HomeMy WebLinkAbout#13 - Water Appropriation PermitSTAFF REPORT
DATE: February 21, 2023
REGULAR
AGENDA ITEM: Appeal of Water Appropriations Permit Denial
SUBMITTED BY: Kristina Handt, City Administrator
BACKGROUND:
The city has twice requested that our water appropriations permit from the DNR be amended to increase
our annual appropriation amount from 260 million gallons a year (MGY) to 540 MGY. Typically, the
city makes requests to the DNR to increase appropriations at the same time as the request to add a new
well. This was the process followed in 2014 with the addition of well 4 on 50th St. and an increase in
appropriations to 260 MGY. Again that was the approach taken in January 2021 to add well 5 in Tana
Ridge Park and increase appropriations to 540 MGY. In May 2021, the DNR approved the addition of
well 5 but denied the request to increase the appropriations to 540 MGY. The city staff asked for an
increase to 540 MGY based upon the updated projected demand in the water supply plan. While working
with the MPCA and DNR on the Conceptual Drinking Water Supply Plan as part of the 3M settlement
work groups, the projected demand was updated as shown below:
Year Pop.
Served
GPCD Avg
MGD
MG/Yr
2020 7,302 105 766,710 280
2021 8,653 105 908,565 332
2022 10,004 105 1,050,420 383
2023 11,355 105 1,192,275 435
2024 12,708 105 1,334,340 487
2025 14,056 105 1,475,880 539
2030 15,407 100 1,540,700 562
2040 21,165 96 2,031,840 742
We rounded the 2025 number to 540 as that roughly, was when we would expect to have the next well
fully functioning and online. Like we have in the past, the plan would be to ask for an increase again
when well 6 is added to the system.
Since the request was denied in 2021, the City applied for an amendment to increase to 540 MGY again
in May 2022 and the denial was received on January 27, 2023. The city has 30 days to decide if they’d
like to file an administrative appeal, or contested case hearing, under Minn. Stat. chapter 14 and
103G.311.
The city has pumped 308 MGY in 2020, 395 MGY in 2021 and 400 MGY in 2022.
ISSUE BEFORE COUNCIL:
Should the city appeal the DNR’s denial of our permit amendment request to increase our appropriations
to 540 MGY??
PROPOSAL:
A draft letter to DNR Commissioner Sarah Strommen is included in your packet. It is very similar to the
one the City submitted in 2018 to contest the four amendments the DNR put on our permit because of the
White Bear Lake District Court Order regarding the residential irrigation ban, gallons per capita per day
requirements, plan for connection to surface water and annual meetings with other cities to discuss
conservation. The letter would be due to the DNR next week in order to fall within the 30 day appeal
window.
This would start the process of having the DNR assign an administrative law judge to handle the case.
The city is not required to be represented by a lawyer since it is an administrative process but staff would
recommend we have legal work on this appeal just as they are working on the one from 2018.
Similar to how the provisions from the 2018 appeal are not being enforced while the appeal is ongoing,
staff would expect the same to apply here.
FISCAL IMPACT:
Thus far on the White Bear Lake water level issue appeal we’ve spent about $14,000 in legal fees. It’s
unknown how much this next appeal may cost in legal fees and reimbursements to the state. These costs
are charged to the water fund.
OPTIONS:
1. Direct staff to submit a letter requesting a contested case hearing
2. Direct staff not to submit a letter requesting a contested case hearing
RECOMMENDATION:
“Motion to approve the letter to Commissioner Strommen requesting a contested case
hearing.”
ATTACHMENTS:
• January 27, 2023 Denial Cover Letter and Findings of Fact
• February 21, 2023 Letter to DNR Commissioner Sarah Strommen requesting a contested case
hearing
Ecological and Water Resources Division
500 Lafayette Road
St. Paul, MN 55155
January 27, 2023
Ms. Kristina Handt, City Administrator
City of Lake Elmo
3880 Laverne Avenue North
Lake Elmo, MN 55042
Dear Ms. Handt,
The DNR is informing you of our decision to deny your water appropriation permit amendment request to
increase appropriation volumes on Permit Number (No.) 1961-1031 from 260 million gallons per year (MGY) to
540 MGY received on May 12, 2022.
Due to the Ramsey County District Court Order file No. 62-CV-13-2414 and the results of the cumulative annual
withdrawal limit analysis completed by the DNR in 2022, the DNR is denying your request to amend Permit No.
