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As White Bear Lake water-level studies begin, a move to dismiss suit against DNR is in judge’s hands

White Bear Lake Restoration Association
According to the complaint, the lower water levels have "diminished the lake’s value as an irreplaceable recreational, historical, cultural, scenic, and aesthetic asset."

White Bear Lake may look serene, but it’s become the focus of a contentious lawsuit.

And, for now, its future rests in the hands of Margaret M. Marrinan, a Ramsey County District Court judge. She must decide whether to dismiss the complaint filed against the Department of Natural Resources for its role in what looks to the naked eye like the draining of the lake.

Two complaining parties, the White Bear Lake Restoration Association and the White Bear Lake Homeowners Association, contend that the DNR, in its unrestrained granting of pumping permits, has caused water levels to recede. In a hearing on Tuesday, the DNR moved to dismiss the complaint. 

The arguments that ensued were ultra-legalistic because neither side has particularly strident disagreements about the condition of the lake itself. Its elevation has declined — though DNR spokesman Chris Niskanen was quick to point out that heavy rains this spring have raised the lake’s level by 2 feet, putting it “within the range of normal fluctuation, which is about 7 feet,” he says.

Maybe so, but the downward drift of the fever line that registers the lake’s depth is hard to ignore. And if you visit, you’ll see the dismaying results — exposed swampy patches stretching hundreds of feet from what once was the shore, and boat docks marooned on dry land. Lakeside homes are lakeside no longer, and Ramsey Beach has been closed for five years because the lower water level puts swimmers too close to an 8-foot drop-off to be safe. Property values have plummeted, and businesses have been suffering. According to the complaint, the lower water levels have “diminished the lake’s value as an irreplaceable recreational, historical, cultural, scenic, and aesthetic asset.”

Not seeking damages

The plaintiffs are not seeking damages, however. Sitting on a deck at Admiral D’s restaurant, overlooking (from afar) the lake’s breezy blue expanse on a sunny day last week, Greg McNeely, Oliver Din and Bill Axelrod, movers and shakers behind the Restoration Committee, assured me that it’s not about money. They just want their lake back.

Judge Margaret M. Marrinan
Judge Margaret M. Marrinan

“What we’re trying to achieve is a water management system to maintain the lake’s level and restrict usage,” says Din.

Asserting under the Minnesota Environmental Rights Act (MERA) that the lake is a public trust — a resource accessible to everybody — the complaint asks the court to force the DNR restore it. The department, contends the lawsuit, authorized “a doubling of annual ground water withdrawals in the last 30 years.” As pumping increased, the groundwater in the Prairie du Chien Jordan aquifer underneath was depleted, and lake water was sucked into it. For evidence, they point to a U.S. Geological Survey study completed last year, which found water from White Bear Lake coming out of the faucets in nearby municipalities.

“The DNR has been asleep at the switch,” declared Jan Conlin, arguing for the plaintiffs. If the agency had been more restrictive with water permits allowed to neighboring towns and industry, the lake would look as it did back in 2003.

DNR’s view

On behalf of the DNR, Jill Nguyen of the attorney general’s office contended there’s no way the court can or should guarantee the level of the lake “preferred” by the Restoration Association. If it did, the DNR would have to come into court to ask permission or defend its actions every time it issued a water permit. What’s more, the public trust doctrine, in Minnesota at least, does not apply to groundwater, only the lakebed. Finally, she pointed out that the DNR was hard at work on the problem. Among other things, it has commissioned the U.S. Geological Survey to undertake a second, more thorough study. The court, she continued, was not the right forum to find a solution to White Bear Lake’s problems. People with expertise at the Met Council, the DNR, the Legislature and in local communities are better equipped to deal with them.

Judge Marrinan asked when the study would be complete. The answer — some time in 2016 — didn’t seem to make her happy. 

From there, arguments wandered into a quagmire as gloppy as anything you could find on the bottom of the lake: the meaning and intent of MERA clauses 103g.285 and 116b.03; Swan Lake (which I thought was a ballet but turned out to be a complicated Minnesota environmental case); a South Dakota court decision about a place called Schiley Slough; and whether the public trust doctrine applies to groundwater.

“We are claiming damage to surface water regardless where it came from,” said Byron Starns who represents the homeowners association.

In the end, the judge took all the studies and briefs to her chambers to sort out. My guess — and it’s only a guess — is that she will let the suit proceed, but only because she asked the lawyers to discuss scheduling with her after the hearing. If she were going to dismiss the case out of hand, why bother?

White Bear Lake water levels

Source: DNR

Lake rescue efforts

In the meantime, the gears and wheels of a lake rescue operation are slowly starting to grind. The White Bear Lake Conservation District, which regulates recreational uses of the lake, created a Lake Level Resolution Committee, headed by Bryan DeSmet, a White Bear resident and environmental engineer with international and local experience in water and wastewater infrastructure development.

‘We evaluated a number of options,” he said. “First is conservation. That’s the low hanging fruit.”

Already both the City and Township of White Bear Lake are implementing restrictions on lawn watering, and the Chamber of Commerce has begun a “Save the Lake” campaign  asking businesses to take at least four actions to limit water use. “But we don’t know how far conservation will get us,” added DeSmet.

