In the Matter of Enbridge Line 3 Replacement Project in Minnesota Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater, Hubbard, Wadena, Cass, Crow Wing, Aitkin, St. Louis, and Carlton Counties Section 401 Water Quality Certification.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1513

In the Matter of Enbridge Line 3 Replacement Project in Minnesota
Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater, Hubbard, Wadena, Cass,
Crow Wing, Aitkin, St. Louis, and Carlton Counties
Section 401 Water Quality Certification.

Filed August 30, 2021
Affirmed
Smith, Tracy M., Judge

Minnesota Pollution Control Agency
File No. 2014-01071-TJH

Joseph Plumer, White Bear Lake, Minnesota (for relator Red Lake Band of Chippewa
Indians)

Frank Bibeau, Deer River, Minnesota (for relator White Earth Band of Ojibwe)

Paul C. Blackburn, Minneapolis, Minnesota; and

Frank Bibeau, Deer River, Minnesota (for relator Honor the Earth)

Scott R. Strand, Environmental Law & Policy Center, Minneapolis, Minnesota (for relator
Friends of the Headwaters)

Moneen S. Nasmith (pro hac vice), Earthjustice, New York, New York (for relator Sierra
Club)

Christina K. Brusven, Haley L. Waller Pitts, Althea M. Huyser, Fredrikson & Byron, P.A.,
Minneapolis, Minnesota (for respondent Enbridge Energy, Limited Partnership)

Keith Ellison, Attorney General, Peter J. Fa rrell, Oliver J. Larson, Assistant Attorneys
General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Florey, Pres iding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this certiorari appeal, relators Red Lake Band of Chippewa Indians, White Earth
Band of Ojibwe, Sierra Club, Honor the Eart h, and Friends of the Headwaters challenge
the decision by respondent Minnesota Pollu tion Control Agency (t he MPCA) to issue a
section 401 certification under the federal Cl ean Water Act for the Line 3 replacement
project proposed by respondent Enbridge Energy Limited Pa rtnership. Relators contend
that the MPCA’s decision to gr ant the section 401 certifica tion was based on legal error
because (1) the MPCA failed to consider alternative routes for the pipeline, (2) the MPCA
improperly determined that the project would comply with state water-quality and wetlands
standards, (3) the MPCA improperly limited the scope of its authority under section 401 to
discharges and construction impacts, and (4) the MPCA improperly shifted the burden of
proof to relators. Respondents MPCA and Enbridge contend that this appeal is moot
because, shortly after the MPCA issued its section 401 certification, the U.S. Army Corps
of Engineers (the Corps) issued its final section 404 permit for the project and, respondents
argue, reversing the section 401 certification will not affect the permit. Respondents also
argue that, in any event, the MPCA did not err.
We conclude that this appeal is not moot and therefore address relators’ challenges
to the section 401 certification. Addressing those challenges, we conclude that the MPCA’s
section 401certification is not affected by legal error and is su pported by substantial
evidence in the record. We therefore affirm the MPCA’s decision.
3
FACTS
This appeal is one of several matters br ought to us regarding replacement Line 3.1
The facts regarding the project are set forth in more detail in our previous decisions.
Because the appeal at hand concerns th e MPCA’s decision to grant a section 401
certification for the project, we focus here on the regulatory framework and facts related to
that decision.
The Regulatory Framework
Because replacement Line 3 will cross state lines and navigable waters, the federal
Water Pollution Control Act—commonly known as the Clean Water Act—applies to the
project. 33 U.S.C. §§ 1251-13 87 (2018). The Clean Water Ac t generally prohibits the
discharge of pollutants into na vigable waters without a permit. 33 U.S.C. § 1311. In this
case, the project requires a permit from the Co rps under section 404 of the Clean Water
Act. See 33 U.S.C. § 1342(a).
The Clean Water Act establishes a two-tiered system that provides a role to both the
federal and state governments in protecting navigable waters. In re 401 Water Quality
Certification, 822 N.W.2d 676, 679 (Minn. App. 2012). The federal government is
responsible for issuing the relevant permit for a proposed project that involves discharge

1 See In re Application of Enbridge Energy, Ltd. P’ship , ___ N.W.2d ___ (Minn. App.
June 14, 2021) ( Enbridge II ); In re Applications of E nbridge Energy, Ltd. P’ship , 930
N.W.2d 12 (Minn. App. 2019) ( Enbridge I); In re Application of Enbridge Energy, Ltd.
P’ship for a Certificate of Need, No. A19-0510 (Minn. App. Oct. 29, 2019) (order); In re
Application of Enbridge Energy, Ltd. P’ship for a Routing Permit , No. A19-0267 (Minn.
App. Oct. 29, 2019) (order).

4
of pollutants into public waters. See, e.g., 33 U.S.C. § 1342(a)(1). But, under section 401
of the Clean Water Act, the federal permit cannot issue unless the state where the discharge
would originate either certifies that the di scharge will comply with state water-quality
standards or waives certification. 33 U.S.C. § 1341(a)(1). A state issuing a 401 certification
may include conditions to ensure that the pr oject complies with the state’s water-quality
standards, and the federal government is requir ed to incorporate those conditions into its
permit. 33 U.S.C. §§ 1342(a)(1), 1341(d) ; 40 C.F.R. § 122.44(d) (2019). Under
section 401, a state must act on a certifica tion request within one year or the state
automatically waives its certification authority. 33 U.S.C. § 1341(a)(1).
In Minnesota, the MPCA is responsible for responding to requests for section 401
certifications. Minn. Stat. § 115. 03, subds. 1, 4a (2020). Under the procedure laid out in
administrative rules, the project proposer first submits an application to the MPCA. Minn.
R. 7001.1420, 7050.0285 (2019). In connection with its application, the applicant must
prepare an antidegradation asse ssment and submit information regarding that assessment
to the MPCA. Minn. R. 7050.0285, subp. 2. 2 Then the MPCA conducts its own
antidegradation review based on the antidegradation assessment provided by the applicant
and on “other reliable information” for the purpose of determining “whether the proposed

