During the March trial over who or what is to blame for White Bear Lake’s radical drop in elevation, lawyers for lakeshore owners and their allies laid out a case which, if they win, threatens to create years of turmoil and anger and cost huge sums to fix.
Because it’s not just about White Bear Lake alone. An internal DNR memo the lawyers obtained warns that there are scores of White Bear Lakes.
Among the 18,000 internal documents from the Minnesota Department of Natural Resources obtained by the plaintiffs lies proof, they say, that the agency’s experts for years treated as fact what cities around the lake have heatedly denied: that the high-capacity wells keeping lawns green were drawing down White Bear Lake’s level. And they add that “draining” a body of water is against the law.
White Bear Lake, an icon of the east metro, dropped as low as 919 feet above sea level before recovering to 923 feet lately — but only after record rainfall that the plaintiffs say cannot be counted on forever.
DNR attorneys made clear during the trial that they sensed, and worried, that Ramsey District Judge Margaret Marrinan believes the agency was asleep at the wheel over water sustainability. Plaintiffs’ attorneys say that Marrinan’s questioning at trial reinforces that impression.
The judge described the case in a hallway chat with a reporter during a break as “huge” — the capstone of her career as she nears retirement. Her decision is expected this summer.
The four-week trial over claims the DNR has been timid over the dangers of suburban water use results from years of work — for free, they say — by a plaintiffs’ team that includes Dick Allyn, a former state solicitor general; Byron Starns, a major figure in the landmark Reserve Mining case, and Mike Ciresi, the super-lawyer who took on the tobacco industry.
Lawyers, including lead trial counsel Katie Crosby Lehmann, say they emerged with respect for DNR scientists as honorable players in the matter, but with a belief that the agency is unwilling to court the political fireworks involved in cracking down on the environmental cost of suburban sprawl.
Assistant DNR Commissioner Barb Naramore said the agency has “evolved” over time and now focuses more on long-range sustainability of today’s water use. Others have evolved, too, she added: Laws have become more stringent, data more sophisticated and agencies like the Metropolitan Council more apt to sound the alert.
But there’s “no emergency,” she said: “White Bear Lake has always risen and fallen, and for the lake’s ecology, that’s a good thing.”
Plaintiffs’ attorneys during the trial got a property owner from the upscale lakeside town of Dellwood to acknowledge that she herself wouldn’t be affected by draconian water measures — such as long-term bans on watering lawns and gardens — because she and the rest of that city’s residents use private wells.
“Our experts told us that, in the same way companies used to pour poison into rivers until the environmental movement came along, the next big mental shift we need to make is to stop viewing water as an unlimited resource,” said Crosby Lehmann.
The plaintiffs pointed often at trial to an e-mail exchange they discovered, in which a DNR expert in 2012 warned officials in multiple state agencies that “we are beginning to understand the unintended consequences of our past choices” in granting cities permits to extract ever more water — and that seat belts ought to be buckled because a rough ride lay ahead.
“Finding the balance between a lakeshore owner’s [right to enjoy the lake] and a municipality’s need to provide for the health, safety and welfare of its residents with adequate drinking water supply,” wrote the DNR’s Dave Leuthe, “will require many difficult local discussions that will lead to more stringent conservation strategies.”
As the trial approached, both sides impatiently awaited the results of what some saw as the case’s keystone: A study by a team of U.S. Geological Survey (USGS) experts that had spent years pinpointing the effects of municipal pumping on lake levels.
But internal memos show that the DNR grew uneasy with what the federal scientists were finding. The first testimony ordered by the plaintiffs, as they prepare to submit written arguments by mid-May, was the cross-examination of DNR water resources official Jason Moeckel.
Moeckel testified that as late as August 2016, the DNR thought the USGS was going to report that even a 30 percent change in groundwater pumping would result in a change of just 3 inches in the lake level. He said that the final result proved different:
Q. The model shows that a 30 percent decrease in pumping raises the lake by 1.5 feet, right?
A. Yes, that’s my understanding. That’s what the model shows.
Q. That’s a significant difference than three inches?
In the end, the DNR took the position that a different form of analysis would be better. But the plaintiffs pushed witnesses hard on the idea that the agency was on board with the science, right up to the point that it didn’t help them in court.
Naramore said Friday that it turns out the ideal analysis couldn’t be done within the trial’s time frame. The USGS team, she said, was “six months or so late even with their own results. It’s enormously complicated … and we still don’t know as much as we’d like to.”
Some findings were more helpful to the defendants. White Bear Lake City Attorney Roger Jensen gave a reporter his paper copy of one portion of the USGS study; it’s dotted with underlinings, highlightings and the occasional triumphant star in the margins as the team reports on the twists and complexities of the situation.
They note, for instance, that climate change is stripping ice off the lakes sooner in the spring, like a cover peeled off a plastic bowl, leaving them vulnerable to more water loss through evaporation.
Naramore said her staff agrees on the need to challenge Minnesotans’ long-held assumption that there’s an unlimited supply of clean water.
“It is a culture shock to people,” she said. “We can have enough to meet our major needs, but we have to be smart about it.”