7-2000-19885-1
Governor’s No. AR 246
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
In the Matter of the Proposed Rules
of the State Department of Natural Resources Relating to Aquatic Plant
Management, Minnesota Rules Chapter 6280 |
REPORT OF THE
ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge (ALJ) Richard C. Luis
conducted a series of hearings concerning rules proposed by the Minnesota
Department of Natural Resources (DNR or Department) regarding aquatic plant
management. On November 3, 2008,
hearings were held at 2:00 p.m. and 6:30 p.m. at the
The hearing and this Report are part of a
rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking
process to ensure that state agencies have met all the requirements that
The members of the DNR’s hearing panel at the
hearings on November 3, 2008, were Steve Hirsch, Acting Director; Steve Enger,
Statewide Coordinator for Aquatic Plant Management Program; Ray Valley, Senior
Research Biologist, Division of Fisheries and Wildlife; and Jacquelyn
Bacigalupi, Fishery and Habitat Specialist, Division of Fisheries and
Wildlife. On November 5, 2008, the DNR’s
panel members were Steve Hirsch; Steve Enger; Paul Radomski, Research
Biologist; and Wayne Mueller, Aquatic Plant Management Specialist. On November 6, 2008, the DNR’s panel members
were Steve Hirsch; Steve Enger; Paul Radomski, and Leslie George, Aquatic Plant
Management Specialist. On November 7,
2008, the DNR’s panel members were Steve Hirsch; Steve Enger; Assistant
Attorney General David Iverson; Ray Valley; and Tim Ohmann, Fishery and Habitat
Specialist. Approximately 10 people
attended the hearings in Waseca; 25 in Little Falls; 30 in
The Department and the Administrative Law Judge received written comments on the proposed rules prior to the hearing. At the hearing, the initial deadline for filing written comment was set at twenty calendar days (December 1, 2008), to allow interested persons and the DNR an opportunity to submit written comments. Following the initial comment period, the record remained open for an additional five business days (December 8, 2008), to allow interested persons and the Department the opportunity to file a written response to the comments received during the initial period. Numerous comments were received during the rulemaking process. To aid the public in participating in this matter, comments were posted on the Office of Administrative Hearings’ website as they were received. The hearing record closed for all purposes on December 8, 2008.
The Department must make this Report available for review by anyone who wishes to review it for at least five working days before the DNR takes any further action to adopt final rules or to modify or withdraw the proposed rules. If the DNR makes changes in the rules other than those recommended in this report, it must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before it may adopt the rules in final form.
After adopting the final version of the rules, the Department must submit them to the Revisor of Statutes for a review of their form. If the Revisor of Statutes approves the form of the rules, the Revisor will submit certified copies to the Administrative Law Judge, who will then review them and file them with the Secretary of State. When they are filed with the Secretary of State, the Administrative Law Judge will notify the Department, and the Department will notify those persons who requested to be informed of their filing.
Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:
1. The Department proposes amendments to rules governing aquatic plants and nuisances. Aquatic plants growing in public waters are owned by the state, and their control has been regulated by the DNR since the 1940s.[2] The Aquatic Plant Management (APM) statutes and rules allow control of aquatic vegetation, primarily to facilitate riparian landowner access to open water. The statutes and rules specify limits on the amount and type of vegetation control allowed and conditions under which permits may be issued for vegetation control.
2.
In recent years, invasive aquatic plants have
posed new management challenges.
3.
4. Large-scale control of invasive aquatic plants is a developing science and the results vary considerably between lakes. Lake-wide chemical control does not eradicate invasive aquatic plants, but has temporarily reduced the abundance of Eurasian watermilfoil and increased native plants in some moderately fertile lakes.[5] Chemical control has led to algae blooms and decreased water clarity with no increase in native aquatic plants in fertile lakes that had sparse populations of native aquatic plants prior to the chemical treatment. Even in cases where lake-wide chemical control has been successful, repeated treatments have been necessary, usually within one to three years, to keep Eurasian watermilfoil at a low level.[6]
5.
The loss of aquatic plants can affect the entire
lake ecosystem. The cumulative loss of
aquatic plants coupled with nutrient loading can lead to drastic ecological
changes in lakes characterized by turbid water, little to no rooted aquatic
plant growth, and disturbance-tolerant fish species.[7] Lakes in this state of ecological distress
are common in agricultural regions of southwest
6. Many species of birds and mammals are also dependent on aquatic plants for food and nesting sites.[10]
7. Accordingly, APM issues have become increasingly complex, and balancing the desires of shoreline property owners with the need to protect aquatic habitat has become more challenging.
8. In 2002, the Legislature mandated that the DNR develop a proposal to review its APM Program. The DNR developed this proposal and subsequently conducted an extensive review of the program over the past two years. The review resulted in a number of recommendations, which prompted the DNR to propose changes to the APM rules.
9. The proposed rules address a number of APM issues, including: which APM activities require a permit; prohibited methods of aquatic plant control; criteria and conditions for APM permits; aquatic plant control restrictions; APM permit application requirements; APM permit revocation; variances for APM permits; commercial harvest of aquatic plants; and lake vegetation management plans (LVMP).
10.
On
December 19, 2005, the DNR published in the State Register a Request for
Comments on possible amendments to rules governing aquatic plants and
nuisances. The notice indicated that the
DNR had not yet prepared a draft of the proposed rule and requested comments on
proposed criteria.[11]
11.
On
August 28, 2008, the DNR filed copies of the proposed Notice of Hearing,
proposed rules, and draft Statement of Need and Reasonableness (SONAR) with the
Office of Administrative Hearings. The
filings complied with Minn. R. 1400.2080, subp. 5. On the same date, the DNR also filed a
proposed additional notice plan for its Notice of Hearing and requested that
the plan be approved pursuant to Minn. R. 1400.2060. By letter dated September 3, 2008, the
Administrative Law Judge approved the additional notice plan.[12]
12.
As
required by Minn. Stat. § 14.131, the DNR asked the Commissioner of Finance to
evaluate the fiscal impact and benefit of the proposed rules on local units of
government. The Department of Finance
provided comments in a memorandum dated April 21, 2008. Executive Budget Officer Marsha Battles-Jenks
concluded that the proposed rules would have “minimal fiscal impact on local
units of government.”[13]
13.
On
September 23, 2008, the DNR mailed the Notice of Hearing to all persons and
associations who had registered their names with the DNR for the purpose of
receiving such notice.[14] The
Notice contained the elements required by Minn. R. 1400.2080, subp. 2. The Notice identified the dates and locations
of the hearings in this matter. The
Notice also announced that the hearing would continue until all interested
persons had been heard, or additional hearing dates added, if needed.
14.
At the
hearing in
A.
the
DNR’s Request for Comments, as published in the State Register on December 19,
2005;[15]
B.
the
proposed rules dated August 6, 2008, including the Revisor’s approval;[16]
C.
the
Department’s Statement of Need and Reasonableness (SONAR);[17]
D.
a
letter dated September 3, 2008, noting that the Administrative Law Judge had
approved the DNR’s Notice of Hearing and Additional Notice Plan;[18]
E.
the
Notice of Hearing as mailed on September 23, 2008;[19]
F.
the
certification that the DNR mailed a copy of the SONAR to the Legislative
Reference Library on September 15, 2008;[20]
G.
the Notice
of Hearing as published in the State Register on September 22, 2008;[21]
H.
the
Certificate of Mailing the Notice of Hearing to the Rulemaking Mailing List on
September 23, 2008, and Certificate of Accuracy of the Mailing List as of
September 15, 2008;[22]
I.
the Certificate
of Mailing the Notice of Hearing to the Parties identified in the Additional
Notice Plan on September 23, 2008;[23]
J.
the
Certificate of Mailing the Notice of Hearing and the SONAR to various
Legislators on September 15, 2008, accompanied by a copy of the transmittal
letter;[24]
K.
the
DNR’s news release, dated September 30, 2008, announcing the proposed rules,
and information on the rules from the DNR’s web page;[25] and
L.
a copy
of the opening statement of Steve Hirsch.[26]
15. The Administrative Law Judge finds that the DNR has met all of the procedural requirements under applicable statutes and rules.
16. In its SONAR, the Department asserts that its statutory authority to adopt these rules is contained in Minn. Stat. § 103G.615, subd. 3.
17. Section 103G.615, subd. 3, provides:
Subd. 3.
Permit standards. The
commissioner shall, by rule, prescribe standards to issue and deny permits
under this section. The standards must ensure that aquatic plant control is
consistent with shoreland conservation ordinances, lake management plans and
programs, and wild and scenic river plans.
18. The ALJ concludes that the DNR has general statutory authority to adopt the proposed rules.[27]
19. Minn. Stat. §§ 14.131 and 14.23 require that an agency include in its SONAR a description of its efforts to provide additional notification to persons or classes of persons who may be affected by the proposed rule or explain why these efforts were not made. As discussed above, the Department submitted an additional notice plan to the Office of Administrative Hearings, which was reviewed and approved by the Administrative Law Judge by letter dated September 3, 2008. During the rulemaking proceeding, the DNR certified that it provided notice to those on the rulemaking mailing list maintained by the DNR and in accordance with its additional notice plan.[28]
20. As described below, the DNR made significant efforts to inform and involve interested and affected parties in this rulemaking:
A. the DNR published a Request for Comments in the State Register on December 19, 2005;[29]
B. letters requesting comments were mailed to approximately 3,900 individuals who received an aquatic plant management permit in 2005; individuals with commercial aquatic pest control licenses and commercial aquatic plant harvest permits; conservation districts; aquatic and plant-related professional societies; watershed districts; and conservation and environmental organizations;[30]
C. the DNR announced this rulemaking process in September 2008 in a statewide news release that it distributed to all general news media in the state;[31] and
D. the proposed rules, the SONAR, and other information relating to the proposed rules have been available on the DNR’s website.[32]
21.
During
the 60-day period after the Request for Comments was published, from December
19, 2005, through February 17, 2006, the DNR received comments from 94 groups
and individuals.[33]
These comments were filed with the ALJ on November 20, 2008, and are
admitted to the record as Exhibit 25A.
Also included in Exhibit 25A are comments filed with the Department,
rather than with the Administrative Law Judge, between the date of publication
of the Notice of Hearing (September 22, 2008), and the convening of the first
hearing on November 3, 2008.
22.
The Department has disseminated the proposed
rules to affected parties. The Administrative Law Judge finds that the
DNR has satisfied the notice requirements.
V. Impact
on Farming Operations
23.
Minn.
Stat. § 14.111 imposes an additional requirement calling for notification to be
provided to the Commissioner of Agriculture when rules are proposed that affect
farming operations. In addition, where
proposed rules affect farming operations, Minn. Stat. § 14.14, subd. 1b, requires
that at least one public hearing be conducted in an agricultural area of the
state.
24.
The
proposed rules do not affect farming operations, and the ALJ concludes that the
Department was not required to notify the Commissioner of Agriculture.
25. Minn. Stat. § 14.131 requires an agency adopting rules to include in its SONAR:
(1)
a
description of the classes of persons who probably will be affected by the
proposed rule, including classes that will bear the costs of the proposed rule
and classes that will benefit from the proposed rule;
(2)
the
probable costs to the agency and to any other agency of the implementation and
enforcement of the proposed rule and any anticipated effect on state revenues;
(3)
a
determination of whether there are less costly methods or less intrusive
methods for achieving the purpose of the proposed rule;
(4)
a
description of any alternative methods for achieving the purpose of the
proposed rule that were seriously considered by the agency and the reasons why
they were rejected in favor of the proposed rule;
(5)
the
probable costs of complying with the proposed rule, including the portion of
the total costs that will be borne by identifiable categories of affected
parties, such as separate classes of governmental units, businesses, or
individuals;
(6)
the
probable costs or consequences of not adopting the proposed rule, including
those costs or consequences borne by identifiable categories of affected
parties, such as separate classes of government units, businesses, or
individuals; and
(7)
an
assessment of any differences between the proposed rule and existing federal
regulations and a specific analysis of the need for and reasonableness of each
difference.
26. With respect to the first factor, the DNR indicated in its SONAR that the proposed rules will primarily affect people who own shoreline properties that are affected by the growth of aquatic plants, individuals and companies that control aquatic plants for hire or harvest aquatic plants for sale in retail or wholesale markets, and recreational users of public waters including boaters, anglers, and hunters.[34]
27. With regard to the second factor, the DNR acknowledged that the proposed rules part 6280.0350, subp. 4, item C, require the DNR to develop lake vegetation management plans for lakes affected by changes in that subpart. There will be a cost to develop these plans, but it will be accomplished by existing staff and will not increase the Department’s operating costs.[35]
28. Apart from developing the lake vegetation management plans, the proposed rules will not result in additional costs to the DNR or other agencies. Current costs to the DNR result primarily from administration of the APM permitting program and enforcement of APM regulations. Costs are largely dependent on the number of permits requested and issued, and the amount of enforcement effort. The proposed rules would affect the amount of aquatic plant control allowed under APM permits, but would not require an increase in permitting or enforcement activity.[36]
29.
