BAD RIVER BAND of LAKE SUPERIOR TRIBE of CHIPPEWA INDIANS CHIEF BLACKBIRD CENTER Box 39 ● Odanah, Wisconsin 54861
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BAD RIVER BAND OF LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS CHIEF BLACKBIRD CENTER Box 39 ● Odanah, Wisconsin 54861 July 11, 2020 Ben Callan, WDNR Division of External Services PO Box 7921 Madison, WI 53708-7921 [email protected] RE: Comments Concerning the Enbridge Energy, LLC Line 5 Relocation around the Bad River Reservation regarding the WDNR Wetland and Water Crossing Permits and the EIS Scoping Dear Mr. Callan, As a sovereign nation with regulatory authority over downstream waters within the Bad River Watershed, on-Reservation air quality, and an interest in the use and enjoyment of the sacred waters of Anishinaabeg-Gichigami, or Lake Superior, pursuant to treaties we signed with the United States, we submit our comments related to the potential Line 5 Reroute around the Bad River Reservation proposed by Enbridge Energy, LLC (henceforth, “company” or “applicant”). The Bad River Band of Lake Superior Tribe of Chippewa Indians (henceforth, “Tribe”) is a federally-recognized Indian Tribe centered on the northern shores of Wisconsin and Madeline Island, where the Bad River Indian Reservation is located, but the Tribe also retains interest in ceded lands in Wisconsin, Michigan, and Minnesota. These lands were ceded to the United States government in the Treaties of 18371, 18422, and 18543. The proposed Line 5 Reroute falls within these ceded lands where the Tribe has retained usufructuary rights to use treaty resources. In addition, it threatens the water quality of the Tribe’s waters downstream, over which the Tribe has regulatory authority as a sovereign nation and as delegated by the federal government under the Clean Water Act. As staff of the Tribe’s Mashkiiziibii Natural Resources Department (MNRD) we have been charged with providing technical assistance to the Tribe in the protection, conservation, and management of Tribal natural resources, which includes those ceded resources. As such, we are submitting these comments on behalf of the MNRD of the Tribe in preparation for the pre- application meeting with the State Department of Natural Resources. These comments apply to the public comment period in connection with review of wetland fill permits, waterway impact and crossing permits WP-IP-NO-2020-2-X02-11T12-18-15, in the Potato River (Gaawaandag- zagaakwa-ziibii), Tyler Forks (Gaa-aangwasagokaag-ziibiins) and the Bad River (Mashkii-ziibii) 1 7 Stat., 536 2 7 Stat., 591 3 10 Stats., 1109 Telephone (715) 682-7123 Natural Resources Department Fax (715) 682-7118 Comments Concerning the Enbridge Energy, LLC Line 5 Relocation Watersheds of Western Lake Superior, and the scoping of an Environmental Impact Statement. These comments do not represent a form of government-to-government consultation. For each item, we will try to offer background information (or “context”) as it has been provided in the applicant’s materials or in other sources, then a subsequent comment. We request a specific and relevant response to our comments. Contact information is provided at the conclusion should items exist for which you require further explanation or discussion. Context 1: The Wisconsin Department of Natural Resources (WDNR) has chosen to post for public comment the scoping of the EIS to close on July 11, 2020, the same day that public comment closes on the Wetland fill permit under Ch. 281.36 (Wis. Stats.) and Waterway impact and crossing permit(s) under Ch. 30 (Wis. Stats.). Comment 1.1: As you’ll see throughout the rest of our letter and the attached memo from Alice Thompson, Lead Scientist at Thompson and Associates and a state-certified wetland delineator, we have numerous concerns with the information submitted by the company for the water-related permits. Additional information collected through the EIS is critical to fully understanding the potential impacts proposed for permitting under those permits. Thus, we do not understand why the public comment period for the wetland fill permit and the waterway impact and crossing permits are posted and being processed so far in advance of this critical information being collected and assessed as part of the EIS. We would urge the WDNR to postpone decision-making on the water-related permits until after the EIS has been finalized and to reopen another public comment period on those permits prior to any decision being finalized. Comment 1.2: The MNRD fully supports all of the concerns and comments articulated by Alice Thompson in the attached Review Of Enbridge Line 5 Wisconsin Segment Relocation Project document, and request that the WDNR provide a specific and relevant response to her comments directly to the Tribe as well. Context 2: Delineated wetland and watercourse information turned in the by the Applicant is incomplete. Even the revised versions of the delineation map submitted by the Applicant on 4/1/20 and posted by the WDNR for public viewing on 4/20/20 contain multiple parcels where survey work has not been completed. In Attachment B: Delineated Wetlands