Bill would toughen penalties for water violators

A screen capture of drone footage
The site of an aquifer breach near the Clearbrook terminal is shown in a drone video taken on Jan. 8. The breach occurred on Jan. 21, 2021, during Enbridge’s construction of the Line 3 oil pipeline, and resulted in an uncontrolled flow of groundwater from the breach.
Screen capture courtesy of Honor the Earth

Some Minnesota lawmakers are proposing to give the state Department of Natural Resources more enforcement tools to hold accountable those who violate permits to use the state’s water.

The bill is a response to breaches of underground aquifers by crews installing the Line 3 oil pipeline last year, which caused millions of gallons of groundwater to flow to the surface. 

"We have a multibillion dollar corporation violating permits and impacting our state waters,” said state Rep. Jamie Becker-Finn, DFL-Roseville, the House bill’s author. “And the tools that we have to hold them accountable seemed to not be enough."

In January 2021, crews working on Line 3 near the Clearbrook terminal in northwestern Minnesota dug too deeply and pierced an aquifer under pressure. It was five months before the DNR learned of the breach, and nearly a year before Canadian company Enbridge finally stopped the uncontrolled flow.

Yellow construction machines work to tear down trees.
Construction equipment clears trees and brush from the path of the Line 3 oil pipeline as activists occupy trees in the path of the pipeline near Palisade, Minn., on Dec. 9, 2020.
Evan Frost | MPR News file

The DNR ordered Enbridge to pay for restoring the site. And for the first time, it used an enforcement tool the Legislature authorized back in 2014 — an administrative penalty for the unpermitted use of groundwater.

The DNR hit Enbridge with the maximum fine of $20,000 — pocket change for a major energy company.

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DNR backs bill

Becker-Finn's bill would give the DNR a slate of new accountability measures for water users who violate their permits. It would increase the maximum penalty to $40,000, and require payment for serious or repeat violations.

The worst offenders who harm the state's waters or those who profit from violations could face court-ordered civil penalties of up to $10,000 a day.

"It's a lot of additional language that we're putting in here to make it clear to permit holders that if they violate their permits and they don't correct them, and they don't sort of do things in good faith, that there will be harsher penalties,” Becker-Finn said.

The DNR is pushing for the changes. The agency says its current authority is insufficient to address serious or repeat violations of the state's water laws.

It argues that the $20,000 penalty limit is too low to deter violators. And the law requires the penalty to be forgiven if the violations are corrected.

The administrative penalty approved in 2014 was aimed at reining in farmers pumping groundwater to irrigate their crops without a permit. It wasn’t designed to address permit holders with serious violations over an extended period of time.

The bill would give the DNR the authority to investigate potential violations and require permit holders to install monitoring equipment or perform tests. It would also prohibit water users from knowingly providing false information.

Cities, farmers concerned

But some worry that the bill is too broad and overreaching. The new enforcement tools wouldn't just apply to pipeline companies, but anyone with a permit to use the state's waters — those who withdraw more than 10,000 gallons of water per day or 1 million gallons per year.

That includes farmers who irrigate their crops and cities that pump water for their residents to drink.

"We feel that this creates a huge new enforcement hammer over cities and public water suppliers that did not exist before, does not seem to have a purpose and could cost utilities a lot of money,” said Craig Johnson, intergovernmental relations representative with the League of Minnesota Cities.

An irrigation system stretches across a field.
A center pivot irrigation system in rural Stearns County in September 2021.
Paul Middlestaedt for MPR News file

Johnson said cities rarely have significant or ongoing violations of their water use permits. But he worries that the bill also would give courts new authority to order new restrictions or requirements on a city's water use, even when the DNR hasn’t made such an order.

"They could literally tell a city you need to get your water from a different source,” Johnson said. “It gives no test for whether it is affordable for the city. The only option the city gets is how they're going to pay for it."

One example Johnson cited during a recent House committee hearing is the long-running legal fight over the water levels of White Bear Lake.

Homeowners sued the DNR, arguing that groundwater pumping permits were having a cumulative impact on the lake’s water level. In 2017, a Ramsey County judge said the DNR had mismanaged the lake and ordered restrictions on water use to keep the lake level from falling further.

“We recently saw a situation where cities that were not even party to a lawsuit are expected to make sweeping changes to how they use their water in their communities because of a judge's ruling,” Johnson told the committee.

Becker-Finn’s bill also troubles Jake Wildman, president of the Irrigators Association of Minnesota, who farms near Glenwood in west-central Minnesota. He’s concerned that an irrigator who pumps more water than permitted could face a steep penalty, or even criminal charges.

"I don't think it's fair that 99.9 percent of us irrigators are in compliance with our permit, but yet we get grouped in with what happened with Enbridge,” Wildman said.

Becker-Finn said her bill isn't aimed at penalizing small farmers or anyone who's working with the DNR in good faith to comply with the law. They likely wouldn’t pay any penalty, she said.

Rather, the goal is to create clear expectations and incentives for those using the state's water to do the right thing, she said.

"What we're trying to do here is make it really clear that what has happened is not acceptable, and will be dealt with very clearly and strongly in the future,” Becker-Finn said.

The bill's chances of passing this year are uncertain. A Senate version authored by Sen. Mary Kunesh, DFL-New Brighton, was introduced this week, but has not yet had a hearing.