1961-1031 to appropriate additional volumes of groundwater up to 540 MGY.
As permit holder and applicant to amend Permit No. 1961-1031 you have the right to request a contested case
hearing under Minn. Stat. chapter 14 and 103G.311. You must notify the DNR of your interest in a hearing on the
matter and submit a Corporate Surety bond, or equivalent security, in the amount of $500.00, within 30 days of
receipt of this letter.
Permit No. 1961-1031 continues to be active and the terms and conditions remain the same at 260 MGY of
groundwater authorized from three wells within the community.
If you have any questions, please contact Randall Doneen at randall.doneen@state.mn.us or 651-295-9437.
Sincerely,
Randall Doneen
Manager, Conservation Assistance and Regulations Section
CC: Marty Powers, City of Lake Elmo
Adam Swanepoel, City of Lake Elmo
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FINDINGS OF FACT
DNR Water Appropriation Permit No. 1961-1031
DATE: January 27, 2023
Permit No.: Request to Amend Permit 1961-1031
Applicant Name: City of Lake Elmo
Name of Reviewer: Joe Richter, DNR Region 3 Water Appropriations Hydrologist
Dan Miller, DNR Water Use Consultant
Randall Doneen, DNR Conservation Assistance and Regulation Section
Manager
Decision: Lake Elmo’s application to increase the volume of water that it may appropriate under
Water Appropriation Permit No. 1961-1031 (Permit 1961-1031) from 260 million gallons of water
per year to 540 million gallons of water per year is denied.
FACTUAL FINDINGS & ANALYSIS
Based on the information in the administrative record and on file at the Minnesota
Department of Natural Resources (DNR) Division of Ecological and Water Resources and in
accordance with the August 30, 2017 Ramsey County District Court Order in White Bear Lake
Restoration Association ex. rel. State of Minnesota v. Minnesota DNR et al, (2017 Order) and as
more fully set forth herein, the DNR finds that the administrative record supports denial of Lake
Elmo’s request to increase the volume of water allowed to be appropriated under the Permit 1961-
1031.
1. The City of Lake Elmo (Lake Elmo) holds Permit 1961-1031. Permit 1961-1031
authorizes Lake Elmo to appropriate 260 million gallons of water per year for public water supply.
In 2020, the City of Lake Elmo (Lake Elmo) reported water use of 308 million gallons, and in
2021 reported water use of 395.3 million gallons. In both years, Lake Elmo’s water use exceeded
the volume of water authorized by Permit 1961-1031 (260 million gallons per year).
2. Prior to 2020, Lake Elmo met its excess water needs by purchasing water from the
City of Oakdale (Oakdale). At some point between 2018 and 2019 Lake Elmo terminated its
agreement with Oakdale.1 Finding of Fact: Water Appropriation No. 1961-1031, at ¶ 8 (May 1,
2021) (2021 FOF) (Attached hereto as Exh. A and made a part hereof). Lake Elmo staff verbally
advised DNR staff that the cost of obtaining water from Oakdale was an important factor in
deciding to terminate the agreement.
3. The exceedance set forth in Paragraph 1 was attributed to population growth, a
decision to move existing homes off alternative water supply sources and to connect them to Lake
Elmo’s municipal water system. Id.
4. Five hundred forty (540) million gallons of water per year is the volume of water
that Lake Elmo believes it needs to comply with the requirements of the Metropolitan Council’s
regional system plan growth requirements and to supply water to homes that will be moved from
1 In 2018 Lake Elmo purchased 64.6 million gallons of water from Oakdale. 2021 FOF, at ¶ 8.
2
private wells and then be connected to the Lake Elmo’s municipal water system due to the
presence of per- and polyfluoroalkyl substances (PFAS) pollution in the water supplied by
domestic wells in these homes. See City of Lake Elmo v. Metropolitan Council, 685 N.W. 2d 1
(Minn. 2004) (directing the City of Lake Elmo to conform its comprehensive plan to the
Metropolitan Council’s system plan) and 2021 FOF, at ¶¶ 9 and 10.
