WHITE EARTH BAND OF OJIBWE (2021)

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Case No. ___

WHITE EARTH BAND OF OJIBWE

IN TRIBAL COURT OF APPEALS

MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al.,

Defendants-Appellants,

vs.

MANOOMIN, et al.,

Plaintiffs-Respondents.

RESPONDENTS’ MOTION FOR INJUNCTION

AND EXHIBITS A-L

TO: Oliver J. Larson and Colin P. O’Donovan, Assistant Attorney Generals,

445 Minnesota Street, Suite 1400, St. Paul, Minnesota 55101-2131, and

White Earth Tribal Appellate Court Administration.

Pursuant to the White Earth Appellate Court Rules of Procedure 17 (D)(2)

and (3), Respondents herein move this Appellate Review Panel to provide for an

injunction as originally requested August 23, 2021, at Tribal Court below, to

provide an order appropriate to preserve the existing state of affairs because the

DNR will not stop the unlawful uses of surface and ground and unlawful discharge

of waters by Enbridge’s Line 3 project.1 The actual issue at stake in this case is the

DNR intentionally circumventing notice to tribal leaders and unilaterally issuing

See Exhibit A, Enbridge violated water protection rules again while MNDNR stands by – by

Jeffrey S. Broberg, LPG, MA, Minnesota Licensed Professional Geologist dated September 22,

2021. Mr. Broberg will be available as an Expert Witness in this instant Manoomin v DNR case.

Line 3 an after-the-fact 5 billion gallons dewatering permit up 10 fold from the

original Line 3 water permit of about 500 Million gallons of water, so as to avoid

public notice, scrutiny and evidentiary hearing . . . during an extreme drought!

The DNR obviously knew making the public and tribes aware of the 5 (five)

billion water appropriation request by Enbridge after December 2020, was going to

be challenged.2 Consequently, the DNR officials intentionally took steps to avoid

a contested case proceeding for the excessive dewatering demand (as compared to

the original 0.5B/gallons Line 3 DNR alleged water need). The DNR waited until

May 14, 2021, then to only email contact only, some tribal natural resource people,

but not Chippewa elected leaders directly, much less with an actual Notice or

Opportunity to be heard, or right to participate in an evidentiary hearing and DNR

decision.3 An evidentiary hearing would have alerted the public and tribes to the

aquifer breach months ago. An evidentiary hearing would have alerted the public

and tribes to the DNR not verifying compliance by Enbridge Line 3 and

completely missing the aquifer breach months ago and still releasing 100,000

gallons a day. The June 4, 2021 DNR permit for 5 billion gallons of water and the

Enbridge was issued permit no. 2018-3420 on December 8, 2020 for a total of 510.5 million

gallons water permit.

See Exhibit B, ENBRIDGE LINE 3 REPLACEMENT PROJECT Water Appropriation Permit

Amendment No. 2018 – 3420 (Construction Dewatering), FINDINGS OF FACT,

CONCLUSIONS AND ORDER, Water Appropriation Permit No. 2018-3420 Enbridge Line 3

Replacement Project June 4th, 2021. See also report at DNR website

https://files.dnr.state.mn.us/features/line3/decisions/04june2021-update-trench-wateringdecisions.pdf

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 2

September 16, 2021, DNR $3.3 million fine for Enbridge Line 3, report and

remedial plan are both smoking gun memorandums outlining who knew what and

when as explained in more detail in Exhibit A, by Broberg.

Background

Last Thursday (9/16), the DNR issued a News Release DNR Orders

Enbridge Energy to Pay $3.32 Million for Failure to Follow Environmental Laws

while constructing Line 3 saying

[‘]DNR is committed to its role as a regulator on this project and is

taking seriously our responsibility to protect and manage natural

resources within existing state law[‘] said DNR Commissioner Sarah

Strommen. [‘]Enbridge’s actions are clear violations of state law and

also of public trust. This never should have happened, and we are

holding the company fully accountable.’4

As part of the Information Release the DNR has also referred this matter to the

Clearwater County Attorney for criminal prosecution. The DNR has determined

that Enbridge Energy violated Minnesota Statute 103G.141, subdivision 1, which

makes it a crime to appropriate “waters of the state without previously obtaining a

permit from the commissioner.”5

See Exhibit C, https://www.dnr.state.mn.us/line3/index.html Minnesota Department of Natural

Resources Orders Enbridge Energy to Pay $3.32 Million for Failure to Follow Environmental

Laws, 9-16-21.

See Exhibit D, https://files.dnr.state.mn.us/features/line3/restoration-order-enbridge-energy-916-21.pdf DNR Restoration Order Enbridge Energy 09/16/21 and

Exhibit E https://files.dnr.state.mn.us/features/line3/administrative-penalty-order-enbridgeenergy-9-16-21.pdf online DNR attachments to Exhibit A.

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 3

Here, Enbridge’s civil violations and alleged criminal conduct does not

result in a stop work order for many months. See Exhibit A, Ex. 1: Chronology of

Violation and Regulatory Failure Derived from MNDNR Violation History and

Barr Flow Remediation Plan starting page 10. Instead,

to ensure that violations haven’t occurred elsewhere, the DNR is

requiring Enbridge to fund a re-inspection of any and all areas along

the entire route where construction depths deviated from plans (as

they did at the Clearbrook Terminal site).

Enbridge, their Line 3 contractors and Independent Environmental Monitors

(IEM) all collectively, circumvented and intentionally violated important

environmental laws meant to protect Minnesota starting in January 2021. DNR

says no one from Enbridge’s construction workers or IEMs made any reports for

months, to the DNR.

