If you are interested, please contact us.

These are my overall impressions from the summit:

Governor Dayton clearly understands the urgency of the situation.  He wants significant action, on multiple fronts, before the locks reopen on the Mississippi River in April 2012.  The DNR received clear marching orders and the DNR’s lead, Tim Schlagenhaft, was delighted.  Senator Klobuchar also demonstrated that she understands the urgency of the situation.  She wisely counseled that Minnesota develop a “clear ask” of Congress and the Administration so that we get more timely federal cooperation and action.  Governor Dayton agreed that we need to take action on several fronts at once, and we may need to employ methods that are not well tested since we do not have the luxury of time to thoroughly study them.

Next steps.

Governor Dayton directed the DNR to develop a prioritized list of actions within the next few weeks.  MNTU has been invited to participate in that process.  The Governor intends to convene a third meeting in December to settle on the priority actions to take.  Developing the “clear ask” of Congress and the Administration is one outcome we hope will come out of the December 2011 meeting.

Minnesota’s Asian Carp Action Plan.

This fall the ad hoc task force led by the MNDNR and National Parks Service revised the action plan which it had been formulating for several months.  It is now a very good draft Asian Carp Action Plan.  Click to view the Asian Carp Action Plan .  The coalition which we have been working with since May has been growing and we released a critique of the Action Plan which we discussed at the Governor’s summit on Nov. 18.  Click to view the coalition’s Nov 18 2011 Letter to Dayton re Asian carp plan & summit.

Minnesota Trout Unlimited’s efforts to prevent the introduction and spread of AIS.

Minnesota Trout Unlimited has been working for many years to prevent the introduction and spread of aquatic invasive species into Minnesota waters.  For years our efforts focused primarily upon Lake Superior and the Great Lakes basin.  This is not just because Lake Superior and the Great Lakes are perhaps the greatest single coldwater fishery in the country, but also because the Great Lakes shipping has been the major source of aquatic invasive species introductions impacting all Minnesota waters.  Zebra mussels, round gobies, and the VHS virus are just some of the many invasive species brought to our shores via Great Lakes shipping activities.

For years we, and partners such as the Izaak Walton League, the Minnesota Center for Environmental Advocacy, and Clean Water Action, have fought for the adequate regulation of ballast water discharges from all Great Lakes shipping vessels.  We continue fighting for adequate ballast water discharge standards, but ballast water is not the only source of AIS in the Great Lakes and Minnesota.  Asian carp highlight the threat posed by aquaculture, especially via the Mississippi River.

Trout Unlimited recognized this threat several years ago (especially via the Chicago Sanitary and Ship Canal) and has been advocating on several fronts to keep Asian carp out of the Great Lakes basin.  This spring we began working closely with a great group of partners focused on keeping Asian carp out of the upper Mississippi River basin as well.  The work by Audubon Minnesota, Clean Water Action, Friends of the Mississippi River, the Izaak Walton League of America, Minnesota Center for Environmental Advocacy, Minnesota Conservation Federation, Minnesota Trout Unlimited and the National Wildlife Federation, is now being shared and expanded by the other partners who joined in the November 18 letter.  Momentum is growing.  We will not rest until our state, local and federal governments take significant action.

 The message for your senators is simple:

Vote “No” on the Barrasso/Heller amendment to H.R. 2354

Additional points you could make: 

• You are their constituent
• You are a sportsman/sportswoman and expect your senator to restore Clean Water Act protections to wetlands and streams
• Hunters and anglers rely on clean water to ensure enjoyable and productive hunting and angling, and will be directly impacted by destruction or pollution of wetlands and streams
• The proposed agency guidance does not – and cannot – limit exemptions for normal activity related to agriculture, forestry and mining that have been in the Clean Water Act since 1977.  Don’t believe the misguided claims of some of the associations representing these industries
• This dirty water amendment would maintain the “new status quo” of accelerating loss of wetlands, stream impairment and regulatory confusion,  which was created by two poor court decisions
• The proposed guidance and rulemaking will increase clarity and efficiency for agencies, farmers and businesses while keeping Clean Water Act jurisdiction well within its historical bounds 

Contact Senator Amy Klobuchar:

 Toll Free Number: 1-888-224-9043

Washington, DC Office - 202-224-3244

Metro Office  612-727-5220

 Southern Office (Rochester)  507-288-5321

 Northwestern & Central Office (Moorhead)  218-287-2219

 Northeastern Office (Virginia)  218-741-9690

Link to e mail form:  http://www.klobuchar.senate.gov/emailamy.cfm?contactForm=emailamy&submit=Go

 Contact Senator Al Franken:

 DC Office  (202) 224-5641

 Duluth Office   (218) 722-2390

 Saint Cloud Office  (320) 251-2721

 Saint Paul Office  (651) 221-1016

 Saint Peter Office  (507) 931-5813

 Link to e mail:  http://www.franken.senate.gov/?p=email_al

 Background Information:

 This latest attempt to undermine the Clean Water Act at the expense of hunters and anglers is part of an onslaught which began early this year.  Since February there have been a series of attempts in Congress to stop the Army Corps of Engineers and EPA from conducting rulemaking to restore Clean Water Act protection for many wetlands and streams which were curtailed by two harmful and confusing decisions by an activist Supreme Court in Rapanos (2006) and SWANCC (2001). 

The following four background documents are attached: 

• Barrasso Heller Letter – 11-16-2011

• Clean Water Act Guidance Explanation – July 2011

• Economics of H & F -updated 11-14-11

• July 2011 Clean Water Guidance Sportsmen’s Letter 

• TU et al CWA Guidance Comments – 7-31-2011

 Additional documents may be posted this evening on the Minnesota Trout Unlimited website: http://mntu.org/

While we strongly disagree with the DNR’s actions, we are encouraged by the many passionate and insightful public comments submitted in defense of the Poplar River and good public governance.  Approximately 200 commenters, some representing thousands of citizens, urged no more special privileges at the expense of the resource.  It also appears that the Corporation is beginning to hear the rising public outcry against such an unnecessary destruction of a public resource.  We have posted just a few of these public comments among the Poplar River documents. Those by Dr. Spangler very succinctly express the frustration many of us feel.

The Corporation says that it is now working toward finding another water source for artificial snowmaking.  They may need our continuous encouragement to stay focused on taking concrete action to make that switch not in 3 or 5 years, but in 2012.

Two key amendments were voted on.