2 This antidegradation assessment includes an analysis of any less-degrading alternatives,
including design considerations, constructi on, operation, and maintenance costs; a
comparison of other approved causes of de gradation with the expected degradation from
the proposed project; a comparison of exis ting water quality with the expected water
quality after the proposed project is complete; and a comparison of existing and expected
economic conditions and social services after the proposed project is completed. Minn. R.
7050.0280, subp. 2 (2019).
5
activity will satisfy the antidegradation standards in part 7050.0265.” Minn. R. 7050.0285,
subp. 3.
Under the antidegradation standards, th e MPCA may approve a proposed activity
“only when existing uses and th e level of water quality necessary to protect existing uses
are maintained and protected.” Minn. R. 7050.0265, subp. 2 (2019). The MPCA may not
approve a proposed activity “that would permanently preclude attainment of water quality
standards.” Id., subp. 4 (2019). The antidegrada tion standards do not prohibit all
degradation. Id., subp. 5 (2019). In general, the MPCA may approve an activity that results
in some degradation provided that (1) there are no prudent and feasible alternatives
available that would avoid th e degradation and the degradation caused by the proposed
activity will be “prudently and feasibly minimized,” (2) “lower water quality resulting from
the proposed activity is necessary to accomm odate important economic or social changes
in the geographic area in which degradation of existing high water quality is anticipated,”
(3) approving the 401 certification will help achieve compliance with all applicable federal
and state water pollution control measures, and (4) the MPCA provides intergovernmental
coordination and publ ic participation during the process. Id. The MPCA may allow
compensatory mitigation as a means of preserving the existing uses of waters to be affected
by a proposed activity if certain conditions are met. Id., subp. 3(A)(1) (2019).
Based upon its antidegradation review, th e MPCA must prepare and give public
notice of a written preliminary decision whethe r to issue a 401 certification. Minn. R.
7001.1440, 7050.0295, subp. 4 (2019). The MPCA must in clude in its preliminary
determination whether the project meets anti degradation standards or whether conditions
6
attached to a 401 certification will ensure that the project can meet antidegradation
standards. Minn. R. 7050.0285 , subp. 4. A public-comment period follows the public
notice, during which persons may also petition for a contested-case hearing. Id., subp. 5;
Minn. R. 7000.1800, subp. 1 (2019). The MPCA th en determines whether any petitions
warrant holding a contested-case hearing. Minn. R. 7000.1900, subp. 1 (2019). Following
the public-comment period and any contested-case hearing, the MPCA makes its final
determination whether to approve, approve w ith conditions, deny, or waive a section 401
certification of the project. Minn. R. 7001.1450 (2019). The MPCA may issue a section
401 certification only if it concludes that th ere is “reasonable assurance that the activity
will be conducted in a manner that will not violate applicable water quality standards.”
Minn. R. 7001.1470, subp. 1(C) (2019).
Replacement Line 3 Project
The replacement Line 3 project is a prop osed crude-oil pipeline running from the
North Dakota-Minnesota bord er to the Minnesota-Wiscons in border, to be built and
operated by Enbridge. The pipeline will replac e an aging pipeline that is operating at
limited capacity due to safety and spill concer ns. In October 2018, the Minnesota Public
Utilities Commission (PUC) granted a certificate of need for, and approved the route of,
replacement Line 3, and, in May 2020, follo wing a remand from this court for further
environmental review, the PUC reissued its orders granting the certificate of need and
routing approval. We recently affirmed the PUC’s decisions. See Enbridge II , 2021 WL
2407855, at *2.
7
Replacement Line 3’s approved route through Minnesota will differ from the route
of the existing pipeline. Along the new route, replacement Line 3 will cross more than 200
streams and rivers, and the pr oposed construction activities will discharge dredged or fill
material into Minnesota wetlands and streams.
Enbridge’s Section 401 Certification Application
Enbridge filed its application for a section 401 certification on November 15, 2019.
3
On March 2, 2020, the MPCA issued its pre liminary determination to grant a section 401
certification. The preliminary determination included 28 conditions to be incorporated into
the section 404 permit, which the MPCA pr eliminarily determined would satisfy the
antidegradation standards. In making its preliminary determination, the MPCA limited the
scope of its review to the pipeline route approved by the PUC, reasoning that, because the
PUC had the sole authority to approve the rout e of replacement Line 3, consideration of
alternative routes was outside the MPCA’s authority.
The MPCA notified the public of its preliminary determination and began accepting
public comments. Along with more than 9,000 public comments were several petitions for
a contested-case hearing, in cluding a petition submitted by re lators. The MPCA granted
relators’ petition for a contested- case hearing on five fact issu es raised by relators and
denied the rest of relators ’ petition. On August 24, 2020, the administrative law judge