DNR failed to do its job, and DNR’s failures resulted in zero Enbridge

compliance with any construction plans or contact protocols right at the beginning

of construction. When Enbridge encountered two (2) known-to-be-existing oil

pipelines in unexpected circumstances, and unique artesian aquifer, Enbridge

guessed poorly, decided in secret, to keep the breach secret. To this day the

artesian aquifer is still, continuing to release over 100,000 gallons of aquifer water

per day into Enbridge Line 3 pipeline construction trench and likely into adjacent

wetlands like before.

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 4

Consequently, exigent circumstances exist and the need to stop any and all

water use and discharges by Enbridge for Line 3 must happen immediately.

Respondents herein (Plaintiffs in Tribal Court below) respectfully request this

Appellate Court to issue a preliminary injunction to establish status quo and

prevent on-going wanton waste of precious natural resources, and the nibi (the

waters) we all who actually live here . . . rely upon. Manoomin et al need

cessation (an injunction) to stop unconscionable water use and unlawful discharge

with really independent review before any other DNR permitted activities are

allowed for Line 3. This injunction would then stop frac-outs if Line 3 drilling and

construction was stopped. But frac-outs have not stopped and a new frac-out has

been reported6. The DNR has new protection plans established without the public

and tribes participation . . . again . . . that enables and allows Enbridge to proceed

after violating permits and causing irreparable harms to the aquifer.7

See Exhibit F, Line 3 Presentation - Facts and Footage of Frac-Outs & Violations FINAL by

Ron Turney of IEN. See also https://www.ienearth.org/new-frac-out-reported-from-themississippi-river-headwaters-from-line-3-construction/ New Frac-Out Reported from the

Mississippi River Headwaters From Line 3 Construction, by Ron Turney, Indigenous

Environmental Network, September 24, 2021. Video from Sept. 17, 2021. Mr. Turney will be

available as a Witness.

See ABC Nightly News Environmental activists call on White House to halt pipeline

construction Sept. 23, 2021, https://www.youtube.com/watch?v=USQFA_NcYsg (including

Sam Strong from Red Lake Band Tribal Council interviewed in 6 minute story which includes

the $3.3M DNR orders.)

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 5

Water Protectors

By coincidence, Water Protectors named in the full caption of this case had

established a Camp at a Mississippi River Line 3 crossing north of Palisade. In the

early winter 2020, Winona LaDuke8 and Tania Aubid had established an

Anishinabe spiritual lodge near the shore of the Mississippi River, on public forest

lands along the route where the pipeline horizontal drilling under the Mississippi

River was expected to occur.9

In December 2020, Enbridge and Aitkin pipeline funded state law

enforcement and the DNR Conservation Officers discovered that spiritual lodge

could not be destroyed or removed without violating the American Indian

Religious Freedoms Act. The spiritual lodge was protected and Anishinabe people

had a right to travel, use and occupy that lodge, including their invited guests …

other water protectors. This spiritual lodge told Enbridge that DNR and

legislatively criminalizing civil rights cannot stop tribal water protectors from

exercising their religious freedoms on public lands where Line 3 was being

See Newsweek https://www.newsweek.com/tribal-nations-take-oil-giant-battle-against-line-3pipeline-1631772

See Exhibit G, Declaration of Winona LaDuke in Support of Plaintiff’s Motion for an

Injunction Pending Appeal (Exhibit J) in Red Lake, White Earth et al v U.S. Army Corps of

Eng’rs, Case No. 20-cv-03817, in DC federal circuit. Id. See also Exhibit H, Declaration of

Jaime Arsenault in Support of Plaintiff’s Motion for an Injunction Pending Appeal (Exhibit G),

Arsenault is the Tribal Historic Preservation Officer (“THPO”) for the White Earth Band of

Ojibwe (“White Earth Band” or “Band”).

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 6

constructed. Unfortunately, Enbridge’s private security10 and local law

enforcement continue to harass and coordinate surveillance for information stops,

searches, arrests, strip searches and engaged in other civil rights violations against

water protectors. The only state laws being enforced since the January Line 3

breach of the artesian aquifer and irreparable damage, were against water

protectors, by Enbridge paid security, DNR and other state law enforcement. DNR

is either unwilling or incapable of stopping Enbridge environmental destruction11 .

. . at any price.

Standards for Preliminary Injunction

The test used by the courts for evaluating a motion for a Temporary

Restraining Order (TRO) and Preliminary Injunction (PI) is generally the same.

Although the test for obtaining a TRO or PI may vary slightly across jurisdictions,

generally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor

test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or

she is likely to suffer irreparable harm without preliminary relief; (3) the balance of

See Amazon's Former Security Chief Is Now Guarding the Line 3 Oil Pipeline, Opponents of

oil transport company Enbridge say that the company is using military-style counter-insurgency

tactics against protesters by Tom McKay, Sept. 22, 2021, https://gizmodo.com/amazons-formersecurity-chief-is-now-guarding-the-line-1847724615

See Newsweek To Protect Their 'Sacred Water,' Tribal Nations Take On an Oil Giant by Julia

Rock, THE DAILY POSTER on 9/23/21 https://www.newsweek.com/tribal-nations-take-oilgiant-battle-against-line-3-pipeline-1631772

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 7

equities between the parties support an injunction; and (4) the injunction is in the

public interest.