The Bishop amendment, which would have permitted states to impose more protective operational requirements, failed on a vote of 174 to 225 with 34 non-votes. We wanted a “yes” vote. Here is how the Minnesota delegation voted:

AYES: Paulsen, Ellison, McCollum, Walz
NOES: Cravaack, Kline
NV: Bachmann, Peterson

A summary of the amendment (H.AMDT.861) can be found on this Library of Congress webpage: http://thomas.loc.gov/cgi-bin/bdquery/D?d112:6:./temp/~bdy7iU::

The Slaughter amendment (striking the whole ballast water title) failed on a vote of 161 to 237 with 35 non-votes. We most definitely wanted a “yes” vote. Here is how the Minnesota delegation voted:

AYES: Paulsen, Ellison, McCollum, Walz
NOES: Cravaack, Kline
NV: Bachmann, Peterson

A summary of the amendment (H.AMDT.862) can be found on this Library of Congress webpage:

http://thomas.loc.gov/cgi-bin/bdquery/D?d112:7:./temp/~bdvYEY::

It would be helpful to follow up with your representative to either thank them or hold them accountable for their votes. We need Minnesota members of Congress better educated and on board with protecting Minnesota waters and resources when the full bill is voted on next week.

Thanks again for your efforts to prevent more aquatic invaders from reaching Minnesota waters and the Great Lakes.

A bad bill is being considered in Congress as early as tomorrow, Friday, November 4. It would derail progress in the effort to protect Lake Superior and other Great Lakes from aquatic invasive species introduced in the ballast water tanks of foreign ships and spread by ballast water discharges of intra Great Lakes vessels.

We need your help today – contact your U.S. Representative and urge he or she defeat this bad bill.

Context:

Since 2007 Minnesota Trout Unlimited has been very actively working to fight the introduction and spread of aquatic invasive species (“AIS”) in Lake Superior and the other Great Lakes.  Ballast water discharges from both ocean going and intra Great Lakes ships are a primary source of AIS such as zebra mussels, VHS, gobies, and dozens of other invasive species which may ultimately spread to all Minnesota waters.   MNTU has been working with various partner groups to support the progress being made by Minnesota and other Great Lakes states, and to prevent recent attempts to undermine protections for our waters.

Today we learned that a bill which weakens the regulation of Great Lakes ballast water discharges (protecting shipping industry to the detriment of fisheries, the environment, and the public) has been added to the US Coast Guard Reauthorization Bill, HR 2838.  HR 2838 may be up for a vote on the floor of the US House as early as tomorrow!  We now need your calls to your U.S. Representatives urging that Title VII of HR 2838 be removed from the bill, or if that fails they vote “no” on the whole bill.

While this is very short notice, it is unavoidable given today’s surprise procedural move.

We need your calls to your U.S. Representatives urging that Title VII of HR 2838 be removed from the bill, or if that fails they vote “no” on the whole bill.

How to locate and contact your Representative

You can quickly locate your representative’s name and contact information through this link (there are others as well): http://www.house.gov/

Some detail:

HR 2838, the Coast Guard and Maritime Transportation Act of 2011, is being amended to include provisions which will derail progress on cleaning up ship ballast tanks and stopping aquatic invasive species introductions.  Aquatic invasive species, such as zebra mussels and round gobies, are one of the most significant environmental threats to the health of Lake Superior and the other Great Lakes. Many of these invaders will sooner or later be spread to Minnesota’s inland lakes and rivers.  Invasive species foul beaches, wreak havoc on fisheries, clog water intake valves of cities and utilities, harm fish and wildlife, and cost the hundreds of millions of dollars each year.

The House of Representatives now appears set to vote as early as tomorrow on the Commercial Vessel Discharges Reform Act of 2011 (Title VII of HR2838). This bill imposes a weak standard which is inadequate to prevent more AIS introductions and it preempts stronger state rules.  HR 2838 does not protect Lake Superior, other Great Lakes, Minnesota’s inland waters, or our nation’s waters; instead it protects the shipping industry at Minnesota’s expense.  The bottom of this message contains more details.  A coalition letter which MNTU had a hand in producing can be found under the Conservation tab on the mntu website:  http://www.mntu.org/ or click here. Look for the November 2, 2011 letter in the “Ballast documents” section.  It contains greater detail about the provisions.

Talking Points for Calling or Writing Your Legislator:

• I am your constituent
• I am calling/writing to urge [insert Member's Name] to oppose the Commercial Vessel Discharges Reform Act of 2011 (Title VII of HR2838)
• Aquatic invasive species are one of the most serious threats to Lake Superior and ultimately all Minnesota lakes and rivers
• Zebra mussels are just one example of an invasive species first introduced and spread in the ballast tanks of Great Lakes ships which ultimately spread to MN’s inland lakes
• The weak standard proposed in HR 2838 (the IMO standard) is inadequate to protect Lake Superior and Minnesota waters.  This bill will prevent Minnesota from adopting a stronger ballast standard, and will preempt New York’s existing standard.
• I urge [insert Member's Name] to delete the bad ballast water amendments – Title VII from HR 2838 – and to vote against the Coast Guard and Maritime Transportation Act of 2011 (HR 2838) if those provisions remain
• Thank you for protecting Lake Superior and all Minnesota waters

——————————————————————————————————————–

Additional detailed background which may be useful:

Why Title VII (the “Commercial Vessel Discharges Reform Act of 2011”) of HR 2838 is bad for Minnesota and should be defeated:

HR 2838:

1. Sets a standard (International Maritime Organization or “IMO”) that still allows some invasive species to enter Lake Superior and the Great Lakes. The State of Minnesota will review its standard in 2013 or earlier and may adopt a stronger standard to protect Lake Superior and inland waters from invasive species.  This bill would prevent this.
2. Delays even the weak IMO standard by up to 10 years;
3. Prevents Minnesota, other states, and the EPA from setting or enforcing standards that are truly protective;
4. Makes it difficult, if not impossible, to add new protections, even if the EPA and other agencies determine that the IMO standard is not doing the job;
5. Stops citizens from being able to enforce the law.

Bottom line: this bill does not protect Lake Superior, other Great Lakes, Minnesota’s inland waters, or the nation’s waters; it protects the shipping industry. It derails progress being made to set a strong national policy to stop invasive species from entering the Great Lakes via ships’ ballast water discharge and being spread among the Great Lakes by intra lake vessels.

Why Rep. Tim Bishop (D-NY) amendment does not adequately fix HR 2838.

Rep. Tim Bishop (D-NY)  is planning to offer an amendment that he hopes will improve the bill’s preemption measures. But the amendment is not effective, since:

• The standards for ships entering the Great Lakes remain too weak, are delayed, and are almost impossible to improve over time.
• State laws like those in Minnesota, New York and Michigan would be preempted. The Bishop amendment says it allows the states to set standards, but provides that states cannot require technologies that go beyond the weak IMO or delayed federal standards unless the state gets approval by the Coast Guard and EPA. That approval is highly unlikely for Minnesota or any other state under the bill. A state would have to prove to the EPA that its waters deserve special protection and the risk for new invaders is imminent, and prove to the Coast Guard that its standard would not adversely affect shipping. The amendment has one approval criterion – demonstrating the standard would address “propagule pressure” (the existing population of the invasive organism) –which is impossible to show before an invasion occurs.  Once there is propagule pressure in the Great Lakes the invader is already present in high numbers and prevention measures make little difference then.
• Citizen enforcement remains barred.

