MINNESOTA DNR’S SEPT. 16, 2021 LINE 3 ENFORCEMENT ACTION DEMONSTRATES HOW MUCH GROUNDWATER PERMITTING “SUCKS”

By: Sonja Smerud, Volume 106 Staff Member 

Enbridge Energy’s Line 3 Pipeline, a replacement project for the delivery of crude oil from Canada to a processing facility in Superior, Wisconsin, was recently completed despite extensive opposition.[1] In September 2021 shortly before completion, the Minnesota Department of Natural Resources (“DNR”) issued a civil enforcement action against Enbridge Energy for $3.32 million for the company’s piercing of an aquifer which resulted in unauthorized groundwater appropriation during construction near Enbridge’s Clearbrook Terminal.[2]

An aquifer is a “water-bearing stratum of permeable rock, sand or gravel.”[3] “Aquifers and their confining beds comprise a complex, interconnected underground system in which water is moved, stored, and filtered or cleansed of contaminants, and they act as enormous reservoirs and as gates for the groundwater system.”[4] Line 3 traverses a few groundwater provinces in Minnesota, but common hydrogeological characteristics among them include a relatively shallow bedrock province with limited aquifers.[5] Because of this shallow bedrock area, the DNR’s restrictive drilling requirements as proscribed in the permit are necessary. At the appropriation site utilized by Enbridge during Line 3 construction, the aquifer feeds a calcareous fen. Calcareous fens are wetlands which exist because of an upwelling of mineral rich groundwater from an aquifer, rendering fens sensitive and subject to strict statutory protections.[6] In short, piercing an aquifer in violation of a permit is a big deal because it puts the quality and quantity of groundwater available for ecosystem function at risk.

As of the date of the DNR’s announcement, Enbridge’s violation has released approximately 24.2 million gallons of water from the aquifer.[7] The DNR alleges the “comprehensive nature of the enforcement resolution” will ensure Enbridge “will be held accountable for the loss of groundwater and any other environmental damages.”[8] Despite the DNR’s claim, the extent of damage by Enbridge cannot be addressed by Minnesota’s limited groundwater regulatory scheme.

To prevent future catastrophes like the Enbridge groundwater spill, Minnesota should better coordinate groundwater appropriation permitting and monitoring practices.

 I. PERMITTING

Line 3 is a crude oil pipeline, so the first entity to allow intrastate construction is the Minnesota Public Utilities Commission (MPUC).[9] After permission to proceed with the pipeline, the applicant must acquire associated environmental permits.[10] Here, Enbridge received the necessary permits despite opposition, including a Section 401 Clean Water Act “discharge” permit from the Minnesota Pollution Control Agency (MPCA).[11] The MPCA assured all impacted wetlands were appropriately mitigated through compensation from Enbridge.[12] Obviously, the MPCA’s discharge permit did not take into account the potential wetland impact from groundwater withdrawal at issue in the DNR permit, but only discharge and developmental impacts.[13]

Water systems are not disconnected, as Minnesota’s current regulatory framework suggests. Rather than separating permits into discharge and appropriation, environmental permitting should holistically review projects. Especially when groundwater is at issue, it is critical to look at an entire watershed.

Minnesota’s current permitting structure is based on “sustainable” and “reasonable use” of water resources, which includes both surface and groundwaters.[14] Water permitting systems based on reasonable use like Minnesota’s are complicated because property rights are transferrable.[15] Because of the depletion of aquifers, impairment of groundwater quality, and problems integrating surface water management with groundwater,[16] states are left with even more complex and ineffective regimes for permitting use and allocating water rights.[17] Because of ineffective over-permitting, the DNR was notably enjoined from issuing any further groundwater appropriation permits in White Bear Lake Restoration v. Minnesota DNR.[18]

Unlike White Bear Lake Restoration, the DNR actually took enforcement action to manage groundwater resources here. The DNR should be granted some leeway, as Minnesota’s history of indiscriminately permitting groundwater pumping is ill-equipped to regulate increasingly valuable freshwater resources. Still, given the sensitive bedrock region and potential watershed impact, the DNR should never have granted Line 3 a permit in the first place. Holding waters in the “public trust” based on both common law and statute, the DNR has the authority to refuse to permit large-scale groundwater appropriations.[19] The DNR itself based its enforcement action on  “clear violations of state law” and of the “public trust.”[20] Even if the government refused to acknowledge their state-level public trust, the DNR’s initial permitting also ignored tribal trust interests.[21]

Minnesota’s groundwater management needs more restrictive and holistic permitting procedures based in the public trust.