Regarding the third factor of whether there are
less costly methods for achieving the purpose of the rule, the DNR noted that
the proposed rules would reduce the amount of submersed aquatic plants that
could be controlled for some shoreline property owners, but that it is not
feasible to provide adequate protection for aquatic plants without suitable
permitting and enforcement programs. The
rules are needed to ensure that lakeshore development does not degrade the
economic, recreational and ecological values of
30. The proposed rules also specify criteria for APM, commercial harvest, and commercial mechanical permit revocation. People who control aquatic plants without a permit or violate the conditions of their permit may cause significant fish and wildlife habitat destruction. It is necessary for the DNR to have the authority to revoke permits to prevent undue damage to the state’s aquatic resources.[38]
31. Regarding the fourth factor, a description of alternative methods considered, the DNR noted that the primary purpose of the proposed rule is to allow riparian landowners to control aquatic plants when necessary to get access to open water for traditional recreational uses, while protecting the habitat and water quality values that aquatic plants provide. The proposed rules are also intended to help determine when aquatic plant control limits should be exceeded to help control invasive aquatic plants, protect or improve aquatic resources, provide riparian access or enhance recreational use on public waters. The DNR has programs to educate people about the value of having natural riparian and aquatic vegetation along shorelines and provide technical assistance and grants for people who want to restore their shorelines. While these programs are growing in popularity and have had some successes, they have not been sufficient to stop the trend of declining habitat due to increased lakeshore development. The demand for APM permits has increased from 1,100 in 1992 to 4,600 permits in 2007.[39]
32. With regard to the fifth regulatory factor, the probable costs of complying with the proposed rule, the DNR noted that the proposed rule change in part 6280.0350, subp. 2a, would decrease the amount of shoreline allowed for submersed aquatic vegetation control for some property owners and would require most property owners to leave at least half of the shoreline untreated. This provision will not increase costs for property owners, but it could reduce profits of businesses that control aquatic plants for hire, because it will reduce the amount of control allowed on some lakes and prevent uninterrupted control along multiple property owners’ shorelines.[40]
33. With respect to the sixth factor, the probable costs of not adopting the proposed rule, the DNR noted that the major consequences of not adopting the proposed rules are: decision-making criteria used for APM permits would continue to be ambiguous to the public and the DNR field staff, resulting in a lack of consistency in how APM rules are applied across the state; control of near-shore submersed aquatic vegetation will increase on developed lakes, to the detriment of aquatic habitat and water quality; submersed aquatic plant control in excess of the littoral area limits on the “grandfather lakes” could result in further declines in aquatic habitat and water quality and elimination of some fish species; rules would continue to provide inadequate guidance on revocation of permits for people who violate APM laws; and rules would continue to provide inadequate guidance on when to allow variances to address invasive aquatic plants and other issues.[41]
34. Finally, with respect to the seventh factor, the DNR indicated that the proposed rules do not conflict with federal regulations.[42]
35. The Administrative Law Judge concludes that the DNR has fulfilled its obligation under Minn. Stat. § 14.131 to discuss costs and alternative assessments in the SONAR.
36. Minn. Stat. § 14.131 also requires that an agency include in its SONAR a description of how it “considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Section 14.002 states, in relevant part, that “whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.”
37.
The DNR maintained that the rule as proposed is
performance-based, stating that invasive aquatic plants are spreading in
38. The DNR also maintains that the proposed rules provide criteria for making decisions regarding how much control to allow in an APM permit. These changes will allow the DNR to meet its regulatory objectives by providing more consistency in APM decisions across the state.[44]
39. The DNR notes that the proposed rules also provide more guidance for the development of lake vegetation management plans (LVMP) to facilitate partnerships between the DNR and lake groups in managing lakes. Current rules allow APM permits to be issued in accordance with LVMPs approved by the DNR, and lake groups have used the LVMP process to obtain variances for APM permits. Some groups have indicated that more clarity is needed to determine what is required in an LVMP, and the proposed rules will provide such clarity. It is necessary for the DNR to allow an LVMP to guide APM permit decisions, because it encourages lake groups to establish lake management goals, address underlying problems like water quality and land use in the watershed, and develop monitoring plans to determine if proposed actions are successful.[45]
40. The Administrative Law Judge finds that the DNR has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.
C. Consultation
with the Commissioner of Finance
41.
Under
42. As required, the Department consulted with the Commissioner of Finance. On April 21, 2008, Executive Budget Officer Marsha Battles-Jenks stated by letter that the proposed rules would have minimal fiscal impact on local units of government.[46]
43.
The ALJ finds that the Department has met the
requirements set forth in Minn. Stat. § 14.131 for consulting with the
Commissioner of Finance.
44.
Under
Minn. Stat. § 14.127, the DNR must “determine if the cost of complying with a
proposed rule in the first year after the rule takes effect will exceed $25,000
for: (1) any one business that has less
than 50 full-time employees; or (2) any one statutory or home rule charter city
that has less than ten full-time employees.”[47] The
Department must make this determination before the close of the hearing record,
and the Administrative Law Judge must review the determination and approve or
disapprove it.[48]
45. The DNR indicated in its SONAR that the proposed rules would not directly increase costs by more than $25,000 for small businesses, but that they could reduce profits for businesses that control aquatic plants because of the proposed change to reduce the amount of submersed aquatic vegetation that a shoreline property owner can control. Current rule language allows control of submersed aquatic vegetation on up to 100 feet of shoreline for a property owner (part 6280.0350, subp. 4, item A). The proposed change will allow control of submersed aquatic plants on up to 100 feet or half the person’s shoreline, whichever is less (part 6280.0350, subp. 1a). Businesses that control aquatic plants are more likely to be able to control longer, uninterrupted stretches of shoreline under the existing rules than under the proposed rules. The DNR does not have information that would allow it to estimate the potential lost profits for businesses that control aquatic plants.[49]
46.
Daniel Kelsey, a resident on
47. The Administrative Law Judge finds that the DNR has made the determinations required by Minn. Stat. §§ 14.127 and 14.131 and approves those determinations. The DNR consulted with the Commissioner of Finance, and the Executive Budget Officer concluded that the rules would have a minimal impact on local units of government. Though Mr. Kelsey disagrees with the ultimate determination, it cannot be said that the Department did not meet its statutory requirements. See also Findings 12 and 42.
48.
Under
49.
The question of whether a rule has been shown to
be reasonable focuses on whether it has been shown to have a rational basis, or
whether it is arbitrary, based upon the rulemaking record.
50. Reasonable minds might be divided about the wisdom of a certain course of action. An agency is legally entitled to make choices between possible approaches so long as its choice is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[58]
51. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the Department complied with the rule adoption procedure, whether the rule grants undue discretion, whether the Department has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[59]
52. Because the DNR suggested changes to the proposed rules after original publication of the rule language in the State Register, it is also necessary for the Administrative Law Judge to determine if the new language is substantially different from that which was originally proposed. The standards to determine whether changes to proposed rules create a substantially different rule are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced . . . in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the . . . notice of hearing, and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.” In reaching a determination regarding whether modifications result in a rule that is substantially different, the Administrative Law Judge is to consider whether “persons who will be affected by the rule should have understood that the rulemaking proceeding . . . could affect their interests,” whether the “subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the . . . notice of hearing,” and whether “the effects of the rule differ from the effects of the proposed rule contained in the . . . notice of hearing.”
VIII. Analysis of the Proposed Rules
53. This Report is limited to discussion of the portions of the proposed rules that received critical comment or otherwise need to be examined, and it will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that each and every suggestion, including those made prior to the hearing, has been carefully read and considered. Moreover, because sections of the proposed rules were not opposed and were adequately supported by the SONAR, a detailed discussion of each section of the proposed rules is unnecessary.
54. The Administrative Law Judge finds that the DNR has demonstrated, by an affirmative presentation of facts, the need for and reasonableness of all rule provisions not specifically discussed in this Report. The Administrative Law Judge also finds that all provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
IX. Broad Issues Relating to the Proposed Rules
Need to Further
Restrict Aquatic Plant Treatment – MHL[60]
55.
Minnesotans for Healthy Lakes (MHL), through its
Board Chair William Iacoe, argues that the DNR has not conclusively
demonstrated the need for new rules to further restrict aquatic plant treatment. MHL points out that the DNR has acknowledged
that invasive aquatic plants are spreading to more lakes each year and that
they crowd native plants and create recreational nuisances.[61] In the SONAR the DNR summarizes that 17 out
of 18 public comments called for greater efforts to control invasive aquatic
plants or eliminate barriers for invasive species control.[62] MHL argues that the DNR has been too
conservative in its approach to controlling invasive species and points out
that the number of
56.
Dr. Douglas Pullman, Ph.D, a lake management
consultant with Aquest Corporation in
57. MHL further argues that the DNR has failed to acknowledge or understand that available herbicidal technology allows invasive species to be treated selectively while causing minimal damage to native aquatic plants. It claims that recent studies indicate that whole-lake treatment of Eurasian watermilfoil may reduce invasive species but still allow native plants to thrive when the herbicides are used according to manufacturer’s instructions. Conversely, overly conservative whole lake treatments have usually failed to meet their objectives.[66] MHL suggested that more objective research is required before these rules can be adopted. MHL contends that despite 20 years of studying, the DNR has formulated no definitive course of action to stem the spread of Eurasian watermilfoil. MHL proposes that external, unbiased experts are needed to assess this situation.[67]
58. The Department responds that the proposed rules will help guide management of invasive aquatic plants by providing more direction on when to allow variances for invasive aquatic plant control (part 6280.1000, subp. 1, item B). The Department also points out that the proposed rules allow more control of invasive aquatic plants by a shoreline property owner than current rules if the control is selective for the invasive plants (part 6280.0350, subp. 1a, item C).[68] The DNR clarified that it proposed the exception to allow selective control of invasive plants not because it believes individual landowners can staunch the spread of invasive species, but because invasive aquatic plants do not require the same level of protection as native aquatic plants.[69]
59. The Department further responds that the Attachments to MHL’s response include letters or statements from Dr. Pullman, who works for a private lake management corporation and three chemical companies. The DNR acknowledges that private companies involved with aquatic herbicides represent part of the cross-section of constituencies with whom the DNR needs to partner on invasive species, but suggests that it cannot and should not act on their advice alone.[70]
60.
The DNR further responds that it followed about
40 of the approximately 55 recommendations made by the Center for Aquatic
Plants at the
61. In response to the letters from the aquatic herbicide companies, the DNR agrees with the statements therein that there are no “technical,” “environmental fate,” or “toxicological” reasons for the proposed rules. The rationale for the proposed rules is to protect the habitat and water quality values afforded by aquatic plants, not to address concerns about environmental fate or possible toxicity of the herbicides to non-target organisms.
62. The companies were also concerned that herbicides may not be effective in smaller treatment areas due to dilution. The DNR acknowledges that some permitted treatment areas may be too small for effective control with aquatic herbicides and notes that mechanical control of aquatic vegetation may be used where the efficacy of herbicides may be reduced by dilution. However, the DNR notes that greater control, up to control of entire shorelines, is possible if the control is selective for invasive aquatic plants. Its staff experts will factor any selective properties of herbicides into APM permit decisions. The letters emphasize that their products can be selective for invasive aquatic plants; and the letters from SePro and UPI point out that the DNR has addressed the ability of herbicides to be selective. The DNR also points out that it has considered the scientific literature which indicates that application of herbicides to lakes to control non-native invasive species can damage non-target native plants.[72] On page 22 of its December 1 Comment, the DNR specifies the documentation of decreases in native submersed plant species after whole-lake treatment with fluridone and of damage to native pondweeds by endothall treatment for curly-leaf pondweed.
63. The DNR comments that MHL is not recognizing its efforts to control and manage invasive species, including invasive aquatic plants. Its annual invasive species budget for DNR’s Division of Ecological Resources increased from $2.3 million in 2007 to $4.9 million in year 2009. The budget increase is being used to fund additional field positions to provide technical assistance to local groups and assist with the development of LVMPs, increase enforcement of invasive species laws, and increase grants to local groups to control aquatic invasive species. The Department responds that MHL and Dr. Pullman overstate the role that aquatic plant management rules play in the control of invasive species and underestimates the DNR’s efforts to manage aquatic invasive species.[73] The DNR further comments that there is no evidence that lake frontage rules which allow individual landowners aquatic plant control have any significant or measurable bearing on the extent to which invasive aquatic plants spread within a lake or from lake to lake, so there is no objective, scientific evidence which would substantiate MHL’s claim that the proposed rules will facilitate the spread of invasive aquatic plants.[74]
64. In the SONAR, the DNR explained that the primary purpose in allowing shoreline property owners to control aquatic plants is to provide access to open water. According to the DNR, in virtually all cases, this can be done without exceeding control thresholds in the existing rule and proposed rule changes. Therefore it is unnecessary to push the safe limits of aquatic plant control and risk degradation of the state lakes when issuing APM permits.[75]
65. MHL argues that the DNR has used obsolete and irrelevant data to support its case that more restrictive rules are needed. MHL points out that the SONAR fails to cite peer-reviewed research outside DNR internal surveys that prove that chemical and manual removal of near-shore aquatic plants have caused extirpations of some fish in metro-area lakes. MHL argues that the research the DNR cited to show the importance of aquatic plants to bird and mammal nesting and feeding is largely from the 1970s and that the DNR even cited a study from 1941.[76]
66. Even though the DNR’s scientific evidence documenting the ill-effects of chemical treatment of aquatic plants is relatively thin, the ALJ finds the DNR has demonstrated the reasonableness of restricting chemical herbicide treatment further than allowed under current rules. The DNR’s invasive species program is separate and distinct from its APM program and there is no evidence to suggest that control of invasive species will be hindered by the proposed rules. The DNR has made a policy decision to restrict further the limitations on chemical/herbicide treatments of aquatic plants. Its position is found to be reasonable.
Repeal of the
Grandfather Clause – Part 6280.0350, subp. 4, items B and C
67. A great deal of controversy was generated by proposed rule part 6280.0350, subp. 4, items B and C, in which the Department seeks to repeal the grandfather clause. Many comments and copies of postcards were received from lakeshore property owners living on lakes currently allowed to treat more than the 15% littoral zone limit under the grandfather provision.[77] Proposed subpart 4 provides:
Subp. 4. Pesticide
control of aquatic macrophytes restrictions. Except as
otherwise specified in this part, items A and B apply to pesticide control of
aquatic macrophytes.
A. On all public waters and watercourses, the
lesser of Pesticide control of aquatic plants in public waters may not
exceed 15 percent of the littoral area or a maximum of 100 feet of
shoreline per site belonging to an individual riparian property owner may be
treated for control of submerged vegetation, except that on waters that
are 20 acres or less, pesticide control may be permitted on up to five acres or
one-half the surface area of the pond, whichever is less. These limitations
do not apply in the circumstances described in subitems (1) to (3) item
B.
(1) For resorts, apartments, condominium
complexes, public swimming beaches, and marinas, the commissioner must make an
individual determination, taking into consideration the total impact on the
protected water.