Index to key provisions in HR 2838:

1. Deadlines for IMO: first dry docking after 2014 or 2016. CWA 321 (b)(4)
2. IMO is the standard : 321 (c)
3. CG review of standard by 2016 and then every 10 years. 321(d)
   1. Based on commercial availability (321(d)(2)(iv)).
   2. Must be by rule, 321(d)(3), and must be 2 orders of magnitude more restrictive, (B).
4. Vessels can only use technologies certified by CG as meeting IMO (or stricter standard if required):  321(e)(1)(D)(i)
5. Once a vessel installs a certified technology, it is exempt from new ballast standards as long as the ship and technologies are operational. 321(e)(3).
6. No more regulation under NPDES permit, 321(j)
7. Preempts state laws, 321(k) and especially (k)(6)
8. Repeals 16 USC 4711 (regulations) and 16 USC 4725 (relationships with other laws).

Other background:

More than 65% of the invasive species entering the Great Lakes since the opening of the St. Lawrence Seaway in 1959 have arrived in the ballast tanks of oceangoing cargo vessels.

Thank you for acting to protect Lake Superior and all Minnesota waters.

The MNDNR recently announced it plans to give Lutsen Mountains Corporation more special treatment and permit it to nearly drain the Poplar River just when the eggs of fall spawning “coaster” and stream resident brook trout lie incubating in the river gravel.  Read on to learn how you can voice your strong objections to this needless destruction of a public resource.

Earlier this year Lutsen Mountains Corporation made a legislative end run around state protections for public waters, which was reported in earlier mntu blog postings and in the media.  LMC ultimately succeeded in having a special law written for it to remove up to 150 million gallons per year from the Poplar River, an important North Shore trout and steelhead fishery.  The one protection which Minnesota Trout Unlimited helped get into the law was a minimum flow protection of 15 cubic feet per second (“cfs”). While this flow level is not high enough to prevent substantial impacts to trout and other aquatic life during the winter months, it arguably provides enough protection to prevent wholesale destruction of populations.

On Wednesday it was revealed that Lutsen is seeking more special favors, and the DNR now plans to throw aside even this minimal protection to accommodate LMC’s desires.  The proposed permit would allow Lutsen to draw done the base flow of Poplar River to just 5 cfs, precisely when the trout population is most stressed by unusually low river levels this fall.  The public must express its objections by Friday November 4^th.

The DNR news release and proposed permit can be found on the DNR’s website at http://www.dnr.state.mn.us/input/issues/poplar_river/index.html    Be advised that the ‘frequently asked questions” document contains many inaccuracies and unsubstantiated assumptions.

How to submit public comments for the record: 

Please take a few minutes to convey your concerns over the DNR sweeping aside the most minimal protections for our public resources.  Commits should be submitted no later than Friday Nov. 4, 2011 to:  publiccomment.dnr@state.mn.us.

We encourage you to also send comments to Governor Dayton and DNR Commissioner Tom Landwehr, who need to hear a more balanced description of the situation.

How to contact the Governor:

Follow this link to see options for contacting Governor Mark Dayton:

http://mn.gov/governor/contact-us/form/

Telephone:   651-201-3400
Toll Free:    800-657-3717

How to contact the MNDNR: 

Landwehr, Tom (DNR) tom.landwehr@state.mn.us

St. Paul central office switchboard:

(651) 296-6157

(888) 646-6367

Some basic points you could make:

• You are strongly opposed to the DNR abandoning the most minimal protections for aquatic life and issuing yet another special exemption.
• This year’s low river levels were very foreseeable, yet for the past decade Lutsen has resisted the inevitable switch to Lake Superior water and instead chosen to spend millions of dollars on non-essential expansions and improvements.
• If the proposed permit is issued it must contain as a written condition a timetable for Lutsen to take concrete steps toward installing a pipeline from Lake Superior.
• If the proposed permit is issued it should be restricted to the months of November and December 2011, the time period which Lutsen has repeatedly stated is the key snowmaking season, during which roughly 75% of it is made.

Background information and basic observations

On Monday MNTU will post a more thorough analysis of the proposed permit on its website:  http://www.mntu.org/   However, below is some important factual information and observations to assist you in formulating your own comments this weekend.

Why raiding water from a stream during low, wintertime flows is so devastating.

The Poplar River is one of the best trout streams in northern Minnesota, that is until it reaches the point where Lutsen Mountains Corporation has been removing large quantities of water for the past decade.  The river still supports a wild brook trout fishery, including a spawning population of unique “coaster” brook trout in the lowest reach.  Unlike the groundwater rich streams of Southeast Minnesota, the Poplar River is almost entirely dependent upon surface water runoff, lacks any significant amount of stable, relatively warm (in winter), groundwater, and is ice covered in winter.  Very low water levels and cold air temperatures combine to make winter, especially January and February, the critical time for trout and other aquatic life.  High spring flows and average annual flows cannot help trout survive this winter population bottleneck.

Brook trout are fall spawners and their eggs incubate in the stream gravel during the winter months.  Water withdrawals from the already low winter base flows aggravate tough conditions for eggs, juveniles and adults. Flowing water is needed in order to incubate trout eggs, enable young-of-year trout to survive, and maintain invertebrate (insect) production. As flows shrink the riffles and glides where eggs are located, young trout overwinter, and insects hide begin to dry up and freeze.  Eggs, small trout and insects (fish food) all perish.  Shallow riffles gradually freeze solid and often force remaining water to begin running over the ice, further reducing water levels under the ice.

The amount of ice free habitat in remaining pools shrinks with diminished flows, raising the likelihood of anchor ice forming.  This layer of ice attaches to the stream bottom and other cover and kills the juvenile trout and insects in its path.  If water levels get too low and there is little snow cover to insulate the water (the very conditions under which LMC is mostly likely to rob the stream of its water) the stream could freeze to the bottom in most remaining pools.  Virtually all aquatic life would be wiped out, yet things may appear fine as water flows on top of this ice.  If water removals contribute to two or three years of such bad conditions in short order the brook trout fishery could be exterminated.  Since high spring flows flush out all direct evidence of winter fish kills, the only evidence would be in lower population levels and size structure as compared to river sections above the pump intakes.  Not surprisingly, while trout populations above Lutsen’s pump are very robust, they are much lower in the reaches impacted by increasingly heavy pumping.