3 Enbridge initially requested a section 401 certification for replacement Line 3 on
October 28, 2018. The MPCA dismissed Enbridge’s first section 401 certification
application without prejudice after we re versed the PUC’s decision that the first
environmental-impact statement for replacement Line 3 was adequate and remanded for
further environmental review. Enbridge I, 930 N.W.2d at 36.
8
(ALJ) held a contested case hearing on the five fact issues. At the hearing, the ALJ placed
the burden of proof on relators to prove by a preponderance of the evidence that the fact
issues raised in their challenge to the prelim inary determination must be resolved against
the MPCA.
On October 16, 2020, the ALJ issued his fi ndings of fact, conclusions of law, and
recommendation that relators had not proved any factual errors in the MPCA’s preliminary
determination and that the MPCA’s conclusions were supported by the record. The MPCA
adopted the ALJ’s recommendation.
On November 12, 2020, th e MPCA made its final determination approving
replacement Line 3’s section 401 certification ap plication. As part of this determination,
the MPCA issued (1) its findings of fact, conclusions of law, and order determining that
replacement Line 3 met the requirements for section 401 certification; (2) the final
section 401 certification, including 35 co nditions; and (3) a final antidegradation
certification.
On November 23, 2020, the Corps approved Enbridge’s application for a section
404 permit. The permit incorporated the conditions in the MP CA’s section 401
certification.
On November 30, 2020, relators filed for certiorari review of the MPCA’s decision
to issue the section 401 certification.
9
DECISION
As outlined above, relators raise several challenges to the MPCA’s decision to grant
a section 401 certification to the project. But, before addressing these challenges, we must
first address respondents’ assertion that this appeal is moot.
I. This appeal is not moot.
In general, courts may only decide actual controversies. See In re Guardianship of
Tschumy, 853 N.W.2d 728, 735 (Minn. 2014). Courts will dismiss appeals where the issues
in the case are moot. Id. Mootness is a “flexible discretionary doctrine” that applies when
“a decision on the merits is no longer necessary or an award of effective relief is no longer
possible.” Dean v. City of Winona, 868 N.W.2d 1, 4-5 (Minn. 2015). “We consider de novo
whether an appeal is moot.” In re Civil Commitment of Breault , 942 N.W.2d 368, 374
(Minn. App. 2020).
Respondents argue that this appeal is moot because this court cannot grant effective
relief. They contend that, because the Corps already incorporated the MPCA’s section 401
certification into its section 404 permit for replacement Line 3, including the MPCA’s
conditions, reversing the MPCA’s section 401 certification w ill have no impact on the
permit allowing the project’s construction. Relators, on the other hand, argue that the case
is not moot because overturning the section 401 certification would require action by the
Corps on its section 404 permit.
Respondents have not persuaded us that an award of effective relief is “no longer
possible.” Breault, 942 N.W.2d at 374. The Corps has continuing regulatory authority over
its section 404 permit. See 33 C.F.R. § 325.7(a) (2019) (providing that the Corps may
10
modify, suspend, or revoke a 404 permit as required by “considera tions of the public
interest”). The parties dispute whether and how this authority would or could be used.
We find persuasive the 2018 decision by the U.S. Court of Appeals for the Fourth
Circuit in Sierra Club v. Stat e Water Control Bd. , 898 F.3d 383 (4th Cir. 2018). There,
environmental groups appealed Virginia’s grant of a section 401 certification for a
proposed natural gas pipeline.4 Sierra Club, 898 F.3d at 388. The respondents argued that
the appellants lacked standing because th e Federal Energy Regulatory Commission had
already issued its authorization for the pi peline and therefore “no realistic possibility
exist[ed]” that the appellants could “obtain the ultimate relief” that they sought. Id. at 401
(quotation omitted). The Fourth Circu it rejected the standing challenge. Id. The court
recognized that the appellants would face “s everal hurdles even after prevailing on the
merits,” including that the federal agency could argue that it was too late in the process to
change its decision or that any further re strictions imposed by the state would be
preempted. Id. at 402. But, the Fourth Circuit c oncluded, “none of those potentialities are
sufficient to negate the ‘real istic possibility’” that the a ppellants could ultimately obtain
more stringent requirements on the pipeline a nd it was not the court’s “role to engage in
the speculative (if not impossibl e) task of predicting how an agency will exercise its
discretion.” Id. at 402-03 (quotation omitted).

4 Under the Natural Gas Act, a state’s decision to issue a section 401 certification for a
natural gas pipeline is appealable to the federal court of appeals for the circuit in which the
proposed project is to be constructed. Sierra Club, 898 F.3d at 388-89. Replacement Line 3
will be a crude oil pipeline.
11
Though the issue before the Fourth Circuit was standing, see id. at 400, the analysis
is analogous to our mootness inquiry. See Tschumy, 853 N.W.2d at 734 (observing that
“mootness is ‘the doctrine of standing set in a time frame’”). And, si milar to the Fourth
Circuit, in deciding whether e ffective relief is impossible, we conclude that it is not our
role to predict how the Corp s might react to a reversal of the MPCA’s section 401
certification. Nor do we believe that we need to predict what the result of any litigation
related to the Corps’ authority would be. Beca use mootness is a flexib le doctrine and we
are not persuaded that ultimate re lief is not possible, we concl ude that this appeal is not
moot.5 We therefore turn to relators’ challenges to the section 401 certification.
II. The MPCA’s decision is not affected by legal error and does not lack
substantial support in the record.

We review challenges to a section 401 certif ication in accordance with the appeal
provisions of the Minnesota Administra tive Procedure Act (MAPA), Minn. Stat.
§§ 14.001-.69 (2020). See Minn. Stat. § 115.05, subd. 11(1) (2020) (authorizing appeal of
MPCA certifications under MAPA). Under MAPA,

5 Respondents urge us to come to a different conclusion based on our previous unpublished
decision in Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, No. C4-97-
1676, 1998 WL 481933 at *2 (Minn. App. Aug. 18, 1998), review denied (Minn. Oct. 20,
1998). We decline to do so for two reasons. First, while they are persuasive, we are not
bound by our unpublished decisions. See In re Collier, 726 N.W.2d 799, 806 (Minn. 2007)
(stating that unpublished decisions “do not constitute precedent”). Second, the timing of
the section 401 certification was different in Minn. Ctr. for Envtl. Advocacy . There, the
section 401 certification was not issued until after the section 404 permit was approved.
Minn. Ctr. for Envtl. Advocacy, 1998 WL 481933 at *1. This meant the section 404 permit
was not predicated on the section 401 certification because the MPCA waived its authority
to issue a section 401 certification. Id. Here, the section 404 permit is predicated on the
MPCA’s section 401 certificati on and a reversal of the cert ification may have different
implications.
12
the court may affirm the decision of the agency or remand the
case for further proceedings; or it may reverse or modify the
decision if the substantial right s of the petitioners may have
been prejudiced because the administrative finding, inferences,
conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the
entire record as submitted; or
(f) arbitrary or capricious.

Minn. Stat. § 14.69.
An agency’s decision is arbitrary or capricious if
the agency (a) relied on factors not intended by the legislature;
(b) entirely failed to consider an important aspect of the
problem; (c) offered an explanation that runs counter to the
evidence; or (d) the decision is so implausible that it could not
be explained as a difference in view or the result of the
agency’s expertise.