5. In 2020, Lake Elmo requested a permit amendment that increased the volume of
water it could appropriate under Permit 1961-1031 from 260 million gallons of water per year to
540 million gallons per year (2020 Amendment Request) to service those areas previously
supplied with water by the City of Oakdale and to accommodate its anticipated growth. 2021
FOF, at ¶ 4. Also in 2020, Lake Elmo requested a permit amendment to Permit 1961-1301
authorizing it to construct a new water supply well (Unique Well No. 847064 – well No. 5). The
purpose of this request was to close Unique Well Number 208448 – (Well No. 1), because Well
No. 1 sat over groundwater polluted by PFAS. Id. at ¶¶ 1 and 2. This amendment would allow
Lake Elmo to appropriate the same volume authorized in Permit 1961-1031 without having to
appropriate from Well No. 1 (the well siting over the PFC Plume). Id.
6. On May 1, 2021, the DNR issued the 2021 FOF denying Lake Elmo’s request to
increase the volume of its appropriation authorized under Permit 1961-1031. Id. at ¶¶ 13 through
15 and Order. In that same order the DNR granted Lake Elmo’s request to close Well No. 1 and
open Well No. 5. This allowed Lake Elmo to appropriate the full volume of water authorized by
Permit 1961-1031 without risk that its municipal water source would be contaminated by PFAS.
Id.
7. On May 25, 2021, the DNR sent a letter to the Lake Elmo City Administrator
notifying Lake Elmo that it was appropriating water in exceedance of the volume authorized in
Permit 1961-1031. DNR advised Lake Elmo that, in accordance with the 2017 Order, DNR could
not increase the volume of the appropriation authorized by Permit 1961-1031 and that Lake Elmo
should look at other strategies to meet its demand for water. Letter from Randall Doneen DNR
Conservation Assistance and Regulations Section Manager to Kristina Handt, City
Administrator, City of Lake Elmo, (May 25, 2021).
8. On May 12, 2022, Lake Elmo submitted another request to the DNR to amend
Permit 1961-1031 by increasing the volume of water authorized by Permit 1961-1031 from 260
million gallons per year to 540 million gallons of water per year. (2022 Amendment Request).
9. The 2022 Amendment Request for an increased appropriation was identical to the
request made in Lake Elmo’s 2020 Amendment Request in terms of the increased volume request.
10. The 2022 Amendment Request was initiated because Lake Elmo’s 2020 water use
exceeded the volume authorized by Permit 1961-1031. This exceedance was caused by population
growth and Lake Elmo’s decision to cease purchasing water from the City of Oakdale. The City of
Oakdale’s 2015 water supply plan estimated that City of Lake Elmo purchased 28.5 million gallons
of water per year from the City of Oakdale. In 2019 Lake Elmo reported that they had purchased
64.6 million gallons of water from the City of Oakdale in 2018. In 2021, the City of Lake Elmo did
not purchase water from the City of Oakdale. Lake Elmo also estimates that it will need this volume
of water to meet the requirements of the Metropolitan Council’s regional system plan growth
requirements. See City of Lake Elmo v. Metropolitan Council,685 N.W. 2d 1 (Minn. 2004)
(directing the City of Lake Elmo to conform its comprehensive plan to the Metropolitan Council’s
3
system plan). The City of Lake Elmo water supply plan, dated April 21, 2020, indicates additional
water supply demands up to 540 million gallons per year by 2025.
11. Lake Elmo also stated it needed an increase in its permit volume to supply water
through the municipal system to residents currently using private wells sitting over the PFAS plume.
12. The State of Minnesota’s 850-million-dollar settlement with 3M in State of
Minnesota v. 3M (3M Settlement), requires the State to use the settlement funds to first “enhance
the quality, quantity, and sustainability of drinking water in the East Metropolitan Area (“East
Metro”)” with a goal of ensuring clean drinking water in sufficient supply for residents and
businesses in the East Metro. Lake Elmo is expressly named in the settlement as one of the cities
whose drinking water needs are to be addressed through the settlement.
13. In furtherance of the 3M Settlement, the State developed a Conceptual Drinking
Water Supply Plan (Water Supply Plan) with the cities in the East Metro, including Lake Elmo.
