UPDATE: January 2, 2009: Enbridge Settlement Represents Another Incremental Victory in WWA’s Efforts to Reduce the Wetland Impacts of Pipeline Construction Projects
On January 2nd, the Wisconsin Department of Justice (WDOJ) announced that Enbridge Energy will pay $1.1 million to settle a state lawsuit over violations of the wetland and waterway protection permit conditions assigned to their Southern Access pipeline construction project. Click here for the announcement.
The decision marks another incremental success in Wisconsin Wetlands Association’s (WWA) pipeline construction oversight efforts. WWA has worked tirelessly since 2006 to try to reduce the wetland impacts of this project. In 2005 we challenged the adequacy of the environmental review (unsuccessfully), and then immediately turned our attention to providing input on the scope and details of permit conditions.
When construction began in 2007, we exercised our rights under Wisconsin’s Open Records Law to receive the same environmental monitoring reports seen by Enbridge officials and the Wisconsin Department of Natural Resources (WDNR). We reviewed these reports daily from March 2007 through September 2008, and maintained frequent communications with the state on the status of efforts to resolve construction concerns in wetlands and waterways.
The numerous and widespread permit violations documented in these reports prompted us to simultaneously encourage the Wisconsin Department of Natural Resources to refer the case to the Wisconsin Department of Justice for prosecution. We also worked to keep the media, and thus Wisconsin citizens, abreast of details and status of the state’s enforcement actions.
Wisconsin Wetlands Association is pleased to see the case resolved with substantial forfeitures and with additional stipulations to ensure the restoration of wetlands and waterways where violations occurred. We also commend WDNR for their stringent and effective environmental oversight of this construction corridor, and hope this oversight will serve as a model for the Department’s future efforts to protect the public’s interest in Wisconsin’s wetlands and waterways.
Pertinent facts about the settlement and history of the case include:
The Civil Complaint filed by the Wisconsin Department of Justice documented more than 500 violations including 282 wetland violations (soil mixing, rutting, unauthorized clearing, improper restoration), and 176 land disturbance and erosion control violations near navigable waters and wetlands.
Every violation cited in the complaint was supported by both a written report and photographs submitted by Independent Environmental Monitors (IEM) hired by the Wisconsin Department of Natural Resources to oversee daily construction activities. The IEM’s reported to WDNR, but were paid for by Enbridge as per a condition of project permits.
The $1.1 million settlement is the second largest in the entire history of the WDOJ environmental unit. The settlement is also more than five times greater than the next largest pipeline construction enforcement case (a 2002-2003 case against Guardian Pipeline & H.C. Price Company). Wisconsin Wetlands Association’s intervention in that case, which included a hearing request and submission of photos, videotapes, personal observations, and witness statements documenting problems and permit violations, helped secure $200,000 in penalties and wetland restoration obligations.
WDNR’s decision to use Independent Environmental Monitors to track permit compliance on the Enbridge project was a direct response to the pipeline construction environmental compliance concerns that WWA exposed in the earlier Guardian case.
Additional coverage of this settlement can be found through:
Canadian Press
Milwaukee Journal Sentinel
(Note: The statement that Enbridge did not admit liability for the violations is inaccurate. The Stipulation and Order for Judgment filed in Dane County Circuit Court says "Except as between the Plaintiff & Defendant" meaning that Enbridge admits liability to the state, but no outside parties).
Associated Press
(Note: The statement that the company was accused of 545 violations but settled 115 is inaccurate. Exhibit C of the Civil Complaint documents each of these 545 violations. All 545 are also referenced in the Order for Judgment).
Superior Telegram
Follow the links below to view copies of the:
~ Civil Complaint filed by the State of Wisconsin against Enbridge Energy
~ Stipulation and Order for Judgment
~ List of violations included in the Civil Complaint and Order for Judgment
Questions about pipeline construction concerns and the Enbridge settlement can be directed to WWA’s Wetland Policy Specialist Erin O’Brien at 608-250-9971 / erin.obrien [at] wisconsinwetlands.org
Wisconsin Wetlands Association is dedicated to the protection, restoration and enjoyment of wetlands and associated ecosystems through science-based programs, education and advocacy. WWA is a non-profit 501(c)(3) organization.