Citizens Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs, 713 N.W.2d 817,
832 (Minn. 2006) ( CARD). Put another way, “[a]n agency’s decision is arbitrary or
capricious if it represents the agen cy’s will and not its judgment.” In re Review of 2005
Annual Automatic Adjustment of Charges for All Elec. & Gas Utils., 768 N.W.2d 112, 118
(Minn. 2009).
A decision is based on substantial evidence if “the agency has adequately explained
how it derived its conclusion” and “that conclusion is reasonable on the basis of the record.”
In re NorthMet Project Permit to Mine Application , 959 N.W.2d 731, 749 (Minn. 2021)
(quotation omitted) (NorthMet Project).
13
“[D]ecisions of administrative agencies enjoy a presumption of correctness, and
deference should be shown by courts to the agencies’ expertise and their special knowledge
in the field of their technical training, education, and experience.” In re Excess Surplus
Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (quotation
omitted). “Our role when reviewing agency action is to determine whether the agency has
taken a ‘hard look’ at the problems involved, and whether it has ‘g enuinely engaged in
reasoned decision-making.’” CARD, 713 N.W.2d at 832 (quoting Reserve Mining Co. v.
Herbst, 256 N.W.2d 808, 825 (Minn. 1977)). The bu rden is on relators to demonstrate a
basis for reversal under MAPA. See Hazelton v. Comm’r of Dep’t of Human Servs. , 612
N.W.2d 468, 471 (Minn. App. 2000).
A. The MPCA did not err by considering only the route approved by the
PUC in determining whether to issue a section 401 certification.

Relators first argue that the MPCA’s decision is affected by an error of law because
the agency considered only the route approved by the PUC and did not evaluate alternative
routes when reviewing Enbridge ’s section 401 certification application. Relators argue
that, by not considering other routes, the MP CA failed in its oblig ation under Minnesota
rules to deny a section 401 cer tification if there exists a pr udent and feasible alternative
that would avoid or reduce ad verse environmental effects. See Minn. R. 7050.0265,
subps. 3(A)(1), 5(A). Respondents counter that routes that are not approved by the PUC
are not “feasible alternatives” and that the MPCA must perform its antidegradation review
with respect to the only route approved by the PUC.
14
Resolution of relators’ challenge requires interpretation of administrative rules. The
interpretation of rules generally follows the same analysis as statutory interpretation and is
subject to de novo review. See In re Reissuance of an NP DES/SDS Permit to U.S. Steel
Corp., 954 N.W.2d 572, 576 (Minn. 2021). When the language is susceptible to only one
reasonable interpretation, it is unambigu ous and we apply its plain meaning. See State v.
Culver, 941 N.W.2d 134, 139 (Minn. 2020). If the language of an administrative regulation
is ambiguous, we then determine whether the agency’s interpretation is “reasonable” and,
if it is, then we defer to the agency’s interpretation. See Reissuance of an NPDES/SDS
Permit, 954 N.W.2d at 576. In determining wh ether the agency’s interpretation is
reasonable, we look at factors such as “the nature of the regulation at issue and the agency’s
expertise and judgment in relation to the subject matter of the regulation.” See id. When
determining the meaning of administrative rules, courts “interpret words and sentences in
the light of their context and construe rules as a whole.” In re Ali, 938 N.W.2d 835, 838
(Minn. 2020) (quotation omitted).
Under the antidegradation rules, the MPCA must consider whether prudent and
feasible alternatives are available to avoi d degradation or minimize adverse impacts to
protected waters. Minn. R. 7 050.0265, subps. 3(A)(1) (stating that the MPCA cannot
approve a section 401 certification including compensatory mitigation unless “prudent and
feasible alternatives are not available to avoid or minimize adverse impacts to the surface
water”), 5(A) (stating that the MPCA cann ot approve any section 401 certification
involving high quality waters when “prudent and feasible prevention, treatment, or loading
offset alternatives exist that would avoid degradation of existing high water quality”); see
15
also Minn. Stat. § 116D.04, subd. 6 (2020) (sta ting that no state action impacting the
environment may be allowed “so long as there is a feasible and prudent alternative”). The
terms “prudent alternative” and “feasible alternative” are defined by regulation. A “prudent
alternative” means “a pollution control alternative selected with care and sound judgment.”
Minn. R. 7050.0255, subp. 34 (2019). A “feasible alternative” means “a pollution control
alternative that is consistent with soun d engineering and environmental practices,
affordable, and legal and that has supportive governance that can be successfully put into
practice to accomplish the task.” Id., subp. 17 (2019) (emphasis added).
Reading this language in the context here yields the conclusion that a feasible
alternative does not include a route not authorized by the PUC. The PUC has the sole
authority to authorize a pipeline route. Minnesota Statutes section 216G.02, subdivision 2
(2020) states:
A person may not construct a pipeline without a pipeline
routing permit issued by th e Public Utilities Commission
unless the pipeline is exempted from the commission’s routing
authority under this section or rules adopted under this section.
A pipeline requiring a permit may only be constructed on a
route designated by the commission.

