Judge rules state of Minnesota failed to protect White Bear Lake, aquifer

The state of Minnesota should have done a better job of managing the use of area wells to halt the draining in the last few years of White Bear Lake and its aquifer, a district judge ruled Wednesday.

In a ruling three months in the making that followed a trial held last spring, Ramsey County District Judge Margaret Marrinan said the state had violated the public trust as well as environmental laws in allowing excessive pumping of the Prairie du Chien aquifer, without really knowing what amount could be used without endangering its future availability.

The judge ordered the DNR to stop issuing permits for any more wells within a five-mile radius of White Bear Lake until it is certain the drawdowns are sustainable. She also ordered the agency to make sure pumping now allowed is sustainable, and to do so within a year.

Under her ruling, the state must ban residential irrigation when White Bear Lake falls below 923.5 feet above sea level and continue the ban until the lake rises to 924 feet.

The lake during the area's recent drought fell far below that level, reaching 918.5 feet in 2013. Heavy rain since has pushed it higher.

In a case that caps off a long career before she retires, Marrinan wrote that all existing permits must contain an enforceable plan to "phase down per capita residential water use to 75 gallons per day," and that all permits within five miles of the lake must be amended to include plans to move to "total or partial supply" from river sources.

The case has broad implications both for future suburban development and for the ability of property owners to irrigate lawns, once dry conditions return to what is now an amply rain-slogged metro area.

The Minnesota Department of Natural Resources (DNR) issued a brief statement saying that it was "surprised and deeply disappointed." An appeal was not ruled out.

Greg McNeely, a spokesman for the lakeshore owners and area supporters who brought the suit against the state, called the case a "big deal" and added:

"It's not about White Bear Lake, it's about how much water we use. It's not sustainable, and our lake is the canary in the coal mine. It was a five-year fight and some of it was not pleasant but we are so grateful to our attorneys, who worked without a fee because they believed in this cause."

Making water a priority

Wednesday's decision is a landmark moment in an increasingly fraught relationship between suburban growth and the natural resources required to support it.

In some parts of the metro area, sprawl has heavily relied on underground sources rather than the Mississippi River, which is the main water source for Minneapolis, St. Paul and many inner-ring suburbs.

The city of White Bear Lake and its neighbors have taken vigorous steps to reduce water use, and suburbs distant from the lake — but also relying on aquifers — have stepped up their efforts for years now, knowing this day could come. The Woodbury City Council only this week is discussing a strategic plan that makes water conservation its top priority.

White Bear Lake City Attorney Roger Jensen said he expects no immediate impact on his city, but added that the same may not be true for all of its neighbors.

"This remedy was anticipated," he said, "but I was a little surprised that the judge concluded that the Public Trust Doctrine was violated. There's no precedent in Minnesota for that."

He said he suspected "there's potential for an appeal, particularly on that issue."

The Public Trust Doctrine holds that natural resources like water are for public use and that the government must protect them as such. That's a fundamental responsibility of the DNR, and the finding will sting agency officials.

The DNR's statement, issued late Wednesday afternoon, said it will take time to absorb the contents and implications of Marrinan's 140-page opinion and decide what to do next.

An iconic lake

The plaintiffs were supported by an A-list legal team, members of which said they took the case on a pro bono basis out of concern that political sensitivities were keeping the DNR from doing what it needed to do to make sure suburban growth is sustainable.

The remedy of piping in water from the Mississippi River has been calculated to cost anywhere from tens to hundreds of millions of dollars.

Advocates have sought unsuccessfully for state help to do that, and cities have warned that paying the freight for that solution would raise water costs alarmingly.

The trial on those issues took place before the judge alone without a jury this past spring, and lasted several weeks. It allowed the legal team for the plaintiffs to inspect masses of internal DNR documents, including e-mails, some of which attorneys felt were damning.

One oft-cited internal memo from a DNR expert stated in 2012 that "we are beginning to understand the unintended consequences of our past choices" in granting cities permits to extract ever more water.

It continued: "Everyone is part of the problem and needs to become part of the solution."

The state and cities argued that fluctuations in White Bear Lake were normal, but the judge found that the lake's ability to rebound had lately "differed dramatically from its previous history," a problem that "cannot be explained by climate alone."

The case has wide implications beyond White Bear Lake. Other bodies of water are in similar circumstances. But Marrinan also stressed the White Bear's iconic nature.

"It is a long-standing community resource enjoyed by inhabitants of the Twin Cities' northeast metro area, and the sole large, recreational lake serving this area," she wrote. "As such, it is the epicenter of the northeast metro for fishing, boating, sailing, swimming and general recreation."

David Peterson • 651-925-5039