Turtle Talk

Yesterday, on August 12, USACE granted Enbridge a Clean Water Act section 404 permit for the proposed four-mile tunnel to house Line 5 under the Straits of Mackinac. The Record of Decision is here. The Corps stated its review satisfied NEPA, the ESA, NHPA §106, and federal tribal trust responsibilities and concluded the project would not impermissibly impair treaty rights. The timing is remarkable because the Sault Ste. Marie Tribe of Chippewa Indians’ government-to-government consultation with the Corps occurred only two days earlier, although the Corps’ ROD states that they engaged with consulting parties, including 20 Tribes, over approximately six years through approximately 60 monthly or ad hoc Section 106 consultation meetings and government-to-government consultation with tribes.

In a statement released by NARF, Managing Attorney David Gover stated that, “Our federal government has a solemn obligation to uphold and protect Treaty rights and is supposed to protect American waters and sacred spaces . . . Instead, the U.S. Army Corps just rubber-stamped a Canadian oil project that desecrates a Tribal sacred space and threatens to pollute the Great Lakes.” Bay Mills Indian Community President Whitney Gravelle stated, “Our treaties are solemn promises that carry the highest legal and moral obligation, yet the Corps cast that aside. They disregarded our treaty rights, ignored the information we provided through consultation, and pushed past cultural resource obligations under the manufactured excuse of an ‘energy emergency.’ Instead of honoring the commitments embedded in the 1836 Treaty of Washington, they chose to treat Tribal Nations as an obstacle rather than as sovereigns whose rights must be honored – all to advance Enbridge’s interests at the expense of our homelands, our waters, and the Great Lakes. This is a profound breach of the United States’ trust responsibility, and it is shameful.”

In March 2025, seven Michigan Tribes, including the Bay Mills Indian Community, the Sault Ste. Marie Tribe, the Little Traverse Bay Bands of Odawa Indians, the Little River Band of Ottawa Indians, the Grand Traverse Band of Ottawa and Chippewa Indians, the Match-E-Be-Nash-She-Wish Band of Pottawatomi, and the Nottawaseppi Huron Band of the Potawatomi voiced their opposition to the President’s fast-tracking of the USACE permit review process by his issuance of an Executive Order declaring an energy emergency. The Tribes declared that they were withdrawing their participation as Cooperating Agencies in the USACE EIS process, contending that the Corps designed a constrained, Enbridge-friendly EIS, marginalized Tribal expertise, treaty rights, and cultural resources, substituted procedural participation for genuine consultation, and then moved toward emergency approval, making Cooperating Agency participation by the Tribes a facade that offered legitimacy for the Corps’ process rather than influencing it. Importantly, the Tribes did not withdraw from all federal consultation. They continued to engage in government-to-government consultation and participated as consulting Tribes in the NHPA Section 106 process.

The USACE Permit Doesn’t Mean Enbridge Can Start Building the Line 5 Tunnel

Regardless of the USACE permit decision, Enbridge still lacks a valid Michigan Public Service Commission authorization. On July 31, 2026, the Michigan Supreme Court vacated the MPSC approval and ordered it to redo critical portions of its environmental/public trust doctrine analysis. The Court’s decision is here. The Court’s overview of the facts of the case noted that “[a]s the many Indian Tribes involved in the litigation point out, the Great Lakes and the Straits of Mackinac have nourished life in the region for thousands of years.” It held that the MPSC failed to adequately consider whether the tunnel would prolong Line 5’s operation, improperly compared the environmental impacts of alternatives, and failed to account for the public trust doctrine under MEPA, the Michigan Environmental Policy Act.

In addition, Earthjustice, which represents the Bay Mills Indian Community, plans to appeal the tunnel project permit recently granted by EGLE, Michigan’s Environment, Great Lakes, and Energy agency. The EGLE permit, issued July 15, 2026, is available here. The DNR issued a permit under Part 365 of the Natural Resources and Protection Act for the tunnel project on the same day. The EGLE permit acknowledges the grave seriousness of the tunnel’s cultural resource impacts. EGLE found that the tunnel project “will have adverse effects on known historic and cultural resources, including their destruction and/or removal,” and that those resources are “unique and highly significant to the Anishinaabek communities.” Yet EGLE issued the permit anyway, before approving a final Cultural Resources Mitigation and Monitoring Plan. Enbridge now has until December 31 to submit a plan addressing concerns and identified deficiencies raised by Michigan’s Tribes.