Legislation is advancing in both the Minnesota House and Senate which would grant a special exemption to one business to enable it to withdraw 150,000,000 to 200,000,000 gallons of water annually from the Poplar River. Withdrawals would occur during the period of low winter flows and threaten to decimate all aquatic life in the lower 2.6 miles of river. The Senate provision, currently in SF 1244, would require the MNDNR to permanently give away this public resource “without regard to minimum flow or water level requirements.” In effect this provision puts a bull’s eye around the core requirement of fish and all aquatic life (adequate water flow to prevent freeze out and winter kill), and prohibits the MNDNR from protecting it. This legislation would in effect give a subsidy to one business and force anglers to “pay” with a valuable public resource. An alternative water source (the third largest in the world) sits nearby, but the business has no incentive to switch to it as long as enough legislators are willing to sacrifice the public’s resources.

Why this is so destructive:

The Poplar River supports wild brook trout and steelhead fisheries, including a population of “coaster” brook trout in the lower reach. The Poplar River is almost entirely dependent upon surface water, and lacks any significant amount of stable groundwater. 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 lesser withdrawals from low winter base flows which do not cause complete winter kill aggravate already harsh conditions and substantially reduce survival of eggs and juvenile fish.

Please contact your legislators no later than Monday morning to urge deletion:

Please let legislators know that you strongly object to their sacrificing the Poplar River trout and steelhead fishery. This egregious give away of a public resource is currently contained in SF 1244, section 18, which provides that, “Notwithstanding any other law to the contrary, the permit for the consumptive use of water approved under this section shall be issued . . . 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.”

SF1244 is scheduled to be heard in Senate Finance committee on Monday May 9, 30 minutes after the Senate floor session ends. Please call and e mail your senator no later than Monday morning and urge this provision be deleted in that committee or on the Senate floor.

A similar, although less drastic, provision is found in HF 1097, section 99. While it contains some minimum flow restrictions, it fails to contain a deadline by which time this give away of a precious public resource will cease. There must be a clear deadline to get this business to make the long overdue switch to readily available Lake Superior water. HF 1097 will be heard on the House floor at 3 pm Monday May 9. Please call or e mail your Representative before then and urge the removal of section 99. At a minimum the last sentence must be amended to do more than merely require future evaluation and should read: “The permit shall expire in three years and shall not be renewed.”

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

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

How to contact the Governor: If the provision makes it through even one legislative body the Governor and MNDNR Commissioner will have an opportunity to have it removed during the conference committee process. It is important to start letting them hear of your outrage now. Follow this link to see options for contacting Governor Mark Dayton:

The Poplar River has been a trout stream for hundreds, and perhaps thousands, 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 the business involved here (“LMC”) sought a permit for a small appropriation. LMC drastically increased its taking of the state’s water beginning in 2001, taking between 60 million and 107 million gallons per year despite being permitted to take less than 13 million GPY.

The legislation would increase withdrawals to 150 million or 200 million GPY.

LMC could pipe water from nearby Lake Superior, but chooses not to.

Continued water withdrawals which exceed the existing permitted amount (13 million GPY) threaten to wipe out the trout and steelhead fisheries enjoyed by many anglers.

Anglers should not be forced to sacrifice a public resource to a private business, especially when an alternate water supply is readily available.

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. Person, MNDNR, Grand Marias 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 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.

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 are largely 2 years old are less, successive winter kills can nearly exterminate the population.

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 a couple year classes of steelhead.

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.

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 13 million gallons, subject to minimum flow requirements 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 water which 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 withdraw any water from the Poplar River. In 1937 MN 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 reasonable use is.

The “year-round Q90” flow corresponds to the low flow level. This is the rate at which flows are exceeded 90% of the time. The annual Q90 for the Poplar River is 21 cfs.

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 represents 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 12,600,000 gallons per year of water directly from the Poplar River and sets a maximum rate of 1,800 gallons per minute or about 4.1 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. 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 drastically increased its withdrawals 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 excess 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. LMC can appropriate water from nearby Lake Superior, but chooses not to.

While LMC is the only entity we are aware of which MN allows to withdraw water from a trout stream (it not being allowed under MN statute and rules), even surface water withdrawals from warm water streams are required to cease when flows stay below the Q90 for 5 days. Such a provision is in the House bill, but the Senate bill specifically prohibits the inclusion of this most minimal protection.

LMC currently may appropriate trout water at a rate of 4 cfs, which is about 20% of the year-round Q90 base flow.

LMC has indicated they may 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 at times could be almost 40% of the year-round Q90 base flow, and an even larger percentage of the February Q90 base flow.

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.

Even if this public resource were to be sacrificed in this way, the Poplar River still does not contain sufficient base flow to ensure as much water as LMC feels it needs to expand operations.

LMC’s excessive water withdrawals from the Poplar River since 2001 are outside the permit. This conduct should not be rewarded with a special exemption permitting it to destroy a public resource.

While the consumptive water use provisions should be deleted in their entirety, if retained as an interim measure they must impose the minimum flow requirements in HF 1097 and an expiration date no greater than 3 years, to provide an incentive for LMC to finally take steps to secure a sustainable long-term solution to its water use desires.