B. (2) Larger percentages of the
littoral area shall be treated at the discretion of the commissioner when
authorized by permits issued prior to 1976. The waters affected by this
provision are: Sunfish Lake in Dakota County; Cedar Island and Lost Lakes and
Carson's and St. Louis Bays of Lake Minnetonka in Hennepin County; and Johanna,
Owasso, Gervais, and McCarron Lakes in Ramsey County.
(3) On
stormwater retention ponds, treatment may occur on up to five acres or one-half
the surface area of the pond, whichever is less.
B. Applications from riparian property owners'
associations for large area or baywide treatment must include a written
statement of the plan and a map showing areas proposed to be treated. The
commissioner may reduce the amount of littoral area which the applicant
proposes to control. Any application for treatment must include the names,
addresses, location on lake, and signatures of all property owners whose
shorelines will be treated. Signatures must be obtained every three years or
when there is a change of property ownership.
C. Item B expires five years after the effective
date of this item. Before the expiration of item B, the commissioner shall
develop a lake vegetation management plan as provided under part 6280.1000,
subpart 2, for each of the waters listed in item B. The commissioner shall
provide opportunities for the public to participate in the planning process, including a notice or news release in a
local newspaper, at least one public meeting, and a 30-day comment period.[78]
68.
Under the current rules, only 15% of a lake’s littoral
area (15 feet deep or less) can be treated.
Under the grandfather clause, seven lakes in the Twin Cities
metropolitan area and two bays on
69.
The
proposed language in item C would terminate the grandfather clause in five
years to allow affected lake groups to work with the DNR to develop a lake
vegetation management plan (LVMP) to guide future aquatic plant control. The proposed language specifies the lakes which
are affected by the grandfather clause.
70.
MHL
commented that the DNR had not demonstrated the need to limit control of
invasive species to 15% of the littoral area.
MHL argues the rule provision limiting control to 15% of the littoral
area of a lake was implemented in 1976 to apply to native species. It argues that now the DNR seeks to apply the
same arbitrary, conservative limit to invasive species, which did not exist in
1976, and that so limiting the treatment of invasive species contradicts the
stated objective of controlling invasive species more effectively.[80]
71.
Dr.
Pullman stated that invasive species destroy the biodiversity of aquatic plant
communities and depress ecosystem stability in most of the vegetated littoral
zone of lakes and that rarely is this zone limited to 15% of the total lake
area. He concludes that a restriction of
treatment to an arbitrarily selected maximum of 15% of the littoral area is a
“death sentence for the biodiversity of vegetation of areas that cannot be
treated properly.”[81]
72.
Although
the DNR is not proposing to change the 15% littoral area limit and the limit is
therefore outside the purview of this rulemaking, the comment and response are
pertinent to the grandfather clause issue because the grandfathered lakes are
allowed under current rules to treat more than 15% of the littoral area. The DNR responded that the 15% littoral area
limit is conservative, but not arbitrary.
The DNR pointed out that the 15% limit was challenged and supported in a
previous rulemaking. In 1996, the DNR
proposed to amend the APM rules to institute the 15% littoral area limit. Administrative Law Judge Allan W. Klein found
the DNR had supported the 15% limitation even though scientific research at the
time had not documented that 15% was the best limit for all lakes.[82]
73.
The DNR
stated in its SONAR that its position that conservative limits are warranted
has been consistent since 1996. It
stated:
While the
science documenting the habitat and water quality value of aquatic plants is
strong, the relationship between aquatic plants and the abundance of fish and
other wildlife is complex and studies point to the difficulty in defining a
precise threshold in aquatic plant abundance at which habitat quality
declines. As a result, it is necessary
and reasonable to take a “precautionary management approach” in settling limits
for aquatic plant control (Rosenberg 2002; Valley et al. 2004). This approach acknowledges that aquatic
plants are important habitat and that control limits need to be conservative to
avoid negative impacts to the state’s public waters.
…
The primary purpose in allowing shoreline property owners to control aquatic plants is to provide access to open water. In virtually all cases, this can be done without exceeding the control thresholds in the existing rule and proposed rule changes. Therefore it is unnecessary to push the safe limits of aquatic plant control and risk degradation of the state lakes when issuing APM permits. [83]
74.
The DNR
stated that its overall approach is to use the standard aquatic plant control
limits for most lakes and the variance process when the limits need to be
exceeded to control invasive aquatic plants.[84]
75.
The DNR
stated in its SONAR that it is necessary to terminate the grandfather clause to
protect aquatic plants and their habitat value, and to provide consistent
aquatic plant removal regulation throughout the state. The DNR stated that the original reasons for
the grandfather clause have been lost over time and that there is no biological
justification to treat the grandfathered lakes differently than all the other
waters in the state. It stated that the
continuation of elevated levels of pesticide control in these lakes jeopardizes
aquatic habitat. According to “DNR
surveys,” one fish species, banded killifish, has been functionally extirpated
from
76.
The DNR
emphasized the increase in permits in recent years and the likelihood that the
trend would continue. The DNR stands by
its position that the increase in shoreline development is well documented and
justifies more conservative treatment regulation and the repeal of the
grandfather clause.[86]
77.
It is the
DNR’s position that it is reasonable to provide an opportunity for the DNR to
develop a LVMP with affected lake groups to guide future aquatic plant control
on the grandfather lakes. The DNR will
provide outreach and education for grandfather lake residents and chart the
best course for management of aquatic plants on these lakes.[87]
78.
The DNR
notes that there is a variance process in place that will allow elevated levels
of aquatic plant control if justified.[88]
79.
The
proposed language would also modify the exception to littoral area treatment
limits for storm water retention ponds. The current language states that
aquatic plant control may occur on up to five acres or half the surface area of
a storm water retention pond, whichever is less. This language has been confusing, because there
is no definition of storm water retention ponds and most are not public waters
and, therefore, are not regulated by this Chapter. In practice, this provision
has most often been applied to small ponds in urban environments. These waters often receive lots of
nutrient-rich run-off, which exacerbates problems with nuisance growths of
aquatic plants. The proposed change is to eliminate the use of the term storm
water retention ponds, and replace it with a provision that allows pesticide
control on up to five acres or half the surface area of waters that are 20
acres or less.[89]
80.
The
current language in item B has several requirements for permit applications
from riparian property owners’ associations for large area or bay-wide aquatic
plant control and is similar to existing language in 6280.0350, subp. 3, item
C. The proposed change eliminates the language from item B (and 6280.0350,
subp. 3, item C) and replaces it with language in part 6280.0450, subp. 1a,
which deals with group permit applications. The proposed change is necessary
and reasonable, because this language is a better fit in part 6280.0450, which
deals with APM permit requirements.[90]
81.
The Administrative Law Judge questioned the
statement in the DNR’s SONAR to the effect that the original reasons for the
grandfather clause have been “lost over time,” because in the ALJ Report issued
in 1996 (regarding the rules currently in effect) the ALJ stated that the
reasons for the grandfather clause were that the 15 percent littoral area limit
for aquatic plant control had been added for lakes in the Twin Cities
Metropolitan area in 1976, at a time when several lakes in the Metro Area had
extensive areas of shallow water and a long history of aquatic plant control
exceeding 15 percent of their littoral areas.
In its Comments the DNR acknowledges that the main reason for the
grandfather clause appears to be avoiding conflict with landowners on the
grandfathered lakes. When the
grandfathered lakes were enumerated in 1976, permits for aquatic plant control
had been issued on them that exceeded the area limits put into the rules at
that time. The Commissioner’s Order
designating the grandfathered lakes noted that “larger percentages of the
littoral area shall be allowed when they have been authorized in the past by
aquatic nuisance control permits.”[91]
82.
The DNR
clarified its statement in the SONAR regarding the origins of the grandfather
clause in its comment dated December 1, 2008.
The grandfather clause was not first implemented during a rulemaking
proceeding. Rather, the clause was first
implemented in a Commissioner’s Order.
Before 1976 there were no lake-wide limits on the control of aquatic
vegetation with herbicides. The 1976
revision of Commissioner’s Order 1938 established the following littoral area
limits for pesticide control of aquatic plants based on lake
classification: 1) general development
lakes – 10% of littoral area; 2) recreational lakes – 5% of the littoral area;
and 3) natural environment lakes – no area may be treated. It stated that the
grandfather clause most likely originated to avoid conflict with landowners on
the grandfathered lakes. [92]
83.
As
noted above, when the limits were established in 1976, there were several lakes
in the metropolitan area where permits had been issued that exceeded these
limits. Commissioner’s Order 1938
provided that “larger percentages of the littoral area shall be allowed when
they have been authorized in the past by aquatic nuisance control permits.” This provision became known as the
“grandfather clause.” The transcript of
the 1976 hearing in which Commissioner’s Order 1938 was discussed reveals no
specific reason or justification for the grandfather clause, other than to
continue to allow past practice.[93] The
clause has existed since the 1976 Commissioner’s Order. It was modified slightly in 1997 to clarify
that it applied to lakes for which permits had been issued before 1976.[94]
84.
It is
the DNR’s position that the presence of extensive shallow areas in the
grandfathered lakes is not a valid reason for the grandfather clause, because
there are numerous other lakes in the metropolitan area and throughout the
state with the same conditions.[95] It
is the DNR’s position that aquatic plant control should not be allowed to alter
the ecological character of a shallow lake.
Shallow bays and wetlands used to be considered marginal or unsuitable
for shoreline development, but as development continues to increase and prime
lakeshore becomes less available, shorelines adjacent to shallow bays and lakes
are becoming increasingly attractive for development. These areas are extremely important for fish
and wildlife habitat, and wetland loss and habitat degradation is considered a
major environmental issue affecting waterfowl and other wildlife. The DNR argues that it is necessary to view
aquatic plant control differently in these areas than on deeper lakes because
aquatic plant control should not be permitted to change the ecological
character of a wetland or shallow lake.
The DNR argues that it would be unreasonable for the DNR to permit
shoreline owners to alter the natural character of a shallow lake or wetland to
engage in unimpeded surface water recreation.[96]
85.
The DNR
further states that current rule language gives the Commissioner discretion to
lower the amount of treatment on the grandfathered lakes, therefore the
proposed rules do not constitute a drastic change.[97]
86.
The
DNR’s primary goal is to put the grandfather lakes through a more systematic
and scientific variance process, which will be aided by the proposed
modifications to the variance language in rule part 6280.1000.[98] The
DNR justified the state-wide thresholds by stating that the rules allow for
exceptions and variances.[99]
87.
The DNR
compromised on this issue by proposing to sunset the clause after five years
rather than terminate the grandfather clause when the rules take effect, and by
requiring itself to prepare a LVMP for each of the grandfathered lakes before
the clause expires.[100]
88.
The DNR
has also proposed to allow the treatment of the entire shoreline property
provided that the method of control is selective for invasive aquatic
plants. See 6280.0350, subp. 1a, item C.
No Need to Repeal Grandfather
Clause
89.
Many of the commentators stated that the
Department failed to demonstrate the need to repeal the grandfather
clause. Most, if not all, of the commentators
on this issue stated that the DNR had not supported its position that weed
control in excess of the littoral area limits on the grandfather lakes could
result in further declines in aquatic habitat and water quality and the
elimination of some fish species. The commentators
stated that damage to treated lakes has not been documented.[101]
90.
The
Lake Johanna Improvement Society (LJIS), which has 98 members, commented that
the DNR has offered “no granular details in the SONAR that can be validated or
refuted” regarding the need for more stringent restrictions.[102] The
Carsons Bay Homeowners Association stated that there is no scientific evidence
supporting the 15 percent treatment limit. [103]
91.
The Lake
Johanna Improvement Society commented that the DNR relied on outdated evidence
from a time when Eurasian milfoil, zebra mussels and carp had not yet invaded
92.
A
number of people commented that there is not much scientific literature or
commentary on the effect of chemical treatment on water quality. Rather the literature emphasizes the
importance of controlling run-off to improve water quality.[105]
93.
LJIS
commented that the Department failed to discuss the alternatives reviewed and
that it offered no evidence that it had considered the recently developed
selective control herbicides and means of application. It stated that the DNR, which cited decreased
fish populations on unnamed lakes as justification for the more restrictive
controls, should name these lakes and explain how increased aquatic plant
control diminished the populations.[106]
94.
MHL
also took exception with DNR’s information regarding the disappearance of
banded killifish in
95.
Dave Kenney, a resident on
96.
Warren
Wildes, who lives on
97.
Jon
Schroder and William C. Schumacher, residents on
Increased Development
98.
The
Carson’s Bay Homeowners Association also noted that shoreline development on
Carson’s and St. Louis Bays of Lake Minnetonka have not increased dramatically
for more than fifty years so the Department’s position that the treatment
limitations need to be more restrictive to counter increased shoreline
development does not apply to these grandfathered bays. MHL also claimed that the Department did not
substantiate the argument that lakeshore development is a justification for the
proposed rules.[112]
99.
Douglas
D. Wild, President of the Arden Hills Island Beach Club, also commented that
one of the DNR’s justifications for more stringent regulation of aquatic plants
is increased lakeshore development, but that this justification does not apply
to urban lakes such as
Increase in Permits
100.
The
LJIS challenged the DNR’s position that the rules needed to be more
conservative because of the increase in permits in recent years. LJIS suggested that the increased number of
permit requests correlates to the spread of undesirable aquatic plants and that
the DNR’s approach incorrectly attributes the increase in permit numbers to be
for esthetic or recreational purposes and not for control of invasive species.[114] Janet
B. Krause, a resident on
101.
MHL
also took issue with using the increase in number of APM permits as a reason to
revise the APM rules. It stated that the
DNR was falsely reporting the increase in permits and characterized the
increases as not that significant.
According to MHL, before 1997, automated aquatic plant control devices
(AAPCDs) did not require a permit.
AAPCDs account for 1,825 or 55% of the total increase in permits (3,300)
between the years 1996 and 2007. In
2000, there were 10,000 properties permitted for aquatic plant management. There were 11,512 properties permitted in
2007. According to MHL, AAPCDs account
for about 800 of the 1,512 new properties permitted since 2000. Therefore, only 700 of the newly permitted
properties since 2000 were for use of aquatic herbicides, which constitutes
only a 1% per year increase in permits for herbicidal treatment. MHL concludes that this slight increase
should not be relied upon as justification to implement the proposed rules.[116]
102.