These factors were recently discussed in an identical request for injunction

filed August 23, 2021, with the Tribal Court below. The recent disclosure 9-16-21

by DNR and $3.3M fines and restoration plans, combine with the 5 billion gallons

dewatering permit 6-4-21, are shown together with the Chronology in Exhibit A by

Broberg. This Chronology reveals choices Enbridge and so-called Independent

Environmental Monitors chose oil capitalism over tribal interests and the public

interest. Manoomin and the people are suffering, on-going irreparable harms by the

conspiracy to cover-up, ignore and sellout water and all the creatures which depend

on water. Water is Life.

DNR has filed in Federal District Court of Minnesota against the White

Earth Tribal Court exercising jurisdiction over this instant case, seeking injunction

to prevent the exercise of tribal sovereignty and protection of nature, our relative.

The DNR no longer has an urgent desire to resolve tribal jurisdiction or these water

rights issues, rights of manoomin and rights of treaty beneficiaries to be considered

in tribal court.

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 8

Instead the DNR compounds delay by filing again for appeal of the

Honorable Judge Wright’s orders12 and injunction against White Earth Band of

Ojibwe and Chief Judge DeGroat in the 8th Circuit Court of Appeals. Last week,

DNR was denied preliminary injunction request by the Eighth (8th) Circuit,

pending DNR’s appeal at the Eighth Circuit.13

The balance of the equities are more weighted in favor of the injunction

every day the DNR stalls against the on-going aquifer breach, frac-outs and climate

change concerns for the manoomin (wild rice) and nibi (water). Only an injunction

against DNR’s any and all surface water and aquifers permits and unlawful

discharges and dewatering of construction permits for trenches and related areas.

The DNR waited until September 13, 2021 to file its notice of appeal for

White Earth Tribal Court of Appeals and 8th Circuit Court of Appeals. The DNR’s

legal tactics appears more focused on federal court appeal expediency and delay in

See Exhibit I, Order Denying Plaintiffs’ Motion for Preliminary Injunction and Dismissing

Complaint without Prejudice by Honorable Judge Wright Case No. (0:21-cv-01869-WMW)

dated 9-3-21. See also Exhibit J Order Denying Plaintiffs’ Letter Request for Permission to File

a Motion to Reconsider by Honorable Judge Wright dated 9-10-21.

See Exhibit K, Order by the Eighth Circuit dated 9-21-21, Case No: 21-3050 in Minnesota

Department of Natural Resources, et al. v. The White Earth Band of Ojibwe and Hon. David A.

DeGroat, in his official capacity as judge of the White Earth Band of Ojibwe Tribal Court,

Appeal from U.S. District Court for the District of Minnesota (0:21-cv-01869-WMW). (DNR’s

request for Preliminary Injunction denied).

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 9

White Earth Tribal Court. Time is of the essences, Enbridge has nearly completed

construction according to its weekly Status Report14 dated 9-23-21.

Conclusion

Based on the files, records and other evidence, along with the reasons set

forth above and in the original Request for Preliminary Injunction in Tribal Court

dated August 23, 2021, Respondents herein request the White Earth Appellate

Tribal Court grant an immediate emergency injunction against the DNR from

issuing or permitting any further water or dewatering allocations to the Enbridge

Line 3 pipeline construction project15 until truly independent and reliable

investigators verify all of the environmental damages along the pipeline

construction corridor and any other relief deemed fair, just and equitable.

Dated: September 24, 2021

____/s/ Frank Bibeau______

Frank Bibeau, Tribal Attorney

Joe Plumer, Tribal Attorney

For the Manoomin, et al

See Exhibit L, Enbridge Status letter and Exhibits letter to Mr. Will Seuffert, Minnesota

Public Utilities Commission, Re: In the Matter of the Enbridge Energy, Limited Partnership for a

Route Permit Line 3 Replacement Project in Minnesota from the North Dakota Border to the

Wisconsin Border MPUC Docket No. PL9/PPL-15-13

See Exhibit M, DNR map of Line 3 Existing and Proposed Corridor 2020

DNR v Manoomin Appeal

Respondents’ Motion for Injunction

Sept. 24, 2021, Page 10

Exhibits for

Motion for Preliminary Injunction

9-24-21

Exhibit A

Jeffrey S. Broberg, LPG, MA

Minnesota Licensed Professional Geologist

11596 Person Drive, St. Charles, MN 55972

Elbabroberg1@gmail.com c 507-273-4961

September 22, 2021

Frank Bibeau

Honor the Earth

PO Box 63, 607 Main Ave.

Calloway, MN, 56521

FOR IMMEDIATE RELEASE

RE: Enbridge violated water protection rules again while MNDNR stands by.

Dear Mr. Bibeau:

Environmental and water resource protections fail without sincere

prevention efforts, without clear plans that follow the rules, without the early

detection of problems, or transparent acts.

Can you imagine a massive pipeline project designed to move millions of

barrels of tar sands crude where the pipeline fails to follow approved construction

plans? Or can you imagine a project subject to detailed State and Federal

Environmental Permits that violates the terms of the permits then fails to disclose

its intentional violations until all the work is done? Or can you imagine a State

regulator who trusts the Contractor enough not to review inspection records for

five months and misses severe and possibly irreversible environmental damage?

These scenarios are now the latest chapter of the story of Enbridge Line 3 and

MNDNR oversight.

