DNR lacks transparency in holding Enbridge accountable for Line 3’s environmental damage

To those Wisconsin and Michigan residents worried about construction of the Enbridge Line 5 tar sands pipeline: Beware the aquifer breaches and monitor any dewatering permit. Let your state regulators know about the company’s track record and that you expect a stronger state response than what happened in Minnesota.

Here, Enbridge violated state permits where Line 3 construction crews broke through aquifers in three places. In all, these breaches released at least 285 million gallons of groundwater.

We’re only now learning the extent of the damage that occurred last fall. Until this week, the Minnesota Department of Natural Resources (DNR) has withheld even basic information on two of the three breaches, such as their locations and extent of groundwater loss.

It’s only the latest example of how Minnesota’s regulatory system is set up to help large corporations like Enbridge rather than serve the public interest.

The DNR only releases information on serious permit violations after it has finished its investigation and determined penalties.

Enbridge benefited from the silence, as it delayed public criticism. The DNR benefited from the silence, as it was spared public pressure to act more swiftly, and stronger, than it did.

It’s a fundamental question of self government: What right do members of the public have to this kind of information and when?

The DNR seems to have forgotten its mission: “to work with Minnesotans to conserve and manage the state’s natural resources, to provide outdoor recreation opportunities, and to provide for commercial uses of natural resources in a way that creates a sustainable quality of life.”

In the case of Line 3 and aquifer breaches, the DNR didn’t “work with Minnesotans to conserve and manage the state’s natural resources.”

A gathering for World Water Day Tuesday near the Mississippi Headwaters.

Here are the facts about three major aquifer breaches:

On Jan. 21, 2021 Enbridge violated its Line 3 building plans, trenched too deep in Clearwater County, and broke through an artesian aquifer, releasing groundwater to the surface.

The DNR — which was supposed to be monitoring such things — didn’t learn about the problem until nearly five months after it happened.

The DNR didn’t inform the public about the aquifer breach until Sept. 16 — nearly eight months after it happened. At this point, the DNR had finished its investigation and imposed penalties, leaving no opportunity for public scrutiny.

The DNR announced it would require Enbridge to pay a $3.2 million for repairs and restoration. Sounds significant; it isn’t. That’s the clean-up costs, something Enbridge should pay regardless of any fines. The only additional fine the DNR imposed was $20,000. Enbridge faced an additional $20,000 fine if it failed to fix the problem within a month (by Oct. 16).

$20,000 is pocket change to a multinational corporation.

In fairness to the DNR, state law limits the fines it can impose. It’s an example of the broader systemic problems that allow large corporations to elude real accountability.

The DNR referred the case to the Clearwater County Attorney for possible criminal prosecution.

So far, no action.

It took Enbridge a year to fix the breach.

By the time the DNR publicly announced the problem on Sept. 16, the breach had released more than 24 million gallons of groundwater.

From Oct. 16 (the DNR-imposed deadline for Enbridge to fix the breach) to Jan. 19 (when Enbridge finally fixed the breach) it had released an additional 33 million gallons of groundwater.

In all, the breach released at least 57 million gallons of groundwater.

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In November, Honor the Earth and the Sierra Club called on state and federal watchdogs to take stronger actions to hold Enbridge accountable for the environmental damage done in Clearwater County.

File: Winona LaDuke standing in the Willow River.

“The state of Minnesota and its agencies, the MPCA [Minnesota Pollution Control Agency] and DNR, have failed to adequately protect the waters and people of Minnesota, and the Anishinaabe,” said Honor the Earth co-founder Winona LaDuke.

LaDuke and others didn’t know it at the time, but Enbridge already had two more significant aquifer breaches. They occurred right before Line 3 construction ended on Sept. 29.

Around Aug. 2, Enbridge workers breached an aquifer at the Line 3’s LaSalle Creek crossing in Hubbard County, according to a March 21 DNR statement. The breach wasn’t repaired until Dec. 20, or three-and-a-half months later. It released 10 million gallons of groundwater.