II. MONITORING

Minnesota’s groundwater monitoring practices are also insufficient. Minnesota law divides groundwater management among multiple agencies, including the DNR, MPCA, Department of Agriculture (MDA), the Board of Water and Soil Resources (BWSR), and the Minnesota Department of Health (MDH).[22] The failure of the multitude of agencies managing groundwater to even coordinate monitoring information is partly why the White Bear Lake Restoration problem went undetected for so long.[23]

Like the delayed response in White Bear Lake Restoration, Enbridge’s permit violation went unreported for months. Independent Environmental Monitors working for the DNR and MPCA did not observe the “unusual” amounts of water at the construction site until late January 2021.[24] Monitors do not observe construction activities, so the source of the excessive water and pierced aquifer was not identified until June 15, 2021.[25] Enbridge’s gross impact and the state’s delayed recognition of the problem clearly demonstrates that an alternate format for monitoring Minnesota’s groundwater resources is needed.

Minnesota needs more unitary and comprehensive groundwater management to prevent aquifer depletion and groundwater contamination. Colorado could provide a useful guide for restructuring groundwater permitting.[26] Minnesota could: (1) mandate all groundwater withdrawals across the state be systematically inventoried, tracked, and permitted for added resilience and more efficient resource management; (2) start with critical groundwater resources, then expand; and (3) designate a single authority like Colorado’s Groundwater Commission to administer the state’s groundwater supply.[27] Monitoring and modeling water pressure in the aquifer, or “head” (water flowage from high pressure to low pressure) could also mitigate issues before they arise.[28]

Groundwater pumping limits should not be an issue only during periods of obvious drought.[29] Minnesota has articulated a strong public trust doctrine, and the DNR and other state regulators should use that authority preemptively rather than relying on “community water supply planning.”[30] Uncontaminated or available freshwater is not a future problem, but a today problem.[31] Minnesota should respond accordingly by holistically revamping groundwater permitting and monitoring practices.

 

[1] See, e.g., Steve Karnowski, Enbridge: Line 3 Replacement Complete; Oil Will Flow Friday, Associated Press (Sept. 29, 2021), https://apnews.com/article/business-environment-and-nature-wisconsin-minnesota-environment-314734912b51ea1f24c4e77d50f59170 (last visited Nov. 27, 2021).

[2] Press Release, Minn. Dep’t Nat. Res., Minnesota Department of Natural Resources Orders Enbridge Energy to Pay $3.32 Million for Failure to Follow Environmental Laws (Sept. 16, 2021), https://files.dnr.state.mn.us/features/line3/mndnr-orders-enbridge-energy-to-pay.pdf [https://perma.cc/HEE9-UGV7]; Restoration and Replacement Order, Minn. Dep’t Nat. Res. (Sept. 16, 2021), https://www.dnr.state.mn.us/line3/index.html [https://perma.cc/GY8C-RWNY]; Letter, Administrative Penalty Order, Minn. Dep’t Nat. Res. (Sept. 16, 2021), https://files.dnr.state.mn.us/features/line3/administrative-penalty-order-enbridge-energy-9-16-21.pdf [https://perma.cc/3YA2-GNBV].

[3] Aquifer, Merriam Webster (2021),  https://www.merriam-webster.com/dictionary/aquifer [https://perma.cc/V2ED-HX53].

[4] Nick Redmond, Land of 9,999 Lakes: White Bear Lake’s Water Crisis and How Colorado Can Help, 18 Minn. J.L. Sci. & Tech. 745, 749 (2017) (citing Minn. Dep’t Health, Envt’l Health Div., Well Owner’s Handbook: A Consumer’s Guide to Water Wells in Minnesota 4–5 (4th ed. 2014), https://www.health.state.mn.us/communities/environment/water/docs/wells/construction/handbook.pdf [https://perma.cc/5A9R-CE6T].

[5] Line 3 primarily traverses the Central Groundwater and Arrowhead/Shallow Bedrock Province. Minnesota Groundwater Provinces 2021, Minn. Dep’t Nat. Res., https://files.dnr.state.mn.us/waters/groundwater_section/provinces/2021-provinces.pdf [https://perma.cc/LAA2-9XU8].