The
Department responded that generally, the number of all types of permits issued
has been increasing each year and that every permit allows for the destruction
of aquatic plants.[117]
103.
The Carson’s
Bay Homeowners Association stated that because there is no scientific or
justifiable reason to limit the treatment to 15% of the littoral area of any
lake or bay, the proposed repeal of the grandfather clause is arbitrary,
capricious and without merit.[118]
104.
LJIS
pointed out that the treatment of
105.
Nito
Quitevis, a life-long resident of
106.
Janet B.
Krause, a resident on
107.
Some commentators
stated that despite the existing treatments currently used on the grandfathered
lakes, the lakes are thriving with wildlife and fish species. The LJIS submitted comments that
Consequences
Ineffective Treatment
108.
The
Increased Weeds
109.
Bob and
Jane Spartz, residents of
110.
Many commentators
commented that the DNR has failed to address the consequences of reduced
treatment. David A. Lutz, a resident on
111.
Some commented
that it is reasonable to expect that these metropolitan lakes would need more
treatment, as permitted, but not required, by the grandfather clause.[134] Ms. Krause
stated that without the treatment, users of the lakes would experience swimmers’
rashes, weeds would prevent the navigation of motorboats, and weeds would
attach to motorboats, which would then transfer parasites from one lake to
another.[135] Mr. Quitevis
commented that the effect of repealing the grandfather clause will be
accelerated, unchecked growth of exotic species, which will result in the
displacement and destruction of the native species which the DNR claims they
are trying to protect.[136] A
few people commented that the increase in vegetation could cause more drowning
because swimmers may become entangled in the plants.[137]
112.
Homeowners
on
113.
Paul
Skrede, Mayor of Deephaven, spoke in opposition to the repeal of the
grandfather clause as it relates to
114.
The
115.
Jon
Schroeder commented that the requirement to develop a special lake management
plan each year to be considered for a variance would cost more than the Cedar
Island Lake Association could afford.[141]
116.
The DNR
responded generally that even though some of the grandfathered lakes are
shallow, the purpose of the aquatic plant management program should not be to
change the natural character of a lake.
The lakes that have a higher proportion of shallow basins are naturally
going to have a higher proportion of aquatic plant growth across the area of
the lake. The DNR believes it would be
poor policy to allow a higher level of aquatic plant control on shallow lakes
and wetlands because of the high number of aquatic plants that exist in the
natural state of these bodies of water.[142]
Suggestions by the Public
117.
LJIS
suggested that the DNR propose a more lake-specific and targeted approach to
invasive species. LJIS suggested that
lakes could be categorized by the major factors that contribute to the spread
of invasive species. Citing Minn. Stat.
§ 103G.615, LJIS stated that instead of seeking to restrict overall weed
control through a reduction of littoral acreage restrictions, the DNR should
focus on eradicating invasive and nuisance species. [143]
118.
LJIS
suggested that the DNR include provisions to:
1) stratify a sample of lakes over a “manageable size” by the major
factors that contribute to invasive species issues; 2) study the efforts and
techniques used successfully on grandfathered lakes, with consideration given
to all contributions to maintenance of quality attributes, not just littoral
area treated; and 3) consider the viability of identifying simplified yet
acceptable “best practices” for all lakes.
119.
Andrew
Whitman suggested that the DNR withdraw the proposed rule and enter a mediation
process by which the DNR can work with the interested parties and experts to
develop a LVMP for each of the grandfathered lakes. Mr. Whitman noted that the DNR currently has
authority to develop LVMPs, so he suggested the LVMPs be developed before the
new rules sunsetting the grandfather clause are adopted. Kevin Driscoll suggested the proposed rules
should be modified to include a provision that the grandfather clause will not
sunset until an LVMP is approved by a majority of the affected property owners.[144]
120.
In the
SONAR, the DNR stated that it had “considered more liberal control limits for
invasive aquatic plants” when developing the proposed rule changes, but
ultimately determined that this approach was problematic because of the
“variety of lake types, complexity of relationships between native and invasive
aquatic plants and risks to water quality and habitat posed by liberal control
measures.”[145]
121.
In its Comments, the Department responded to specific
recommendations made in comments presented by the LJIS. Regarding the recommendation to study the
efforts and techniques on the grandfathered lakes, the DNR acknowledges that
such a study would provide good information, but would be precluded by funding
limits and priorities. Regarding the
recommendation to review and report on the feasibility of the latest selective
and invasive species control, the Department notes that it is involved
currently in efforts to evaluate the use of pesticides for selective control in
benefiting native plants. Regarding the
recommendation to advocate and foster the formation of landowner groups organized
to balance the desire for treatment with a need to preserve habitat, the DNR
notes that it is doing that already.
Regarding best practices, the DNR notes that its APM packet mailed to
property owners includes information on best practices. In general, the Department notes that many of
the recommendations from the LJIS seem to be fostering a closer working
relationship between the DNR and the grandfathered lake groups. The Department agrees that would be
beneficial, and notes that it has included a requirement in the proposed rules
for an LVMP, which would accomplish this purpose, it contends, before
sunsetting the grandfather clause currently in effect on any particular lake.
Property Values
122.
A
substantial number of lakeshore property owners commented that their property
values would decrease as a result of the treatment limitations in the proposed
rules. For example, Daniel Kelsey, a
resident on
123.
With
his written comment, Kelsey attached two letters from realtors who commented on
the value of homes on
124.
The
Department responded that there is insufficient evidence to demonstrate that
property values will decrease because of the proposed treatment limitations.[148] The
only study the DNR is aware of that potentially addresses this issue was
conducted by the Mississippi River Headwaters Board and
125.
In its December 1 Comments, the Department
offered a generalized response to criticism that the SONAR did not discuss
adequately the potential for the proposed rules to cause declines in lakeshore
property values. The DNR believes that the proposed rules are unlikely to have a
measurable effect on lakeshore property values.
The DNR already has discretion to reduce the amount of aquatic plant
control on an individual’s shoreline below the 100-foot maximum allowed under
the current rule, and many people testified at the hearings that the DNR is already
placing such limitations. Lakeshore
property values are influenced by a variety of factors, including trends in the
housing market and supply and demand for lakeshore properties, as evidenced by
development pressure and high-priced lakeshore on shallow lakes and bays
formerly considered too marginal to develop.
The DNR believes the proposed rules are unlikely to produce enough of a
change in aquatic plant control to affect property values.[150]
126.
The ALJ
agrees that any potential decrease in property value is too speculative to
consider at this point. Regarding the
grandfathered lakes, one would have to assume that the overall treatment would
drastically decrease, despite the availability of variances, and that
shorelines would become unusable as a result.
To calculate any lost tax revenue to local units of government, the
value of the properties would have to be reassessed after the changes in
treatment occurred. Given the complexity
of the housing market, especially in turbulent financial times, it would be
nearly impossible to attribute lower property values to the proposed rule
changes. Though the ALJ believes the
Department’s argument that property values could increase as a result of the
proposed changes may be overly optimistic, the potential for decreased property
values is found not to constitute a defect, because the DNR’s position is
supported by a rational basis (that real estate values are affected by a large
variety of factors).
127.
The DNR also reiterates its general policy
regarding the effect of aquatic plant control on property values, that even if
current social values caused property values to be correlated positively with
the destruction of aquatic plants, the Department would be remiss in its public
trust responsibilities if it sacrificed the increased protection of aquatic
plants, which it believes the evidence shows clearly are beneficial to the
health of Minnesota’s lakes, for the benefit of private property values.
LVMPs Will Not Effectively Control Invasive
Species
128.
MHL
argues that the variance process is not an effective means by which to control
invasive species and that “it has not worked on several lakes.” MHL suggests that language that enables
control of invasive aquatic plans should be in the rule itself and not
available only through a time consuming and cumbersome variance process,
especially considering the short field seasons.[151]
129.
MHL
argues that LVMPs are time consuming and expensive to develop – usually two or
more years. Normally outside consultants
are required to develop them, at the expense of property owners. The aquatic plant surveys require significant
expenditures by lake associations, for example, a survey required for the
development of an LVMP typically costs more than $10,000 for lakes of
approximately 800 acres. MHL states that
LVMPs must be approved by the DNR, and historically the approval is contingent
on a lake association’s adoption of the Department’s conservative treatment
standards, regardless of the consultant’s original findings and
recommendations. MHL argues that
requiring an LVMP imposes an undue burden on property owners.[152]
130.
Dr.
Pullman commented that LVMPs serve as an administrative impediment to the quick
and effective management and suppression of invasive species. He commented that lakes are dynamic systems
and their conditions are in constant flux.
Continually changing cultural disturbance dynamics lead to the
development, evolution and emergence of difficult to manage native and exotic
plant genotypes and hybrids, some of which can be extremely invasive. He voiced concern that the proposed rules
would require development of an LVMP before DNR could authorize the treatment
of a newly discovered invasive aquatic plant.[153] He voiced
concern that the proposed rules do not allow for quick decisive action for the
management of some invasive species. He suggested
that regulations must be adaptive to adjust to dynamic conditions in aquatic
vegetation communities, and that the LVMPs be used to focus on the outcomes of
management efforts rather than to ban the use of certain management strategies.[154]
131.
In the
SONAR the DNR explained why the variance and LVMP approach to determining
whether elevated levels of aquatic plant control are warranted is reasonable.[155] It
is the DNR’s position that liberalizing APM rules to allow individual,
discretionary treatment would result in an ineffective, piecemeal approach to
invasive species control.[156]
132.
In
response to Dr. Pullman’s testimony, the Department stated that an LVMP would
not be necessary to treat a newly discovered invasive aquatic plant. The DNR described how it immediately treated
Brazilian waterweed in
133.
With
respect to variances, the DNR pointed out that the proposed rules require an
LVMP before granting a variance only if the proposed control needs to be
evaluated to determine if the goals of the variance are met. The DNR emphasizes that the LVMP will be
utilized when attempting to manage established populations of invasive aquatic
plants so that more information can be gained on how to provide effective
long-term management for these species.
This is not the tool the DNR would use for infestations of newly
discovered species that require a rapid response.[158]
134.
The DNR
acknowledged that the LVMP process and related surveys can take time and cost
money. The DNR noted that property
owners sometimes choose to pay the expense of the surveys because adequate
state funding is not available, though the proposed rules do not require that
property owners cover these costs. The
DNR addressed these funding issues by providing an abbreviated LVMP format,
adding field staff to provide more technical assistance for LVMPs and by
providing more grant dollars for LVMPs, surveys, and invasive aquatic plant
control.[159]
135.
The DNR
responded further that LVMP approval is not contingent on a lake association’s
adoption of the Department’s treatment standards, and points out that it has
approved a number of LVMPs which included variances to help manage invasive
species.[160]
Inspection and Enforcement
Costs Are Likely to Increase
136.
MHL
commented that it is likely that enforcement costs will increase if these rules
are adopted. Tighter standards typically
require more inspection and enforcement and these costs will be passed to the
taxpayers. MHL also suggested that
non-compliance will increase as permitting becomes more restrictive and
permitting fees increase.[161]
137.
In the
SONAR the Department stated that the proposed rules would affect the amount of
aquatic plant control allowed under APM permits, but would not require an
increase in permitting or enforcement activity.[162] The
DNR does not believe permit inspections will increase as a result of the
proposed rules. The cost of the aquatic
plant management program is a direct function of the number of permits the
program issues and the amount of enforcement activity. The proposed rules do not add any activities
to the permitting program that are not already in existence, so the DNR does
not believe permit applications or enforcement activities will increase.[163] The
language set forth in rule part 6280.0250, subp. 7, specifies criteria that are
currently being used to determine when an inspection should occur; it does not
set forth new inspection criteria. The
DNR further responded that it had no reason to believe noncompliance would
increase under the new rules.[164]
138.
The
only area in which the DNR anticipates increased costs is the additional staff
time needed to develop the LVMPs for the grandfathered lakes.[165]
The DNR Has Already Implemented the Proposed
Rules
139.
MHL
claims that DNR has already implemented the proposed rules because in recent
years it has failed to give valid, science-based reasons for rejecting or
restricting permits. MHL conducted a
survey of dozens of lakes and hundreds of APM permit holders in 2007 and found
that many permits had been restricted or denied. It claims the DNR has already limited the
allowable treatment amounts, consistent with the proposed rules, before the
rules received approval through the administrative law process.[166] The
DNR denies that allegation.
140.
The DNR
notes that some reduction in aquatic plant control has occurred prior to the
initiation of this rulemaking process. Current
rules allow permits to be issued with precise restrictions, so the proposed
rules are not a drastic change.[167] The
DNR notes that a number of factors have contributed to an admitted rise in the
number of permits being reduced below the 100-foot maximum. DNR has added APM specialists to address
increasing permit workload and reductions have occurred in some instances
because permits were reviewed more rigorously than in the past. APM permits in northeast
City of
141.
The City of Deephaven alleges it has authority
to adopt aquatic plant management rules as part of its shoreland management
ordinance and has, in fact, done so to “memorialize” current practices in
permitting for aquatic plant management in Lake Minnetonka’s Carson’s and St.
Louis Bays, which are currently covered under the grandfather clause. Paul
Skrede, Mayor of the City of
142.
The
Department responded that the City does not have the authority to adopt APM
rules or ordinances and therefore its argument is without merit. Deephaven’s ordinance attempts to
negate the changes that the Department is proposing for the grandfather clause
and, according to the Department, is inconsistent with current rules, because
the elevated level of plant control allowed in the grandfathered lakes
currently is at the discretion of the DNR Commissioner. Shoreland
regulations are implemented by local government units (LGU) through an LGU’s
zoning authority.
143.
The Administrative Law Judge agrees that
Deephaven’s argument is erroneous. The
City’s authority does not extend beyond the shoreline and into
Regulation of Commercial Aquatic
Herbicide Applicators
144.
The
Minnesota Aquatic Management Society (MAMS) put forth two arguments regarding
the Department’s statutory authority as it relates to the regulation of
commercial pesticide applicators. MAMS
is an association of
A. The
DNR lacks authority to indefinitely suspend the APM activities of a licensed
commercial applicator or to render a commercial applicator ineligible to apply
aquatic herbicides.