The PUC issued replacement Line 3’s routin g permit on May 1, 2020. Because the PUC
did not authorize any other rout e, no other route would be “legal” or have “supportive
governance” for construction. See Minn. R. 7050.0255, subp. 17. Thus, any other proposed
route would not be a feasible alternative for Enbridge’s construction of the pipeline and the
MPCA therefore could not consider it in determining whether the PUC-approved route met
antidegradation standards. See Minn. R. 7050.0265, subps. 3(A)(1), 5(A).
16
To attempt to persuade us otherwise, relators argue that, because the MPCA urged
the PUC to consider alternative pipeline routes, there are prudent and feasible alternatives
that the MPCA should have considered in it s section 401 review. But the comments that
relators rely on were made by the MPCA during the PUC’s review of replacement Line 3’s
proposed route. Though the PU C engaged relevant regulator y agencies including the
MPCA when reviewing Enbridge’s applicati ons for a routing permit and a certificate of
need, the PUC was ultimately charge d with determining the route. See Minn. Stat.
§ 216G.02, subds. 2, 4 (2020). And, once the PUC approved a r oute, Enbridge was
foreclosed from building along a different route. There was therefore no other feasible
route for the MPCA to consider during its section 401 certification review.
Relators also argue that the MPCA had the authority to consider alternative routes
because, by Minnesota statute, a pipeline routing permit preempts regional and local
regulation but does not preemp t the regulatory authority of state agencies. Minn. Stat.
§ 216G.02, subd. 4 (providing that a pipeline routing permit “preempts all zoning, building,
or land use rules, regulations , or ordinances promulgated by regional, county, local, and
special purpose governments”). This argument is unavailing. Certainly, the MPCA’s
regulatory authority is not preempted, but that does not mean that a route not approved by
the PUC is “feasible” under the MPCA’s rules.
But relators argue that to read the regulations in this way creates a conflict between
the statute governing the PUC’s authority and the statute governing the MPCA’s authority
and that we must resolve the conflict by cons truing the statutes to permit the MPCA to
consider alternative routes. This argument is unpersuasive because it attempts to create a
17
conflict between the MPCA’s and the PUC’s authority when one does not exist. By statute,
the PUC is the only agency that can ultimately approve a route. Id., subd. 2. Administrative
rules require the PUC to perform “[a] comparative environmen tal analysis of all of the
pipeline routes” under consideration during the route-permitting process. Minn. R.
7852.1500 (2019). PUC’s environmental review may include, as here, the preparation of
an environmental impact statement and cons ultation with other agencies, including the
MPCA. See Enbridge I , 930 N.W.2d at 18 (stating that the PUC brought in “assisting
agencies” when drafting the environmental impact statement for replacement Line 3). Once
the PUC has approved a route, the MPCA retains the authority to review the proposed
project for compliance with antidegradation standards in order to decide whether to issue
a section 401 certification. But, in doing so, the agency cannot consider as feasible
alternatives routes that the PUC has not appr oved. In sum, we do not discern a statutory
conflict that requires judicial construction to resolve.
B. The MPCA’s determination that the project satisfies water-quality and
wetlands standards is not legally erroneous or without substantial
support in the record.

Relators next contend that the MPCA erred by determining that replacement Line 3
will comply with state water-quality standards as long as Enbridge follows the section 401
certification conditions. Relators raise two argu ments. First, relators contend that the
MPCA did not properly consider applicable narrative standards and wrongly focused on
numeric standards. Second, they argue that the MPCA improperly calculated the acreage
of wetlands impacted by the project when determining Enbridge’s compensatory-
mitigation burden. We address each argument in turn.
18
1. The MPCA’s determination that the project satisfies narrative
and numeric water-quality standard s is not legally erroneous or
without substantial support in the record.

Relators argue that the MPCA erroneously concluded that replacement Line 3 will
not violate the state’s water-quality standard s. They assert that the MPCA committed a
legal error because it did not perform an “index of biologic al integrity” at each water
crossing and therefore ignored the state’s na rrative biological or aquatic-life standards.
Instead, relators contend, the MPCA improp erly addressed only numeric standards and
focused on a particular parameter of conc ern that is not reliable for determining
environmental effects. Relators further argue that the MPCA erred by failing to consider
the effects of climate change in its analysis.
The MPCA’s rules establish both numeri c and narrative water-quality standards.
See, e.g., Minn. R. 7050.0222 (2019). Relators cite to Minnesota Rule 7050.0150, subpart 3
(2019), which sets forth a narrative standard prohibiting the serious impairment of aquatic
biota and the use of aquatic biota in the class of waters at issue here. Relators contend that,
to evaluate whether that standard was met, the MPCA was required by subpart 6 of that
rule to prepare an “index of biological inte grity” at each stream crossing to determine
current biological conditions and to then a ssess those conditions against the expected
results of the project. Minn. R. 7050.0150, subp. 6 (2019). Issuance of a section 401
certification without having developed such indexes, they argue, was legal error.
Respondents, on the other hand, assert that the MPCA was not required to prepare an index
of biological integrity for each stream crossi ng before making a sec tion 401 certification
decision. Rather, they argue, under the rule s, the MPCA could reasonably exercise its
19
expertise and judgment in determining the manner of its analysis of compliance with
narrative and numeric water-quality standard s and was not required to employ the
particular method urged by relators.
Respondents point to the rules gove rning section 401 certification and
antidegradation review. The procedure for the MPCA’s sec tion 401 review is set forth in
Minn. R. 7050.0285. That rule requires th e applicant to prepar e an antidegradation
assessment and requires the MPCA to conduc t an antidegradation review based on the
information provided in that assessment and “o ther reliable informa tion available to the
[MPCA] concerning the proposed activity.” Minn. R. 7050.0285, subps. 2, 3. The purpose
of antidegradation review is to “evaluate whet her issuing the section 401 certification for
the proposed activity will satis fy the antidegradation standa rds in part 7050.0265.” Id.,
subp. 3. The antidegradation standards in Minnesota Rule 7050.0265 ( 2019), in turn,
require that the MPCA approve a proposed ac tivity only when existing uses and the level
of water quality necessary to protect those us es will be protected. Minn. R. 7050.0265,
subps. 2, 4.
We agree with respondents th at these rules do not dictate the use of the particular
method described in rule 7050.0150, subpart 6. The rules for section 401 certification and
antidegradation review do not specify the method that the MPCA must employ to analyze
the environmental impact of a proj ect for section 401 certification. See Minn. R.
7060.0265, .0285. Where a particular form of review is not dictated, how the MPCA
conducts its review is subject to judicial deference. See In re Request for Issuance of SDS
20
Gen. Permit MNG300000 , 769 N.W.2d 312, 323 (Minn. App. 2009). We defer to the
MPCA’s reasonable judgment with respect to the manner of its antidegradation review.
But relators further assert that the manner of the MPCA’s review was not reliable.
As explained by the MPCA, it fo cused on the parameters of concern that it thought were
most likely to result from the project and the numeric and narrative water-quality standards
associated with those parameters. The principal parameter of concern for the MPCA was
total suspended solids (TSS). Relators contend that TSS is an inadequate way to measure
the effect of the replacement Line 3 project on aquatic life. They point to publications and
MPCA statements in an unrelat ed administrative proceeding that, relators assert, confirm
the inadequacy of physical a nd chemical standards such as TSS in assessing impacts to
aquatic life.
We will not reverse an agency’s decision as lacking substantial evidence as long as
the agency “has adequately explained how it derived its conclusion” and “that conclusion
is reasonable on the basis of the record.” NorthMet Project, 959 N.W.2d at 749 (quotation
omitted). The ALJ’s factual findi ngs following the contested- case hearing, which were
thereafter adopted by the MPCA, explain the MPCA’s reasoning regarding TSS and
identify the testimony and evidence supporting the MPCA’s determinations. As explained
in those findings, TSS measures sediment and other organic matter that becomes mixed
with water during the construction process. The MPCA determined that the impacts from
the replacement Line 3 project would result in temporar y, acute spikes in TSS
concentrations but would not violate narrati ve or numeric water-quality standards. The
MPCA further determined that the project w ould not result in long-t erm risks to aquatic
21
life due to the duration of the proposed cons truction activities and characteristics of the
pollutants of concern. By evaluating TSS, the MPCA thus considered potential impacts to
aquatic life. The MPCA’s determinations are both adequately explained and reasonable on
the basis of the record.
Finally, relators argue that the MPCA’s analysis was flawed because it did not
incorporate climate-change-related factors into its analysis. Relators do not identify a rule
that they claim was violated; rather, they challenge the adequacy of the agency’s analysis
of relevant facts in evaluating potential e nvironmental effects. Ou r role in reviewing
MPCA decisions is a limited one, and we must defer to the agency’s application of its
technical knowledge and expertise to the facts. See Minn. Ctr. for Envtl. Advocacy v. Minn.
Pollution Control Agency , 644 N.W.2d 457, 464 (Minn. 2002). Because, under this
deferential standard, the MPCA’s determina tion regarding compliance with state water-
quality standards is based on substantial evidence in the record, relators’ argument fails.
2. The MPCA’s determination that the project satisfies the wetland
standard is not legally erroneous or without substantial support
in the record.

