White Bear homeowners win suit against DNR over lake levels; ruling could spell big changes
By Dave Orrick | [email protected] | Pioneer Press
PUBLISHED: August 30, 2017 at 4:27 pm | UPDATED: August 30, 2017 at 10:40 pm
The Minnesota Department of Natural Resources has been violating state law to the detriment of White Bear Lake, a judge has concluded in a ruling that could have broad implications for water use in the north metro.
Wednesday’s ruling by Ramsey County Judge Margaret Marrinan serves as a victory for homeowners, businesses and others who sued the DNR several years ago, alleging the agency had failed to protect the popular lake and its users by mismanaging groundwater pumping permits in the area, exacerbating the lake’s notoriously fluctuating water levels.
The DNR argued that the lake’s varying water levels are simply part of natural fluctuations, but Marrinan concluded that the agency’s own research showed that pumping groundwater lowers the lake.
The plaintiffs were right, the judge concluded.
Marrinan stated the DNR has violated the Minnesota Environmental Rights Act and the Public Trust Doctrine by:
“Causing a continuing decline in the levels of both the Prairie du Chien Jordan Aquifer and of White Bear Lake that diminishes the size of the lake and its lakebed, and adversely impacts public uses of the lake; and
“Failing to take remedial measures within its authority to protect White Bear Lake and the Prairie du Chien Aquifer, when it had knowledge that its actions in issuing and failing to manage high capacity groundwater pumping permits were adversely affecting the lake and aquifer.”
“This is a huge win,” said Katie Crosby Lehmann, a managing partner of the law firm Ciresi Conlin, which argued the case during a monthlong trial earlier this year. “Our clients are extremely thankful that their hard work, which started back in 2012, paid off.”
Crosby Lehmann said Marrinan’s ruling came up with a “very balanced and long-term remedy to protect White Bear Lake and the Prairie du Chien Aquifer” that is connected to it.
The DNR said in a statement that it was reviewing the court documents. “We were deeply surprised and disappointed in the Court’s order and its implications for citizens and communities in the area,” the agency said in a statement.
WHAT THE JUDGE ORDERED
White Bear Lake’s water levels rise and fall not just with rainfall, but with the underground aquifer. When homes and businesses within five miles of the lake pump groundwater for their wells, that lowers the level of the aquifer, which can then drain the lake, Marrinan found, citing the DNR’s own research and experts. The DNR issues permits for those wells.
But the agency has no long-term plan to ensure the amount of water pumped out is sustainable, Marrinan said.
As such, she essentially put a freeze on water permitting in the whole area.
The DNR cannot issue new groundwater permits affecting the lake, or allow existing permits to increase their pumping, until it has “fully complied” with the law, Marrinan wrote, typing the word “fully” in bold.
Marrinan ordered the DNR to review all groundwater permits within five miles of the lake, determine whether the current levels are sustainable and downsize permits as necessary. In addition, the DNR must set a total cap for pumping in that five-mile zone and be prepared to enforce a residential watering ban if the level falls too low. She set a trigger for that ban at 923.5 feet above sea level — a foot above a minimum threshold the DNR set as part of a previous attempt to settle the lawsuit.
In addition. the DNR must come up with a plan to lower water use in the area within the next year. The lower limit would amount to an average residential water use of 75 gallons per day.
The recent wet period the area has experienced is irrelevant, said Marrinan, who issued the ruling as she plans to retire next week after 31 years on the bench.
PUMP FROM THE MISSISSIPPI?
Among the more far-reaching aspect of Marrinan’s 140-page findings of fact and order is the prospect that it could eventually lead to communities around White Bear Lake being forced to switch to surface water. There’s an abundant supply of that, namely in the Mississippi River, the source of most water for St. Paul and Minneapolis and the bulk of the metro core.
Every water permit holder within five miles of the lake will have to submit a contingency plan to get surface water if sustainable groundwater pumping can’t be achieved. This is already a state law, but Marrinan said the DNR has “ignored” it.
The Metropolitan Council has studied the idea of north metro communities tapping into St. Paul Regional Water Services to either replace groundwater or reduce reliance on groundwater for communities from Mahtomedi to Forest Lake. It can be done, the Met Council concluded, but costs would range from more than $100 million to perhaps more than $1 billion, depending on the scope.
Crosby Lehmann said she thinks that aspect of Wednesday’s order will lead to changes.
“Some groundwater use certainly is sustainable,” she said. “But the current level, including irrigation which can lead to four to five times as much water use in summer as in winter, that’s not sustainable. It certain is feasible to have a combination of groundwater and surface water.”
LESSONS LEARNED?
Crosby Lehmann said Marrinan’s orders could serve as a model for elsewhere in the state to ensure the ground isn’t being pumped dry.
It’s unclear whether the DNR will appeal the ruling. Here’s the agency’s full statement Wednesday:
“This afternoon we learned that District Court Judge Margaret Marrinan ruled against the state in the March trial involving the White Bear Lake Restoration Association and White Bear Lake Homeowners’ Association versus the Minnesota Department of Natural Resources. Based on our initial reading, we were deeply surprised and disappointed in the Court’s order and its implications for citizens and communities in the area. It will take some time for us to complete our review of the 140-page opinion and to understand the basis for, and the implications of, the ruling, including any possible next steps.
“The DNR remains committed to the science-based use of its authorities and resources to achieve sustainable water management in the North and East Metro and throughout Minnesota.”
The White Bear Lake Restoration Association includes businesses and users of the lake, while the White Bear Lake Homeowners’ Association consists of homeowners on the lake. Both groups teamed up to sue the DNR with pro bono representation of a team of lawyers, including: Crosby Lehmann and Heather McElroy of Ciresi Conlin, Richard Allyn of Robins Kaplan, and Byron Starns and Daniel Scott of Stinson Leonard Street.
“This was not always easy for our clients to stand up against the government, and I’m proud of them for doing so,” Crosby Lehmann said. “The lesson is that citizens of Minnesota have a civic duty to protect their natural resources, and the court system works.”
