2018.03.05 CC Minute - Laserfiche WebLink

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Hugo City Council Meeting Minutes for March 5,2018 Page 8 of 10 consider. With little effort, a simple plan could be drafted to meet the conditions to convert to surface water, phase per-capita water use, and collaborate with others. Bear elaborated on what he felt was the hardest condition for the City to comply with; implementing a residential irrigation ban that would include an enforceable mechanism. The City could expect widespread non-compliance, and there was a fairness issue. He felt the ban is arbitrary and will bring up questions that are unanswerable. He explained the City was required to provide erosion control according to its SWWP, and to that, the City will need to irrigate. The language is full of loopholes and encourages drilling of small private wells. A watering ban would make no difference in the impact of White Bear Lake since the latest science showed that Hugo's permits have no impact. Additionally, the City's has an ongoing strategy to eliminate the largest non-residential irrigators from the groundwater supply by using stormwater, but Hugo gets no credit for it, and there is no incentive to keep doing the work the City has done. In Bear's opinion, the order and permit conditions were full of unintended consequences. Bear explained there was an option to appeal the permit conditions by requesting a contested case hearing. This would be the only chance to argue the appropriations permit language, and delay implementation of the irrigation ban while the trial proceeds. If the City ignored the permit conditions, there were a lot of unknowns. If found in violation, it could argue the enforcement action, but not challenge the permit conditions. The City could comply with it by writing an ordinance to ban irrigation that would set up future conflicts between the City and residents. He concluded by saying if the City chooses to appeal the permit amendments, it needed to be done before March 30. The Council asked questions regarding an appeal, and City Attorney Dave Snyder responded by reviewing the three options. He said he was not inclined to recommend that the City appeal. The permit conditions could be overturned at the appellate level since they are not the product of agency decision making but instead judicial. The prospect of cleaning up the mess is more appealing and more likely than a victory on the merits. Council also questioned whether Hugo should work with other cities. Snyder responded that it is likely other cities will be appealing, but if Hugo did not appeal and other cities did and won, Hugo could not expect relief under its own permit. There was discussion about the DNR's role in this. If the DNR really wanted these conditions, they would have imposed them a long time ago. This could help the DNR's appeal since enforcing these conditions could cause a public relations nightmare that would fall back on the plaintiffs. The Council talked about the time and effort given to this lawsuit already knowing the City is being responsible in water reuse and conservation. They realized the City has a responsibility to the residents but did not want to be brought into the DNR's appeal process. Council questioned Snyder on what he felt an administrative law judge would rule on. Snyder explained the court would need to decide whether the DNR can impose it and whether or not is it arbitrary, capricious, or irrational. There may be the possibility of delaying it with the appellate process while the case works its way through the Court of Appeals. If the permit conditions are not appealed and finalized, the question of enforcement is not really challengeable.