of Natural Resources Permit No. 2016-0462
William P. Hefner, Jeremy Greenhouse, The Environmental Law
Group, Ltd., Mendota Heights, Minnesota (for relator)
Swanson, Attorney General, Christina M.B. Herriges, Assistant
Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Worke,
Judge; and Kirk, Judge.
federal water-transfer rule, 40 C.F.R. § 122.3(i)
(2015), is not an exemption incorporated by reference in
Minnesota's National Pollutant Discharge Elimination
System (NPDES) program, pursuant to Minn. R. 7001.1030
(2015). Therefore, the federal water-transfer rule does not
apply in Minnesota.
certiorari appeal, relator challenges the issuance of a
public-waters work permit to lower the runout elevation
between Hoffman Lake and West McDonald Lake, arguing that
respondent (1) failed to satisfy the criteria for granting
the permit, (2) granted the permit solely for private
interests, and (3) violated both the Clean Water Act and
state regulations by failing to obtain an NPDES permit.
Because we conclude that respondent failed to satisfy certain
criteria to issue a public-waters work permit and because we
hold that Minnesota requires respondent to obtain an NPDES
permit prior to water transfers that add pollutants to the
waters of Minnesota, we reverse respondent's approval of
Lake and West McDonald Lake are located in Otter Tail County.
The two lakes are adjacent to each other, separated by a
narrow strip of land that acts as an outlet when the water
level in Hoffman Lake exceeds the runout
Currently, the outflow is about four feet wide. West McDonald
Lake is the larger of the two lakes, with a surface area of
597 acres and a maximum depth of 62 feet. Hoffman Lake has a
surface area of 157 acres and a maximum depth of 20 feet.
Respondent Minnesota Department of Natural Resources (DNR)
began recording water-level data on Hoffman Lake and West
McDonald Lake as early as the 1970s.
the past several decades, the DNR has conducted multiple
surveys on the runout elevation at both lakes. The runout
elevation of Hoffman Lake was 1, 353.3 feet in 1976 and 1,
355.1 feet in 1999. In 2015, the Hoffman Lake runout
elevation was around 1, 354.8 feet. Accordingly, the runout
elevation of Hoffman Lake is approximately 1.5 feet higher
than it was in 1976. The runout elevation of West McDonald
Lake was 1, 353.7 feet in 1976; 1, 353.4 feet in 1999; and 1,
352.7 feet in 2014.
an evaluation of the water quality of Hoffman Lake and West
McDonald Lake in 2013, a water-quality report was published.
This report demonstrated that while the water quality of both
lakes satisfied state water-quality standards, the water
quality of West McDonald Lake was generally much higher than
Hoffman Lake. The 2013 report identified the following
water-quality characteristics for each lake:
West McDonald Lake
Total Phosphorus Mean
Chlorophyll a Mean
Secchi Depth Mean
total phosphorus mean measures the amount of nutrients in the
lake, and chlorophyll a identifies algae
concentration. The Secchi depth mean is a measure of a
lake's transparency, or "how easily light can pass
through a substance." Decreasing Secchi depth readings
typically equate to decreases in the recreational suitability
of a lake.
the 1970s, the DNR has acknowledged that the outflow from
Hoffman Lake to West McDonald Lake "has been a source of
concern and disagreement." On October 15, 2015, the
Hoffman Lake Association (HLA), which represents the
residents of Hoffman Lake, petitioned the DNR to lower the
runout elevation on Hoffman Lake's outflow by two feet.
HLA provided no hydrologic data to support its petition.
the petition, the DNR obtained lake-level and
runoff-elevation data on Hoffman Lake and conducted a
calculation and hydrologic analysis to identify a reasonable
runout elevation. Based on this calculation and analysis, the
DNR informed HLA that it would seek "a permit to lower
the runout elevation in response to the petition from Hoffman
Lake residents." Relator West McDonald Lake Association
(WMLA), which is composed of residents of West McDonald Lake,
opposed the permit and any reduction of the runout elevation
at Hoffman Lake's outflow.
applied to its ecological and water resources division for a
permit on March 1, 2016, as the landowner of the property
where Hoffman Lake's outflow is located. See
Minn. R. 6115.0240, subps. 1-2 (2015) (stating that "the
riparian owner of the land on which a project is
proposed" may apply for a permit by submitting an
application to the DNR's regional office "for the
area where the majority of the proposed project is
located"). It stated the following purpose in its permit
application: "Reduce high water conditions on Hoffman
Lake. Hoffman Lake residents have petitioned for lower water
run out elevation to reduce flooding."
permit application, the DNR included two aerial photographs
of the area, taken in 1939 and 1963; a map identifying the
outflow from each lake; runout elevation data for West
McDonald Lake and Hoffman Lake; and two graphs that
illustrate the change in surface elevations of both lakes
since 1976. It did not reference the findings in the 2013
report in its permit application or responses to comments.
sought comments from several private organizations, as well
as local, state, and federal agencies. The Minnesota
Pollution Control Agency (MPCA), WMLA, and HLA provided
comments on the permit application. No comments were received
from the U.S. Army Corps of Engineers, Otter Tail County Land
and Resource Division, DNR Wildlife Division, DNR Fisheries
Division, DNR Regional Environmental Assessment Ecologist,
DNR Regional Nongame Specialists, the Board of Water and Soil
Resources, or the Soil and Water Conservation District. The
DNR recommended approval of its permit application.
August 18, 2016, the DNR issued itself Public Waters Work
Permit 2016-0462 to "[l]ower the runout elevation of
Hoffman Lake to elevation 1354.1 (NGVD 29) at the existing
outlet. The outlet channel bottom shall be approximately 4
feet wide." After petitioning this court for a writ of
certiorari on September 15, 2016, WMLA requested a voluntary
stay of the permit, pending the conclusion of this appeal.
The DNR agreed to the voluntary stay. This appeal follows.
the DNR's determination that it satisfied the
requirements in Minn. R. 6115.0220 (2015) unsupported by
substantial evidence in the record or arbitrary and
the DNR violate state regulations by not obtaining an NPDES
person aggrieved by a state agency's final decision is
entitled to judicial review by this court. Minn. Stat. ...