Last January, Enbridge, its contractors, consultants, and “independent”

inspectors minimized severe problems and took advantage of Minnesota’s lack of

timely regulatory oversight. The Minnesota Department of Natural Resources did

not learn of the severe aquifer issues for many months and did not take action to

stop the problems for eight months.

Following the recent disclosures of unreported “frac outs” releasing drilling

mud to the Clearwater and Mississippi Headwaters and the June surprise of Line

3’s 50-fold increase in water use in an extreme drought, we find Minnesota’s

groundwater is being impaired by Line 3 while we watch. Once again, the

environment has suffered, and we and Minnesota’s water-dependent ecosystems

must settle for our regulators granting forgiveness to Enbridge because they failed

to protect our water resources.

Enbridge contractors ruptured a sensitive and timeless artesian aquifer on

land in mid-winter. Clearbrook’s artesian aquifers form springs in the Lost River

headwaters of Assiniboine ceded territory (1889 Chippewa Treaty). The springs

never freeze, and pure, cold, clear water flows the medicine of life to the surface

year-round.

Last January, the ruptured aquifer welled up with water along in the deep

trench of the petroleum pipeline, and the aquifer started to lose its natural flow in

the springs, and the is losing the flow into the rare calcareous fens. The

uncontrolled groundwater flow and the pipeline springs have continued unabated

for eight months.

The loss of pure groundwater has now totaled 24.2 million gallons, 106,000

gallons a day, enough to sustain multiple springs and many acres of groundwaterdependent wetlands and extreme drought. On September 16, the Minnesota

Department of Natural Resources (MNDNR) finally issued a Restoration Order to

fix the rupture within 30 days and restore the drought-stricken fen, hoping to

restore all the nearby springs to keep the clean water out of the pipeline trench.

Upwelling hydraulic forces and geologic factors make restoring a ruptured

aquifer complex uncertain, and Enbridge or the MNDNR seem never to address the

cultural value attached to the water from the ancient natural artesian springs.

After a multi-year history of regulatory permit failures from the MNDNR

and MPCA, the stage was set for another disaster when Enbridge willfully ignored

design documents, regulatory warnings and ignored permit conditions at the

Clearbrook pipeline crossings. The next six months left a legacy of inspectors

failing to report alarming water and quicksand hazards, leaving regulators unaware

of another Line 3 water disaster. The litany of regulatory failures and unabated

environmental problems draws us to conclude that the Line 3 pipeline should have

never been permitted. Line 3 construction has already proven to be a clear and

present danger to the future of our water resources.

Enbridge, the Independent Environmental Monitors, and the MNDNR have

proven not to be trustworthy stewards of our water. Considering the litany of

failures and lack of transparency, the only reasonable outcome is to stop all activity

except inspections and corrective actions. Because of the history of regulatory

default, all Line 3 construction and pipeline activation activity should be seized

under the control of the Court.

The Nature and Hazards of Confined Artesian Aquifers at Clearbrook

Terminal

In the headwaters of Silver Creek/Lost River/Clearwater River Watersheds,

deeply buried bedrock are draped by alternating layers of impervious glacial till

and highly permeable beds of glacial sands and gravel that give rise to artesian

springs. The Line 3 route at Clearbrook is on the northern margins of Minnesota’s

Groundwater Province 4, with ground moraines of glacial till and where buried

sands and gravels from artesian aquifers and sustain fens, springs, wetland seeps,

lakes, and streams.

A review of the water well records from the Minnesota Well Index and

geotechnical borings along Line 3 shows the Line 3 route has a 35-to-50-foot layer

of impervious, clay-rich glacial till at the surface over a thick layer of sand and

gravel. The sands and gravels are highly productive artesian aquifers. To control

the upwelling pressure, thirty- and fifty-foot-deep wells in the immediate area are

drilled with heavy drilling mud. Deep excavations or wells drilled without heavy

mud are often lost during construction when the water pressure pushes to the

surface and quickly turns the wellbore into quicksand as the water moves upward

to the surface. Entire Townships around Clearbrook demonstrates upwelling

hydraulic pressure where the surrounding lands are known for artesian wells,

springs, groundwater-supported wetlands, and calcareous fens.

Deep excavations that rupture the seal formed by the 30-foot thick glacial till

rapidly become a construction hazard. Artisan water appears to boil to the surface

and liquify the surrounding soils into mud and quicksand. The breach of powerful

artesian forces threatens to swallow heavy equipment and become an immediate

and uncontrollable hazard. A new unnatural “boiling sand” spring formed in the

pipeline trench.

On January 21, the Enbridge contractors excavated within ten feet of the top

of the Clearbrook Artesian Aquifer. The over pressured aquifer ruptured near the

existing pipelines, and uncontrollable water rushed to the surface. The Contractor

lost all ability to contain the water, and project managers faced a significant

problem.

To install the pipeline, Enbridge contractors needed an 18-foot-deep bore

pit. The Contractor installed a 28-foot-deep steel sheet pile wall to control the

artesian flow, a 110-foot wall on either side of the pipeline route, and a steel plate

on the east end where the boring would tunnel under the existing hot pipes. With

five dewatering wells, they could lower the water level in the walled-off trench and

install the Line 3 connection to the Clearbrook terminal. But once they stopped

dewatering, the soils between the sheet piles again turned to quicksand, and a large

boiling sand spring appeared. Once they pulled the sheet pile, a new aquifer

rupture occurred 60 feet west of the original rupture—the difficulty of stopping the

uncontrolled flow magnified.