145.
First,
MAMS argues that the proposed amendments to the permitting sections of the APM
rules go beyond the DNR’s authority to regulate the licenses of commercial
herbicide applicators. Commercial
application of herbicides is a heavily regulated activity, and every commercial
applicator must obtain a license from the Minnesota Department of Agriculture
(MDA), as well as comply with all federal, state, and local laws that apply to
commercial applicators and herbicide applications.[173] According
to Minn. Stat. § 103G.615, commercial applicators must also comply with the
terms of APM permits.
146.
MAMS
disputes the proposed rules that allow the DNR to suspend indefinitely APM
activities, regardless of whether the suspended party holds an APM permit or a
commercial applicator’s license.[174] MAMS
states, “[t]hese amendments arguably would permit the Commissioner [of the DNR]
to suspend the APM activities of any person – including those of a licensed
commercial applicator – if the Commissioner determines that the suspension is
in the public interest.”[175] MAMS
asserts that the DNR is proposing to codify “incredibly broad” authority
allowing the DNR to suspend any person’s APM activities. According to MAMS, if the Department were to
issue such an order to a licensed commercial applicator, it would prohibit the
commercial applicator from doing the very thing it is authorized to do under
its license.
147.
Furthermore,
MAMS argues that the DNR does not have the authority to enforce the rules as
drafted because the DNR cannot make a commercial applicator licensed by the MDA
“ineligible” to apply aquatic herbicides.
148.
MAMS
believes that the DNR’s ability to make a licensed commercial applicator
ineligible to apply aquatic herbicides in addition to revoking an APM permit
amounts to a “penalty enhancer.”[176]
149.
MDA
made few comments regarding the proposed rules.
Specifically, the MDA
found no problems with the DNR’s use of phrases or definitions in which MDA
regulations are mentioned, and found acceptable the DNR’s proposal to be able
to limit or prohibit MDA licensed commercial pesticide applicators from working
in public waters when a history of non-compliance with DNR regulations is
shown.[177]
B. The
proposed rules do not afford sufficient due process to licensed commercial
applicators.
150.
MAMS
also asserts that the proposed rules at part 6280.1100 do not adequately
protect the rights of commercial licensees.
MAMS first argues that the review and appeal provisions only apply to
“permits” and “applicants” and not to licensed commercial applicators
contracting with permit holders to perform permitted APM activities. Second, MAMS suggests that the proposed rules
impose a “guilty before proven innocent standard” and that commercial applicators
must be provided an opportunity to be heard before a suspension or revocation
becomes final.[178]
151.
Based
upon these arguments by MAMS, the DNR has proposed to make changes to the
proposed rules at parts 6280.0100, subpart 2d, and 6280.0900, subpart 1a. Those changes are discussed in more detail
below at Findings 170-172, 238-244, and 287-288.
Other Department Responses to Comments
152. In its Post-Hearing Comments filed on December 1, 2008, as amended for clerical corrections on December 8, and its Response to Comments filed December 8, 2008, the DNR responded to a large number of the public comments filed during the Post-Hearing Comment period between November 8 and December 1, 2008. The Administrative Law Judge has selected some for discussion below, but refers the reader to the texts of the Department’s filings for its response to their concerns. As noted earlier, the Administrative Law Judge has read every comment, and every response, and given them full consideration.
153.
Garry Krebs of Lakeville,
154.
The Lake Detroiters Association is concerned
about the provision that it believes imposes a requirement that all residents
of a lake must provide signature authority before an entire lake can be
treated. The concern of the
155.
Edward C. Oliver, who owns lakeshore on
156.
Similar concerns regarding the need to begin
again with this rule-making process, or convene all the stakeholders for a
possible mediation, were expressed also by the Lake Owasso Association through
its president, Joe Bester, and by Roger Williams, a resident of
157. In response to a suggestion that the grandfather clause not be sunsetted on particular lakes until their LVMPs are approved by a majority of affected property owners was rejected by the DNR in its Comments, because the Department believes the proposal is inappropriate and would be subject to a legal challenge because it gives too much authority over a public resource to a special interest group.
158. With regard to the concerns expressed by Midwest Aqua Care, and its president, Tom Gertz, the DNR responds that the potential for economic impacts to commercial businesses that control aquatic plants is covered in the SONAR. The DNR denies the argument that the Department has lumped together submersed, floating-leaf and emergent vegetation for standard, uniform regulation. The DNR notes that it has provided specific definitions for each of these vegetation types, and generally is not making any substantive changes regarding the regulation of floating-leaf and emergent vegetation.
159. Midwest Aqua Care is concerned that creating “micro control sites” is counter productive to achieving the intended outcome of nuisance relief, an argument which the DNR addresses at numerous places in its SONAR. The Department notes also that its proposed rules will allow both recreational access and protection for aquatic plants.
160. Mr. Gertz argues also that the incremental change in development on rural lakes is not enough to justify rule changes when fully developed lakes have been successfully managed for decades under the conservative 15 percent limit without evidence of harm. He notes also that grandfathered lakes exceed the 15 percent limit and continue to be healthy. Again, the DNR notes that it has responded to this concern in its SONAR and throughout its Comments.
161. Mr. Gertz and at least one other commentator have quoted from Larry Shannon, a past director of the Division of Fish and Wildlife in the DNR, to the effect that he made a statement in 1989 that the “smallest realistic skip distance should be 100 feet. Five or ten foot skips serve no useful purpose. Fifteen percent littoral area limit is believed to provide sufficient protection … no need to further limit the amount of area to be treated unless there are extraordinary circumstances.” In its comments, the DNR responds that the statements of former Director Shannon are almost 20 years old and do not reflect current thinking at the DNR.
162.
In response to Mr. Joe Bester on December 8, the
Department notes that Mr. Bester argues that scientific literature indicates
that land use practices are more important to water quality than aquatic plant
management practices, that the Department’s aquatic plant permit inspection
process is flawed, and that the Department’s process in developing rule changes
was flawed. The Department responds that
while addressing land use practices is key to water quality improvement, and
that it does not suggest that its proposed rules are the total solution to
water quality issues, maintaining healthy aquatic plant communities is
important to water quality and the DNR has provided documentation to support
this. As was noted with other
commentators, the Department points out that Mr. Bester focuses on the lack of
scientific documentation linking aquatic plants to water quality benefits, but
does not address the importance of aquatic plants and sufficient wildlife
habitat, which has been strongly documented in the scientific literature cited
in this record.
163.
Regarding Mr. Bester’s allegation of flaws in
the DNR’s inspection process, the DNR notes that its inspectors conduct the
process on the private shorelines of landowners seeking permits, and the visual
observations from shore are usually sufficient because the landowner generally
seeks treatment near the shoreline. The
Department is also reasonable in requiring documentation of actual nuisance
conditions, and identification of the organisms that are causing the
nuisance. It notes that once nuisance
conditions are documented, a permit can be issued in subsequent years without
an inspection and that the vast majority of APM permits are issued in a timely
fashion.
164.
The concerns expressed by Mr. Bester, Rogers
Williams, and others regarding the process the DNR used to propose these rules
are addressed by the Department with a denial that it had its mind made up
before relevant facts were gathered and a denial that it deliberately excluded
grandfathered lake people from the rule notification to avoid opposition. In connection with not using a
negotiation/mediation-type process, the Department notes that it did proceed
within extensive APM program review prior to commencing rulemaking in this
proceeding, which review is described at pages 11-13 of the Department’s
December 1 Comments. Its report on that
review was also added to the record at the request of the Administrative Law
Judge.[179]
165.
Several entities and individuals, including the
Minnesota Chapter of the American Fisheries
Society, Minnesota Citizens for Environmental Advocacy (MCEA) (through a filing
by Henry VanOffelen), Dann Siems, and John Kamman, all offered comments in
support of the rules, as did Paul Liemandt of the Minnesota Department of
Agriculture, and the Minneapolis Park Board.
The comments of Mr. Kamman and Mr. Siems were accompanied by attachments
that demonstrate scientific evidence of studies that document the ecological
importance of aquatic vegetation in maintaining water quality, biodiversity and
nutrient benefits. Mr. Siems presents
point-by-point refutation of the eight major arguments of Minnesotans for
Healthy Lakes (MHL). He notes also that
the intentional removal or inadvertent destruction of rooted plant communities
increase both the probability of invasion and the severity of impacts in waters
that are treated by herbicides. He notes
that invasive species have increased in
X. Rule-by-Rule Analysis
Part 6280.0100, subpart 2
166.
The DNR
proposes to define “Aquatic plant” as follows:
“‘Aquatic macrophytes plant’ means vascular nonwoody
plants, either submerged, floating-leafed, a plant naturally growing in
water, saturated soils, or seasonally saturated soils, and includes algae,
submersed, floating-leaf, floating, or and emergent plants growing
in water, and their root stalks, seeds, and other vegetative propagules.”
167.
The DNR
wishes to use the term “plant” instead of “macrophyte” to broaden the
definition and make it more understandable to the public. The Department proposes to delete the phrase
“growing in water” because it creates ambiguity when dry conditions cause water
levels to recede below where aquatic plants are growing. The DNR intends for the rules to apply to
emergent aquatic plants that are temporarily growing out of the water.[180]
168.
Minnesotans
for Healthy Lakes (MHL) contests the proposed definition because it appears to
give the DNR authority over terrestrial plants as well as aquatic plants. MHL questions the purpose or value of this
new language.[181] The
DNR declined to make changes to the proposed definition, referring back to the
statements made in the SONAR.[182]
169.
The
Administrative Law Judge finds that the DNR has shown a rational basis for the
proposed definition.
Part 6280.0100, subpart 2d
170.
The DNR
seeks to add a definition of “Aquatic plant management (APM)-related permit
revocation” as follows: “‘Aquatic
plant management (APM)-related permit revocation’ includes the revocation of an
APM, commercial mechanical control, or commercial harvest permit and
ineligibility to apply aquatic pesticides to public waters under an APM
permit.” The DNR asserts that this
definition is needed because the term is used in the proposed language in part
6280.0900 regarding authority to amend and revoke permits.[183]
171.
The DNR
now acknowledges that because there is no DNR permit or license required for
commercial pesticide applicators, it is problematic to prevent commercial
pesticide applicators from conducting activities that are licensed by another
agency, namely the MDA.[184]
Accordingly, the DNR has agreed to amend subpart 2d as follows: “‘Aquatic plant management (APM)-related
permit revocation’ includes the revocation of an APM, commercial mechanical
control, or commercial harvest permit and ineligibility to apply aquatic
pesticides to public waters under an APM permit.”
172.
The
Administrative Law Judge finds that this change is needed and reasonable and not
substantially different than the rules as originally published in the State
Register.
Part 6280.0100, subpart 3a
173.
The DNR
proposes to define “Automated aquatic plant control device” as follows: “‘Automated untended aquatic plant
control device’ means a self-propelled device for that is
capable of destroying aquatic macrophytes that may be remotely operated
or placed on a timer and is capable of being operated without the assistance of
an operator plants.”
174.
The
Department wishes to include all devices that are self-propelled, such as weed
rollers. The current definition uses the
term “untended,” which creates ambiguity as to whether it includes devices that
are automated but require occasional adjustments by a person. The DNR states that the proposed changes are
necessary and reasonable to eliminate loopholes that could allow these devices
to be used without the regulatory constraints in Chapter 6280.[185]
175.
MHL
asserts that the term “untended” should be left in the definition to prevent
any confusion between “totally automated” and “mechanically-assisted”
devices. In response, the DNR refers MHL
to the arguments in its SONAR and declined to make the requested change.[186]
176.
The
Administrative Law Judge finds that the DNR has shown a rational basis in the
record for the proposed change.
Part 6280.0100
177.
MHL
proposes to add a definition of “Riparian access” as follows: “‘Riparian access’ means both access to and
use of public waters by riparian owners.
This use includes recreational and esthetic enjoyment of the water
contiguous to their shoreline.”[187]
178.
According
to the Department, MHL seeks to add this definition to facilitate their
proposed change to part 6280.0250, subp. 4, where MHL proposes to eliminate the
prohibition against issuing an APM permit for esthetic purposes alone on
developed shoreline. The DNR is opposed
to this proposal because it would promote a value that is inconsistent with
conservation of aquatic resources. The
DNR also points out that MHL’s desire to remove this prohibition so that
property owners can have a clean shoreline appears to be inconsistent with
MHL’s desire to control invasive aquatic plants to maintain “diversity of lake
ecosystems.”[188] For
these reasons, the DNR declined to add this new subpart.
179.
It is
within an agency’s discretion not to add additional proposals. The Administrative Law Judge is concerned
here only with the legality, need and reasonableness of the DNR’s
proposals. But in this instance, when
the Department has commented on why it will not accept a stakeholder’s suggestion,
the Administrative Law Judge finds that the DNR has provided an adequate
response to MHL’s proposal and that the DNR is justified in not adding a
definition of “Riparian access.”
Part 6280.0250, subpart 1
180.
Subpart
1 addresses actions not requiring an APM or commercial harvest permit. The DNR asserts that many of the proposed
changes to subpart 1 are technical in nature, but also proposes to add two new
items regarding skimming duckweed or filamentous algae off the surface of a
water body, and mechanical or pesticide control of aquatic plants done as part
of public road or utility crossing right-of-way maintenance by government units
or utility companies.[189] The
proposed language clarifies that a person must own, lease, or be an easement
holder of land adjacent to the water to conduct, without a permit, APM
activities that involve gaining access to public water.
181.
MHL
objected to the proposed amendments to item C.
Specifically, MHL argued that use of automated untended aquatic plant
control devices should be included as an activity that does not require an APM
permit, subject to the parameters of item C.
MHL requested that power-operated cutters, rakes, or similar equipment
that do not significantly alter the course, current, or cross-section of the
lake bottom (i.e. weed rollers), all of which are proposed for deletion in item
C, be added back into the text of the proposed rules.[190]
182.