One purpose of the Water Supply Plan was to identify methods to supply safe drinking water to
these cities in a manner that allows growth while meeting the requirements of the 2017 Order and
the long-term water needs of the East Metro. The State is in ongoing discussions with these cities
about how to implement the Water Supply Plan, including discussions with affected cities on how
to supply safe drinking water in a manner that complies with the 2017 Court Order. In the interim,
the DNR has granted Lake Elmo a permit to relocate one of its municipal water supply wells, that
sat over the PFAS plume to a new location outside of the plume. See ¶ 6. The Water Supply Plan
also includes steps to provide municipal connections or point of entry water treatment for affected
homes with private wells.
14. The 2017 Order issued by the Ramsey County District Court in White Bear Lake
Restoration Association ex. Rel. State of Minnesota v. Minnesota DNR et. al. requires all
groundwater appropriation permits within a 5-mile radius of White Bear Lake to comply with the
applicable portions of Minn. Stat. § 103G.285. Minnesota Statute § 103G.285 subd. 3 requires
DNR to set a protective elevation for water basins, below which an appropriation is not allowed.
The Court also directed the DNR to set a collective annual withdrawal limit for White Bear Lake.
2017 Order, at 137.
15. Some wells that appropriate the water authorized under Lake Elmo’s water
appropriation permit (Permit 1961-1031) are within the 5-mile radius set forth in the 2017 Order,
therefore Lake Elmo’s water appropriation is subject to the restrictions contained therein.2
16. In December of 2016 the DNR set a protective elevation for White Bear Lake at
922.0 feet above mean sea level to balance the ecosystem benefits of fluctuating lake levels with
the negative recreational impacts of lake levels at the lower end of the lake’s historic range.
17. Setting and implementing a collective annual withdrawal limit for White Bear Lake
involves determining the volume of water that can be taken from the Lake at a level that will
maintain the protective elevation and converting that surface water volume to a groundwater
2 Both Stillwater and Saint Paul Regional Water Services have only one well within the 5-mile radius. The permits for
both entities were amended to comply with the requirements of the 2017 Order. In fact, as evidenced by the testimony
at trial, Saint Paul Regional Water Services only has one ground water well in its entire water system. It appropriates
water from that well only to flush its systems and in emergencies yet Saint Paul Regional Water Services is subject to
all of the conditions imposed on communities with groundwater apparition wells within a 5-mile radius of White Bear
Lake.
4
volume to determine the volume of water that can be taken from the aquifer while maintaining
the protective elevation. That number is then used to determine the volume of water available for
appropriation to the communities with wells within the 5-mile radius of White Bear Lake. To
undertake these calculations the DNR developed a state-of-the-science groundwater model using
best available data. DNR used its groundwater model to understand the appropriation levels that
would be necessary to assure that White Bear Lake’s protective elevations were maintained. The
DNR determined that a direct withdrawal of water greater than 314 MGY from White Bear Lake
would cause the lake to periodically drop beneath the protective elevation under normal climatic
conditions. Current groundwater use in the area that affects lake levels is equal to an approximate
direct withdrawal from White Bear Lake of 585 MGY. This analysis includes water use from
wells that affect the lakes elevation both inside and outside of the Court ordered 5-mile radius.
Public water suppliers, including Lake Elmo, would need to limit appropriations to a volume
equivalent to 55 gallons per capita per day at 2020 population levels to achieve the collective
annual withdrawal limit necessary to maintain White Bear Lake’s protective elevation (922 feet
above mean sea level).3 This analysis assumed lower priority users would not continue to
appropriate water in the North and East Metro. Granting Lake Elmo’s amendment request to
increase its appropriation to 540 million gallons per year would increase the total water withdrawn
from the lake and cause lake levels to drop below the protective elevation even more than it would
fall under current conditions. In fact, any increase in groundwater use within the 5-mile radius of
White Bear Lake would contribute further to the current exceedance of the collective annual
withdrawal limit.