UPDATE: May 2008
Almost 8 months after serving Enbridge Energy Partners with a Notice of Violation for repeated failure to comply with the wetland and waterway permit, the Wisconsin Department of Natural Resources (WDNR) finally referred the case to the Department of Justice (DOJ). As of February 29th 2008, WDNR’s Independent Environmental Monitors (IEMs) had documented at least 181 alleged violations and numerous other communications about potential violations. To view a summary of construction violations documented by Independent Environmental Monitors assigned to the project click here.
WWA has repeatedly encouraged WDNR to refer this case to DOJ. In late April, WWA sent correspondence to WDNR Secretary Matt Frank questioning the long delays in processing the case. The case was referred the following week.
In the next stage of the enforcement case, DOJ will review and evaluate the evidence in the WDNR referral to decide which of the alleged and potential violations to include in a formal complaint. The findings from that review will remain confidential until a formal complaint is filed and served to Enbridge. After that, it’s typical for the state and the accused violator(s) to meet to review the complaint and to discuss a negotiated settlement. If no settlement can be reached, the case would then go to litigation.
All of this is contingent upon DOJ deciding to pursue the case. The violations are extremely well documented (including written summaries and photographs submitted by IEMs for each incident) so we’re confident the case will continue to move forward.
Photographs of select violations as reported by Independent Environmental Monitors can be viewed here.
UPDATE: March 2008
Six months have passed since the Wisconsin Department of Natural Resources (WDNR) issued a Notice of Violation (NOV) to Enbridge Pipelines, Inc. for 117 violations of wetland and waterway permits along the pipeline construction corridor. The case has still not been referred to the Wisconsin Department of Justice for prosecution.
Meanwhile, Independent Environmental Monitors on the project have documented more than 700 "non-compliance communications," since the release of the September NOV. Of these communications, at least 64, and potentially hundreds, describe outright violations of wetland and waterway permit conditions. We continue to see many violations related to the proper segregation of wetland top-soils and sub-soils and improper maintenance of erosion control structures.
WWA maintains our position that the nature and extent of these violations warrant a referral to the Department of Justice.
UPDATE: September 2007
Violations of wetland and waterway permit conditions are widespread along the Enbridge construction route. WDNR takes action. Click here for WWA's press release and links to media coverage.
As part of our ongoing oversight of pipeline construction activities in Wisconsin, WWA receives and reviews the reports provided to the Wisconsin Department of Natural Resources (WDNR) by WDNR’s Independent Environmental Monitors.
Unfortunately, Enbridge’s environmental compliance has been poor, particularly early in the construction cycle (March) and since July.
For example, in the six week period between July 30 - September 9th, monitors reported a total of 60 issues related to erosion control, wetland restoration, land clearing, trenching, dewatering and other best management practices designed to minimize impacts to wetlands and waterways. These ranged in severity from simple communications (e.g., a verbal request for action on an issue) to reports of serious non-compliance. See map noting the location of all 60 issues below.
> Click here for a detailed summary and photographs of common Enbridge wetland and waterway permit violations.
Poor pipeline construction management practices degrade wetland quality and pollute rivers and streams. Since construction began, WWA has been in constant communication with the WDNR urging them to exercise their full authority under the law to modify permit conditions, order restoration and initiate enforcement proceedings to prosecute Enbridge for these violations.
As of September 24th, WDNR has not yet determined whether they will refer the case to the Department of Justice for financial penalties as done with Guardian Pipeline in 2003, an action WWA strongly encourages.
WWA will continue to advocate for strict enforcement, restoration and penalties in response to these and all future incidents along the Enbridge construction route. Check back soon for additional updates.
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UPDATE: January 2, 2007
Enbridge pipeline ruptures spilling more than 29,000 gallons of oil in Clark County, WI.
Just three weeks after WWA and partners filed a petition for judicial review of the adequacy of the environmental review for the proposed Enbridge SEP-II pipelines, an Enbridge pipe along the same route ruptured outside the town of Curtis in Clark County. More than 29,000 gallons of crude oil poured onto the adjacent farm field. Fortunately no wetlands, rivers or lakes were impacted by this spill, however, the incident increases concerns about the integrity of existing pipes and the risks of installing additional lines across hundreds of acres of sensitive wetlands, rivers and forests.