Relators also argue that the MPCA erred by determining that the replacement Line 3
project complies with the rule governing wetland protection and mitigation. See Minn. R.
7050.0186 (2019). Generally, under rule 7050. 0186, project proponents are required to
avoid adverse impacts on wetland uses, minimize the impacts that cannot be avoided, and
mitigate unavoidable im pacts by compensation. Id., subp. 2. Relators make three
arguments challenging the MPCA’s determinati ons with respect to compliance with rule
7050.0186, which we address in turn.
22
a. Consideration of Alternatives
Relators argue that the MPCA did not pr operly consider whether adverse impacts
to the uses of wetlands could have been avoided because it did not consider an alternative
route for the pipeline. Minn. R. 7050.0186, subp. 4. For the reasons discussed above, there
was no feasible alternative route to consider because the PUC issued the routing permit
authorizing the route before the MPCA issued its section 401 certification. The MPCA did
not err by not considering an unapproved route as a way fo r Enbridge to avoid wetland
impacts. See Minn. R. 7050.0265, subps. 3(A)(1), 5(A).
b. Minimizing Impacts
Relators also argue that the MPCA erred in determ ining whether the actions
approved in the section 401 certification will minimize the impacts of the physical
alteration of the wetlands. See Minn. R. 7050.0186, subp. 5.
If alternatives are not available to av oid adverse impacts to wetlands, rule
7050.0186, subpart 5, requires that the MPCA evaluate measures to be taken by the project
proponent to minimize those impacts. In evaluating those measures, the MPCA must
consider a list of seven regulatory factors. Id., subp. 5(B).6 Relators contend that the MPCA
did not consider those regulatory factors and instead relied on a “wait-and-see approach.”

6 These factors include (1) the project’s spatial requirements; (2) existing structural or
natural features dictating placement or configuration of the project; (3) how the purpose of
the project relates to its placement, configuration, or density; (4) the sensitivity of the site
design to the natural features of the site; (5) the designated uses of the wetlands on the site;
(6) individual and cumulative impacts of the project; and (7) applicable federal
minimization activities. Minn. R. 7050.0186, subp. 5(B).

23
Relators’ argument is not supported by the record. In the final section 401
certification, the MPCA includes several cond itions connected to th e seven regulatory
factors to mitigate replacement Line 3’s impact on affected wetlands. 7 While he did not
discuss each condition, one research scie ntist from the MPCA explained during the
contested-case hearing that the permitting conditions would help mitigate and reduce any
adverse impacts to the wetlands. We defer to the MPCA’s judgment and expertise in
determining whether these conditions are adequate to mitigate any adverse impacts to the
wetlands. See Minn. Ctr. for Envtl. Advocacy, 644 N.W.2d at 464.
c. Compensatory Mitigation
Lastly, relators contend that the MPCA erred in determining the compensation that
Enbridge must provide as mitigation for unav oidable impacts on the designated uses of
wetland. See Minn. R. 7050.186, subp. 6. They advance several arguments.
First, relators argue that the MPCA failed to adequately account for all the wetlands
for which compensation is required. The MPCA required that Enbridge buy wetland bank
credits to replace each acre of physically altered wetland. The MPCA estimated that 212.37
acres of wetland will be permanently converted, 5.52 acres will be permanently filled, and
730.10 acres will be temporarily affected during construction. Re lators argue that
compensation should encompass not just physically altered wetlands but all wetlands that