18. Lake Elmo’s request, if granted, would double Lake Elmo’s permitted appropriation
volume. Granting Lake Elmo’s water appropriation, when the data indicates that doing so would
only exacerbate the appropriation pressures on the aquifer and White Bear Lake, would increase the
burden on the other appropriators within the five-mile radius. Granting Lake Elmo’s permit request
would be inequitable to other communities within the five-mile radius that could also make valid
arguments for a substantial increase in their appropriation. It would also mean that Lake Elmo
would be relieved of the obligation to participate in a regional solution to address the water
challenges in the North East Metro in accordance with the 2017 Order while increasing the burden,
including the financial burden, on those communities not receiving an increased appropriation to
either find a solution or reduce their water use. Finally, authorizing the proposed increase in
groundwater use by Lake Elmo prior to identification of a regional solution would elevate Lake
Elmo’s water need above that of other community water suppliers in the area.
19. On April 26, 2022, in response to DNR’s determination that, to comply with the
court’s mandated collective annual withdrawal limit, it would need to limit water appropriations
to public water suppliers and would have to set their level of appropriation at 55 gallons per capita
per day, the Ramsey County District Court issued a statement saying “…nothing in the Court’s
orders requires the DNR to modify existing municipal water appropriations from the Prairie du
Chien aquifer to limit the total volume of permitted appropriations to the equivalent of 55 gallons
per capita per day. For clarity, nothing in the Court’s prior orders prohibits municipalities with
water appropriation permits from furnishing water to non-domestic users such as hospitals, grocery
stores, public services or other commercial or industrial uses”. However, the Ramsey County
District Court has not provided any clarity to DNR on how it is to achieve the requirement of the
Court’s 2017 Order to implement the collective annual withdrawal limit short of reducing the
3 A 55 gallons per capita per day demand is consistent with Minnesota’s statewide residential per capita per day
demand.
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volume of water appropriations in accordance with the water allocation hierarchy set forth in Minn.
Stat. § 103G.261. Nor has the Ramsey County District Court excused DNR from complying with
the requirement to limit water appropriations to the collective annual withdrawal limit necessary
to assure White Bear Lake water levels stay at or above the protective elevation. 2017 Order at
137.4
20. Based on the analysis contained in Paragraph 17, DNR concluded that permitting an
increase in Lake Elmo’s appropriation, or any appropriation within the 5-mile radius of White
Bear Lake, would result in cumulative appropriations greater than the collective annual
withdrawal limit for White Bear Lake.
21. In its 2021 Water Conservation Report Lake Elmo reported a residential water use
of 104 gallons per capita per day. This is well above the Court ordered residential water use goal
of 75 gallons per capita per day and total per capita water use of 90 gallons per day. 2017 Order,
at 138. The consumptive use level is also greater than the 55 gallons per capita per day required
to maintain the collective annual withdrawal limit for White Bear Lake. See ¶ 19.Lake Elmo has
a pending contested case hearing contesting the permit amendments required by the 2017 Order
including the residential water use goal of 75 gallons per capita per day and total per capita water
use to 90 gallons per day. Because of the pending contested case hearing none of the permit
amendments ordered by the court in 2017 are currently in effect.
22. The Lake Elmo 2021 Water Conservation Report reports Lake Elmo spent $240,932
on water conservation efforts for a total estimated on-going water savings of 1,219,619 gallons.
23. Through conversations with the City of Lake Elmo, the DNR became aware that the
city is having difficulty pressurizing their water supply system and thus has been unable to store
sufficient emergency water in its water storage tower. This is likely because the existing three
wells are not able to pump at the authorized instantaneous rate of 750 gpm (Well #2), 1,250 gpm
(Well #4) and 1200 gpm (Well #5). DNR determined that pressurizing the water supply system
to enable storage in the water tower did not require an increased appropriation, rather a new well
was needed to pressurize the system to accomplish storage in the water tower. DNR asked why
Lake Elmo did not request an additional well to address the water tower issue in its 2022
Amendment Request. Lake Elmo advised DNR it as not ready to request an additional well
because it had not yet determined the location for the well.