Water appropriation and water quality discharge standards were violated,

and the prospect of quickly restoring the sealed cap over the artesian aquifer

diminished by the day. In my 35 years of Minnesota groundwater management

experience, the uncontrolled artesian flow has repeatedly proven to be among the

most challenging construction hazards to solve.

Irregular Design, Permitting, Construction, Inspection, and Reporting

During the Line 3 water appropriations permitting, the MNDNR raised

concerns about groundwater-supported wetlands and artesian aquifers, especially

the risk on rare calcareous fens located just east of the Clearbrook terminal. In

November 2020, the MNDNR reviewed the local construction plans and issued a

“No Effect Concurrence” to Enbridge for the Clearbrook area fens. Enbridge gave

assurances that the groundwater flows sustaining the fens would be protected

because the approved design called for an 8- to 10-foot-deep bore pit, 20 to 28 feet

above the top of the pressured aquifer.

In less than 50 days, Enbridge Project Managers and contractors faced the

prospect that the designed bore pit at the Clearbrook Terminal was not deep

enough to allow boring beneath two existing pipelines. Line 3 had to make a “hot

crossing” beneath two high-pressure pipelines, and they needed a 16 to 18-foot

bore pit in a 50-foot-long trench box. Reality-based field decisions overrode the

approved design plans and permits. The 18-foot-deep trench immediately ruptured

the artesian aquifer as it approached the east end of the trench near the hot

crossings.

Rather than reporting the aquifer breach, the massive water appropriations,

and the muddy water discharge to the surrounding stream and wetlands,

Independent Environmental Monitors (IEM’s) overlooked the design changes and

permit violations. The Monitors did not report any changed conditions other than

“difficult dewatering.”

Enbridge’s failure to report the aquifer breach violated their water

appropriation permits, water discharge permits, and wetland permits.

The approved Environmental Monitor Control Plan (EMCP) required the

IEM’s to notify the State Agencies of “Modified Construction Activities” and

Modification to Permit Requirements.” The failure to report and revise permits

violated the letter and intent of the EMPC and violated multiple environmental

permits. (Section 6.0, pg. 15 of EMPC. Section 6.1, pg. 15-16 of EMPC)

Attached as Exhibit 1, a timeline for the ruptured aquifer, the 28 reported

frac-outs, and the amended water appropriations is a chronological compilation of

unauthorized Enbridge activities and MNDNR inactivity. The chronology

demonstrates obfuscation by both the company and their “Independent” monitors

keeping information from State Agencies while allowing continuing uncontrolled

water appropriation and shows just how slow the MNDNR was to respond.

The history of the aquifer rupture, frac-outs, and excessive water

appropriations in the drought reveals an intentional and blatant disregard for the

permits and protecting Minnesota waters.

Permitting and Regulatory Failures:

Enbridge and MNDNR Disconnection Puts and Aquifers at Risk

The core principles of environmental and water resource protection are

prevention guided by accurate plans, design and permit compliance, and early

detection and reporting of problems. All three principals failed at the Clearbrook

terminal, Line 3 aquifer rupture, frac-outs, and water appropriation amendments.

The MNDNR was faced with a massive undertaking and failed.

MNDNR permit conditions for water use, MPCA permits for water

discharge, and Corps of Engineer permits for wetlands were designed based on

accurate design and operation standards submitted in advance by the applicant.

These factors are meaningless if permit conditions are not understood, ignored, or

intentionally violated by the Permit holder. Permits and regulatory tools and are

just as useless if regulators fail to make the permits and rules understandable to

both permit holders and inspectors. If contractors look away from permit

conditions, the regulators are in the dark. If the regulations are either unaware or

waived permits, there can be no enforcement and no deterrence against future

violations. The actions of both Enbridge, their “Independent Monitors,” and the

MNDNR produce mistrust that can only be resolved with an effective and

independent third-party review. The independent monitors need proper knowledge

and rules to assess the environmental damage and restoration needs. The

Clearbrook artesian aquifer breach demonstrates that we should distrust all the

actors because every level of permit and regulatory failure has occurred.

The hydrologic conditions at Clearbrook Terminal were well understood

after decades of local groundwater investigations and Line 3 geotechnical borings.

MNDNR, MPCA, and Enbridge say they know the risks to groundwater-dependent

wetlands and calcareous fens, but that knowledge has never translated to adequate

protections.

Line 3 developers requested routine and moderate dewatering permits that

never addressed the likely uncontrolled flow with deep excavations or the need for

larger volumes of water with frequent frac-outs. The result is hundreds of

thousand gallons a day disgorging from Clerbrook’s shallow artesian aquifer or

pumped into the ground when doing the pipeline borings.

While MNDNR understood the aquifer and fen risks, they granted a “no

impact concurrence” for the fen because only shallow excavations were

envisioned. It is unclear whether the MNDNR reviewed the artesian character of

the Clearbrook artesian aquifer with Enbridge and the Independent Environmental

Monitors failing to advise contractors on preventing an uncontrolled aquifer

disaster.

At the same time, Enbridge Project Managers and contractors should have

known the necessity of deeper excavation to cross existing pipelines. They should

have known and anticipated the artesian pressure from the Clearbrook aquifer. The

deep bore pit plans were not in the Enbridge design review documents. While

permit writers and hydrologists relied on the design documents, prevention failed

again when contractors changed plans without considering the known artesian

risks.

Prevention requires high situational awareness and accurate reporting;

contractors, inspectors, and regulators need to be constantly apprised of onsite

conditions, especially in high-risk settings, and they must report related problems.