UPDATE: December 22, 2006
WWA joins lawsuit challenging approval of Enbridge permits.
Today Midwest Environmental Advocates filed a petition for judicial review of the DNR’s decision to approve permits for the Enbridge SEP-II pipeline. Wisconsin Wetlands Association, River Alliance of Wisconsin and Friends of the St. Croix River all signed on as parties to this suit due to concerns that the DNR had not adequately evaluated and addressed the environmental impacts of the project. Click here for a copy of the press release.
Wetland impacts from the proposed construction include dredging two substantial trenches through more than 68 miles of wetlands and deforestation of 262 acres of wooded wetlands. Wetland vegetation will also be removed from hundreds of additional acres. The size, quality and functional values of most of the wetlands to be disturbed were not examined in the Environmental Assessment (EA). The EA also did not include a wetland mitigation plan. As of January 1, 2007, federal permits for the wetland and waterway impacts have not yet been approved.
Copies of the DNR permits and links to recent media coverage about the lawsuit can be found on Midwest Environmental Advocates’ website: www.midwestadvocates.org/archive/enbridge/index.htm.
ISSUE SUMMARY: November 8, 2006
Read a summary of this issue below that WWA sent via electronic communications to our members and Wetland News subscribers on November 8, 2006.
Wisconsin Wetlands Association is actively monitoring and commenting on a proposal by Enbridge Pipelines, Inc. to install two more pipelines along an existing petroleum pipeline right-of-way that runs 321 miles from Superior to Delavan, Wisconsin. We're working collaboratively with many partner organizations to challenge decision-makers to take a harder look at the long-term ecological and economic costs and benefits to this project before making a final decision on permit requests. The timeline for input has been tight, so we’re providing this notice to alert members to our activities and concerns.
The proposed construction activity will dredge 361 wetland acres (and 74 cumulative miles) to a depth of 6.5 feet in order to lay one 42’ and one 20’ pipe. The trench will be backfilled and restored to pre- construction contours, minus the 781,440 cubic yards of wetland soil permanently displaced by the pipe.
Enbridge proposes clearing vegetation from an additional 905 acres of wetlands, including 262 acres of forested wetlands, to make way for construction vehicles and supplies. The project will also cross 262 Wisconsin rivers and streams, removing substantial areas of stream-bank vegetation along the way. This will be the third construction cut and set of pipes installed along this route. All this to tap into a finite supply of heavy crude oil from the Alberta tar-sands region of Canada.
Despite the massive wetland and stream disturbance, the cumulative impacts, and the degradation to wetland functions caused by changes in soil and vegetative canopy structure, a jointly released WDNR/Corps of Engineers (Corps) Environmental Assessment (EA) indicates that the agencies intend to issue a Finding of No Significant Impact for this project. They have characterized the impacts as temporary and appear poised to issue project permits without completing a full Environmental Impact Statement. The mitigation proposed to offset these impacts is lean, at best.
Comments are due on the Corps Section 404(b) permit applications on Friday, November 10th and on the joint WDNR/Corps EA on Wednesday, November 15th. We apologize for the late notice about these opportunities. Communication about project plans and environmental consequences for this project has been poorly organized, with hearings and the majority of comment opportunities closing prior to the release of the EA. Several groups, including WWA, successfully petitioned for extended comment periods following the release of the EA on November 1st, so we’ve had only a few days to review and respond to that document.
Questions about the proposed project, or comments on how the construction and permanent placement of pipes in Wisconsin’s wetlands will permanently affect the quality and functions of those wetlands, should be directed to WWA’s Wetland Policy and Conservation Specialist, Erin O’Brien at: erin.obrien[at]wisconsinwetlands.org
or 608-250-9971.
Our partners at Midwest Environmental Advocates (MEA) have also put together an excellent summary of the proposed impacts and are providing generous pro-bono legal support to help WWA and other statewide conservation organizations urge the WDNR and U.S. Army Corps of Engineers to complete an Environmental Impact Statement before issuing permits for this project. Click here to read MEA's summary and talking points.
Click on links below to follow the history of this advocacy effort.