Conclusions
1. As set forth in Paragraphs 14 and 16 through 21, and to assure that existing water
appropriations are in compliance with the requirements of Minn. Stat. § 103G.287, the 2017 Order
required the DNR, among other requirements, to “set a collective annual withdrawal limit for White
Bear Lake”, to set a 923.5 foot trigger elevation for implementation of the 922 foot White Bear
Lake protective elevation, to refrain from issuing any new or increasing existing appropriation
permits within a 5-radius of White Bear Lake until DNR had fully complied with setting a
collective annual withdrawal limit, and to refrain from issuing new or amended water appropriation
permits that would exceed the collective annual withdrawal limit and result in “draining of the
lake”. 2017 Order at 136 – 139. For each day that DNR fails to comply with the provisions of
4 The DNR is subject to sanctions of $1,000 per day for each day it “is out of compliance with . . . [the 2017] Order.
2017 Order, at 139.
6
the 2017 Order the DNR is subject to a fine of $1,000 per day.
2.As set forth in paragraph 17, the elevation of White Bear Lake is adversely impacted
by appropriations made both within and outside of the 5-mile radius established by the Court.
3.Lake Elmo has permitted wells within 5 miles of White Bear Lake.
4.Approval of the requested increase in the authorized volume of DNR Water
Appropriation Permit No. 1961-1031 to 540 million gallons has the potential to impact the Prairie
du Chien – Jordan Aquifer level and would result in collective annual appropriations greater than
the collective annual withdrawal limit. See, ¶¶ 15 and 20. Thus, amending Permit 1961-1031 to
double its authorized appropriation volume from 260 million gallons of water per year to 540
million gallons of water per year would violate the 2017 Order.
5. Authorizing the proposed increase in appropriation requested by Lake Elmo would
further contribute to reductions of White Bear Lake levels below the protective elevation of 922.0
feet above mean sea level and thus be in violation of Minnesota Statutes § 103G.285 subd. 3.
6.Any “findings of fact” that might properly be termed “conclusions” and any
“conclusions” that might properly be termed “findings of fact” are hereby adopted as such.
Order
Based on the substantial evidence in the administrative record on file at the DNR and the
requirements of the 2017 Order, DNR makes the following ORDER:
1.The City of Lake Elmo’s request to increase its permitted volume of water from 260
million gallons of water per year to 540 million gallons of water per year under Permit No.
1961-1031 is hereby denied.
Approved and adopted this 27th day of January, 2023
STATE OF MINNESOTA
DEPARTMENT OF NATURAL RESOURCES
_______________________________
By: Randall Doneen
Conservation Assistance and Regulation Section Manager
Division of Ecological and Water Resources
Department of Natural Resources
Appendix
FINDINGS OF FACT
Water Appropriation Permit No. 1961-1031
DATE: 05-01-2021
Permit No.: 1961-1031
Applicant Name: City of Lake Elmo
Name of Reviewer: Joe Richter, DNR Region 3 Water Appropriations Hydrologist
Recommendation: Based on the information in the administrative record and on file
at the Minnesota Department of Natural Resources (DNR) Division of Ecological and
Water Resources the DNR finds that there is substantial evidence in the record
supporting the authorization of the use of Installation No. 5 (Unique Well Number
847064) as a replacement well for Installation No. 1 (unique well number 208448). The
DNR also finds that, in accordance with the August 30, 2017 Ramsey County District
Court Order in White Bear Lake Restoration Association ex rel State of Minnesota v.
Minnesota DNR et. al, (2017 Order)1 and the substantial evidence contained to the
administrate record that Lake Elmo’s request to increase the authorized volume of DNR
Water Appropriation Permit No. 1961-1031 (Permit No. 1961-1031) from 260 million
gallons of water per year to 540 million gallons of water per year should be denied. In
support of this recommendation the DNR makes the following:
Findings of Fact
1.On July 5, 2020, the City of Lake Elmo constructed a new municipal water supply
well Unique Well Number 847064 (Installation No. 5) to serve their public water supply system.
The reason for adding Installation No. 5 to the City of Lake Elmo water supply system was to
replace Unique Well Number 208448 (Installation No. 1). Water appropriated from Installation
No. 1 is appropriated for public water supply in accordance with existing water appropriation
permit no. 1961-1031.
2.Installation No. 1 is located within an area where groundwater is polluted by a
perfluorinated chemicals (PFCs or PFAS)2 pollution plume that originated with the disposal of
PFC/PFAS by the 3M Company. In 2019, the DNR was informed that the water that was
drawn from Installation No. 1 contains concentrations of PFC/PFAS that exceeded the
Minnesota Department of Health (MDH) state health based values for drinking water.