7 These conditions include prohibiting construction activities in wetlands during the spring;
requiring that, before construction begins in any wetland, Enbridge engages in best
management practices to prevent impacts to wetlands outside of the authorized zone;
prohibiting the discharge of drilling mud into wetlands; completing site-specific restoration
plans after construction; and requiring Enbridge to clearly mark the edges of each
construction site to prevent impacts on wetlands in the vicinity.
24
might be affected by the construction. They a ssert that total acreage of wetlands crossed
by replacement Line 3 will be around 11,000 acres and the total acreage of wetlands
hydrologically connected to those crossed will be around 27,000 acres. They contend that
the MPCA erred by failing to estimate the acreage of those wetlands whose beneficial uses
might be lost or diminished.
Rule 7050.0186, subpart 6, states, “The permit or certification applicant shall
provide compensatory mitigatio n for unavoidable impacts on the designated uses of the
wetland in accordance with this subpart.” The subpart continues, “Compensatory
mitigation must be sufficient to ensure replacement of the di minished or lost designated
uses of the wetland that was physically altered.” Id., subp. 6(A). The rule defines “physical
alteration” as “the dredging, filling, draining, or permanent inundating of a wetland.” Id.,
subp. 1a(A). Accordingly, to comply with rule 7050.0186, the MPCA had to determine the
wetlands that will be physically altered by th e project and then obtain compensation to
replace those physically altered wetlands. The MPCA did that here, and relators do not
challenge the MPCA’s factua l finding regarding the acreage of wetland that will be
physically altered. Relators’ argument that the MPCA was required to account for all
acreage that might be impacted by replacement Line 3 is not supported by the language of
the rule.
Second, relators argue that the compensation plan does not ensure that any restored
wetlands will be of the same type and in th e same watershed as the impacted wetlands
Compensatory mitigation under the rule must be accomplishe d either through restoration
of a previously diminished wetland or throu gh the creation of a wetland, with preference
25
given to restoration when possible. Id., subp. 6(B). Enbridge’s compensatory wetland
mitigation plan breaks out the impacted wetlands into four separate “Bank Service Area[s]”
based on region and wate rshed. Within each service area, Enbridge identified specific
wetlands to develop as mitigation for any permanent damage done to nearby wetlands. The
MPCA concluded, after consulting with the DNR and the Corps, th at the compensatory
mitigation proposed by Enbrid ge satisfied the regulatory requirements. The MPCA’s
determination that restored wetlands will be of the same type and in the same watershed is
supported by the record and is thus entitled to judicial deference. See Minn. Ctr. for Envtl.
Advocacy, 644 N.W.2d at 464.
Third, relators argue that the plan does not provide for the required concurrent
compensatory mitigation. Unde r rule 7050.0186, subpart 6(D), the MPCA is required to
obtain compensation “before or concurrent with the actual physical alteration to a wetland
affected by the project to the extent prudent and feasible.” The ALJ found that the record
supported the MPCA’s impact calculations of the number of acres of wetlands subject to
compensation, and the MPCA required as part of its section 401 certification that
compensation be made for those wetlands prior to construction. Relators do not challenge
the ALJ’s findings or this part of the plan. But the MPCA also required Enbridge to develop
a post-construction monitoring plan “to monitor state waters in and near the area in which
the Project has been constructed to determine if additional impacts to Minnesota’s aquatic
resources have occurred as a result of the Project’s construction.” Relators argue this post-
construction component of the plan means th e compensatory mitigation is not completed
“before or concurrent” with the impacts to the wetlands affected by the project. But the
26
post-construction monitoring plan requires Enbridge to report unforeseen impacts and to
“conduct remedial action” that may include additional compensatory mitigation. This
requirement—which arises if additional imp acts are determined post-construction—does
not invalidate the MPCA’s approved compen satory wetland mitigation plan, which calls
for compensation before or concurrent with the physical alteration of wetlands.
C. The MPCA did not erroneously limit the scope of its authority under
section 401 to discharges and to construction impacts.

Relators also argue that the MPCA committed an error of law by improperly limiting
the scope of its authority in performing its section 401 certificati on review. They argue,
first, that the MPCA improperly limited its authority to “the spec ific locations where
[Enbridge] plans ‘discharges’ into protected waters,” a nd, second, that the MPCA
improperly limited its review “to potential construction impacts” and did not extend its
review to “water quality risks from operation, of the pipeline, including oil spills.”8
As to their first argument, relators argue that the MPCA limited “its jurisdiction to
‘discharge’ locations,” contrary to the U.S. Supreme Court’s decision in PUD No. 1 of
Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 144 S. Ct. 1900 (1994). In PUD,
a utility sought to build a dam for hydroelectric power. 511 U.S. at 703, 144 S. Ct. at 1905.
The dam required a federal license, and, because the construction and the operation of the
dam would result in discharges, the project fi rst required a state section 401 certification.
Id. at 709, 114 S. Ct. at 1907. Th e State of Washington issued a section 401 certification

8 Relators also argue that the MPCA unlawf ully limited the scope of its review by not
considering alternative routes and by considering only nume ric, and not narrative, water-
quality standards. We addressed and rejected those arguments above.
27
and imposed the condition of a minimum stream -flow rate in order to protect the salmon
and steelhead relied on by a fishery. Id. at 709, 114 S. Ct. at 1908. The utility challenged
that condition, arguing that th e stream-flow rate condition was thus not authorized under
section 401 because stream-flow rate was unrelat ed to the particular discharges at issue
(specifically, the discharge of dredge-and -fill material during construction, and the
discharge of water after it was used to generate electricity during operation). Id. at 711, 114
S. Ct. at 1908. The Supreme Court rejected th at argument, concluding that section 401(d)
authorizes states to impose water-quality lim itations that are not specifically tied to a
“discharge.” Id. at 711, 114 S. Ct. 1909. The Court relied on the language of section 401(d),
which provides that, in granting a section 401 certification, the state shall set forth
“limitations . . . necessary to assure that any applicant” will comply with state water-
quality standards. Id. (quoting 33 U.S.C. § 1341(d)). That language, the Court observed,
“refers to the compliance of the applicant, not the discharge.” Id.
Respondents do not dispute that PUD holds that states may impose section 401
conditions unrelated to the di scharges that triggered the section 401 review. But,
respondents argue, relators have not explained how the MPCA restricted its jurisdiction in
a manner contrary to PUD. We agree. Relators do not point us to where the MPCA wrongly
believed that it could impose only conditions that were related to discharges. “An
assignment of error based on mere assert ion and not supported by any argument or
authorities” is forfeited unless “prejudicial error is obvious on mere inspection.” Hentges
v. Minn. Bd. of Water & Soil Res., 638 N.W.2d 441, 446-47 (Minn. App. 2002). The error
28
that relators assert regarding the MPCA’s u nderstanding of the scope of its authority to
impose conditions is not obvious on mere inspection.
Relators’ second argument is that the MPCA erred by improperly limiting its review
to the environmental impacts from construction and did not consider the potential impacts
from operation of replacement Line 3. Specifi cally, they argue that the MPCA evaluated
only the discharges during construction and ignored the risk of an oil spill—another kind
of discharge—during operation. 9 They argue that the langua ge of section 401(a), which
requires a federal-permit applicant to obtain a section 401 certification from the state if
discharge may result from the “constructi on or operation of facilities,” 33 U.S.C.
§ 1341(a)(1), required the MPCA to consider the operation and not just the construction of
replacement Line 3 and that the MPCA did not do so.
Respondents point out that the trigger for the section 401 certification here was the
construction permit that Enbridge sought from the Corps and that another federal agency—
the Pipeline and Hazardous Materials Safety Administration—will regulate the operation
of the pipeline. But, they further assert, although the MPCA will not have regulatory
authority over operation of the pipeline, the MPCA nevertheless considered post-
construction—that is, operational—impacts on water quality. Thus, respondents contend,
contrary to relators’ argument, the MPCA did not improperly limit the scope of its section
401 review to only construction impacts.