Around Sept. 10, Enbridge work crews had another breach in St. Louis County. It occurred in a “wet forest complex that gently drops in elevation eastward toward the Fond du Lac Reservation,” the DNR said.

The DNR wasn’t informed of the breach for five days. It has released 220 million gallons of groundwater so far. It wasn’t completely fixed as of March 21, or more than six months later.

We have scant details on these breaches. The DNR’s process of enforcing permit violations happens behind closed doors.

How would we feel about our courts if we weren’t able to watch trials?

These cases of gross environmental damage typically aren’t treated as crimes.

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It’s the Minnesota State Legislators’ job to holds the DNR accountable, to assess whether it’s too lax in its enforcement and make law changes where needed, such as updating fine schedules.

It’s time legislators asked tough questions.

• Why did it take Enbridge so long to report to the DNR about the Clearwater County breach? Was it trying to avoid a work slowdown? What if any consequences did Enbridge face for withholding information?
• How is the public to know if the two breaches that happened near the very end of construction didn’t occur because crews were being pushed too hard to finish the job?
• How is the public to know if Enbridge made a calculated decision to violate its permit and pay the small fines as an expedient way to finish more quickly?
• All of the breaches occurred because workers drove sheet pilings too deep into the ground. How could this same problem happen three times?

In a statement this week, the DNR wrote it would “not be providing further detail regarding the comprehensive enforcement resolution at this time, but will release a statement upon completion of any final action.”

In short: “Don’t call us. We’ll call you.”

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This is part of a broader picture of the DNR aligning with Enbridge.

Recall the DNR received $2.2 million from the Enbridge Line 3 Public Safety Escrow Account to reimburse the agency’s conservation officers to respond to Line 3 resistance.

Water protectors came upon a frac-out at the Willow River last year. DNR staff seemed more concerned about their trespassing than the environmental damage..

Last summer, Winona LaDuke, Shanai Matteson and other water protectors arrived at the site where Enbridge was drilling a Line 3 tunnel under the Willow River. They found what appeared to be a “frac-out,” the release of pipeline drilling mud into the river, a significant permit violation.

The DNR conservation officers were on the bank along with other law enforcement because of the water protector’s presence. The conservation officers seemed more focused on intimidating them than addressing the frac-out, Matteson said.

In fairness to the DNR conservation officers, the state has conscripted them to respond to civil disobedience. DNR conservation officers were called on to help with the George Floyd uprising, too. I’d bet many if not all of them aren’t happy with the assignments.

The DNR’s approval of Enbridge’s “Dewatering Permits” also raised questions.

Line 3 ran through many streams and wetlands.

White Earth Chairman Michael Fairbanks spoke to reporters in the Capitol last summer.

On Nov. 8, 2020 the DNR approved a 510-million-gallon Dewatering Permit for Line 3. It allowed workers to pump groundwater away from the trench to create dry work areas. Enbridge began construction the following month.

On Jan. 26, 2021, less than three months after receiving the permit, Enbridge quietly asked the DNR for a permit amendment to dewater 5 billion gallons of groundwater, or nearly a 10-fold increase.

Out of the public eye, the DNR approved the amended permit.

“The request for an increased volume of water is due to the encountering of more groundwater than originally anticipated,” the DNR wrote in its approval.

Here are more questions for lawmakers.

• Enbridge built Line 3 during a drought. How is it possible the company encountered more groundwater than expected during a drought?
• Enbridge is a multinational firm and undoubtedly pays top dollar for the very best scientists. What’s the likelihood those engineers were that far off in their calculations for dewatering needs?
• Was this process a way for Enbridge to avoid challenging public questions about the dewaterng permit?
• What happened to that part of the DNR mission statement committing to: “work with Minnesotans to conserve and manage the state’s natural resources”?

When news broke about the Enbridge’s stealth move to increase Line 3 dewatering, those opposed to the project were upset. Environmental groups and leaders of the White Earth Nation wrote Gov. Tim Walz to reverse course. Leaders from the White Earth Nation even came to the Capitol asking Walz to revoke Enbridge’s new and larger dewatering permits during the drought, and respect the rights of Manoomin (wild rice).

Nothing changed.