Consequently, the City of Lake Elmo could no longer use water from Installation No. 1 for
municipal water supply.
3.On January 17, 2020, the DNR issued “Well Construction – Preliminary
1 The 2017 Court Order was affirmed in significant part by the Minnesota Court of Appeals on remand from the
Minnesota Supreme Court in White Bear Lake Restoration Assoc. Ex Rel. State v. DNR, 2020 WL 7690268 (Minn. Ct.
Ap. 2020).
2 PFCs are also known as perfluoroalkyl substances or PFAS. See Minnesota Department of Health, Minnesota Public
Health Data Access: Perfluoroalkyl substances (PFAS) available at
https://data.web.health.state.mn.us/biomonitoring_pfc#:~:text=PFAS%20are%20common%20chemicals,%2C%20stai
ns%2C%20grease%20and%20water (last visited April 21, 2020).
Assessment” 2019-3474 assigning a moderate risk to the construction of the City of Lake Elmo
Installation No. 5 due to a risk of total wellfield drawdown potentially affecting several
domestic wells. Installation No. 5 (Unique Well Number 847064) is constructed in an area
where the groundwater is not contaminated by PFCs/PFAS pollution.
4. On December 8, 2020, the DNR received a request from the City of Lake Elmo to
amend Permit No. 1961-1031 by removing Installation No. 1 from the permit and replacing it
with Installation No. 5. The City of Lake Elmo also requested an increase in the authorized
volume of water it could appropriate under Permit No. 1961-1031 from 260 million gallons of
water per year to 540 million gallons of water per year. The 2020 City of Lake Elmo reported
water use of 308 million gallons of water surpassed the authorized volume of water of 260
million gallons per year.
5. The 2017 Order prohibits the DNR from issuing groundwater appropriation
permits in the vicinity of White Bear Lake3 until it understands the cumulative impact of said
appropriations on White Bear Lake and the Prairie du Chien-Jordan Aquifer. The DNR is further
precluded from authorizing groundwater appropriation permits within a 5-mile radius of White
Bear Lake unless said appropriation permits comply with the sustainability standard set forth in
Minn. Stat. § 103G.287, subd. 5. See 2017 Order at 137 – 138.
6. The City of Lake Elmo is within the 5-mile radius set forth in the 2017 Order.
7. The City of Lake Elmo’s amendment request to remove Installation No. 1 from
Permit No. 1961-1031 and replace it with Installation No. 5 to move its water appropriation site
out of the PFAS contamination plume was initiated to ensure the safety of the public drinking
water supply. This portion of the amendment request, standing alone, will not increase the
existing appropriation volume authorized by Permit No. 1961-1031 and thus is not in violation
of the 2017 Order.
8. The City of Lake Elmo’s request to amend Permit No. 1961-1031 to increase the
authorized volume of appropriation from 260 million gallons per year to 540 million gallons per
year was initiated because the 2020 water use of the City of Lake Elmo exceeded the amount of
water authorized by Permit 1961-1031. This exceedance was caused by population growth,
moving existing homes off alternative water supply sources and connecting them to the City of
Lake Elmo’s municipal water system, and the City’s decision to cease purchasing water from the
City of Oakdale. The City of Oakdale’s 2015 water supply plan estimated that City of Lake Elmo
purchased 28.5 million gallons of water per year from the City of Oakdale. On November 11,
2019, the City of Lake Elmo informed the DNR that they purchased 64.6 million gallons of water
from the City of Oakdale in 2018.
9. Five hundred forty (540) million gallons of water per year is the volume of water
that the City of Lake Elmo estimates will be needed to allow it to meet the requirements of the
Metropolitan Council’s regional system plan growth requirements. See City of Lake Elmo v.
Metropolitan Council, 685 N.W. 2d 1 (Minn. 2004)(directing the City of Lake Elmo to conform
its comprehensive plan to the Metropolitan Council’s system plan) and to supply water to
domestic homes that will be connected to the City of Lake Elmo municipal water system by the
presence of PFAS pollution in the water supplied by the domestic wells of the homes.