9 In their reply brief, relators also briefly assert that the MPCA failed to consider the
operational impact from long-term erosion and sedimentation along the strip of land where
the pipeline will run.
29
We agree with respondents that the MPCA did not erroneously limit the scope of its
authority to construction impacts. The MPCA’s final certification contains a section that is
devoted to “post-construction requirements.” Those requirements include that Enbridge
prepare oil-and-hazardous-substances-discharge plans; comply with a post-construction
wetland-and-waterbody-monitoring plan to address unanticipated impacts to aquatic life;
monitor the pipeline for leaks and anomalies; and, if a safety-related issue arises, report
monitoring results as ou tlined in the plan . The certification also prohibits Enbridge from
discharging any oil or crude oil-related produc ts from replacement Line 3 to state waters
when the pipeline is operational. The MPCA’s section 401 certification therefore does not
reflect a legally erroneous under standing on the part of th e MPCA of the scope of its
authority.
D. The MPCA and ALJ did not improperly shift the burden of proof to
relators.

Finally, relators argue that the MPCA legally erred by shifting the burden of proof
to relators. Although relators assert that the “error is evident thro ughout MPCA’s
consideration of Enbridge’s a pplication,” they cite one example: They contend that the
MPCA wrongly shifted to relators the burden to prove that Enbridge’s proposed water-
crossing methods were not the least degrading alternatives.
Respondents do not dispute that Enbridge bore the overall burden to prove that a
section 401 certification should issue. As the party proposing issuance of the certification,
Enbridge had the overall burden of proving that its project w ill comply with state water-
30
quality standards. See Minn. R. 1400.7300, subp. 5 (2019) (stating that the “party
proposing that certain action must be taken” bears the burden of proof).
In connection with its application, Enbridge was required to submit an
antidegradation assessment. The MPCA required Enbridge to provide, as part of that
antidegradation assessment, a “justification fo r the crossing method selected at each
waterbody based on the design considerations and the cons traints for that specific
crossing.” The MPCA then performed its antidegradation review and issued its preliminary
determination that the proposed project would not violate state water-quality standards and
that a section 401 certification should issue.
Relators then petitioned for a contested- case hearing, and the MPCA granted a
hearing on five factual issues. One of thos e issues was, “Have E nbridge and the MPCA
identified the least degrading crossing method that is prudent and feasible for each stream
crossing?” In his findings of fact, conclusi ons of law, and recommendation following the
contested case hearing, the ALJ addressed the burden of proof, stating:
Enbridge ultimately bears the bur den of establishing it meets
the standards for the issuance of the Draft 401 Certification.
And, after careful review, the MPCA determined Enbridge met
those standards and issued a Draft 401 Certification. [Relators]
are challenging the MPCA’s i ssuance of the Draft 401
Certification. Because [relators ] are the party proposing the
action, the burden is on [re lators] to establish by a
preponderance of the evidence that the factual questions be
resolved against the MPCA.

The ALJ cited our decision in Minn. Ctr. for Envtl. Advocacy v. Comm’r of Minn. Pollution
Control Agency as authority for assigning relators the burden of proof on the factual
31
questions in the contested-case hearing. 696 N.W.2d 398, 404 (Mi nn. App. 2005). The
MPCA adopted the ALJ’s recommendation.
The ALJ and the MPCA did not err. In Minn. Ctr. for Envtl. Advocacy, a city applied
to renew its wastewater-treatment discharge permit from the MPCA. Id. at 401. The MPCA
made a preliminary determination to reissu e the permit without imposing a phosphorus-
discharge limit, concluding that a phosphoru s rule did not apply in the circumstances. Id.
The relator objected to the preliminary determination not to apply the phosphorus rule and
sought a contested-case hearing. Id. A contested-case hearing was held then on two factual
issues that would determine whether the phosphorus rule applied. Id. at 401-02. The MPCA
placed the burden of proof on the relator in the contested-case hear ing, and the relator
challenged that decision on appeal to this court. Id. at 404. We concluded that the relator
bore the burden of proof in the contested-case hearing. Id. We reasoned that, because the
relator was seeking to ad d the phosphorus limit afte r the MPCA’s preliminary
determination not to include it, the relator was the “par ty proposing action” under
Minnesota Rule 1400.7300, subpart 5, and therefore had the burden of proof on the factual
questions in the contested-case hearing.
Similarly, here, the MPCA issued a preliminary determ ination that the proposed
project satisfies water-quality standards after having performed its antidegradation review,
which included review of proposed water-crossing methods. Relators then sought and were
granted a contested-case hearing on five factual questions, including whether respondents
had identified the least degrading prudent and feasible crossing methods. Under our
32
decision in Minn. Ctr. for Envtl. Advocacy, the ALJ and the MPCA did not err by placing
the burden of proof on relators on the issues in the contested-case hearing.
As to the overall burden of proof, we disagr ee with relators that the MPCA shifted
it from Enbridge to relators. At its core, rela tors’ challenge seems to be less about legal
error regarding the overall burden of proof a nd more about the substantive basis for the
MPCA’s decision. Again, a decision is based on substantial evidence if “the agency has
adequately explained how it derived its conclusion” and “that conclusion is reasonable on
the basis of the record.” NorthMet Project, 959 N.W.2d at 749 ( quotation omitted). The
ALJ found, based on the record, that the MPCA engaged a cross-section of subject-matter
experts to analyze the proposed crossi ng methods and coordinated with other
environmental regulators regarding stream crossings. On this record, the MPCA’s decision
is based on substantial evidence.
Affirmed.