The DNR
does not support MHL’s request to have weed rollers included in item C. The DNR stated that weed rollers are difficult
to track from an enforcement standpoint and have the highest violation rate of
all permit types.[191]
183.
In
addition, MHL proposes to add a new action not requiring an APM permit, Item I,
to the end of this subpart as follows:
“Use of pesticide for control in water bodies of 10 acres or less having
no continuously flowing outlets.”[192]
184.
The DNR
objects to this proposed new item because pesticide application is a highly
contentious issue that should require an APM permit. The DNR is concerned that fluctuations in the
water levels of these small isolated bodies of water could create outlets which
could, in turn, create run-off downstream during a rainfall.[193]
185.
The DNR
has established the need for and reasonableness of its proposed changes and
additions to subpart 1. Furthermore, the
DNR has shown a rational basis for declining to adopt MHL’s proposed language.
Part 6280.0250, subpart 2
186.
Subpart
2 addresses actions requiring an APM permit.
The DNR argues that its proposed changes to this subpart primarily
streamline existing language and do not bring activities under APM permitting
that currently do not require a permit.[194] One
of those actions, item A, is “mechanical and pesticide control of aquatic
plants or nuisances.”
187.
MHL
argues that the use of the word “mechanical” in item A conflicts with the
language in subpart 1, item C, which states that mechanical control of
submersed plants does not require an APM permit.[195] But
subpart 1, item C clearly shows that the APM permit is not required for
mechanical control of aquatic plants only when the plant removal is done to
maintain a swimming site or boat dock not to extend along more than 50 feet or
one-half the length of the owner’s total shoreline, and not to exceed 2,500
square feet plus the area needed to extend a channel no wider than 15
feet. Accordingly, the two subparts do
not conflict with each other.
188.
MHL
also expressed concern that the DNR was deleting the three year permit
provision from item D of subpart 2. In
fact, the effect of this provision is being retained and is proposed to be
moved to proposed rule part 6280.0450, subp. 3.[196]
189.
The
Administrative Law Judge finds that the provisions of subpart 2 are needed and
reasonable.
Part 6280.0250, subpart 3a
190.
Proposed
subpart 3a describes the criteria for issuing APM permits.
The
commissioner may issue APM permits for public waters to provide riparian
access, enhance recreational use, control invasive aquatic plants, manage water
levels, and protect or improve habitat.
The following criteria shall be considered to determine if an APM permit
should be approved or denied and how much control or harvest to allow under an
APM permit . . . .
191.
What
follows are eleven criteria that the DNR must consider when making a
determination regarding issuing APM permits.
The DNR is proposing these new criteria in an attempt to inform the
public about how these decisions are made and to help ensure that decisions are
fair and consistent across the state.[197]
192.
At
least two commentators voiced objections to some or all of this subpart. Jeffrey Peterson resides on the shores of
193.
The
first of the eleven criteria in subpart 3a that the DNR must consider is “[t]he
extent to which aquatic plants or nuisances are interfering with a permit
applicant’s ability to use watercraft, swim, or engage in other traditional
recreational uses.” Mr. Peterson
proposes inserting the word “extensively” or “substantially” before the word
“interfering” as a means of ensuring that more than just a minimal amount of
interference by aquatic plants results in the issuance of an APM permit.[199] In
addition, the Minnesota Chapter of the American Fisheries Society (MNAFS)
recommended that the word “reasonably” be inserted before “use watercraft,
swim, . . . ”[200]
194.
In
response, the DNR notes that use of the phrases “recreational use” or
“traditional recreational use” have not been a problem in the past and that Mr.
Peterson did not propose alternative language.
As to Mr. Peterson’s second point, the DNR believes that its own
proposed language will allow APM permits to be limited to those situations where
removal is necessary for recreation.[201]
195.
MHL
objected to the full text of subpart 3a, arguing that the proposed criteria add
too much subjectivity to the APM permitting process and should be deleted.[202] In
response, the DNR reiterated that the proposed criteria add transparency,
openness, and consistency to the rules, and the DNR stands in strong support of
its proposed subpart 3a.[203]
196.
The 1854 Treaty Authority expressed overall
support of item E in subpart 3a. The
1854 Treaty Authority is an inter-tribal natural resource management agency
governed directly by the tribal councils of the Bois Forte Band and Grand
Portage Band of Chippewa. It protects
treaty rights in Lake, Cook,
197.
The Department responded that the proposed
criterion in item B (habitat, water quality, and erosion control value of the
aquatic plants) is sufficient, because wild rice has all of the listed
attributes.[205] However, the ALJ finds that if the DNR revises
the criteria to mention specifically wild rice, as suggested by the Authority,
such a rule would be reasonable, and adopting it would not constitute a
substantial change.
198.
The
Administrative Law Judge finds that the proposed language of subpart 3a is
needed and reasonable. The use of
criteria in administrative rules is an important practice, and the DNR’s
specificity enhances the transparency of its processes in this context.
Part 6280.0250, subpart 4
199.
Subpart
4 deals with aquatic plant control activities that are prohibited. The proposed changes to the current language
include language clarifications and some additions to the categories of
prohibited activities. Commercial
harvest permits are added to the types of permits that will not be issued for
the prohibited activities. The
Department argues that it is necessary and reasonable to clarify that
commercial harvest is among the prohibited actions so that the rules apply
consistently to all permittees and to provide resource protection where aquatic
plants should not be destroyed or removed.[206]
200.
MHL
argued that the prohibition against APM permits issued solely to maintain or
improve the esthetics on developed shoreline should be deleted. MHL asserts that property owners have a right
to maintain a clean shoreline.[207]
201.
The DNR
responded that this particular provision of the rule is not proposed for change
at this time. Nevertheless, the DNR
noted that the aquatic plant management program always receives resistance from
shoreline property owners who believe that their lakeshore “should look like
[their] front lawn” and be kept clean and tidy.
The DNR believes strongly that this mentality is a poor way to manage
the State’s lakes and declined to make the change requested by MHL.[208]
202.
The
Administrative Law Judge finds that the DNR has put forth a rational basis for
the proposed changes to subpart 4, and the changes are needed and reasonable.
Part 6280.0250, subpart 6
203.
Subpart
6 is a new subpart that specifies five conditions that may be placed on APM
permits. Current rule language does not
specify all of the conditions that may be put on APM permits, and the DNR
believes that it is necessary and reasonable to list these conditions and the
reasons they may be used to inform the public and improve statewide consistency
in how permits are administered.[209]
204.
The
five conditions that the DNR may specify for APM permits to avoid or minimize
harm to aquatic resources and conflict between public water users are as
follows:
A.
limits
on the amount of control allowed, including limits on the percentage of the
littoral area, shoreline length, and distance outward from the shoreline to be
managed;
B.
restrictions
on the method and timing of control;
C.
restrictions
on the species of plants targeted by the control;
D.
requirements
for supervision of the control by the commissioner; and
E.
requirements for public notice including
posting at public water access sites, news releases or public notices in a
local newspaper, public meetings, or other notice that would effectively inform
users of the affected water.
205.
MHL
objected to the inclusion of “the percentage of the littoral area” in item
A. The group also disagreed with
restrictions on the method and timing of control, stating that such
determinations should be left to the licensed applicator. MHL further asserted that there should be no
supervision requirement when a licensed applicator is hired to complete the
project. Finally, MHL requested that
language be inserted in item C to state that “exotic invasive species should
not be restricted.”[210]
206.
The DNR
referred back to the statements in the SONAR that emphasize the need of the DNR
to assess each lake situation separately and place conditions on the APM permit
as necessary to address the unique characteristics of each permit application
and each lake to which it applies.[211] The
DNR also asserts that these types of conditions are increasingly necessary as
there is significantly more shoreline development now on shallow lakes and
wetlands where sensitive aquatic conditions exist than there was in the past.[212]
207.
The
proposed rule language clearly states that the DNR may invoke these conditions
only “to avoid or minimize harm to aquatic resources and conflict between
public water users.” Each situation will
be individually analyzed and some or all of the conditions will be used in a
rational way. The Administrative Law
Judge finds that subpart 6 is needed and reasonable. And as noted at Findings 275 and 281, the
change made to this subpart does not make it substantially different than
originally published in the State Register.
Part 6280.0250, subpart 7
208.
Subpart
7 is new language regarding field inspections of proposed APM permit sites
prior to issuing a permit. The current
rule language regarding inspections does not provide good guidance on the
specific circumstances that require an inspection, and the DNR proposes to
create this new subpart so that APM permit applicants will know when an
inspection is required.[213] The
proposed rule requires field inspections for properties with no previous permit
history; properties where there has been a lapse in permit history; requests
for changes in treatment areas, plant type controlled, or method of control;
requests for off-shore control or control of invasive aquatic plants to enhance
growth of native aquatic plants; and for properties where there has been a
shoreline restoration order.
209.
MHL
commented that this proposed subpart contradicts the DNR’s contention that
these proposed rules would not result in additional costs to the DNR.[214] MHL
also suggested that the DNR add another subpart entitled “Permit approval
processing time,” in which the DNR would be required to approve or reject
permit applications and variance requests within 15 business days of
receipt. Failure to respond within the
allotted time would result in a default approval of the application or variance
request.
210.
The DNR
answered that the proposed language describes the current practices of the DNR
regarding inspections, and that again, the purpose of adding this language is
to improve the transparency and consistency of the DNR’s inspection process. Concerning MHL’s proposed new subpart, the
DNR declined to add this language based upon logistical problems. The DNR can receive permit applications any
time of the year, and if one were received in the middle of winter when the
lakes are frozen, there may be no valid way to determine the validity of the
permit request.[215]
211.
The
Administrative Law Judge finds that the proposed language of subpart 7 is
needed and reasonable. The use of
criteria in administrative rules is an important practice, and the DNR should
be commended for its efforts to increase the transparency of its APM permit
inspection process.
Part 6280.0350, subpart 1a
212.
Proposed
subpart 1a is new language regarding submersed aquatic plant control
restrictions for riparian property owners and lessees:
The
commissioner may issue an APM permit to a person who is an owner, lessee, or
easement holder of land adjacent to a public water or to the agent of the
owner, lessee, or easement holder to control submersed aquatic plants on up to
100 feet or one-half of the length of the person’s shoreline, whichever is
less, with the following exceptions:
A.
for
properties with less than 70 shoreline feet, up to 35 feet of shoreline may be
controlled;
B.
control
may be allowed on more than 100 feet of shoreline owned or leased by resorts,
apartments, condominium complexes, townhouse associations, government units,
and marinas; and
C.
control
may be allowed on up to the entire shoreline owned or leased by a person if the
proposed method is selective for invasive aquatic plants.
213.
The
current rule language has two quantified limits for submersed aquatic plant
control. First, there is a lake-wide
limit on the total amount of control that can occur, which is 50% of the
littoral area for mechanical control and 15% of the littoral area for pesticide
control. Second, there is a limit for
individual properties of a maximum of 100 feet of shoreline for pesticide
control of submersed aquatic plants.
These lake-wide and individual property limits are intended to work
together to prevent excessive control of aquatic plants and negative impacts on
habitat and water quality. These
parameters are not proposed for change, except for a clarification that the sum
of mechanical and pesticide control cannot exceed 50% of the littoral area.[216]
214.
The DNR
believes that the existing limit for control adjacent to individual properties
is not adequate to protect habitat and water quality and is in excess of what
is needed to provide shoreline owners recreational access to the water. Existing language is also deficient in that a
limit for mechanical control adjacent to individual properties is not
specified.[217]
215.
The
proposed change will allow control of submersed aquatic plants on up to 100
feet or half of a person’s shoreline, whichever is less, with an exception to
allow more control for resorts, apartments, condominium complexes, townhouse
associations, government units, and marinas.
In addition, the proposed exceptions allow up to 35 feet of shoreline
control for properties with less than 70 feet of shoreline, and allow control
on up to the entire shoreline if the control is selective for invasive aquatic
plants. These limits and exceptions
apply to both pesticide and mechanical control.
The effect of these proposed rules would be to reduce the maximum amount
of submersed aquatic plant control for people who own less than 200 feet of
shoreline.[218]
216.
The DNR
states that the proposed changes are necessary and reasonable to provide
adequate protection for aquatic plants.
Under the current rules, aquatic plant removal could occur on long
continuous stretches of shoreline, especially on heavily developed lakes where
most lot widths are 100 feet or less.
The DNR has been under increasing pressure on developed lakes to allow
the maximum control of 100 feet and wants to counteract this trend. The proposed rules would allow each shoreline
owner to control up to half of the submersed aquatic plants along their
shoreline, while requiring that at least half be left untouched. The DNR argues that this is consistent with
the overall program goal to allow shoreline owners access to open water, while
ensuring that habitat and water quality values are maintained.[219]
217.
MHL
took issue with the limit on the shoreline footage on a lot-by-lot basis. According to MHL, adding this restriction to
the lake-wide restrictions already in place is far too conservative and not
supported by scientific evidence.[220] In
the same vein, MHL proposed that the DNR delete item A. In response, the DNR referred back to the
arguments presented in the SONAR and at the public hearings.[221]
218.
MHL
argues that the proposed rules are unreasonable because aquatic plant control
herbicides provide safe and selective management of aquatic plants. Selective management will allow for a
thinning of aquatic plants within a permitted area, not a denuding of aquatic
plants from lake bottoms. MHL argues
that the proposed rules will make it difficult or impossible to achieve
acceptable plant management results because of the inherent dilution and
dispersion characteristics of herbicides, and because of the ability of the
aquatic environment to rapidly and completely overgrow small control areas
within days or weeks.[222]
219.
Robert
Woodburn, of
220.
The Minnesota
Chapter of the American Fisheries Society (MNAFS) proposed language for a new
subpart to part 6280.0350, entitled “Native aquatic plant control limited,”
where the DNR could specifically declare its interest in and goal of protecting
native plant communities. In addition, MNAFS
opposed the inclusion of item C, stating that “extensive eradication of
invasive aquatic plant species along the entire frontage of riparian land
parcels is best governed under an LVMP (6280.1000, subp. 2) and coupled with
strategies to reestablish native aquatic plants.”
221.