10. The State of Minnesota and 3M settled settlement in State of Minnesota v. 3M,
3 White Bear Lake is a public water of the State of Minnesota located in Ramsey County Minnesota and official
designated as public water number 82013700 on the public waters inventory (PWI) for Ramsey County.
places a high priority on using the $800 million settlement to “enhance the quality, quantity
and sustainability of drinking water in the East Metropolitan Area” including the City of Lake
Elmo. Thus the State in conjunction with the cities in the East Metropolitan Area, including
the City of Lake Elmo, are exploring how to supply safe drinking water to the City in a manner
that would allow growth while meeting the requirements of the 2017 Order. These
discussions are on-going and a solution has yet to be identified.
11. In order to complete the individual and cumulative analysis of groundwater use
as directed by the Court in the 2017 Order the DNR developed a state-of-the-science
groundwater flow model using best available data. The DNR used this model to analyze the
increased appropriation request and its potential impact on White Bear Lake. The DNR’s
analysis indicates that water levels in White Bear Lake, under existing average groundwater
use, would fall below the lake’s protective elevation in 6 of the last 15 years. This analysis
assumed similar climatic conditions. The DNR’s analysis also showed that pumping larger
volumes of water from the Prairie du Chien/Jordan aquifer would lead to incrementally lower
water levels in White Bear Lake.
12. Approval of the requested increase in the authorized volume of DNR Water
Appropriation Permit 1961-1031 to 540 million gallons has the potential to impact the Prairie du
Chein aquifer and White Bear Lake. Additionally the appropriation would be within a 5-mile
radius of White Bear Lake. Thus, issuing an amendment to DNR Water Appropriation Permit
1961-1031 increasing the authorized volume to 540 million gallons of water per year would be
in violation of the 2017 Order.
Conclusions
13. Authorizing the replacement of Installation No. 1 with Installation No. 5 does not
violate the 2017 Order because it is not a new or increased appropriation.
14. Replacement of Installation No. 1 with Installation No. 5 will protect the public
health and safety by allowing the City of Lake Elmo to stop pumping groundwater for public
drinking water supply from a contaminated area and allow pumping from an area where the
groundwater is not contaminated.
15. Authorizing and increase the City of Lake Elmo’s permitted appropriation from
260 million gallons a year to 540 million gallons of year has the potential to negatively impact
that the elevation of White Bear Lake. Additionally said appropriation is prohibited by the 2017
Order.
Order
Based on the substantial evidence in the administrative record on file at the DNR and the
2017 Order it is hereby ordered as follows:
1. The City of Lake Elmo’s request to replace Installation No. 1 with Installation No. 5
to appropriate water for municipal water supply under Permit No. 1961-1031 is
hereby GRANTED.
2. The City of Lake Elmo’s request to increase its permitted volume of water from
260 million gallons of water per year to 540 million gallons of water per year is
hereby DENIED.
Date: May 1, 2021
By: _____________________________
NAME: Joseph G. Richter
Title: Central Region South District Appropriation Hydrologist
Minnesota Department of Natural Resources
3880 Laverne Avenue North • Lake Elmo • Minnesota 55042
Phone: (651) 747-3900 • Fax: (651) 747-3901 • www.lakeelmo.org
February 21, 2023
Commissioner Sarah Strommen
MN Department of Natural Resources
500 Lafayette Road
St. Paul, MN 55155
Re: Water Appropriation Permit Number 1961-1031
Dear Commissioner Strommen:
The City of Lake Elmo formally objects to the DNR’s denial of its request to amend its Water
Appropriation Permit Number 1961-1031 to increase the appropriation to 540 MGY and demands
a hearing. We believe the denial of the amendment is arbitrary and capricious and not supported
by substantial scientific evidence to support the conclusions. The City requests a hearing under
Minnesota Statutes section 103G.311, subdivision 5, regarding its request to increase its permit
from 260 MGY to 540 MGY.
The City is a public authority that is not required to submit a bond or security under Minnesota
Statutes section 103G.311, subdivision 6. To the extent that a bond or security may be considered
necessary, the City hereby promises to pay the appropriate hearing costs under section 103G.311,
subdivision 7, if the order is affirmed without material modification.
Sincerely,
Charles Cadenhead
Mayor, City of Lake Elmo
Cc: Randall Doneen
Manager, Conservation Assistance and Regulations Section
Department of Natural Resources
500 Lafayette Road
St. Paul, MN 55155