," according to David Schwab, University of Michigan Water Center."
In 2014 CORA joined the Oil and Water Don't Mix coalition of groups, tribes, businesses and individuals opposed to Line 5. Oil and Water Don't Mix also opposes the proposed tunnel.
Eventually former Michigan Gov. Rick Snyder made a "backroom deal" with Enbridge for a tunnel as an alternative to Line 5, Ripley explained.
In 2017, CORA issued 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."***
In that same Resolution CORA called for the shutdown of Line 5.
"Cora is very much opposed to a tunnel," Ripley said.
Several weeks after this UPEC presentation, MPSC, on June 30, denied Enbridge's request for approval of its tunnel plans and has scheduled a contested case public hearing on Enbridge's application for August 24, 2020.*****
Earth Justice supports Bay Mills Indian Community
Attorneys from Earth Justice have been representing the Bay Mills Indian Community in the tribe's Petition to Intervene in the MPSC contested case hearing.
"If our petition to intervene is granted, Earth Justice will represent Bay Mills in a contested case to protect the important treaty rights that the tribe has in this area," Christopher Clark of Earth Justice told Keweenaw Now recently.
Clark said Bay Mills will also be submitting comments on the Enbridge permit application to the Army Corps.
"We're very concerned about the environmental impact that the tunnel would have on the tribe's fishing rights in the Straits," Clark said.
Bryan Newland, Bay Mills Indian Community president, is cited in Bay Mills' Petition to Intervene as follows: "At present, the Tribe is deeply concerned that environmental stressors such as climate change, invasive species, chemical pollutants and habitat destruction will combine to have a significant and perhaps permanent adverse impact on the fishery. The operation of current Line 5, and the prospect of the siting and construction of a tunnel in the Straits of Mackinac for the transport of petroleum products, is the most obvious and most preventable risk to the fishery resources throughout northern Lakes Michigan and Huron."
The petition also states, "Bay Mills and its members have further concerns that the project may risk harm to the environment during construction and that it may not eliminate risk after construction. Bay Mills and its members are also concerned about the length of time in which the project may be under development and the continued operation of the pipes in the water in the meantime."
FLOW applauds MPSC for June 30 decision on tunnel
Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City, said this about MPSC's June 30 decision:
"The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.
"We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future."
Oil and Water Don't Mix sends public comments to Army Corps
Oil and Water Don't Mix states on their Web site: "Enbridge has applied for a permit to construct a tunnel for its Line 5 oil pipeline through the Great Lakes to the U.S. Army Corps of Engineers (USACE). It appears the USACE is not intending on subjecting the permit to the rigorous environmental review and public process that this project demands. It's up to us to ensure this permit is subject to the highest scrutiny." Oil and Water Don't Mix facilitates public comments to the USACE with a form for sending an email from their site here.
They also note in the sample email, which calls for an EIS and a public hearing, "The project Enbridge is pursuing is an issue of significant public interest involving large-scale impacts in areas potentially impacting Great Lakes waters where multiple federally protected threatened species reside. As proposed, construction of a 3.58-mile tunnel under the lakebed of the Straits of Mackinac will involve extensive blasting, tunnel excavation, and the discharge of up to five million gallons a day of wastewater into Lake Michigan."
In her comments to the Army Corps on the tunnel permits, Lisa Patrell of Ann Arbor, who has done geological research on karsts and sinkholes, says, "The Army Corps of Engineers is in the position to require a thorough geology study of the Straits of Mackinac, in order to confirm the stability of the land in two regards. One, guarantee that disturbing the North American Intracontinental Rift will not undermine the structural integrity of the Mackinac Bridge. Two, guarantee that tunneling through the karst formation will not trigger sinkholes during or after the proposed tunnel’s completion. Enbridge’s 25 borings samples are not sufficient nor equivalent to third party scientific study."
Patrell explains that Michigan's underlying geology in the region is a karst -- a system of large, porous openings that are prone to collapsing. Sinkholes are such collapses that happen on dry land.
Comments to Army Corps of Engineers due by July 14, 2020
According to the Army Corps' June 4 Public Notice, comments on the project should be e-mailed but may also be submitted in writing and postmarked or delivered by July 14, 2020. Comments of a positive or negative nature may be submitted. All responses must refer to file number LRE-2010-00463-56-A19. The Corps will interpret a lack of response as meaning that there is no objection to the permit application. Comments should be filed with:
Kerrie E. Kuhne
Chief, Permit Evaluation Western Branch
Regulatory Office
Corps of Engineers, Detroit District
477 Michigan Avenue
Detroit, Michigan 48226-2550
Comments may be e-mailed to: Katie.L.Otanez@usace.army.mil but must include a name and mailing address.
Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing.
The Public Notice states the following under Evaluation:
"The decision whether to issue the Department of the Army permit will be based on evaluation of the probable impacts of the proposed activity on the public interest. That decision will reflect the national concerns for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people."
UPDATE: The Michigan Department of Environment, Great Lakes, and Energy (EGLE) together with the Michigan Public Service Commission (MPSC) and Michigan Department of Transportation’s (MDOT) Mackinac Straits Corridor Authority (MSCA) has announced the launch of the Line 5 in Michigan website, Michigan.gov/Line 5 -- designed to keep the public informed about Enbridge Energy’s proposal to relocate the current section of the Line 5 oil and natural gas liquids pipeline that crosses the Straits of Mackinac with a new section of pipeline to be housed in a tunnel beneath the lakebed.
Editor's Notes:
* Additional slides from Jeff Towner's presentation are available here.
** See the Army Corps Public Notice on impacts on Endangered Species.
*** Click here to read the 2017 CORA Resolution against the proposed tunnel project.
**** For more of Mike Ripley's slides click here.
***** See "MPSC denies Enbridge Energy's request for relief on Line 5 pipeline project, sets Aug. 24 full hearing process for proposal."
See also our May 8, 2020, article, "Michigan Public Service Commission seeks public comment on Enbridge Line 5 - tunnel request by May 13," which includes several public comments.
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