Minnesota to appeal landmark White Bear Lake ruling

The state of Minnesota will appeal a landmark ruling on the excessive pumping of groundwater around White Bear Lake, saying it is "not supported by scientific evidence" and would "immediately halt important development" within five miles of the lake.

In a written statement Tuesday underlining the ruling's potential to reach all across Minnesota, DNR Commissioner Tom Landwehr said:

"The DNR is strongly committed to protecting Minnesota's many precious water resources, including White Bear Lake and its surrounding aquifers. We take that responsibility very seriously. But responsible, effective water management must be supported by sound science."

Katie Crosby Lehmann, lead attorney in a team of lawyers that worked the case over several years' time, said in a statement late Tuesday:

"We stand by the detailed scientific evidence from the monthlong trial. As demonstrated by the [judge's 140-page] opinion, the DNR has known of the problems caused by its permitting actions since issuing its own 1998 study and has concluded that the water use in the north and east metro area is not sustainable."

The case stems from a long drought that turned much of White Bear Lake into a weedy mudhole, forcing lake owners to extend docks hundreds of feet in order to keep boating and causing the closure of a popular beach.

Heavy rains in recent years have pushed the lake several feet higher than the low point it reached in 2013. But the plaintiffs and Ramsey County District Judge Margaret Marrinan, now retired and moved to senior status, stressed that the case was not about short-term climate trends. Rather, it's the principle of state officials acting as proper trustees of public resources, including aquifers.

The DNR counters that, under the terms of the ruling, "if water levels remain below 923.5 feet above sea level in White Bear Lake, new irrigation and development restrictions would be imposed on area residents and businesses.

"DNR data show, however, that White Bear Lake's water levels have registered below this proposed 923.5-foot trigger level in 48 out of the past 58 years. And according to the best available science, the DNR has concluded these new restrictions would have little impact on raising or maintaining the court's desired water levels in White Bear Lake."

The basis for the case was the DNR's role in granting permits for high-capacity wells as suburbs sprawled in the area, with their heavy use of groundwater to irrigate lawns and the like. While some parts of the metro rely on water from the Mississippi River, the DNR itself chose the northeast metro as a staging ground for careful inspection of long-term water use because the area relies on aquifers.

Marrinan's opinion suggests that the agency was caught between its own scientists' concern for long-term sustainability of the water in the area and the fury of growth-minded suburbs at the prospect of suffering restrictions that would force brown lawns and dead gardens on suburbanites while choking off revenue that cities count on to pay for water infrastructure.

The DNR's statement on Tuesday underscores its concern at what could happen with tough restrictions.

Unless the state Court of Appeals overturns the ruling, the agency said, "residential watering would be banned for 500,000 area residents by early 2018, and could not resume until the lake rises above 924 feet [and that] would remain in place for multiple years during dry periods, and would have likely been in place for the past 10 years had the court's order been in effect.

"Additionally, all temporary water permits for construction within five miles of White Bear Lake would be immediately prohibited under the court's ruling — a change that would stall road construction, utility, and residential development projects in area communities. In the last five years alone, 31 construction projects within five miles of the lake required such a permit."

In her statement, Crosby Lehmann countered by saying that the issue is the protection of the underlying resource.

"The DNR is the steward of our water and is bound to follow the law," she said. The judge "found that the DNR violated the law, and provides a road map as to how to hold the DNR accountable while protecting the lake and the underlying aquifer."

The agency said that although it has until Oct. 30 to appeal, it is signaling its intent sooner "because many area communities are concerned with the ruling and want to know how the DNR will proceed. During the appeal process, the DNR will work with permit holders in the White Bear Lake area to implement some elements of the ruling.The agency will be talking soon with communities about how it will approach this in as collaborative a manner as possible."

David Peterson • 651-925-5039