The approved Environmental Monitoring Plan requires Inspectors to routinely

upload Inspection records to a password-protected portal that regulators can

review. Failures occur whenever inspection reports are not timely, when they are

not accurate, when the inspection reports obfuscate the facts, and when regulators

fail to do a timely review. The same problems occurred when the aquifer ruptured,

frac-outs, and 50-fold expansion in water appropriations during a drought. The

institutional measures to prevent and minimize environmental impact failed with

the aquifer rupture.

Digging deep pits in artesian settings and near groundwater-dependent

ecosystems was the first compliance failure that went unreported. Poor project

design calling for bore pits to cross actively flowing pipelines set up the

disappointment that could have been prevented. Appropriate well-designed

modifications that protect the environment. Many consultants, contractors, and the

MNDNR have experience controlling subsurface flow. Onsite drillers controlled

the flow with heavy drilling mud designed to contain the pressure, and excavators

either dewater the risky area in advance, surcharge the flow or create a grouted seal

over the top of artesian aquifers. Appropriate modifications can only be approved

if the Permitted party discloses the changes required in the permit; here, permit

compliance failed.

When the water came welling up and created quicksand in the pipeline

trench, the Contractor abandoned the deep bore pit effort in fear of losing their

equipment. The failure to report the problem was a severe violation where the

blame is shared by Enbridge, the Contractor, the Independent Environmental

Monitors, and the MNDNR regulators. The Contractor trying to avoid stop-work

orders or design delays first made a hasty decision and then felt compelled to hide

the problem from regulators for months. The environmental monitors failed their

regulatory responsibility to identify and report the aquifer breach forcing a ninemonth delay in restoring the aquifer.

As a geologist with pipeline construction experience, I can envision the

Contractor hoping the artesian pressure would rapidly decline as it often does in

minor confined aquifers with limited volume. But hope is not a regulatory

compliance strategy, proven when dealing with a large regional aquifer with over

25 feet of head pressure.

Other serious violations occurred at Coldbrook, which are regulated by the

MPCA and the Corp of Engineers. Discharge of silt and mud into streams and

wetlands violates Construction Site Stormwater Permits and wetland protections.

Failure to timely notify the pollution is a violation itself; continuing the work

compounds the violations.

In addition serious violations have assaulted our aquifers with the frac-outs

and 5 billion gallons of water appropriations during a drought.

Conclusion: Failed Promises Destroy Trust

Eight months of large volume flows from a ruptured regional aquifer are

now exceeding 100,000 gallons per day, depleting the aquifer, reducing the

hydraulic head threatening groundwater-dependent ecosystems. Frac-outs have a

yet undefined risk to aquifers and surface water resources, and massive water

withdrawals during extreme drought may impact both aquifers and surface waters.

The attached chronology was compiled from Permit history, the MNDNR timeline

in the Clearbrook Restoration Order, the Clearbrook Remedial Action Plan, the

frac-outs, and amended Water Appropriation Permits. As an experienced

environmental risk manager, I see the public documents as sanitized versions of a

severe violation and a complete failure to protect our water resources.

Enbridge, their contractors and consultants, the Independent Environmental

Monitors, and the MNDNR regulators failed to meet their obligations and created

an ongoing risk. Even with the failures, there are only minor consequences related

to the actual costs of fixing the problem; there are no penalties for over five months

of evasion and no deterrence that makes it risky to violate the law.

The only fix to the abuses is for a Court or a Regulator to put a hard stop to

all activities except independent inspection, remote sensing for upwelling water

from aquifer ruptures and frac-outs, and disclosing all irregular design changes.

Our water resources are at risk; no other actions should be allowed. Once the total

damages have been restored, heavy fines and penalties must be levied for every

unreported infraction.

Sincerely:

Jeffrey S. Broberg, LPG, MA, Minnesota Licensed Professional Geologist #13009

CC: Steve Morse and Sara Wolff, Minnesota Environmental Partnership

References:

MNDNR Restoration and Replacement Order

Barr Engineering Remedial Action Plan

Enbridge Environmental Monitoring Plan

Minnesota Well Index well logs

Enbridge Dewatering Permit 2018-****

Exhibit 1:

Chronology of Violation and Regulatory Failure

Derived from MNDNR Violation History and Barr Flow

Remediation Plan

Dec. 2019: Approval of Environmental Monitor Control Plan. Enbridge Energy

Limited partnership – Line 3 Replacement Project.

December 28, 2020: MNDNR issued Water Appropriations Permit 2018-3420 to

Enbridge for 510,000,000 Gallons.

November 12, 2020, MNDNR issued Enbridge “No Effect Concurrence” for

excavation 8-10 feet deep that would have an impact on the hydrology of fen

January 21, 2021: Enbridge abandons plans for shallow excavation due to

existing pipelines and dug to 18 feet and ruptured artesian aquifer creating

uncontrolled flow.

January 26, 2021: IEM noted “unmanageable dewatering conditions” and the

need for SWPPP to direct new flow across the roadway

February 2, 2021: Borehole excavation or entry pit encountered “excessive GW

infiltration.”

February 8, 2021: 110-foot sheet pile wall installed within wetland dewatered

with five wells, installed 50-foot long trench box in bore pit for “hot crossing” of

existing pipelines.

Trench water discharged to dewatering bags and dewatering structures

Enbridge installed Line 3 “hot crossing” of two pipelines in dewatered sheet

pile and trench box area

Uncontrolled flow area expands with the removal of the sheet pile wall

February 20, 2021. IEM notes “turbid water discharge for five well points.”

