February 14, Kathleen Atkinson Regional Forester, Eastern Region US Forest Service 626 East Wisconsin Ave. Milwaukee, WI 53202

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1 Kathleen Atkinson Regional Forester, Eastern Region US Forest Service 626 East Wisconsin Ave. Milwaukee, WI Dear Ms. Atkinson, I write on behalf of the Voigt Intertribal Task Force (VTF) of the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) with regard to the potential renewal of a Special Use Authorization that allows Enbridge Energy to use, occupy, and maintain the section of Line 5 oil pipeline, right of way, and pumping station that crosses the Chequamegon-Nicolet National Forest. The VTF discussed this renewal at its January meeting and has asked that I extend an invitation to you to attend one of its upcoming meetings. As you know, GLIFWC is an intertribal agency exercising delegated authority from 11 federally recognized Ojibwe tribes in Wisconsin, Michigan and Minnesota. 1 Those tribes have reserved hunting, fishing and gathering rights in territories ceded in various treaties with the United States (Map 1). GLIFWC s mission is to assist its member tribes in the implementation of those reserved rights to harvest natural resources and to protect habitats and ecosystems that support those resources. In 1998, the United States Forest Service (Forest Service) and GLIFWC member tribes entered into a historic agreement, the Memorandum of Understanding Regarding Tribal-USDA Forest Service Relations on National Forest Lands within the Ceded 1 GLIFWC member tribes are: in Wisconsin -- the Bad River Band of the Lake Superior Tribe of Chippewa Indians, Lac du Flambeau Band of Lake Superior Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, St. Croix Chippewa Indians of Wisconsin, Sokaogon Chippewa Community of the Mole Lake Band, and Red Cliff Band of Lake Superior Chippewa Indians; in Minnesota -- Fond du Lac Chippewa Tribe, and Mille Lacs Band of Chippewa Indians; and in Michigan -- Bay Mills Indian Community, Keweenaw Bay Indian Community, and Lac Vieux Desert Band of Lake Superior Chippewa Indians.

2 Page 2 Territories of 1836, 1837 and 1842 (MOU). In the MOU, the Forest Service affirmed and acknowledged the tribes reserved rights to hunt, fish and gather, subject to their own regulatory authority, within ceded territory lands that are now considered National Forest. In the MOU, the parties established a framework for a cooperative, government-togovernment relationship which includes consistent and timely communication between the parties. It also establishes that the tribes will participate in National Forest decisions that affect the abundance, distribution or access to natural resources on lands administered by the Forest Service. This review of the special use authorization falls squarely within the criteria of a land management decision as it involves a right-of-way and the maintenance of a pipeline and associated infrastructure upon the land. The VTF, as keeper of the process for the MOU, notes that the Line 5 pipeline not only crosses the Chequamegon/Nicolet National Forest, but the Ottawa and Hiawatha National Forests as well. It is for these reasons that the VTF wishes to invite you to an upcoming meeting. The ability to exercise reserved treaty rights by GLIFWC member tribes can be threatened by many activities in the Ceded Territories. Pipelines destroy and divide habitats, reduce access to harvest areas and, through the threat of oil spills, endanger the resources Anishinaabe people use to maintain their lifeway. The complex network of pipelines that now exists in the ceded territory was constructed with little or no tribal consultation or prior informed consent (Map 2). Ultimately, the oil that is transported by the Line 5 pipeline contributes to human induced climate change and the ongoing degradation of the Ceded Territories. I have asked that our environmental and policy experts review the pipeline issue and offer technical comments. Their comments follow. Need for A Federal Environmental Impact Statement The Forest Service should require the development of an Environmental Impact statement (EIS) before moving forward with the Special Use Authorization for the pipeline. A great deal of additional information and experience with pipelines and their hazards is known today when compared to the last time the Special Use Authorization was issued (1993). A categorical exclusion from environmental analysis would not allow new information to be considered. Some of the issues that should be considered are discussed below. Structural Integrity of Line 5 The long term structural integrity of Line 5 is questionable. Enbridge has stated that Line 5 can continue operating for years without the risk of an oil spill. However, Enbridge is currently proposing to replace another pipeline (Line 3) because it states that its long-term maintenance plan cannot ensure the pipeline s structural integrity. Line 3, like Line 5, was constructed in the 1960 s using the same technology, materials and construction practices. It is not reasonable to assume Line 5 is safe to operate indefinitely while Line 3 is in need of

