On eve of fishing opener MN legislation would permit assault on anglers and public waters

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!

Poplar River coaster - 2007 female released to spawn
Poplar River coaster – 2007 female released to spawn

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.”