At the behest of DeSmet’s committee, the DNR plans to form the communities surrounding White Bear Lake into the state’s first groundwater management district, which, in theory at least, would limit draws on the water supply to a sustainable level. According to Chris Niskanen, however, the first meeting has yet to occur.

Met Council study gets under way

Further suggestions from DeSmet’s committee are also going into a $2.5 million feasibility study that the Metropolitan Council is just now getting under way. (Money didn’t come in from the Legislature until July 1st.) Keith Buttleman, assistant general manager of environmental services, ticks off the possible solutions to White Bear Lake’s problems: augmenting the lake from the St. Paul system, which gets its water from the Mississippi and has excess capacity; augmenting the lake with “slightly used” water from industry. (Such water, possibly used as a coolant and not contaminated, can be recycled into the lake instead of going down the sewers); optimizing pumping from local wells to make sure that they are efficient; and finally converting communities from drawing water off the aquifer to taking it from surface water, again from St. Paul.

The Met Council plans to finish the study this year; but then it’s up to municipalities, the Legislature and the DNR to do something — and nobody can say how long that will take.

For its part, the White Bear Lake Restoration Association is planning a Lakestock ’13 event (think Woodstock), that will feature local bands and entertainment to raise  awareness of the lake’s plight. But, their lawsuit, if it survives the DNR’s motion to dismiss, could, like all the other rescue efforts, take eons to wend its way to a resolution. The trial isn’t scheduled until next year.

The lake is unlikely to disappear, says DeSmet. The more it drops, the slower the rate of drainage, he insists. (That didn’t make sense to me, but he’s the water expert.) In the meantime, the lake could shrink still further. But he seems confident that the lake will be saved. “A lot of people are working on this,” he says.

Maybe they need to work a little faster.

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Comments (4)

  1. Submitted by jody rooney on 07/17/2013 - 12:30 pm.

    And if they need an professional economist with 20+

    years of water resources experience have them give me a call.

    I am not as sympathetic to the plights of the land owners other than the public ones but I am very well aware of the history and cultural importance of the lake. I grew up in White Bear an we have lived within 6 miles of it for the last 40 years.

  2. Submitted by Ray Schoch on 07/17/2013 - 03:14 pm.

    Welcome to the world of…

    …limits.

    In my former home state of Colorado, this would be old news, and so close to common knowledge as to be hardly worth mentioning. Along with Mr. Rooney, I’m not especially sympathetic to the plight of those private land owners with “lakeshore” property, but the underlying issue is one that affects everyone in the area, and that’s the depletion of the aquifer.

    There are limits to how many people, businesses, lawns and gardens, etc., can draw water from an aquifer (or from a surface source, for that matter, or from a combination of the two) beyond which the water source simply cannot replenish itself. Sometimes the area affected directly is small, but sometimes it can be hundreds of square miles. When that point is reached — inconvenient truth — growth basically has little choice but to stop. No more apartment buildings, no more “luxury” condos, no more McMansions, restaurants, car washes, etc., etc., ad nauseum.

    This is what will likely bring Colorado’s growth to a halt more than anything else, and could easily end up doing the same thing here, despite the apparent abundance of water. When I arrived only 4 years ago, most of the discussion in terms of water policy here seemed to revolve around water *quality,* not *quantity.* The basis for discussions about water needs to be revised, and if I were to hazard a guess, it would be that current and future law students might find a specialization in water law to be worthwhile…

  3. Submitted by Bill Coleman on 07/17/2013 - 04:02 pm.

    Benefits and costs

    The lake level of WBL has caused an excellent ongoing discussion of water management policies. Clearly the people who live on the lake have suffered the most with its shrinkage – both in lifestyle and in property value. Fixing the lake – whether through water limits and pricing – or through engineering and grabbing water from the Mississippi – will also provide the property owners with the most benefits.

    For those of us who only walk or drive by or swim or boat on the lake, the costs and benefits have not had as much of an impact, but it has had a definite impact on the quality of life in the NE metro area for those of us who live in the area.

    Determining the fix and how to pay for the fix will be very interesting and sure to create scenarios that have lakefront republicans crying for a government fix, or restrictions on land and business development. Likewise, liberals may propose that lakefront property owners pay the whole bill and diminish the shared value and shared payment for a quality community environment as both Rooney and Schoch above illustrate their “tough luck, rich folk” empathy.

    It would be great if the lakeshore owners and the shared access owners associations would begin to organize to make the public an offer of investment to address the lake levels. Based on what I see of WBL property values, a full lake would put an average of about $500,000 back on these owners balance sheets. Plus they could sell all of those extra dock sections that they have purchased over the years. Maybe they could start a crowdsourcing effort to raise some significant money to leverage some public sector investment in solving the problem.

    The DNR plan for a three year study seems lame. It would be great to see some immediate action on lawn watering restrictions, restrictions on new municipal well expansions, increased pricing on water use by industrial customers especially where alternative water handling processes are readily available.

  4. Submitted by Paul Udstrand on 07/18/2013 - 09:58 am.

    Better late than never, but…

    I think it’s interesting that some Republicans up in White Bear Lake seem to have realized that poorly regulated development can cause environmental damage. I don’t what they expect will done at this point? The water permits have been issued, can they be rescinded?

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