3 Page 3 replacement. The differences in structural integrity between Line 3 and Line 5, if any, should be described in an EIS and the structural integrity of Line 5 fully assessed. This assessment is also needed because Enbridge Inc. has a poor environmental record. From 1999 to 2010, Enbridge pipelines spilled over 7 million gallons of crude oil in over 800 different incidents across the United States and Canada (National Wildlife Federation, 2012). The combined environmental effect of these incidents to wetlands and surface and ground waters has not been quantified. The most notorious spill involves a ruptured pipeline that spilled over a million gallons of heavy crude oil into the Kalamazoo River in the lower peninsula of Michigan in July of Thirty-five river miles downstream of the pipeline breach were closed due to the spill. Cleanup activities at this site continued until 2014 with costs exceeding 675 million dollars. Cleanup efforts were complicated by the heavy crude oil that, when spilled, sank to the bottom of the river and into the sediment. Line 5 itself has 15 known failures which have resulted in 260,000 gallons of spilled oil. This includes a spill in the Hiawatha National Forest that required the removal of approximately 825 tons of contaminated soil. The removal of the contamination was conducted in 2011, even though the spill occurred in the 1980 s. Furthermore, the USFS was apparently unaware of the spill until 2012 when Enbridge obtained a groundwater monitoring permit at the site ( Greater oversight and improved monitoring systems are needed for the easement area crossing the Chequamegon-Nicolet National Forest and the alternatives analysis contained in an EIS is the appropriate mechanism to identify and define those systems. Furthermore, an alternatives analysis can determine if there are other means of oil transportation or other pipelines that present a lower environmental threat than Line 5. Climate Change The threats of climate change are particularly acute for tribes in the Great Lakes region because of their strong cultural relationship with natural resources. Climate change is likely to severely impact the ability of tribes to continue harvesting many culturally important resources within boundaries that are fixed by treaty. Tribal leaders and GLIFWC environmental and policy staff are concerned about any proposals that would expand or increase the burning of fossil fuel. Climate change concerns are especially serious for tribes. Because of their reliance on natural resources to meet spiritual, cultural, medicinal, subsistence, and economic needs, they are disproportionately affected by climate change impacts. Increases in carbon emissions can directly influence climate change impacts and exacerbate their effects on these treaty-guaranteed tribal resources. GLIFWC s recent review of regional climate models found that, in the Ceded Territory, the continued warming trend

4 Page 4 will result in warmer and less frequent cold days and nights in the winter, more frequent hot days and nights in the summer, more frequent dangerous heat events, more frequent but less predictable heavy precipitation events, increased potential for droughts, less snow cover, more winter precipitation falling as rain or ice instead of snow, and higher winds over the Great Lakes, which are warming at twice the rate as the surrounding landscape ( Many of these changes will lead to increased stress on terrestrial and aquatic ecosystems, and will increase the vulnerability of many organisms that are currently at the southern extent of their range, and/or are less able to adapt to climatic changes. The changes in climate are likely to lead to an influx of invasive species, disease, and forest pests by allowing species that are more adapted to warmer climates at more southerly latitudes to move northward. Line 5 pipeline perpetuates carbon emissions and increases climate change effects. These climate change impacts are also outlined in A Climate Change Response Framework for the Chequamegon-Nicolet National Forest ( The federal EIS for the Line 5 pipeline should describe the atmospheric carbon contributions of the oil that is transported through the pipeline and put those carbon emissions in the context of the Forest s Climate Change Response Framework. Impacts of Oil Spills on Sensitive Habitats Much of the 11.5-mile section of Line 5 that runs through the Chequamegon-Nicolet National Forest also borders or traverses the tribal Moquah Research Natural Area and Wisconsin State Natural Area. Moquah Barrens was established in the 1930 s, and incorporated into the MOU in 1998, to study and protect the pine barrens habitat and to study natural succession on sandy and sandy loam soils. While this area lacks surface water streams, the sandy soils are vulnerable to oil spills. Furthermore, potential impacts to groundwater in this area of sandy soils should be characterized in an EIS. Pine barrens are a rare habitat type in the Midwest. There has been no characterization of the effects of an oil spill on plant and animal species that occur in this protected area. Furthermore, there has been no characterization on potential impacts to rare, threatened and endangered species that may occur in the pine barrens. These potential impacts should be characterized in an EIS. Cumulative Effects GLIFWC s environmental and policy experts understand that the Forest Service is only assessing the potential environmental impacts of the section of Line 5 that crosses the Chequamegon-Nicolet National Forest. However, this pipeline also traverses the Hiawatha and Ottawa National Forests (Map 3). Furthermore, the majority of the pipeline right of way is within the Great Lakes watershed. This pipeline route through the water rich Laurentian Great