Minnesota water law prohibiting the taking of trout water

Biologists and ecologists now understand that any removal of surface waters from a coldwater ecosystem has detrimental impacts on the trout fishery and other aquatic life, despite the fact that the precise impact from each is very difficult to precisely quantify.  In 1977 limits were established for surface water resources to protect in-stream uses and all withdrawals (“appropriations”) from trout streams were prohibited.  While this restriction is based upon sound science, its enactment undoubtedly stems, in part, from the public’s recognition of the fact that Minnesota’s remaining trout streams are among the best, most ecologically intact aquatic systems remaining in our state.  Minnesota’s remaining trout streams represent just six percent of the State’s streams and rivers.  To avoid the incremental degradation and disappearance (“death by a thousand cuts”) of these remaining high quality public resources, the law very wisely prohibits the piecemeal taking of the water which is their lifeblood.  The DNR should more forcefully defend these unique watersheds.

A “crisis” of LMC’s own making?

In 1964 LMC obtained a permit to pump 0.55 cfs from the Poplar River.  In the 1980s LMC was sold to its current owners and the DNR increased the permitted withdrawal to 12.6 million gallons per year, with a maximum rate of approximately 4.1 cfs.  This relatively small use aroused little notice.  Based upon annual reports submitted by LMC, LMC appears to have complied with the permit restrictions until 2001.

In 2001 LMC’s withdrawals from Poplar River jumped nearly fivefold, to 60 million gallons.  The MNDNR informed LMC that all withdrawals beyond 12.6 million gallons were not covered by the permit and LMC would not be given a permit for larger withdrawals.  The DNR began working with them in good faith to help them switch to an alternate source.  Believing that LMC was working to that same end, the DNR allowed LMC to continue using Poplar River water as an interim measure only.  Thus for nearly ten years LMC has known it must cease these excessive withdrawals and build a pipeline from Lake Superior, but instead it has chosen to spend millions of dollars on expanding runs and other non-essential improvements.  During the last legislative session the public debate became centered on how many years (2, 3 or 5) LMC might take to make the shift from Poplar River water to Lake Superior water, not whether the shift was inevitable.  LMC has witnessed several natural cycles of low water years and should have planned ahead, yet it apparently wasted the 2011 construction season, again taking no concrete steps toward constructing a pipeline.  The public should not be forced to pay for LMC’s choice to ignore the inevitable and spend millions elsewhere.

The DNR should hold Lutsen to its promise regarding the current permit.

In conjunction with the issuance of the current permit to Lutsen on October 4, 2011, an officer of Lutsen Mountain Corporation stated in writing:

I hereby understand that if the referenced permit is issued, I may be required to suspend appropriation of water during periods of low water to maintain a minimum flow in the watershed.  Furthermore, I agree to suspend my appropriation and withstand the results of no appropriation from the above named resource should I be directed to by the Department of Natural Resources . . .

The DNR should hold them to their promise to “withstand the results of no appropriation” from the Poplar River and not issue yet another special permit.

Unsubstantiated and unchallenged claims.

The DNR, as well as much of the media, appears to have fallen into the trap of accepting without question many assumptions and assertions made by LMC.  Assumptions akin to “skiers won’t come to Lutsen unless we make more and more artificial snow”, “snowmaking is essential to operating a profitable winter sports facility”, “LMC needs to take water from the Poplar River” and “skiers will refuse to pay for a small surcharge for want they want” are unsubstantiated and we believe incorrect.  Claims of economic hardship are likewise unsubstantiated and any potential decline in future business is just as likely to be due to general economic conditions.

Creative solutions are available to LMC.

LMC can, and hopefully has begun, to pursue several options to help pay for its water use, including:

• Partnering with the golf course to upgrade and use their pipeline from the Lake Superior.  The golf course switched to Lake Superior water several years ago and uses water only during the summer months.  LMC could share the costs of upgrading capacity in exchange for use of that portion of the pipeline.
• Adding a $3 to $5 snowmaking surcharge to lift tickets until the pipeline is paid for.
• Partnering with other businesses and prospective businesses located near the top of the hill to share construction and pumping costs.

LMC needs some encouragement.

MNTU believes LMC is an important part of the local economy and wants to help it succeed.  LMC needs your encouragement to speed up its switch off of Poplar River water.  On October 3^rd LMC convened a meeting to tell the conservation and environmental communities of their progress.  LMC explained how it had hired yet another lobbyist to conduct a public relations campaign, and hired consultants in an attempt to design “studies” which might justify past conduct.  No mention was made of efforts or intentions to secure an alternate water supply.  MNTU suggested to LMC that it had missed the legislative message that it must cease taking Poplar River soon, and we offered to work with LMC to hasten the switch to another source.  The statements issued by LMC this week suggest that it has had a welcome change of heart.

However, Lutsen Mountain Corporation needs to hear from the public that it must firm up this commitment, and accept a concrete timetable for construction in 2012, and 2013 if needed.

You might also encourage them to stop hiring lobbyists and start hiring engineers and contractors.  If you are a skier, let them know that you are more than willing to pay your own way, rather than allowing the unnecessarily destroying a public resource.  Tell them a $3 to $5 snowmaking surcharge on your lift ticket to cover your water use is not a big deal, and pales in comparison to the full costs of a skiing outing.

How to the proposed permit can be improved.

While MNTU opposes the issuance of the another special permit, if the DNR does issue the proposed permit it should first make at least these two important changes:

(1)  A timetable for concrete steps toward the goal of securing an alternate water supply must be inserted as a condition of the permit.  Commissioner Landwehr noted that, “We need concurrence from LMC and key legislators that they are committed to finding an alternate source of water for snowmaking – probably Lake Superior – within three years to prevent a reoccurrence of this very difficult situation.”  But rather than merely express this wish, the DNR can make such a commitment a condition for LMC obtaining this special permit.  A timetable for taking the typical steps in implementing a construction project can be included in the permit.  The DNR has already been working closely with LMC to find an alternate water source for nearly ten years.  What is needed now is not more talk, but a construction timetable and action by LMC.  The permit can and should be a vehicle to obtain these.

(2)  The temporary permit should expire on December 31, 2011.  Lutsen has repeatedly stated that the time period during which it really wants to make artificial snow, and indeed when approximately 75% of its annual snowmaking is typically done, is during November and December.  January to March is likely the most critical time period for the fishery, with the greatest danger of complete or nearly complete freeze out.  Consequently, the temporary permit should not extend past the peak snowmaking season and into January 2012 or beyond.

Conference Committee on the bill containing the Poplar River water withdrawal provision (SF 1115) meets Monday at 1:00 p.m.  Please e mail and/or telephone your representatives (House and Senate) before then.  It will also help to contact the leadership of each body which can apply pressure.  Governor Dayton and MNDNR Commissioner Landwehr are our firewall, so urge them to insist this provision stay out of all bills (they may be wavering).  Below are e mail links and phone numbers.  Please call and or write as soon as possible and not later than mid-morning Monday.