[6] Minn. Dep’t Nat. Res., Enbridge Line 3 Replacement Project, https://www.dnr.state.mn.us/line3/index.html [https://perma.cc/XXZ9-ZNXW].

[7] Press Release, supra note 2. The restoration order also included referral to the County for criminal prosecution based on Minn. Stat. § 103G.141, subd. 1. Id.

[8] Minn. Dep’t Nat. Res., supra note 5.

[9] See Minn. Stat. § 216(G).01-.12 (2016); Minn. R. § 7853.0100-.0130 (2019) (outlining “Certificate of Need” criteria for oil pipelines). The MPUC’s Certificate of Need for Line 3 was challenged by environmental groups and remanded for inadequate analysis of the potential for an oil spill into the Lake Superior Watershed. See In re Enbridge Energy, 930 N.W.2d 12, 17 (Minn. Ct. App. 2019). The MPUC later granted the certificate.

[10] Minn. R. § 7852.1500 (2019).

[11] Minnesota courts affirmed the MPCA’s Clean Water Act Section 401 permit based on substantial evidence. In re Enbridge Line 3 Replacement Project, No. A20-1513, 2021 BL 326533, at *1 (Minn. Ct. App. Aug. 30, 2021); see also Minn. Stat. §§ 14.001-.69 (MAPA).

[12] Environmental groups challenged and the court rejected that the MPCA’s permit was based on an improper calculation of the acreage of wetlands impacted by the project. Id. at *11; see also Minn. R. § 7050.0186 (requiring compensatory mitigation for unavoidable impacts on the designated uses of a wetland).

[13] The MPCA had determined that 212.37 acres of wetland would be permanently converted. In re Enbridge, No. A20-1513 at *12.

[14] Minn. Stat. § 103G.287, subd. 5 (2015) (“The commissioner may issue water-use permits . . . only if . . . the groundwater use is sustainable to supply the needs of future generations.”). Like other eastern states, Minnesota uses a water resource regulation system based on riparian rights or “regulated riparianism.” See, e.g., Christine A. Klein, Federico Cheever & Bret C. Birdsong, Natural Resources Law: A Place- Based Book of Problems and Cases 893–902 (3d ed. 2013). The riparian doctrine generally allocates rights based on common law doctrines of “reasonable use.” Red River Roller Mills v. Wright, 15 N.W. 167, 170 (Minn. 1883) (holding any water use in Minnesota is necessarily limited by reasonable use). In allocating groundwater rights, the common law has developed three primary options: (1) the rule of capture or “absolute” ownership; (2) assigning rights to overlying landowners, or a “riparian” model based in “reasonable use”; and (3) “correlative rights,” based on a commonly pooled resource. See Roger H. Willhaus, Groundwater Rights in Minnesota and Iowa, 2 Wm. Mitchell Envt’l L.J. 127, 131–32 (1984); see also Reed D. Benson, Burke W. Griggs & A. Dan Tarlock, Water Resource Management: A Casebook in Law and Public Policy 337, 332, 338, 251, 363 (8th ed. 2021); Mich. Citizens for Water Conservation v. Nestlé Waters North America, Inc., 709 N.W.2d 174 (2005) (applying Restatement (Second) of Torts Reasonable Use Test § 858 (1965)). In Minnesota, groundwater use is usually limited by correlative rights. See Dave Peters, Does Minnesota Water Law Make it Easier or Harder to Deal with Conflicts? MPR News (Mar. 4, 2014), https://blogs.mprnews.org/ground-level/2014/03/does-minnesota-water-law-make-it-easier-or-harder-to-deal-with-conflicts [https://perma.cc/2YV6-5WGW].

[15] See, e.g., Higday v. Nickolaus, 469 S.W.2d 859, 866 (Mo. Ct. App. 1971) (articulating the reasonable use rule for groundwater, where even private property owners must not injure others through their use because the nature of their property right is “usufructuary” rather than absolute like under the English rule). If litigated, challengers to Enbridge’s actions could argue their drawing of groundwater for this permit is “per se unreasonable use” because it was conducted with malice or willful waste. Id.; see also Stillwater Co. v. Farmer, 93 N.W. 907, 910 (Minn. 1903) (articulating reasonable use doctrine in Minnesota’s first groundwater dispute).

[16] See Freshwater Soc’y, Minnesota’s Groundwater: Is Our Use Sustainable? 3 (Apr. 2013), https://freshwater.org/wp-content/uploads/2019/11/Updated-MNs-Groundwater-Paper-lo-res.pdf [https://perma.cc/76TA-WEWW].

