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Judge: Groups failed to prove that building Minnesota’s Line 3 could damage wetlands and streams

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In a non-binding recommendation released on Friday, October 16, Justice James LaFave said the coalition of environmental and tribal groups had failed to meet the burden of proof in a contested permit hearing. water pollution control agencies in Minnesota over the summer and urged the AMPA commissioner to make the same finding when reviewing the 401 certification of 340-mile pipelines, a permit granted by the state regulators if the project’s impact on water meets the state standard. AMLA’s decision is due on November 14.

The joint petitioner challenge has brought additional transparency and understanding to this important process, LaFave wrote. At the same time, the agencies responsible for reviewing the plans and proposals submitted by Enbridge are experts in their field … Joint petitioners have the burden of proving, by a preponderance of evidence, that the underlying facts AMLA decisions in the five issues examined are in error. Joint petitioners have not taken on this burden.

The report followed a contested case hearing ordered by AMPA Commissioner Laura Bishop in June after more than 20 comments on a draft permit requested such a hearing, which referred the questions to an administrative judge to consider additional evidence and testimony, and then make a recommendation to the agency.

The MPCA has until November 14 to make a decision on the permit under the Clean Water Act. At this point, the permit will be sent to the US Army Corps of Engineers for final approval to ensure it meets Section 404 of the Water Sanitation Act.

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In a statement, AMPA spokesman Darin Broton said the hearing into the contested case was an important opportunity to ensure that the recommended water crossing methods protect all waterways and wetlands affected and that the judges’ findings would be taken into account in the agency’s decision.

Broton did not say whether he would issue, refuse or relinquish his authority to issue the certification.

Friday’s recommendation was good news for Enbridge, which has completed and put into service 650 miles of Line 3 in Canada, 13 miles in Wisconsin and is largely complete with the 12 mile segment across the north corner. east of North Dakota, leaving only the remaining Minnesota segment.

When complete, the pipeline will replace the existing and aging Line 3 and move 760,000 barrels of oil (31.92 million gallons) per day from Alberta, Canada to the Enbridge terminal in Superior, following a new road through much of northern Minnesota.

We are extremely pleased that the administrative law judge’s report is positive in all respects and paves the way for the leave decision, said Julie Kellner, spokesperson for Enbridge, in a statement. The report (from administrative law judges) confirms that Enbridge and the Minnesota Pollution Control Agency identified the best and most prudent method for each watercourse crossing, identified and counted the total area of ​​wetlands and correctly determined the best protections for wetlands and bodies of water.

But the recommendation was bad news for opponents of the project.

Environmental group Friends of the Headwaters said in a statement it was disappointed the judge simply dismissed evidence that river, stream and wetland crossings for a pipeline of this size can cause harm. permanent damage to water bodies that extend well beyond the narrow limits of the pipeline. trench itself.

Other groups have urged AMPA not to take the judges’ recommendations and deny certification.

The hearing of the contested case considered the following issues, which were raised by the Friends of the Headwaters, the Sierra Club, Honor the Earth, the White Earth Band of Ojibwe and the Red Lake Band of Chippewa Indians in a petition joint but could not be proved by the groups at the hearing:

  • Are Enbridge’s proposed use of trenching methods for stream crossings having temporary or permanent effects on water quality parameters of concern?

  • Have Enbridge and AMLA identified the least degrading crossing method that is prudent and feasible for each watercourse crossing?

  • Did Enbridge and AMLA underestimate the total area of ​​Project impacts on wetlands due to gaps in wetland delineation and survey methodologies related to the seasonality of delineation activities?

  • Have Enbridge and MPCA underestimated the total area of ​​wetlands that are physically altered by trenching?

  • Have Enbridge and AMLA incorrectly determined that impacts to wetlands that are physically altered by trenching are temporary?

In addition to enabling AMPA and the Corps, the project must overcome other hurdles before construction can begin on the Minnesota segment, including an appeal from Gov. Tim Walzs’ administration arguing state regulators relied on poor demand forecasting to determine if the state needed the pipeline.

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