How to contact your legislator: You can quickly locate and contact your legislators by using the State’s legislative website, http://www.leg.state.mn.us

Here is the direct link for looking up your legislators:  http://www.gis.leg.mn/OpenLayers/districts/?address=

Just click on the legislator’s name and you will be taken to his or her individual web page.  Direct calls and e mails to the leadership of each body will also help. Copy the Governor on your correspondence with your legislators so he hears your concern and passion.

How to contact the Governor:  The Governor and MNDNR Commissioner have an opportunity right now to force the removal of this provision during the conference committee process. Follow this link to see options for contacting Governor Mark Dayton:

http://mn.gov/governor/contact-us/form/

Telephone:   651-201-3400

Toll Free:    800-657-3717

How to contact the MNDNR: 

Landwehr, Tom (DNR) tom.landwehr@state.mn.us

St. Paul central office switchboard:

(651) 296-6157

(888) 646-6367

How to contact the Conference Committee members:

Senators Conference Committee members:

Ingebrigtsen: (651) 297-8063 ;  sen.bill.ingebrigtsen@senate.mn

Dahms*: (651) 296-8138 ;  sen.gary.dahms@senate.mn

Skoe: (651) 296-4196 ;   sen.rod.skoe@senate.mn

Gazelka: (651) 296-4875 ;  sen.paul.gazelka@senate.mn

Carlson: (651) 296-4913 ;  sen.john.carlson@senate.mn

House Conference Committee members:

McNamara:  651-296-3135;  rep.denny.mcnamara@house.mn

Doepke:  651-296-4315;  rep.connie.doepke@house.mn

Hancock: 651-296-4265 ;   rep.david.hancock@house.mn

LeMieur:  651-296-4247;   rep.mike.lemieur@house.mn

Dill**: 651-296-2190;  rep.david.dill@house.mn

* Senator Dahms is the author of SF 1244, where this provision first appeared.

** Rep Dill is the House author of this provision.

How to contact the Legislative leadership:

Senate Majority leader, Senator Amy Koch: (651) 296-5981 ; sen.amy.koch@senate.mn

Link to the rest of the Senate Republican leadership:  http://www.senate.leg.state.mn.us/members/member_list.php?ls=&sort=ldr&parm_party=R#header

Speaker of the House, Rep. Kurt Zellers: 651-296-5502; rep.kurt.zellers@house.mn

Link to the rest of the House Republican leadership:  http://www.house.leg.state.mn.us/members/houseleaders.asp

House and Senate bills permit assault on anglers and public waters on eve of the fishing opener. The Governor and DNR Commissioner must stand up for anglers.  Calls now needed by Monday morning at the latest!

On Thursday, just two days before the fishing opener, the Minnesota House followed the Senate’s lead by passing a bill containing a provision which is nothing short of an assault on anglers and public waters.  It ignores state water law and requires the MNDNR give a habitual violator a permit to enable it to continue and increase its damaging taking of public waters.  This time the bull’s-eye is drawn around a North Shore trout stream, next time it could be a lake or stream anywhere in the state.  The irony of pushing special legislation which sacrifices angling opportunities and public waters on the eve of the fishing opener was not lost on many upset anglers.

While legislative reasoning may be convoluted, the facts are straightforward:

• The Poplar River has been a trout stream for hundreds of years.
• All surface waters of the state are public resources which landowners do not own, but may make reasonable use of under a water appropriation permitting system.
• State law limiting consumptive use of surface waters was enacted in the 1930s, long before Lutsen Mountains Corporation (“LMC”) obtained a permit for a relatively small appropriation. That permitted withdrawal of less than 13 million gallons per year is not the issue here.
• Water is being removed during the critical time of low winter flows and can greatly reduce the survival of eggs, juveniles and adult trout in the lower 2.6 miles of river.
• In 2001 LMC began to drastically increase water withdrawals from the Poplar River, taking between 60 million and 107 million gallons per year.  These excessive removals were never permitted and are not legal.  These last 10 years of unpermitted withdrawals are the real issue for anglers and citizens.
• Upon learning of the drastically increased withdrawals in 2002, the DNR informed LMC that such additional, excessive taking of public water was not permitted and must stop.  So far the DNR has chosen only to strongly encourage a switch to other water supplies, rather than firming enforcing state law, while LMC continues choosing to violate the law.
• Now LMC seeks special legislation to condone these extra withdrawals and increase them to 200 million GPY.  This is 90 million GPY more than it has ever used and 16 times more than its permitted amount.
• LMC could pipe water from nearby Lake Superior, but chooses not to.
• Current rates of water withdrawals are harming the trout and steelhead fisheries enjoyed by many anglers.
• Doubling the rate of withdrawal from the existing 4 cubic feet per second to 8 cubic feet per second, which LMC intends to do, could decimate a fishery already diminished by the existing 4 cfs withdrawal rate.
• Anglers should not be forced to sacrifice a public resource to a private business, especially when an alternate water supply is readily available.

Tell your House and Senate members to stop this assault on anglers and public waters.  Call or e mail them this weekend before or after your angling outing.  Call or e mail the Governor and the MNDNR and insist they stand up for anglers and public resources.  Past agency mistakes under a previous administration do not justify rewarding violators and punishing anglers. There are more threats to clean water and our angling heritage than just aquatic invasive species (“AIS”).  The Governor should insist upon a “clean” AIS bill and reject these other assaults.  It is nice if they fish with us on the opener, it is even better when they protect our fishing the rest of the session and year!

Detailed facts on the fishery and water appropriation history are at the end of this document.

The Senate assault on angling this week:

A special provision drafted for Lutsen Mountains Corporation was slipped into SF 1244 close to midnight on April 26, 2011, without notice to the public. The public had no realistic chance to testify.  This provision is intended to permit LMC to take large quantities of surface water, including vital minimum flows, directly from an important North Shore trout stream for its snowmaking convenience.  Section 18 of SF 1244 reads:

Sec. 18. CONSUMPTIVE USE OF WATER.
Pursuant to Minnesota Statutes, section 103G.265, subdivision 3, the legislature
approves of the consumptive use of water under a permit of more than 2,000,000 gallons
per day average in a 30-day period in Cook County, in connection with snowmaking
and potable water. Notwithstanding any other law to the contrary, the permit for the
consumptive use of water approved under this section shall be issued, subject to the
fees specified under Minnesota Statutes, section 103G.271, without any additional
administrative process to withdraw up to 200,000,000 gallons of water annually for
snowmaking and potable water purposes without regard to minimum flow or water level
requirements.   [emphasis added]

This provision puts a bull’s eye around the core requirement of fish and all aquatic life (adequate water flow to prevent significant mortality, freeze out and winter kill), and prohibits the MNDNR from protecting it.  This bill would in effect give a special subsidy to one business and force anglers to “pay” with a valuable public resource.