5 Page 5 Lakes region poses serious environmental risks. The Great Lakes contain 20% of the world s fresh water. They are sources of drinking water and support extensive fisheries that tribes depend upon. Because there is no EIS for this pipeline, the potential impacts of a spill on the aquatic environments of the Great Lakes have never been quantified. The cumulative effects of a spill to the exercise of treaty protected harvests must be described as well as the impacts to non-tribal local economies. Many if these local economies depend on tourism generated from hunting and fishing activities which are vulnerable to a potential spill. Line 5 runs under Lakes Michigan and Huron at the Mackinac Straights. Simulations conducted by scientists at the University of Michigan Water Science Center indicate that an oil spill would affect a large geographic area in both Lake Michigan and Lake Huron ( As stated above, Line 5 is over 60 years old and was constructed without modern technology and without modern environmental impact assessments and regulatory oversight. Occasional maintenance is not enough to guarantee the long-term integrity of the pipeline. Treaty Rights and Consultation A federal EIS would allow GLIFWC and its member tribes to include their perspectives on the continued operation of the pipeline in detail. Tribal and State Historic Preservation officers could contribute information on historic and cultural resources in the Area of Potential Effect of this pipeline. This information would allow the Forest Service to make a well informed decision on whether to grant the Special Use Authorization to Enbridge Energy. Recommendations GLIFWC s environmental and policy experts believe that an Environmental Impact statement must be prepared before the Special Use Authorization is granted to Enbridge. Continuation of existing maintenance and monitoring requirements are not adequate to protect the environment from potential oil releases from a 60-year-old pipeline. Furthermore, treaty protected activities in the National Forest have changed since the last time the Special Use Authorization was approved, as exemplified by the MOU. In the MOU, Forest Service committed to consulting with the tribes at all stages and at all levels of the decision-making process. In addition, the Forest Service committed to consider the effects of its decisions on treaty resources and the ability of tribes to exercise treaty gathering rights. For complex infrastructure components, such as pipelines, the development of an EIS will enable the Forest Service to provide information to the tribes, consider information provided by the tribes, and describe how tribal information was taken into account in reaching the Forest Service s decision.

6 Page 6 The Voigt Intertribal Task Force understands that the Forest Service is in the early stages of decision-making and planning with respect to the Special Use Permit and looks forward to further discussions with the Service on this issue. I have asked Esteban Chiriboga and Philomena Kebec to be available to answer any questions you may have and to assist in scheduling a time for you to attend a meeting of the Voigt Intertribal Task Force. The Task Force meets on the first Thursday of each month. Thank you for your invitation to discuss this issue. Sincerely, James Zorn Executive Administrator Attachments cc: Jonathan McNeill, USFS

7 Ceded Territory Boundaries Map 1 COOK ST. LOUIS LAKE 1854 Anishinaabeg Gichigami KEEWENAW CROW WING MORRISON BENTON MILLE LACS SHERBURNE AITKIN Mille Lacs KANABEC ISANTI ANOKA Minnesota CARLTON CHISAGO WASHINGTON PINE Fond du Lac BURNETT St. Croix POLK ST. CROIX DOUGLAS WASHBURN BAYFIELD SAWYER PRICE IRON ONEIDA VILAS Mole Lake RUSK Odaawa Gichigami MENOMINEE BARRON DUNN Red Cliff Lac Courte Oreilles 1837 CHIPPEWA EAU CLAIRE Bad River ASHLAND TAYLOR GOGEBIC LINCOLN MARATHON ONTONAGON Lac Du Flambeau FOREST LANGLADE HOUGHTON Keweenaw Bay 1842 IRON MENOMINEE FLORENCE SHAWANO BARRAGA Lac Vieux Desert MARINETTE OCONTO MARQUETTE DICKINSON DELTA ALGER 1836 SCHOOLCRAFT LEELANAU BENZIE LUCE MACKINAC GRAND TRAVERSE Bay Mills ANTRIM CHIPPEWA EMMET CHARLEVOIX KALKASKA CHEBOYGAN OSTEGO CRAWFORD Naadowe Gichigami PRESQUE ISLE MONTMORENCY OSCODA ALPENA Ceded Territory Boundary CLARK WOOD PORTAGE MANISTEE WEXFORD ROSCOMMON MISSAUKEE GLIFWC Member Tribes Tribal Land County Boundary Great Lakes Wisconsin CLARE MASON LAKE OSCEOLA 1836 MECOSTA OSCEANA ISABELLA NEWAYGO MONTCALM MUSKEGON KENT Michigan Ceded territory and tribal reservation boundaries are representations and may not be the actual legally binding boundaries. OTTAWA IONIA

8 Map 2: Existing Oil and Natural Gas Pipelines in the Ceded Territories Pipeline Ceded Territories GLIFWC Member Tribes Tribal Land GreatLakes State and Province Boundary Ceded territory and tribal reservation boundaries are representations and may not be the actual legally binding boundaries.

9 Map 3: Proposed Enbridge Pipeline Projects in the Ceded Territories Lin e Line 5 Ceded Territories (GLIFWC) GLIFWC Member Tribes 61 Oil Pipeline Expansion Projects ne Li Esteban Chiriboga GLIFWC Tribal Land National Forest GreatLakes County Boundary Ceded territory and tribal reservation boundaries are representations and may not be the actual legally binding boundaries.