Tell your legislators to stop being ASSES. Make the effort to call or email. The hoarding of our water will continue unless we put a stop to it!

 

Minnesota Trout Unlimited Action Alert – May 14, 2011:

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