Enbridge will pay more than $7 million to address environmental damage from building the Line 3 oil pipeline across northern Minnesota last year, and it now faces a criminal charge related to a breached aquifer where groundwater continues to flow.
State environmental regulators, the Fond du Lac Band of Lake Superior Chippewa and Minnesota Attorney General Keith Ellison announced the new penalties and agreements Thursday. They said they want to hold the company accountable for violating state and tribal water and environmental rules, but some also acknowledged limited authority to act.
The new payments are in addition to the $3 million the Canadian oil pipeline operator was forced to pay in a previous enforcement action related to some of the same problems, bringing total payments to more than $11 million. The new payments, which go to the tribe and two state agencies, include fines but mostly will go to environmental projects and set-aside financial assurances to cover future work.
The Line 3 replacement pipeline was one of the largest construction projects in recent state history and generated fierce environmental opposition because it crossed more than 200 streams and rivers and affected more than 700 acres of wetlands.
In a joint press release with the state Department of Natural Resources (DNR), the Minnesota Pollution Control Agency (MPCA) said Enbridge violated a series of regulations and requirements last year that involved releasing drilling mud into water at 12 locations, and discharging construction storm water into wetlands.
"We are committed to protecting Minnesota's wetlands and streams and will continue to monitor the company's ongoing work to return the site to its preconstruction condition," MPCA Commissioner Katrina Kessler said in the news release.
The DNR said it finalized enforcement agreements to address three previously confirmed aquifer breaches, one of which affected the Fond du Lac Band's reservation near Cloquet.
It's very difficult to stop groundwater from flowing from a punctured aquifer. While Enbridge has stopped the release of groundwater just outside the Fond du Lac reservation, it continues to flow at the other two sites, albeit at much lower volumes: 20 gallons per minute at the LaSalle Creek site and less than 1 gallon per minute at the Clearbrook location.
In an interview Monday, DNR Deputy Commissioner Barb Naramore said they are considering the tradeoffs because of how difficult it is to repair aquifers. The financial assurances are not capped, she noted.
"Obviously, we would like to see them entirely stopped," she said of the groundwater flows. "We believe that the flows are being managed in a way that isn't resulting in unacceptable adverse impacts at the surface."
Naramore said her agency has little penalty authority when it comes to aquifer breaches, even though the water is a state resource. Instances are limited to $20,000 per occurrence, she said. The agency has been working with state lawmakers to increase that.
"We will be back this year because we don't think that's the right cap for certain serious violations of the water appropriations statute," Naramore said.
The Clearbrook site in Clearwater County site is the focus of the criminal charge. On Thursday, Ellison filed a single misdemeanor charge against Enbridge in Clearwater County District Court for taking state waters without a permit during construction.
Enbridge admitted the breach and that it delayed notifying the state about it, Ellison's office said in a press release. The company will pay a $1,000 fine and fund up to $60,000 to restore special groundwater-fed wetlands, called fens, in Marshall and Polk counties, his office said. Under a diversion agreement, the charge will be dismissed after a year if Enbridge remains law-abiding.
The agreement terms are greater than any penalty the state could have won against Enbridge at trial, Ellison said in the news release.
"Unless and until the Legislature changes the law, a misdemeanor is the only charge against Enbridge the state can support with probable cause under current state law," he said.
Enbridge spokeswoman Juli Kellner said the company acknowledged that it inadvertently breached the aquifer near the Clearbrook Terminal, but "fundamentally disagrees" the company committed a criminal act.
"However, in the interest of moving forward, Enbridge reached agreement with the attorney general," she said. "As set forth in the agreement, we fully expect the criminal charges will be dismissed."
Kellner said the company was transparent about problems and corrected them, and that it's committed to "making this right."
Both supporters and opponents of the pipeline reacted with passion. Minnesotans for Line 3, a pro-pipeline group, decried the penalties as reckless, outrageous and politically motivated. It's difficult to avoid impacting aquifers during large construction projects in Minnesota, the group said.
"The only difference here is that the radical Line 3 opposition groups have pushed the DNR and PCA to take action above and beyond how other similar situations have been handled," the group wrote in a release.
In a written statement, Native American leader Winona LaDuke took aim at state regulators. The DNR and MPCA "consistently failed Minnesota's natural resources and Indigenous treaty rights and lands by allowing this dangerous project, which continues to exacerbate the climate crisis," LaDuke said.
LaDuke, a prominent anti-pipeline activist who faces criminal charges over the demonstrations, said she applauded the criminal charge.
"I also ultimately wonder why we went to jail, and Enbridge did not."