ST. PAUL — The district court judge in the lake lawsuit case made clear that draconian restrictions on water for municipalities near White Bear Lake was never part of her 2017 order, calling the DNR’s assertion that hospitals and schools would be cut off “misinformation.”
Judge Margaret Marrinan, who came out of retirement to preside over the decade-old case, asked attorneys at an April 26 status hearing to help draft language on the spot clarifying her order.
An attorney for the plaintiff, the White Bear Lake Restoration Association, felt time was of the essence due to pending legislation that would “eviscerate” the court order. The judge obliged.
That legislation allows municipalities with wells within 5 miles of the lake to implement 2040 water supply plans approved by the DNR prior to 2021 and thus ignore amendments to water use permits mandated in the court order.
Attorneys for the restoration association say the Senate bill (SF3055) would “vastly undercut the DNR’s oversight of big wells” and is an unwise attack on the state’s environmental laws.
The judge iterated again and again that the 55-gallon per capita limit was not part of her order. “When I read that in the paper, my hair stood on end,” she said. “I was appalled.”
Marrinan scolded the DNR’s defense counsel for alarming municipalities that their water permits would be amended to reflect that number, cutting off non-domestic use, without bringing it to the courts first. “To say schools and hospitals won’t have water is a major disservice. An intelligent, relational person will know exactly what the response will be,” the judge stated.
Before the day ended, a clarification to her order was signed and emailed to area legislators who oppose the bill, letting them know the 55 gallons was “misplaced.”
The clarification reads that “nothing in the Court’s orders requires the Department of Natural Resources to modify existing municipal water appropriations from the Prairie du Chien aquifer to limit the total volume of permitted appropriations to the equivalent of 55 gallons per capita per day. For clarity, nothing in the Court’s prior orders prohibits municipalities with water appropriation permits from furnishing water to non-domestic users such as hospitals, grocery stores, public services or other commercial or industrial uses.”
The original court order states a goal of 75 gallons per capita for residential use and 90 gallons per capita for total use.
The Court also scolded DNR attorneys for basing water restrictions on an in-house model that was never peer-reviewed by the U.S. Geological Service, experts for the plaintiffs or tested in court like other scientific evidence introduced in the case. “I’m disappointed this would be presented publicly to all those municipalities with a horse in this race without it ever being vetted by the opposition,” Marrinan said.
Assistant District Attorney Oliver Larson, representing the DNR, defended the model, saying it has been around since 2018, and is “confident the model will hold up.”
“That is not new,” he told the judge. “What is new is the model was used to calculate a total appropriation limit for White Bear Lake, also part of the Order.”
Larson reminded those at the hearing that the 55-gallon number comes from a requirement to set an annual withdrawal limit for White Bear Lake that protects elevation at 922 feet. “We all recognize 55 gallons is not realistic, but if we’re going to deal with this issue (gallons per capita), we have to deal with that part of the order. What does it mean to have an annual collective withdrawal if we’re not going to enforce it?”
The DNR was also taken to task on why it had not pressured the state for funding to study surface water conversion, also part of the court order. “The DNR has known about depletion of the aquifer since 1988,” Marrinan pointed out. “What does it take to get people to wake up and smell the coffee that this is a limited resource?
“We are five years past this court’s order and several years past the Supreme Court’s affirmation. What efforts have been made to explore the logistics of converting to surface water?” the judge asked.
Larson pointed out that the DNR “banged the drum” in 2013 for legislation to look at surface water conversion but it was not successful. “The reality is, it will take local effort,” he told the judge. “But communities can’t afford these conversions on their own. It will involve a regional solution and it’s a big number, up to $750 million. We need to get stakeholders together to do some planning.”
There is a bill in the House, HF4836, to help communities plan for surface water conversion.
Introduced by Rep. Peter Fischer (DFL-Maplewood), it is asking the Legislature for $2.25 million in funding next year for municipalities within 5 miles to evaluate and prepare contingency plans for converting from groundwater to surface water from the Mississippi River. Part of that bill also appropriates $500,000 to the same municipalities to plan a phase-down of per capita residential water use. Funds would be allocated to the DNR commissioner. There is no companion bill in the Senate.
After the hearing, plaintiff attorney Richard Allyn, Robins Kaplan LLP, observed that the DNR was duly chastised for causing “unnecessary alarm among the cities (and township) affected by the case order.
“Judge Marrinan totally demolished any threat of a change to 55 gallons per day,” Allyn said. “Neither she nor the DNR can or will reduce the water appropriations permits below the 75 (residential) and 90 (total) gallons per day.”
The chief strategy officer for the Minnesota Center for Environmental Advocacy wasted little time informing area legislators of the judge’s clarifying order.
“The results ought to be very helpful in combating attempts to overturn the Court Order and attack the Minnesota Environmental Rights Act,” wrote Aaron Klemz.
His advocacy group is not a party to the case but did submit amicus briefs supporting the plaintiffs at the Court of Appeals and the Minnesota Supreme Court. They also testified against legislation that would overturn the court’s decision — SF3055 and sections of SF4062.
The uproar over the 55-gallon restriction may have a positive side, continued the judge. “It got the attention of some municipalities who were doing business as usual,” she said.
“Groundwater is a dwindling resource beneath our feet,” warned the judge. “It’s time for the suburbs to understand there are responsibilities to using what is an asset for everyone today and for future generations. People need to step up and push for this. The aquifers will go dry.”