SF 1244 was heard in the Senate Finance Committee on Monday May 9.  Senator Goodwin attempted to add a two year sunset provision, which looked like it would succeed, but then failed on a voice vote.  She then offered an amendment to delete the entire provision containing this give away of public waters.  These Senators voted for the amendment:  Berglin, Cohen, Goodwin, and Higgins.  The following Senators voted against the amendment to remove this special exemption:  Hann, Ingebrigtsen, Langseth, Magnus, Newman, Nienow, Olson, Parry, and Roblin.

SF1244 was heard on the Senate floor on Wednesday May 11.  Senator Goodwin offered an amendment to Section 18 which would have: (a) reduced the total number of gallons to 150 million GPY (still 40 million GPM than LMC has ever used), (b) added the most minimal of minimum flow restrictions (the “Q90” restriction) to lessen negative impacts to trout and aquatic life, and (c) limited the permit to two years. This was an extremely reasonable compromise effort.  It would have allowed Lutsen Mountains Corporation three construction seasons to install a simple pipeline from nearby Lake Superior, while allowing it to use 35% more water than it ever has!  Senator Parry spoke in favor of the amendment; Senators Skoe and Dahms spoke against it.  It failed on a voice vote.  SF 1244 then passed on a 48 to 13 vote.  Only these Senators had the wisdom to vote with anglers and against SF 1244: Berglin, Dibble, Goodwin, Kelash, Kubly, Lourey, McGuire, Pappas, Pogemiller, Reinert, Rest, Sieben, and Torres Ray.  Several conservation organizations had worked hard to garner support from both sides of the aisle. Conservation should be a nonpartisan issue.  Ask your Senator to explain why he or she they did not speak in favor of the amendment and why they voted for this overall bad bill.

SF 1244 was sent to the House on Wednesday May 11.

The House assault on angling this week:

On Thursday May 12 the House passed SF 1115, after inserting the special privilege for Lutsen Mountains Corporation to take vast amounts of public water from the Poplar River.  Section 99 of SF 1115 grants a special exemption to LMC enabling it to withdraw 150,000,000 gallons of water annually from the Poplar River.  These increased withdrawals would occur during the critical period of low winter flows and threaten to decimate all aquatic life in the lower 2.6 miles of river.  This business has been ignoring state law for nearly a decade and taking advantage of the MNDNR’s failure to firmly enforce the law.  Rather than directing the MNDNR to enforce state law and send a strong message to this perennial violator to act swiftly to secure another water source, the House inexplicably chose to punish anglers for 5 more years.

On Tuesday May 10 the Senate on a 64-0 vote passed a good aquatic invasive species bill, SF 1115, and sent it to the House.  The House chose not to speed this important bill to the Governor, but instead held it up.  On Thursday May 12 it piled in many unrelated policy amendments, including the consumptive water use provision.  Here is what happened Thursday:

Rep McNamara successfully moved amendment DEA1097, rolling in HF 1097 which included the special exemption for consumptive water use of the Poplar River (section 99).

Rep.  McNamara then offered an amendment which further weakened protections for the fishery by dropping the most minimal of minimum flow restrictions from 21 cfs (the “Q90” of the Poplar River) to 15 cfs!  The amendment did add a five year expiration date, but this effectively encourages foot dragging for several more years.  Here is the amendment, which passed on a voice vote:

4.29      ”Sec. 100. CONSUMPTIVE USE OF WATER.
4.30     Pursuant to Minnesota Statutes, section 103G.265, subdivision 3, the legislature
4.31     approves of the consumptive use of water under a permit of more than 2,000,000 gallons
4.32     per day average in a 30-day period in Cook County, in connection with snowmaking
4.33     and potable water. Notwithstanding any other law to the contrary, the permit for the
4.34     consumptive use of water approved under this section shall be issued, subject to the
4.35     fees specified under Minnesota Statutes, section 103G.271, without any additional
4.36     administrative process to withdraw up to 150,000,000 gallons of water annually for
5.1       snowmaking and potable water purposes. The permit authorized under this section shall
5.2       be suspended if the flow of the Poplar River falls below 15 cubic feet per second for more
5.3       than five consecutive days. The permit shall be for a term of five years.

Rep. Laine moved an oral amendment to reduce the permit term from 5 years to 3.  Unfortunately this very modest amendment failed.  Because this was a roll call vote you can see how your representative voted.  Take them to task for not limiting this egregious water grab to even three years.  The record of votes on SF 1115 can be found on the legislative website at this link: http://www.house.leg.state.mn.us/votes/Votesbydatels87.asp

Ask your representative to explain why a private business, on notice for 10 years that it is violating state water law and needs to stop taking public water from a trout stream, should need more than the 4 construction seasons to install a simple pipeline.  What private business cannot get this done if it wants to?

Rep.  Hansen moved to delete this provision entirely!  His amendment (amendment H1097A16) did not prevail.  The record of this vote can also be found at this same legislative website link: http://www.house.leg.state.mn.us/votes/Votesbydatels87.asp

What happens next and how you can help:

On Friday May 13, the Senate decided not to accept the House version of SF 1115.  Sen. Bakk, the author and champion of the consumptive water use exemption, led the effort.  This is not a good sign for anglers.  The Senate appointed these members to the Conference Committee on SF 1115: Senators Ingebrigtsen; Dahms; Skoe; Gazelka; and Carlson.  Saturday May 14 the House appointed these conferees: McNamara; Doepke; Hancock; LeMieur; and Dill.  Rep. Dill originally authored the House amendment containing the consumptive water use provision.  The Conference Committee is scheduled to meet Monday May 16 at 1:00 p.m.

Please act soon, and no later than Monday morning.  Now is your chance to demand this anti-angler, anti-public water provision be removed.  Contact the Legislative leadership, your legislators and the Conference Committee members. Also contact the Governor and MNDNR and press them to demand this bad provision be removed.  The Governor can either protect anglers and water resources by insisting upon a clean AIS bill containing no such bad policy provisions, or he can give in to special interests and permit the unraveling of basic protections for our public waters.

How to contact your legislator: You can quickly locate and contact your legislators by using the State’s legislative website, http://www.leg.state.mn.us

Here is the direct link for looking up your legislators:  http://www.gis.leg.mn/OpenLayers/districts/?address=

Just click on the legislator’s name and you will be taken to his or her individual web page.  Direct calls and e mails to the leadership of each body will also help. Copy the Governor on your correspondence with your legislators so he hears your concern and passion.