The DNR
declined to implement the suggestions of MNAFS, answering that the proposed
rules give the Department the discretion to reduce treatment areas below the
maximum allowed and provide APM permit decision-making criteria that take the
habitat, water quality, and erosion control value of aquatic plants into
account. The DNR stated that the
proposed rules provide safeguards to avoid the worst-case scenarios posed by MNAFS.[224]
222.
The
Administrative Law Judge finds that the DNR has shown a rational basis for
subpart 1a, and it is found to be necessary and reasonable. The DNR is seeking to implement a
policy-based decision that is within its discretion. The change to item B proposed by the DNR
after the public hearing, as discussed at Finding 282, does not make the
proposed rule substantially different than originally proposed.
Part 6280.0350, subpart 4
223.
This is
the “grandfather clause” portion of the proposed rules, a detailed discussion
of which appears at Findings 67-127.
Part 6280.0450, subpart 1
224.
The DNR
proposes changes to subpart 1, regarding the application process, as follows:
Application for
an APM permit for any body of a public waters water
may be made by a riparian owner, a lessee, or an easement holder, or;
by owners of a fee, leasehold, or interest to riparian lands to that body of
water; or by the representative of a group of riparian owners a
lake association or government agency.
The commissioner shall deny a lessee’s permit application if the owner
of the leased shoreline is opposed to the proposed permit. . . .
225.
MHL
objected to the proposed deletion of the language “the representative of a
group of riparian owners.”[225] MHL
did not explain why this language should remain in the rule, and the DNR
believes that the proposed language provides a complete list of the types of
entities that might potentially be applicants on an APM permit.[226]
226.
The
Administrative Law Judge finds that the explanation put forth by the DNR in the
SONAR provides a rational basis for the proposed changes to subpart 1, and that
the DNR’s proposals here are needed and reasonable.
Part 6280.0450, subpart 1a
227.
This
proposed new subpart, regarding landowner approval, replaces language currently
found in the rules in part 6280.0350, subp. 3, item C; subp. 4, item B; and
subp. 5. The proposed language requires
dated signatures of approval from all landowners with shorelines adjacent to
proposed treatment areas, with an exception for lake-wide control of algae,
which requires signatures from a majority of landowners consistent with current
rule, and an exception that allows the landowner signature requirement to be
waived if aquatic plant control is necessary to protect aquatic habitat.[227]
228.
The DNR
believes it is necessary and reasonable to get landowner approval before
aquatic plant control occurs adjacent to the landowner’s property. Since most aquatic plant control is done to
provide access to open water for shoreline owners, it does not make sense to
control these areas if the landowner does not approve. Furthermore, the DNR states that it is
necessary and reasonable to require a signature each year so as to avoid
mistakes caused by changes in property ownership. Electronic signatures are permitted to
expedite the approval process. The
proposed subpart is important so that the DNR can obtain shoreline owner
approval for aquatic plant control where it is appropriate, but can also
authorize aquatic plant removal without shoreline owner approval in situations
where broader public interests are at stake.[228]
229.
This
proposed new subpart regarding landowner approval generated some commentary
from the public. Some commentators
interpreted the proposed language to mean that a person would have to get
permission from each next door neighbor before controlling plants in front of
his or her property. The DNR expressed
that its intent is that each property owner has to approve treatment in front
of his or her own property.[229]
230.
Other
commentators interpreted the new language to mean that a landowner’s signature
could be waived only regarding lake-wide algae treatment. In fact, the DNR means for that waiver to
apply to all types of treatment.[230]
231.
Based
on those comments, the DNR agreed to amend the proposed language as discussed
at Findings 284 and 285.
Part 6280.0450, subpart 2
232.
Subpart
2 addresses deadlines for permit applications.
The changes to this subpart are technical and clerical in nature.[231] In
both the current and the proposed rules, the DNR will accept applications for
permits to control submersed or floating-leaf aquatic plants until August 1,
unless the commissioner determines there is justification for late season
pesticide control.
233.
MHL
argued that subpart 2 should be deleted and that there should be no deadline
for permit applications because some treatments are successful in the fall.[232]
According to the DNR, fall treatments are generally unnecessary and the
existing language does allow for late-season control if it is justified.[233]
234.
The Administrative
Law Judge agrees that the changes proposed to subpart 2 are merely technical in
nature and that the concerns of MHL are already addressed within the rule
language. The DNR has demonstrated the
need for and reasonableness of subpart 2.
Part 6280.0450, subpart 3
235.
Proposed
subpart 3 addresses the duration of permits and is largely existing language
moved from other parts of the current rules.
The current rule language provides for APM permit duration of one
growing season, expiring on September 1 of the year it was issued unless
otherwise noted.[234]
Nothing in the proposed subpart changes the effect of this language.
236.
MHL
argued that APM permits should expire on December 31 instead, again suggesting
that some treatments are successfully conducted in the fall.[235] The
DNR responded that December 31 is far later than is necessary for most aquatic
plant control, as lakes are generally ice-covered before the end of December.[236] The
DNR declined to implement MHL’s requested change.
237.
The
Administrative Law Judge finds that the DNR has demonstrated the need for and
reasonableness of subpart 3 and adequately addressed the concerns of MHL.
Part 6280.0900, subparts 1 and 1a
238.
Proposed
subpart 1 amends the language regarding amendments to and revocation of
permits, as follows:
The commissioner
may amend or revoke any commercial aquatic plant harvester’s permit or an
APM permit or suspend aquatic plant management or commercial harvest
activities without prior notice whenever it has been determined that it is
necessary to protect the interests of the public, to protect human life, or to
protect fish, wildlife, and native plants or for violation of the terms and
conditions of APM permits, this chapter, or other applicable laws or rules.
239.
The DNR
proposed this language to correct a deficiency in the current rules, which
provide for revocation of a commercial permit without providing detailed
guidance as to when such an action should occur and how long the revocation
should be in effect. The DNR asserts
that these changes are needed and reasonable to provide more consistency and
clarity in the permit revocation process, when read in conjunction with the
criteria for revocation of permits and activities in subpart 1a of this part.[237]
240.
Subpart
1a is new language dealing with permit revocation for violation of rules. The proposed language provides for revocation
of APM, commercial mechanical control, and commercial harvest permits, and for
prohibiting application of pesticides to public waters under an APM permit if a
person is convicted of a violation of this chapter or other applicable laws.[238] Item
A of subpart 1a states as follows:
A. A person who receives an APM-related
conviction may be subject to an APM-related permit revocation. The commissioner shall consider the following
criteria in determining whether to invoke an APM-related permit revocation;
(1) the extent and number of violations leading
to the conviction;
(2) the extent and number of prior aquatic
plant management-related convictions; and
(3) the extent to which the person had received
prior warnings regarding unlawful aquatic plant management activities.
241.
The DNR
argues that it is necessary and reasonable for the Department to be able to
revoke permits and prohibit application of pesticides to public waters under an
APM permit to provide an incentive to follow the law and prevent damage to
aquatic resources.[239]
242.
Item B
of subpart 1a provides that a person who receives two separate APM-related
convictions in a three-year period shall be subject to an APM-related permit
revocation for one year from the date of the second conviction. Item B goes on to provide that a person who
receives an APM-related conviction after having been subject to an APM-related
permit revocation shall be subject to an APM-related permit revocation for five
years from the date of conviction.
Proposed item B also requires a person who has had an APM-related permit
revocation to take an aquatic plant management workshop before the person can
receive a permit or apply pesticides in public waters.[240]
243.
MHL
objected to this proposed subpart on the basis that the DNR should not be the
“judge and jury” of alleged APM-related violations. MHL suggested that a court of law or other
unbiased entity should hear these types of cases and make penalty determinations.[241]
244.
The
Minnesota Aquatic Management Society (MAMS) argued against the DNR’s authority
to apply these rules to commercial applicators licensed by the Minnesota
Department of Agriculture, and the DNR made changes to the proposed rules in
light of those arguments. These
discussions can be found at Findings 145-150.
See Finding 150 for references to changes. It is found that the proposed changes to
subparts 1 and 1a of part 6280.0900 are needed and reasonable.
Part 6280.1000, subpart 1
245.
In this proceeding, the DNR is proposing that
part 6280.1000, (Variance) be renamed “Variance and Lake Vegetation Management
Plan”, in order to specify the criteria for granting variances (subpart 1) and
the minimum contents required for an approved lake vegetation management plan
(LVMP) (subpart 2).
246.
Current subpart 1, under which provisions of
Minn. R. Chap. 6280 may be waived under special circumstances, when deemed by
the Commissioner for the protection and preservation of the natural resources
of the state, is proposed for replacement by a listing of which rule parts can
be considered for possible variances (one or more of the provisions of parts
6280.0250, subpart 4 and part 6280.0350), except no variances may be issued for
proposed part 6280.0250, subpart 4, items B and C. This provision would eliminate variances to
be granted for the singular purposes of improving the appearance of undeveloped
shoreline or for esthetic purposes alone on developed shorelines.[242]
247.
Proposed subpart 1A specifies the purposes for
which variances can be issued – to control invasive aquatic plants, to protect
or improve aquatic resources, to provide riparian access or to enhance
recreational use on public waters. Item
A provides also that the variance requires a determination by the Commissioner
that special or unique conditions, or exceptional circumstances, need to exist
before a variance can be granted to control native aquatic plants to provide
riparian access or to enhance recreational use.[243]
248.
The justifications for issuance of a variance to
control aquatic plants or to protect or improve aquatic resources are found in
the criteria listed in Item B. Under
that Item, the criteria to be considered in determining if a variance is
justified to control invasive aquatic plants or to protect or to improve
aquatic resources are: Whether the
variance has the potential to increase or protect native aquatic plants, to
improve water quality or provide other ecological benefits; whether the
variance has the potential to prevent the spread of invasive aquatic plants;
whether the variance would further research or evaluation of invasive aquatic
plant control; and whether there is a feasible alternative to control invasive
aquatic plants or to improve aquatic resources.[244]
249.
The list of criteria to be considered in
determining if a variance is justified to provide riparian access or to enhance
recreational opportunities in public waters (Item C) is: The habitat, water quality and erosion
control value of the aquatic plants in the proposed permit area and the amount
of aquatic habitat reduction that would occur under the proposed control; the
abundance of invasive aquatic plants in the proposed permit area; the
selectivity of the proposed control for invasive aquatic plants; whether
shoreline development is limited sufficiently so that exceeding individual
property limits for control would not have the potential to combine with other
aquatic plant control to reduce substantially the aquatic habitat or result in
other undesirable ecological impacts; whether the presence of extensive massive
aquatic plants at the surface substantially interferes with recreation in a
proposed permit area (only if the presence of the mass is not a natural
condition of a shallow lake, shallow bay or wetland); the compatibility of the
proposed variance with the regulatory or management classification of the water
and adjacent lands, including natural environment lakes, special protection
districts, scientific and natural areas, wildlife managements areas, aquatic
management areas, designated wildlife lakes, and wild and scenic rivers;
whether the variance, if granted, would alter the central character of the
public water; and whether there is a feasible alternative to provide riparian
access or enhanced recreational access.[245]
250.
The terms of variances granted under the
proposed subpart may also require that aquatic plants, water quality and other
parameters be monitored periodically as a condition of APM permits that include
such variances. Finally, the proposed
subpart gives the Commissioner the power to require practical, feasible
mitigation measures to counteract adverse affects on aquatic habitat that
result from such variances. Mitigation
measures include a reduction in the number or size of docks and other
water-oriented structures, removal of shoreline riprap and retaining walls, the
restoration of natural riparian vegetation, and the restoration of emergent and
floating leaf aquatic plants.[246]
251. MHL claims that the proposed mitigation measures which the commissioner may require, such as reduction in dock size, shoreline riprap and retaining walls, are unreasonable and beyond the scope of the APM rule.[247]
252. The DNR acknowledges that some of the mitigation measures such as docks and water structures are above the ordinary high water mark and therefore not covered by APM rules.[248] The DNR responds, however, that the proposed mitigation measures offer the potential for flexibility and approval in some cases in which the DNR would otherwise have to deny a variance request because the impacts to the aquatic resource are too severe. The proposed rules do not require that an applicant accept the mitigation requirement; the applicant would always have the choice to withdraw the permit application.[249]
253.
A group
of individual property owners on
254.
Representative
Bev Scalze expressed concern about storm water inputs from Interstate 35E into
Part 6280.1000, subpart 2
255.
Proposed rule part 6280.1000, subp. 2, specifies
parameters under which lake vegetation
management plans are to be developed.
Item A notes that variance provisions that are authorized under other
provisions of Minn. R. Chap. 6280 may be incorporated into LVMPs in order to
control invasive species, protect or improve aquatic resources, provide
riparian access, and enhance recreational use on public waters.
256.
Under item A of subpart 2, the Commissioner
shall require APM permit applicants to develop an LVMP before granting a
variance if the proposed control would utilize methods or actions that need to
be evaluated to determine if the goals of the variance are met (see the
Findings below). The item also provides
that if a public water has an LVMP already approved by the Commissioner, APM
permits shall be issued in accordance with the plan and APM permit applications
that are inconsistent with the plan may be denied.
257.
Item B of subpart 2 lays out the following
information that must be contained
in an LVMP before being approved by the Commissioner: A description of the lake and its water
quality including location, size and clarity; a description of the aquatic
plant community; a description of the public participation process used in
developing the plan; a description of the problems addressed in the plan; a
statement of the goal for management of aquatic plants; a description of the
proposed actions to achieve the plan’s goal and a map showing the location of
proposed actions; and conditions of APM permits that would be issued as part of
the plan, including identification of variances.
258.
The Commissioner also shall require a monitoring
plan for the LVMP if the plan proposes methods or actions that need to be
evaluated to determine whether the plan’s goals will be met, as specified at subpart 2, item C.
259.
Both the MNAFS and the
260.
Both MNAFS and MCEA also recommended that
subpart 2 include additional criteria for the LVMP regarding basic assessment
of the lake watershed and nutrient inputs.[256] The DNR agreed that this type of information
is useful but knows that it must “strike a balance between the need for good
information and having a [rule] format that is user-friendly and practical.”[257] Accordingly, the DNR declined to make this
addition to the proposed rules.