Discussed with the lead inspector, environmental monitor, and ERM

technical director

March 13, 2021. IEM documented sediment flow to wetlands and discussed with

EI Team

March 15, 2021. IEM and Lead Env Inspector conducted site review and

documented 2” of clay

March 16, 2021, Enbridge “issued an unacceptable report for improper dewatering

structure” No cleanup and continued pumping

“Following months,” according to MNDNR, Enbridge cleaned sediment

from wetland but did not resolve uncontrolled flow

Failure to identify the problem as uncontrolled flow or aquifer rupture

No notifications of Level 2 modifications or need for amended permits

June 4, 2021: MNDNR issues Amended Water Appropriations Permit #2018-3420

for 4,982,768,568 gallons, 9.8 times larger than the original permit request.

June 15, 2021, MNDNR staff discussed the potential for uncontrolled flow

June 16, 2021, MNDNR email to Enbridge requesting information on uncontrolled

flow and restoration plan

On June 17, 2021, MNDNR noticed Enbridge not recommencing work at

Clearbrook hot crossing until the uncontrolled flow plan was approved. (Note that

the line segments were already completed by the time DNR sent notice.)

June 2021: Five unreported Frac-outs

July 7, 2021, Merjent disclosed 3.8 million gallons of uncontrolled flow since

January and disclosed 45 ftX12 ft X18’ excavation and sheet pile installation

response to 6-16 DNR request described as “findings of fact #13.”

July 8, 2021, Lead IEM and MNDNRr reviewed and summarized inspection

reports to date and discovered the initial January 26 report and disclosure of

completion of pipeline boring but no backfill due to uncontrolled flow.

July 8, 2021, Enbridge submitted Groundwater Investigation Plan to MNDNR for

comment and review

Enbridge reported a second surface emergence of uncontrolled flow from

outside the former sheet pile area 60 feet northwest of the original

uncontrolled flow.

Enbridge reported uncontrolled overland flow at ground level elevation

1339. Surface flow is 28 feet above the artesian aquifer.

Uncontrolled flow created the risk of bank sloughing, road overtopping, and

water quality concerns from the release of turbid water

Enbridge reported uncontrolled flow reached a nearby stream

Uncontrolled flow extends from Milepost 909.1 to 910

July 12, 2021, Enbridge submitted the revised GW Investigation Plan

On July 14, 2021, DNR informed Enbridge to deny the request to continue

work in the area until the uncontrolled flow plan was approved.

July 27-Aug 4, 2021 Drilling 6 borings in area of uncontrolled flow. two borings

penetrated the artesian aquifer

July 2021: 19 unreported frac-outs

August 1-4: Two unreported Frac-outs

Aug 5-Aug 21, 2021: water level monitoring

August 9: MNDNR reveals 28 unreported frac-outs from June 1 to August 4.

August 15, 2021, Draft Remedial Action Plan for ruptured aquifer submitted to

MNDNR

Aug 17-18, 2021Enbridge/Barr Final Remedial Action Plan report on an

uncontrolled flow mitigation plan

RAP shows fens are supported by upwelling artesian water

Uncontrolled flow is upgradient of fens

RAP proposes installing high-volume wells in the artesian aquifer to stop the

flow at the surface and reduce upward pressure in the aquifer allowing grout

injection into the ground to stop the flow

September 6, 2021. uncontrolled flow reported to be 24,200,000 gallons from

January 21 to September 5, 227 days, (Avg flow of 106,608 gallons/day from an

area measuring 1400 to 1650 square feet)

September 16, 2021, MNDNR Restoration and Replacement Order

By October 16, 2021, complete all work to stop the uncontrolled flow

Notify MNDNR Commissioner within 24 hours of completion

By October 16, 2021, Enbridge, to report a revised estimate of water loss

from March 19 to September 16, must continue groundwater monitoring

following cessation of flow.

By October 16, 2021, submit Draft Calcareous Fen Management Plan for

MNDNR review and approval

By October 16, 2021. Submit $250,000 in mitigation funds to MNDN for

independent monitoring of calcareous fens

By October 16, 2021, Submit $300,000 in mitigation funds to MNDNR for

initial mitigation of direct loss of groundwater resources

By October 16, 2021. End of the appeal period.

By November 1, 2021, Submit $2,750,000 on “one or more single order

instruction escrows for the benefit of MNDNR to use at its sole discretion to

provide funds to perform restoration actions” for fens and compensatory

mitigation with conditions for withdrawal

The order provides for the addition of escrow funds if necessary

By December 1, 2021. Enbridge must demonstrate that it has visually

reinspection all locations across the entirety of Line 3 where Enbridge

deviated from planned or permitted construction trench depths. Must

identify additional unidentified breaches of artesian aquifers.

Monitor for uncontrolled flow for 12 months after cessation of uncontrolled

flow

Exhibit B

Permit Number

MNDNR PERMITTING AND REPORTING SYSTEM

2018-3420

Amended

Water Appropriation Permit

Expiration Date: 06/04/2022

Pursuant to Minnesota Statutes, Chapter 103G, and on the basis of statements and information contained in the permit

application, letters, maps, and plans submitted by the applicant and other supporting data, all of which are made part

hereof by reference, PERMISSION IS HEREBY GRANTED to the applicant to perform actions as authorized below. This

permit supersedes the original permit and all previous amendments.