How to contact the Governor:  The Governor and MNDNR Commissioner have an opportunity right now to force the removal of this provision during the conference committee process. Follow this link to see options for contacting Governor Mark Dayton:

http://mn.gov/governor/contact-us/

How to contact the MNDNR: 

Landwehr, Tom (DNR) tom.landwehr@state.mn.us

_________________________________________

Additional background information:

Mistaken claims corrected:

Below are some of the erroneous or confused statements heard recently about the Capitol.

Mistaken claim #1:   The business has been taking these large amounts of water for 40 years.  This is incorrect.  While LMC has had a permit since 1964 to take relatively modest amounts of water (up to 12.6 million gallons per year), that smaller withdrawal is not the issue here.  Rather, in 2001 LMC chose to begin drastically increasing withdrawals to between 60 and 107 million gallons per year.  This is five to eight times greater than allowed under its permit!  Rather than switch to a permissible source which is readily available, it has been pushing for an open ended permit to take 200 million gallons per year, almost double the largest amount it has ever withdrawn!

Mistaken claim #2:    The lower Poplar River is naturally not much of a fishery compared to the upper river, so we are not  sacrificing that much.  A decade or more of large artificial withdrawals from this trout stream have reduced the size and resilience of the trout and steelhead populations in the lower portion of the river.  Despite this, the lowest reach still manages to support a wild population of coaster brook trout, a rare remnant of Minnesota’s natural heritage which is highly prized by anglers.  It also supports a popular wild steelhead fishery.  Before any water withdrawals began here the river supported a very productive brook trout fishery throughout the lower 2.6 miles, suggesting that even current levels of withdrawals have been reducing this public resource.  While the very short stretch of waterfalls can hold few trout, most of the 2.6 miles is not cascades and can support wild trout populations if given a chance.  Neighboring streams with very similar physical habitat conditions (excluding artificial water withdrawals of course) do support robust wild trout populations. Proponents of the special exemption consistently demonstrate a lack of familiarity with this fishery and stream conditions.

Mistaken claim #3:   If there are some trout now, then the existing and future withdrawals must not be a big deal.  While there are some trout still hanging on despite excessive withdrawals since 2001, the population would almost certainly be much greater if none of the public’s water was taken from this stream.  Robust trout populations above the ski area suggest what could be restored below if water withdrawals ceased.  The brook trout between the upper falls and Hwy 61 are likely migrants from above the falls, and this natural re-stocking masks the impacts of current withdrawals.  The wild coaster brook trout and steelhead populations below Hwy 61 are likely receiving contributions from fish which “stray” from nearby streams, which do not suffer from winter water withdrawals.  The fishery would be better with better winter flows.  Also, LMC seeks to nearly double its largest level of withdrawals, which this public fishery is not likely to survive.

Mistaken claim #4: Because LMC owns land through which the river flows it owns all the water.  LMC has never owned the public water which briefly flows through its land.  Minnesota’s surface waters are public resources.  However, land owners may make “reasonable use” of the surface waters abutting their property.  Minnesota has statutorily defined what constitutes “reasonable use”, especially in the context of consumptive water use.  Minnesota has regulated consumptive use of its surface water resources for three quarters of a century, and long before LMC came into existence or sought to take any public water from the Poplar River.

Mistaken claim #5:  LMC takes and will take only 5% of wintertime flow so the impact is insignificant. If LMC is seeking to take only 5% of low winter flows, then why has it lobbied so hard, first to keep any minimum flow restrictions out of the bills, and then to get the minimum flow restriction in the House bill reduced by more than 25%!  Why would it even worry about the Q90 level of 21 cfs when median winter flows average 30 cfs or greater? (monthly averages are based upon thirty years of USGS flow data).

Irrelevant fact:  “X gallons of water flow through the Poplar River each year and this appropriation is only Y percent of the total.”  Low flow conditions are the bottlenecks which determine how well, or whether, trout can survive in North Shore streams.  All streams have huge runoff volumes, but what matters is when and how often they get extremely low.  For this reason the photographs one typically sees, which depict much higher flows, obscure the issue.  Minimum flow levels and restrictions to prevent these from artificially occurring are critical to these public fisheries.  The “Q90” level represents the most minimal level of flows necessary to sustain aquatic life (not just trout) without too many adverse impacts.

Interesting fact:  None of Minnesota’s other ski areas draw their water for snowmaking from a trout stream, despite the fact that at least two others have one or more trout streams running through their property.

Links to the bills:

Here is the link to SF 1115 (see section 99 on page 52):

https://www.revisor.mn.gov/bin/bldbill.php?bill=ues1115.1.html&session=ls87

Here is the link to SF 1244 (see section 18):

https://www.revisor.mn.gov/bin/bldbill.php?bill=S1244.3.html&session=ls87

The wild fishery being sacrificed:

The Poplar River has been a trout stream since long before European settlers came to the area.  It supported Minnesota’s native brook trout, including the large “coaster” brook trout variety which utilizes the lower river, especially as a spawning and nursery area.  Prior to the opening of the ski area it supported a very productive brook trout fishery throughout the entire section of river, even in the steeper reaches. Several angler accounts from the 1920s document a productive wild brook trout fishery in and below the area now occupied by the ski resort (personal communication with S. Persons, MNDNR, Grand Marais Area Fisheries Supervisor).  Land use development and activities in the lower watershed have degraded fisheries habitat conditions in the lower 2.6 miles, yet the reach below Hwy 61 which is accessible to migratory trout and salmon still manages, for now, to support a popular wild steelhead fishery and a slowly rebounding native “coaster” brook trout fishery.

Why wintertime withdrawals are so destructive:

• Lake Superior tributary streams are almost entirely dependent upon surface waters, and lack any significant amounts of cold, stable groundwater. Consequently the period of low, cold winter flows and extremely cold air temperatures is critical to the survival of trout and steelhead fisheries.

• When water levels fall too low in winter the pools become too shallow to prevent their freezing solid to the bottom.  When this happens virtually all aquatic life is wiped out.  Water will then flow on top of this ice and things appear fine, but the fishery will have been decimated.  Even less drastic withdrawals from low winter base flows which do not cause complete winter kill aggravate already difficult conditions and substantially reduce survival and population levels. 

• The Poplar River supports a growing “coaster” brook trout population in the lower reaches, downstream of the LMC water withdrawal points.  Brook trout are fall spawners and their eggs incubate in the stream gravel during the winter months.  Water withdrawals from low winter base flows aggravate tough conditions for brook trout reproduction and survival.  Lower winter flows mean lower egg and juvenile brook trout survival and lower population levels year round. Reduced flows which cause streams to freeze to the bottom mean destruction of all eggs, juveniles and food sources.  Since resident brook trout (found between the upper falls and Hwy 61) are largely 2 years old are less, successive winter kills can nearly exterminate this population. It is very likely that small juveniles are annually washed down from above the upper falls and re-stock this section.  This masks the impacts of current water removals.