[17] See Roger H. Wilhaus, Groundwater Rights in Minnesota and Iowa, 2 Wm. Mitchell Envt’l L.J. 127, 138–39 (1984) (critiquing Minnesota’s groundwater permitting system and citing Crookston Cattle Co. v. Minn. Dep’t Nat. Res., 300 N.W. 2d 769, 773 (Minn. 1980)). Although permits should not insulate permittees from liability, sometimes a permit creates a level of invincibility or so called “permit shield[s]” which further render permits ineffective. See, e.g., Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1994) (holding the permit shield is strong and a citizen suit for violations beyond the permit was barred).

[18] See White Bear Lake Ass’n v. Minn. Dep’t Nat. Res., 946 N.W.2d 373, 387 (Minn. 2020) (finding the DNR violated MERA and the Public Trust Doctrine in over-permitting water pumping in the Prairie du Chien Jordan aquifer).

[19] The Public Trust Doctrine entrusts the states with the “consequent right to use or dispose of any portion [of navigable waters], when that can be done without substantial impairment of the interest of the public in the waters.” Illinois Central R.R. v. Illinois, 146 U.S. 387, 435 (1892); see also Lamprey v. Metcalf, 53 N.W. 1139 (Minn. 1893) (discussing common law public trust doctrine in Minnesota); State v. Longyear Holding Co., 29 N.W.2d 657, 670 (Minn. 1947) (cementing public trust doctrine in Minnesota); cf. White Bear Lake Restoration at 386 (declining to extend the common law public trust doctrine but citing Minn. Stat. § 103A.201, subd. 1 (2018), as a statutory codification of the public trust doctrine).

[20] Press Release, supra note 2.

[21] The White Earth Reservation believes the DNR should never have issued the permit—it filed a lawsuit alleging violation of the 1855 Treaty with the Chippewa based on DNR’s issuance of groundwater permits for Line 3. See Minn. Dep’t Nat. Res. v. White Earth Band of Ojibwe, No. 21-01869 (D. Minn. Aug. 19, 2021), appeal docketed, No. 21-03050 (8th Cir. Sept. 13, 2021) (seeking declaration that the DNR violated the Fourth Amendment and plaintiffs’ due process rights by seizing 5 billion gallons of water when issuing the appropriation permit to Enbridge Energy for Line 3 dewatering activities, among other claims).

[22] Minn. Stat. § 103A.204 (2016) (listing agencies responsible and outlining Minnesota’s groundwater management system).

[23] See, e.g., Redmond, supra note 4, at 768.

[24] Id.

[25] Id.

[26] Id. at 755–759 (discussing how Colorado’s Water Rights Act and Groundwater Act, which among other things establishes a Groundwater Commission to manage scarcity and protect prior appropriation rights, illustrates an effective model for better groundwater resource management in Minnesota).

[27] Id. at 766. The DNR does have “Groundwater Management Areas” (GWMAs) to better facilitate coordinated monitoring, but projects administered through the program should move from piloting phases and organize monitoring based on the already defined hydrogeological aquifer regions. Minn. Dep’t Nat. Res., Groundwater Management Areas (2021), https://www.dnr.state.mn.us/gwmp/areas.html [https://perma.cc/YS5D-C39B].

[28] See, e.g., Randal Barnes & Otto Strack, Aquifer Depletion: Two Views, Univ. Minn. Civ., Env’t, & Geo-Eng’g (Apr. 15, 2015), https://cse.umn.edu/cege/news/aquifer-depletion-two-views-0 [https://perma.cc/S7M8-PMJK]. Barnes & Strack notably argue for changes to water laws and better use of aquifer depletion modeling. Id.

[29] See Freshwater Soc’y, supra note 16.

[30] “The DNR works with local communities and an interagency team to define, prioritize and establish groundwater management areas in Minnesota.” Jay Frischman, Aquifer Monitoring for Water Supply Planning, Minn. Dep’t Nat. Res. (2021), https://www.legacy.mn.gov/projects/aquifer-monitoring-water-supply-planning [https://perma.cc/4KJB-RPQE].

[31] See, e.g., Jon Heggie, Why is America Running Out of Water?, Nat’l Geographic (Aug. 12, 2020), https://www.nationalgeographic.com/science/article/partner-content-americas-looming-water-crisis [https://perma.cc/6QF2-N994].