Project Name:

L3R GW Segments and Pump

Stations

Purpose of Permit:

County:

Clearwater,

Hubbard,

Cass,

Aitkin,

Kittson,

St. Louis,

Marshall,

Red Lake,

Polk

Watershed:

Resource:

Clearwater River; Mississippi

River - Headwaters; Crow Wing

River; Pine River; Mississippi

River - Grand Rapids; Red River

of the North - Tamarac River;

St. Louis River; Snake River

Groundwater

Authorized Action:

Construction Dewatering

Withdrawal of up to 4982.7 million gallons of water per year for

construction dewatering.

Authorized actions at each construction dewatering spread are

listed below.

All volume amounts and appropriation pumping rates must be

followed.

A total of 4,982,768,568 gallons is authorized by this permit.

The permittee shall not exceed the total gallons authorized.

The spread installations are an estimate of the amount of

construction dewatering needed at each installation.

• Installation #1: Pipeline trench from Minnesota/North Dakota

border to Donaldson pump station, Kittson County (12.6 miles)

– estimate of 31,448 gallons

• Installation #2: Donaldson pump station, Kittson County (0.10

miles) – estimate of 829,726 gallons

• Installation #3: Pipeline trench from Donaldson pump station

to Viking pump station, Kittson & Marshall Counties (33.6

miles) – estimate of 1,466,134 gallons

• Installation #4: Viking pump station, Marshall County (0.10

miles) – estimate of 870,179 gallons

• Installation #5: Pipeline trench from Viking pump station to

Plummer pump station, Marshall, Pennington & Red Lake

Counties (28.8 miles) – estimate of 3,667,555 gallons

• Installation #6: Plummer pump station, Red Lake County

(0.10 miles) – estimate of 1,065,538 gallons

• Installation #7: Pipeline trench from Plummer pump station to

end of Construction Spread 1, Red Lake and Polk Counties,

(19.1 miles) – estimate of 5,475,038 gallons

• Installation #8: Pipeline trench from end of Construction

Spread 1 to Clearbrook Terminal, Polk & Clearwater Counties,

(13.1 miles) – estimate of 9,063,781 gallons

• Installation #9: Clearbrook pump station, Clearwater County

(0.10 miles) – estimate of 24,856,814 gallons

• Installation #10: Pipeline trench from Clearbrook pump station

to Hubbard County line, Clearwater County (36.4 miles) –

estimate of 784,197,013 gallons

• Installation #11: Pipeline trench from Hubbard County line to

Two Inlets pump station, Hubbard County (13.3 miles) –

estimate of 34,416,969 gallons

• Installation #12: Two Inlets pump station, Hubbard County

(0.10 miles) – estimate of 896,473 gallons

• Installation #13: Pipeline trench from Two Inlets pump station

to end of Construction Spread 2, Hubbard County (9.0 miles) –

estimate of 42,203,185 gallons

• Installation #14:Pipeline trench from end of Construction

Spread 2 to Backus pump station, Hubbard, Cass & Wadena

Counties (41.5 miles) – estimate of 2,837,033,847 gallons

• Installation #15: Backus pump station, Cass County (0.10

miles) – estimate of 44,965,514 gallons

• Installation #16: Pipeline trench from Backus pump station to

end of Construction Spread 3, Cass & Crow Wing Counties

(31.3 miles) – estimate of 244,752,992 gallons

• Installation #17: Pipeline trench from end of Construction

Spread 3 to Swatara pump station, Cass & Aitkin Counties (6.9

miles) – estimate of 3,570,484 gallons

• Installation #18: Swatara pump station, Aitkin County (0.10

miles) – estimate of 4,077,316 gallons

• Installation #19: Pipeline trench from Swatara pump station to

end of Construction Spread 4, Aitkin & St. Louis Counties (37.5

miles) – estimate of 128,663,927 gallons

• Installation #20: Pipeline trench from end of Construction

Spread 4 to North Gowan pump station, St. Louis County (9.6

miles) – estimate of 230,024,353 gallons

• Installation #21: North Gowan pump station, St. Louis County

(0.10 miles) – estimate of 1,685,052 gallons

• Installation #22: Pipeline trench from North Gowan pump

station to Minnesota/Wisconsin border, St. Louis & Carlton

Counties (34.1 miles) – estimate of 577,093,383 gallons

• Hill City pipeline maintenance station (PLM), Aitikin County -estimate of 1,861,846 gallons

All appropriations from the above listed construction dewatering

installations (spreads) will follow all relevant plans per the

original final Application dated November 8, 2020 and the

Environmental Protection Plan (EPP) received November 08,

2020. All changes in requested water volumes included in the

permit amendment application dated May 12, 2021 and the

updated Stormwater Pollution Prevention Plan (SWPPP) dated

May 2021 required by the MPCA Construction Stormwater

General Permit must be followed for this permit to be valid.

All installation volumes are estimates per the spreads and the

total volume authorized is 4,982,768,568, the permittee is not

allowed to go over the total volume authorized by this permit.

Permittee:

Authorized Agent:

ENBRIDGE ENERGY, LIMITED PARTNERSHIP

CONTACT: HAHN, BOBBY, (218) 522-4751

26 E SUPERIOR ST.

SUITE 125

DULUTH, MN 55802

(218) 464-5621

To Appropriate From:

MERJENT, INC.

CONTACT: LENZ, KRISTIN, (763) 913-4740

1 MAIN STREET SE

SUITE 300

MINNEAPOLIS, MN 55414

(612) 746-3660