Water supply legislation worrisome to court case camps

Dock walkers enjoy the spring weather as everyone waits for ice out. Lake elevation will be easier to monitor when that happens. 

The elevation of White Bear Lake continues to be a hot topic of discussion between those who worry the 2017 court order will lead to severe water restrictions and those who worry that proposed legislation eviscerates that order and undermines critical environmental laws.

A recent “Action Alert” issued by Friends of the Mississippi River (FMR), for example, urges opposition to bills SF3055 and HF3880 that the watchdog group says could deplete local aquifer levels and undercut one of the state’s bedrock environmental laws: the Minnesota Environmental Rights Act (MERA).

The Senate bill that got FMR’s attention was introduced by Sens. Karin Housley (R-Stillwater) and Roger Chamberlain (R-Lino Lakes) in February. It would allow municipalities within 5 miles of the lake (the boundary set by a district judge in 2017) to continue to operate under a water supply plan approved by the Department of Natural Resources (DNR) before 2021 in conjunction with their 2040 Comprehensive Plan. 

“FMR has long been concerned about the unsustainable pumping of groundwater in fast-growing northeast suburban communities around White Bear Lake,” wrote Trevor Russell in the alert. “Rather than advance more sustainable solutions for groundwater use, these bills instead instruct the Minnesota DNR to grant new or expanded municipal groundwater withdrawal permits while simultaneously exempting those decisions from legal challenges under MERA.”

The longtime FMR water program director adds that the legislation “fundamentally undermines the DNR’s responsibility to assess the potential impacts of new or expanded groundwater withdrawals on the aquifer and White Bear Lake itself.”

A member of the plaintiff group that sued the DNR over low lake levels said the Friends alert “was a succinct description of pieces we perceive as profoundly negative about the legislation.”

Jim Markoe, president of the lake homeowners association that intervened for the plaintiff in the case, said he spent 10 years of his life “passionately trying to educate people and help them understand” the damage excessive groundwater pumping was doing to the lake. 

“The DNR has known since 1988 that there is a direct connection between the lake and pumping. That was brought to the forefront by the litigation,” Markoe said. “Now, four years after the court decision, the DNR is saying it’s far worse than they thought. That’s after spending 35 years denying a problem even existed.” 

Prompting the Housley/Chamberlain legislation was a Feb. 7 letter from the attorney general’s office to retired District Judge Margaret Marrinan. DNR attorney Oliver Larson reminded the judge, who came out of retirement to oversee her order, of paragraph 4, which requires the DNR to set a collective annual withdrawal limit for the lake. 

“What this analysis shows is that maintaining White Bear Lake at an elevation at or above the DNR’s protective elevation of 922 feet will require permit reductions far below the 75 gallons per day per capita residential water use and 90 gallons per day total per capita use (goals set by the judge),” he wrote. 

Larson cited a report by DNR hydrologist Glen Champion, who used the agency’s transient water model created post-trial to determine that the lake’s “losses to groundwater appropriations” would need to be limited to about 314 million gallons per year to keep it at the protected level. The hydrologist determined that would require limiting permits to 55 gallons per day, assuming no population growth and canceling all non-domestic supply-related permits.

“The DNR does not believe it likely to grant any new appropriations from the Prairie du Chien aquifer with the potential to affect White Bear Lake in the near future,” Larson told the judge. (See sidebar regarding Lake Elmo moratorium.)

Plaintiffs point out the lake level case was not about restricting water supply, despite the DNR’s proclamations. 

“The DNR’s 55-gallon number is nowhere to be found in the court opinion,” stated Markoe, who is a lawyer by trade. “It reminds me again that the DNR is publicizing this without showing data and explaining the purpose. This case is about the need for a long-term sustainable water supply for the northeast metro and use of conservation in the short term to bridge the gap.”

Attorney Dick Allyn, who represented the White Bear Lake Restoration Association since the beginning of the litigation, believes the DNR is creating fear by presenting results of a model that has never been peer reviewed. 

“There is no threat whatsoever to schools, hospitals and the like from the court’s existing order as upheld by the Supreme Court,” emphasized Allyn, a partner with Robins Kaplan LLP. “The order’s 75- to 90-gallon goal is based on the Met Council’s drinking water study folks. The DNR lawyer’s statements have been misunderstood. The letter to the court simply reports the results of one hydrologist’s historical analysis. This report has not been reviewed by the gold standard for groundwater knowledge, USGS (United States Geographical Survey), or other peer professionals. Communities that don’t like the existing order are using this letter to create fear of water shortages when none exists.”

The term “fearmongering” is one Hugo City Administrator Bryan Bear has been hearing of late regarding the DNR’s status report to the judge. 

“I don’t think the DNR is doing this to scare people, but doing what they’ve been told to do by the court,” Bear said. 

“Any number attached to our appropriations permit, whether it’s 90 or 55 measured on a ‘gallons per capita’ basis, we will not support,” said Bear, who testified on behalf of the bill at a Senate hearing. “Managing water using a formula with a ratio is the wrong approach and counter-productive.” 

To be clear, no appropriation permits have been amended to limit daily water use to 55 gallons at this time. Municipalities, in fact, are still waiting for their amended permit appeals to be heard by an administrative law judge. 

Bear said he doesn’t know what will happen if cities win their appeal. “There are potentially more amendments in response to the court order,” he said. “We don’t have a way of knowing how often this will occur. To operate a water utility and do proper planning, it’s certainly helpful to know the ground rules and have a responsible way to manage growth and plan for infrastructure. Permits amended in unpredictable ways is really challenging.”

Calling the 55-gallon restriction “pie-in-the-sky hyperbole,” Markoe said at least the DNR is finally acknowledging there is a problem. Still, he worries the lake will suffer. 

The lake homeowners representative contends the proposed legislation is a negative approach to the sustainability issue that allows cities to “kick the can down the road” rather than focus on a surface water solution. 

“At some point, the DNR has to become an opinion and information leader on the solution along with the Metropolitan Council and Legislature,” Markoe said. “I hope the silver lining is that this process can start now.”   

Both Markoe and FMR’s Russell note one positive from the legislation is instruction to the DNR, Department of Health, Metropolitan Council and representatives of east metro municipalities to explore options for supplying safe drinking water “in a manner that allows municipal growth while ensuring sustainability of the state’s water resources in and around White Bear Lake.”

“If any portion of this legislation advances, we hope it includes only this section,” Russell said.

At this point, the FMR staffer expects the Senate bill to be absorbed into an omnibus environmental bill. If passed, the DNR would be required to submit a report to the Legislature by Oct. 1, 2023.

It should also be noted that Sen. Chuck Wiger withdrew his name as co-author of the bill. 

The companion House bill introduced by North St. Paul Rep. Leon Lillie, HF3880, did not receive a hearing and was returned to the author.

Asked why the bill was returned to sender, Legislative Assistant Sam O’Neill replied: “Stakeholders are concerned with several aspects of the bill.” He declined to provide specifics but said they are “pursuing a comprehensive solution to the issue that protects the evolving water issues of the northeast metro and community concerns regarding usage and future growth.” 

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