MPCA grants contested case hearing on draft 401 water quality certification

Contact: Darin Broton, 651-226-0078

The Minnesota Pollution Control Agency (MPCA) today announced it is granting a contested case hearing on the agency’s draft 401 water quality certification for Enbridge’s Line 3 replacement project. The contested case hearing, expected to be scheduled later this summer, will focus on Enbridge’s water crossing methods to ensure all impacted streams and wetlands are protected.

During the Line 3 public comment period from March 2 to April 10, the MPCA received 20 requests for a contested case hearing on the draft 401 water quality certification for a variety of reasons, including wetland impacts, climate change, and oil spill risks. In addition, the MPCA received more than 10,000 comments online, during three statewide telephone town halls and by mail. After assessing each contested case hearing request, the MPCA determined that requests related to wetlands and stream protection issues met the threshold to grant a hearing. The contested case hearing order can be found here.   

“The MPCA is committed to ensuring its 401 water quality certification provides robust and comprehensive protections to Minnesota’s waters and that the agency follows all permitting requirements under the law,” said MPCA Commissioner Laura Bishop. “The contested case hearing will help ensure the certification is protective of one of Minnesota’s most important resources.”

Friends of the Headwaters, Sierra Club, and Honor the Earth, with the White Earth Band of Ojibwe and the Red Lake Band of Chippewa Indians submitted a joint petition that raised the following issues of fact that the MPCA granted in its hearing:

  • Does Enbridge’s proposed use of trench methods for stream crossings have temporary or permanent impacts on water quality parameters of concern?
  • Have Enbridge and the MPCA identified the least degrading crossing method that is prudent and feasible for each stream crossing? 
  • Have Enbridge and the MPCA undercounted the full acreage of the Project’s wetland impacts due to flaws in wetland delineation and survey methodologies related to the seasonality of delineation activities?          
  • Have Enbridge and the MPCA undercounted the full acreage of wetlands that are physically altered by trenching?
  • Have Enbridge and the MPCA incorrectly determined that the impacts to wetlands that are physically altered by trenching are temporary?

The MPCA reviewed the facts presented in each request to determine if a contested case hearing was valid. A recent ruling by the Court of Appeals indicates that state agencies have limited discretion to reject contested hearing requests if issues of fact are unresolved. Until the Minnesota Supreme Court reviews the Appeals Court decision, the MPCA is bound by the Court’s decision.  

To accommodate a contested case hearing, the MPCA received approval by the U.S. Army Corps of Engineers to extend its deadline for the 401 certification from August 15 to November 14, 2020. To help expedite the timing of a contested case hearing, Friends of the Headwaters identified potential expert witnesses and an estimated hearing timeline. The MPCA is required by the Clean Water Act to make a final decision regarding the 401 certification by November 14, which is one year after Enbridge submitted its application.

While a contested case hearing moves forward, the MPCA continues to review comments submitted for the draft air and NPDES permits. Once the review is completed, the agency will use the public’s feedback to make any needed adjustments to the draft permits. After comment review is complete and any necessary changes identified, the MPCA will determine permit timelines.

Under state law, contested case hearings allow individuals and businesses affected by a government agency action to appeal that decision. If a contested case hearing petition is submitted to the MPCA, the agency uses criteria, including whether there are disputed issues of fact and the ability to resolve disputed facts, to determine if the request is granted. If a hearing is granted, the MPCA asks an Administrative Law Judge to consider the case and proceed to a hearing.     

For more information on the MPCA’s permitting process for Line 3, visit its website.