• The Poplar River also provides a productive and popular wild steelhead fishery in the lower reach.  While steelhead are spring spawners and thus their eggs are not at risk from the LMC withdrawals, low flow conditions in the winter limit the survival of juvenile steelhead. Obviously a winter “freeze out” would wipe out two or more year classes of steelhead, while going largely or entirely undetected.

• That trout and steelhead populations are now relatively low downstream of the pump intakes, as compared to above them, does not mean the lower section could not support more robust populations if water removal ceased.  A very productive brook trout fishery flourished here before the ski resort.  The current situation may only be evidence that a decade or more of excessive water withdrawals is already limiting these populations.  Indeed the impaired waters study conducted here notes that neighboring streams with similar habitat (but no water withdrawals) have markedly better populations.  It identifies the water withdrawals from Poplar River as one likely cause of this.

Appropriation history:

This special legislation is designed to permit LMC to pull large quantities of surface water, including vital base flow, directly from this important North Shore trout stream for snowmaking convenience.  While surface water withdrawals from trout streams have been illegal since 1977, the MNDNR in 1986 gave LMC a waiver permitting it to continue its relatively small withdrawal of up to 12.6 million gallons per year, subject to flow rate restrictions to protect the fishery.  However, beginning in 2001 LMC began violating its permit, pumping between 60 and 107 million gallons each winter! The MNDNR has tried to work with LMC, giving it time to switch to another water source; it now appears that LMC is unwilling to do so.

• LMC has never owned the public water which briefly flows across its land.  Minnesota’s surface waters are public resources.  However, land owners may make “reasonable use” of the surface waters abutting their property.  Minnesota has statutorily defined what constitutes “reasonable use”, especially in the context of consumptive water use.  Minnesota has regulated consumptive use of its surface water resources for three quarters of a century, and long before LMC sought to withdraw any water from the Poplar River.  In 1937 Minnesota established a policy “to conserve, protect and utilize the water resources of the state” and it began requiring that written consent or a permit be obtained from the Department of Conservation in order to appropriate surface waters.  The permitting system and rules define what constitutes reasonable use.

• The “year-round Q90” flow corresponds to the very low flow level.  This is the rate at which flows are exceeded 90% of the time.  River levels drop below this level just 10% of the time.  The annual Q90 for the Poplar River is 21 cfs.  Fisheries biologists agree that trout populations are adversely affected even by withdrawals occurring above the Q90 level.

• In 1964 LMC obtained such a permit from the State of MN, Department of Conservation, to appropriate surface water from the Poplar River at the rate of up to 0.55 cubic feet per second (“cfs”).  That permit states, “This permit may be terminated by the Commissioner of Conservation, without notice, at any time he deems it necessary for the conservation of the water resources of the state . . . “ (Minnesota Conservation Department permit # 64-846, General provision 6).  In 1964 small scale surface water appropriations, such as LMC’s 0.55 cfs appropriation, were permitted from some trout waters.  This appropriation amount is equivalent to less than 3% of the base flow of the river (based upon “Q90” value of 21 cfs).

• The permit (64-0846) was last amended on December 4, 1986.  At that time the DNR granted LMC a special waiver to continue water withdrawals from the Poplar River, but subject to restrictions.  The permit authorizes LMC to withdraw no more than 12.6 million gallons per year of water directly from the Poplar River and sets a maximum rate of 1,800 gallons per minute or about 4 cubic feet per second (cfs).  It permits the use of three separate pumps (“installations”) at up to 600 gallons per minute each.

• The existing permit does not release the permittee from other permit and statutory obligations and it specifically states that the DNR may “. . . require the curtailment of appropriation during periods of low water in order to maintain a desirable minimum flow in the stream.” (Permit 64-0846 dated 12-4-1986, Additional condition #4).

• The Poplar River is a public water and designated trout stream which flows through the property. It has been a trout stream for hundreds, and perhaps thousands, of years, long before LMC appeared.  Minn. Stat., sec. 103G.285, subd. 5 has prohibited water appropriations from designated trout streams since June 1977, except for temporary appropriations limited to one to two years in duration.

• Based upon annual reports submitted by LMC, LMC appears to have complied with the permit restrictions until 2001.

• In 2001 LMC chose to drastically increase its taking of water from the Poplar River far beyond permitted amounts.  Surface water withdrawals directly from this trout stream jumped to 60 million gallons in 2001.  All withdrawals beyond 12.6 million gallons are not covered by the permit.  LMC annually took between 60 and 93 million gallons from the stream between 2001 and 2008.  In 2009 and 2010 it took approximately 107 million gallons per year of Poplar River water.

• In 2002 the MNDNR became aware of these excessive withdrawals from the stream.  The MNDNR decided to work with LMC and help it look for and secure a more sustainable long-term water source.  The MNDNR, believing that LMC was working with the MNDNR in good faith to secure an alternate source (via pumping from Lake Superior), has allowed LMC to continue using Poplar River water as an interim measure only.  LMC can appropriate water from nearby Lake Superior, but chooses not to.

• While LMC is the only entity we are aware of which Minnesota allows to withdraw water from a trout stream (it not being allowed under MN statutes and rules), even surface water withdrawals from warm water streams are required to cease when flows stay below the minimum flow level (Q90 level) for 5 days.

• LMC currently is permitted to remove trout water at a rate of 4 cfs, which is equivalent to about 19% of the year-round Q90 base flow.

• LMC has indicated it wishes to expand its operation in the future and may desire more water to do so.  The proposed legislation would allow LMC to double its appropriate rate to 8 cfs, which is equivalent to almost 40% of the year-round Q90 base flow, and an even larger percentage of the February Q90 level.

Summary:

• Anglers and citizens should not be forced to continue, much less drastically increase, an unnecessary subsidy to a private business by sacrificing a popular trout and steelhead fishery.

• LMC’s excessive water withdrawals from the Poplar River since 2001 are outside the permit and in violation of state law.  This conduct should not be rewarded with a special exemption permitting it to harm a public resource.
• While the consumptive water use provision should be deleted entirely, if retained as an interim measure it must impose the Q90 value of 21 cfs as a minimum flow restriction and have an expiration date no greater than 2 years.  This would provide LMC a clear deadline and incentive to finally take steps to secure a readily available alternate supply, as well as three summer construction seasons to install the simple pipeline and pumps.

Additional information on how to protect Minnesota’s public waters and angling opportunities may be obtained from:

John P. Lenczewski

Executive Director

Minnesota Trout Unlimited

612-670-1629

jlenczewski@comcast.net

“Working to protect, restore and sustain Minnesota’s coldwater fisheries and watersheds.”