and Waterbodies revised on 4/1/20, gaps where surveys have not been completed for the proposed pipeline corridor, access routes, or adjacent areas are identified on pages 4 – 14 and 16 – 48. Comment 2.1: Though the extent of the areas yet to be surveyed is sometimes a very small area on certain maps, the fact that over 90% of the maps submitted are missing survey information to some extent clearly shows that the information available to the public during the public comment period is inadequate to assess the scope of the impacts associated with the proposed pipeline reroute, the access roads, and other workspaces and sites needed by the Applicant. The public comment period for the water-related permits should be suspended until such a time that the applicant can submit information that fills in the gaps along the proposed reroute. Comment 2.2: Based on the GIS information shared by the applicant, we have calculated that 14.12 miles (34.4%) of the proposed route have not been surveyed per the shapefiles Page 2 of 17 Telephone (715) 682-7123 Natural Resources Department Fax (715) 682-7118 Comments Concerning the Enbridge Energy, LLC Line 5 Relocation contained in the GIS data 2019 zipped folder posted 3/26/20 on the WDNR Sharepoint Site. Using this same data we were also able to calculate that 374.07 acres of workspace (37.6%) have not been surveyed. Knowing that data covering approximately a third of the area and length of the route has not been made available to the public as part of the information available to review and comment on in the public comment process once again emphasizes the need for the WDNR to postpone decision making and reopen another public comment period after an EIS has been finalized. Comment 2.3: It is our understanding that the proposed route might undergo additional changes as easements across all of the parcels proposed as part of the current route have not been secured by Enbridge, nor has the Public Service Commission made any decisions about allowing Enbridge to secure these parcels through eminent domain. Thus, the public should be given the opportunity to additionally comment both on EIS Scoping and on water-related permits whenever a change to the proposed corridor is made as additional concerns may arise from those changes. Context 3: The applicant completed the majority of wetland delineations in September and October of 2019 according to the wetland delineation data available to us in the DelineationReport_Appendix D_Wetland Data Sheets and Photos” documents dated March 25, 2020 from the WDNR website. Comment 3.1: While wetland delineations completed within September and October are often within the growing season in Northern Wisconsin, and thus compliant with Army Corp of Engineers’ wetland delineation standards, this timing is less than ideal for identifying certain plant species like orchids or spring ephemerals, which oftentimes die back completely by this time of the year. According to Wildflowers of Wisconsin and the Great Lakes Region (Black and Judziewicz, 2009) there are known occurrences of five threatened and six special concern orchid species in Ashland and Iron Counties. These species bloom sometime from May to August and oftentimes have leaves that die back when flowering or are only present when in flower. This is just more support that additional surveys need to be completed for the EIS that focus on rare and important species such as, but not limited to, orchids. These additional surveys should be data evaluated as part of the permitting for wetlands and watercourses. Comment 3.1.1: Many of the plants mentioned above are endangered, threatened, or species of special concern and their presence associated with delineated wetland and waterbodies would mean that waterbody would meet the WDNR’s definition of an Area of Special Natural Resource Interest (ASNRI). However, due to the timing of the Applicant’s survey work they would have missed identifying these plant species, which has given them the ability to claim: “the Project crosses eighteen ASNRI-designated Priority Navigable Waters waterbodies” (p. 99, 4/1/20 EIR). This claim is oddly worded and misleading, appearing to only count the waterbodies that are both meeting the definition of an ASNRI and the definition of a Priority Navigable Water. As part of the EIS, additional vegetation surveys should be done along and within water resources adjacent to and crossed by the proposed pipeline at two additional times of the year—early and mid-growing season—and the number of ASNRI recalculated and the impacts to these important water resources closely assessed. Page 3 of 17 Telephone (715) 682-7123 Natural Resources Department Fax (715) 682-7118 Comments Concerning the Enbridge Energy, LLC Line 5 Relocation Comment 3.1.2: Additionally, conducting surveys during a time period when certain key species are unidentifiable skews the data of not only the Wetland Delineation but also of the wetland functional assessments, as it underestimates the quality and functional importance of the wetland on the landscape, and thus underestimates the impacts the proposed activity would have on these wetlands.