261.
MNAFS suggested the following change to the
newly proposed language of item A of
subpart 2: “If a public water has an
LVMP approved by the commissioner, all APM permits within that public
water shall be issued in accordance with the plan and APM permit
applications that are inconsistent with the plan may be denied.”[258]
262.
The DNR
declined to accept this proposed change, but the Administrative Law Judge notes
that MNAFS’ proposed language does add clarity to the DNR’s proposed language. If the DNR chose to make this change prior to
adopting the final rules, the Administrative Law Judge finds that it would be
necessary and reasonable and would not constitute a substantial change in the
rules.
263.
It is found that the Department’s Statement of
Need and Reasonableness, at pp. 38-43 establishes that proposed Part 6280.1000,
regarding variances and lake vegetation management plans, is needed and
reasonable. The SONAR lays out a factual
basis that supports the proposals adequately.
264.
The
requirement for the development of an LVMP before granting a variance if
the proposed control proposes methods or actions that need to be evaluated to
determine if the goals of the variance are met was controversial. In its SONAR, the DNR notes that LVMPs are
associated most commonly with lakes where there is a desire to have lake-wide
or large-area control of invasive aquatic plants. In those instances, it is necessary and
reasonable for the DNR to have the ability to require an LVMP before issuing a
variance, in some cases, to ensure that goals are identified and problems
correctly diagnosed and that there is an adequate control and evaluation
plan. Because the science of lake-wide
or large-area control of invasive species with herbicides is still developing,
the DNR maintains that it is necessary and reasonable to have good pre-control
data on aquatic plant populations and basic water quality parameters, and
follow-up monitoring, to determine if the control was a success and if there
are any unanticipated or undesirable impacts.
It maintains that an LVMP provides a vehicle for obtaining this type of
information. The Administrative Law
Judge is persuaded that the explanation for this provision in the SONAR,
coupled with the Department’s explanation at the rule hearing, identify the
proper context for the application of the controversial language. That is, it is applicable only in those
instances where there is a desire to obtain permits for lake-wide or large-area
control of invasive aquatic plant species, which will be done through an LVMP.
265.
Regarding variances, the language proposed by
the DNR in this proceeding adds specificity and detail regarding the purposes
of a variance and what criteria should be used to determine if a variance is
justified to meet those purposes, which is an improvement on the current rule.
266.
It is found that the proposed Minn. R.
6280.1000, regarding variances (subpart 1) and lake vegetation management plans
(subpart 2), is needed and reasonable.
The changes finally proposed by the Department involve elimination of
possible overly broad discretion, by removing the words “but not limited to”
after “including” or “include” in various listed criteria and similar
provisions. Those changes are found to
be necessary and reasonable, and do not constitute substantial changes, for
reasons specified elsewhere in this Report.
Part 6280.1100
267.
The proposed changes in this Part (Review and
Appeal of Permit Decision) involve adding commercial mechanical control permits
and commercial harvest permits to the types of permits which can be reviewed
and appealed after grants, modifications, denials, suspensions or revocations
are imposed. The additions, all found at
proposed subpart 1 of 6280.1100, are found to be necessary and reasonable. Prior to this proposal, only aquatic plant
management permits could be reviewed by the Commissioner, and then only for
grants or denials. The proposal also
provides for a review of “relevant information”, and extends the deadline for
issuance of a decision by the Department to 15 working days, rather than the 15-day
period found in current language.
268.
MHL commented on the proposal regarding review
and appeal of permit decisions, to the effect that there should be an unbiased
external entity to review appeals. Under
the current rule, which is not proposed to be changed in this regard, the
Applicant who wishes to appeal the Commissioner’s decision after review is
allowed to file a written request for a contested case hearing under Minn.
Stat., Chap. 14. The concern regarding
unbiased external review is met by that provision.
269.
MNAFS
recommended the following change to subpart 2 of this rule part: “If the An applicant wishes
to requesting an appeal of the decision of the commissioner
after review of subpart 1, the applicant may shall file with the
commissioner a written request for a contested case hearing under Minnesota
Statutes, chapter 14.” While the text of
subpart 2 contained no proposed amendments in this rulemaking, the
Administrative Law Judge finds that the language proposed by MNAFS is an
improvement to the existing language and does not change the meaning or intent
of the subpart. The DNR is free to make
this recommended change if it wishes.
Such an amendment is reasonable and would not constitute a substantial
change. The ALJ notes this language
assumes notification to the applicant of the right to appeal. The addition of language specifying such
notice at part 6280.1100 is suggested.
Part 6280.1200
270.
In the rules as originally proposed in the State Register, this rule part (Penalty)
was proposed for change, as follows:
The description of aquatic macrophytes
in public waters without an APM permit issued pursuant to parts 6280.0100 to
6280.1100 or in Violation of this chapter or the terms of such a
an APM, commercial mechanical control, or commercial harvest permit is a
petty misdemeanor.
271.
The proposed language specifying the types of
permits that are subject to the penalty provision, including the
presently-covered APM permits, by adding commercial mechanical control and
commercial harvest permits to APM permits as types of permits for which
penalties can be imposed when violated, is found to be necessary and
reasonable.
272.
In its
final submission, the Department removed the word “petty” from its original
proposal. It was found elsewhere and it
is reaffirmed here, that this final proposal is necessary, reasonable and does
not constitute a substantial change because it restores consistency with
current rule and applicable criminal statutes, under which such permit
violations are misdemeanors.
273.
In its December 8, 2008 submission, the DNR
acknowledges that it has determined its statutes that have established
violations of aquatic plant rules do, in fact, impose misdemeanor
penalties. The Department so reasons
because Minn. Stat.
§ 84.0894 states that enforcement officers shall enforce violations of Minn.
Stat.
§ 103G.16 (permits to harvest or destroy aquatic plants) in the same manner as
a violation of the game and fish laws.
The game and fish laws are in Minn. Stat. Chap. 97A, 97B and 97C. Under Minn. Stat. § 97A.301, subd. 1, unless
a different penalty is prescribed, a person is guilty of a misdemeanor if the
person violates or attempts to violate a rule under the game and fish laws.
274.
Based on the statutory/interpretive analysis
noted in the preceding Finding, the Administrative Law Judge finds that the
Department has established that violations of its permits are to be classified
as misdemeanors.
XI. DNR’s Proposed Changes
from Initial Publication in the State Register
275.
At the suggestion of the Administrative Law Judge
and various commentators, the Department has proposed a number of clerical,
technical and clarifying changes in the proposed rules as published in the
State Register on September 22, 2008.
These proposed amendments, as specified in the following Findings, are
found by the ALJ to be necessary and reasonable, and do not constitute
substantial changes from the proposals published initially in the State
Register.
276.
At (new) subpart 2d of Minn. R. 6280.0100
(Definitions), a newly-defined “aquatic plant management-related permit
revocation” is proposed for amendment.
The proposal would eliminate the words “. . . an ineligibility to apply
aquatic pesticides to public waters under an APM permit.” , such that the new
definition reads:
“Aquatic plant management (APM)-related permit revocation” includes the revocation of an APM, commercial mechanical control, or commercial harvest permit.”
This change responds to the concern of the Minnesota Aquatic Management Society (MAMS), that the original proposal usurped authority granted to the Agriculture Department. See Findings 144-150 and 170-172.
277.
At Minn. R. 6280.0100, subp. 5a, the
newly-proposed definition of “Emergent aquatic plants,” the words “but not
limited to,” following the word “including,” have been removed from the
proposal in order to cure any possible defect for granting potential unlimited
discretion.
278.
For the same reason as mentioned in the
preceding Finding, the words “but not limited to” are proposed for deletion
from Minn. R. 6280.0100, subp. 7b, the proposed definition of “Floating-leaf
aquatic plants.”
279.
In the newly-proposed definition of “Submersed
aquatic plant,” proposed for Minn. R. 6280.0100, subp. 16, the Department
proposes again to eliminate the words “but not limited to,” in order to avoid granting
a potential exercise of overly-broad discretion.
280.
At subpart 3 (Justification required for
issuance of permits) of Minn. R. 6280.0250 (Standards for Aquatic Plant Management
Permit Issuance), the Department proposes deletion of the words “including, but
not limited to, wild rice, bull rush, cattail, and water lilies, and other
vegetation” from the language published in the State Register. The surviving sentence would read “Permits
for the control of emergent and floating-leaf aquatic plants . . . ”.
281.
At newly-proposed subpart 6 (APM permit
conditions) in Minn. R. 6280.0250, the DNR again proposes to delete the words
“but not limited to” after “including” before following with a list of
specified conditions.
282.
Minn. R. 6280.0350, subp. 1a, item B, which specifies
Submersed aquatic plant control restrictions for riparian property owners and
lessees, the word “campgrounds” is added to the list of types of properties
where control may be allowed on more than 100 feet of shoreline owned or
leased.
The Administrative Law Judge suggests that the DNR, prior to
final adoption, insert the word “commercial” before “campgrounds” for further
clarification. Such an addition, if
finally adopted, would be necessary and reasonable and would not constitute a
substantial change.
283.
Subpart 4, item C of Minn. R. 6280.0350 (Aquatic
plant control) is the “sunset after five years” provision that is proposed by
the Department in connection with the water bodies “grandfathered” since
1976. The Department’s clarifying
proposal adds the following language to the last section of proposed subpart 4,
item C:
. . . “including a notice or news release in a local newspaper, at least one public meeting, and a 30-day comment period.”
This language adds a clarification to a sentence that provides for opportunities for the public to participate in the planning process involving the development of LVMPs on the currently “grandfathered” water bodies.
284.
Subpart 1a is new language added to Minn. R.
6280.0450 (APM Permit Requirements). The
Department proposes to re-write subpart 1a (Landowner approval), to read as
follows:
Before issuing an APM permit, the Commissioner shall require dated signatures of approval from all landowners whose shorelines will be treated, except that for lake-wide control of algae, the commissioner shall require dated signatures of approval from a majority of landowners on the lake. The signatures may be provided in an electronic format.
285.
Subpart 1a of Minn. R. 6280.0450, as proposed
originally in the State Register, included an exception to provide a waiver if
the Commissioner determined that aquatic plant control was necessary to protect
aquatic habitat. This extraordinary
power is now embodied in a proposed new subpart 1b, which reads:
Landowner approval waiver. The requirements for landowner approval in subpart 1a may be waived if the commissioner determines that aquatic plant control is necessary to protect aquatic habitat.
286.
The newly-proposed Minn. R. 6280.0550
(Commercial Harvest of Aquatic Plants), includes a proposed subpart 3 regarding
Commercial harvest permit conditions.
The words “but not limited to” are eliminated here, in order to prevent
a potential abuse of discretion in listing types of situations where permit
conditions may be imposed.
287.
Two amendments are proposed in the
originally-published draft of Minn. R. 6280.0900, subp. 1a, item B. Subpart 1a is a listing of conditions or
situations under which permits can be revoked for rule violation(s). The first amendment in subpart 1a, item B is
to eliminate the words “or apply pesticides to public waters” from the second
sentence of the item, which sentence now would read “The commissioner shall
require a person who has an APM-related permit revocation to participate in an
aquatic plant management workshop before the person can receive any APM,
commercial mechanical control, or commercial harvest permit.” The elimination of a workshop participation
requirement for pesticide applicators is a partial loosening of the requirements
published initially.
288.
The Department also proposes to add a new
sentence, before the final sentence as originally published in subpart 1a, item
B. The new sentence reads:
A person who is subject to an APM-related permit revocation may request review pursuant to part 6280.1100, subp. 1, during which time the revocation will be suspended until all administrative appeals are exhausted.
This proposed change also adds flexibility to the restrictions proposed in the original publication in the State Register.
289.
Subpart 1, item A of proposed Minn. R. 6280.1000
(Variance and lake vegetation management plan) provides that the Commissioner
may issue APM permits with a variance from one or more of the provisions of
certain specified parts of the rules relating to aquatic plant management. Subparts 1, items B and C of proposed Rule
6280.1000 list criteria to be considered in determining whether a variance is
justified. The final sentence of subpart
1, item A, as proposed by the Department in its final submission, would read:
“The Commissioner shall make a determination that there are exceptional circumstances or special or unique conditions based on the criteria in items B and C before granting a variance to control native aquatic plants to provide riparian access or enhance recreational use.”
This final proposal, which adds the words “based on the criteria in items B and C” at the location shown, adds specificity to the proposed rule.
290.
Subpart 1a, item C, subitem (6) in proposed
Minn. R. 6280.1000 is one in a list of criteria to consider to determine if a
variance is justified to provide riparian access or enhance recreational
opportunities on public water. Within
the subitem, which contains its own list of regulatory or management
classifications of waters and adjacent lands, the words “but not limited to”
are proposed for deletion after the word “including.” This proposal adds clarity to the
classifications of waters and lands with which variances must be compatible,
and removes the potential for possible abuse of discretion.
291.
Item E of Minn. R. 6280.1000, subp. 1a, is a
listing of mitigation measures that may be required as a condition of an APM
permit that includes a variance. The
words “but are not limited to” after the word “include” are proposed for
deletion, in order to prevent an overly-broad grant of administrative
discretion.
292.
Minn. R. 6280.1200, as drafted originally,
provided that violation of the existing and proposed rules or terms of permits
issued under them, was a petty misdemeanor.
The Department now has proposed removal of the word “petty”, in order to
be consistent with the current rule and applicable statutes, under which those
violations are (and will remain) misdemeanors.
Based on the Findings of Fact, the Administrative Law Judge makes the following:
1. The Department of Natural Resources (DNR) gave proper notice in this matter.
2. The DNR has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural requirements of law or rule.
3. The DNR has demonstrated its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1; 14.15, subd. 3; and 14.50 (i) and (ii).
4. The DNR has demonstrated the need for and reasonableness of the proposed rules by an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 4; and 14.50 (iii).
5. The additions and amendments to the proposed rules suggested by the DNR after publication of the proposed rules in the State Register are not substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. § 14.05, subd. 2, and 14.15, subd. 3.
6. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are adopted as such.
7. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage the DNR from further modification of the proposed rules based on this Report and an examination of the public comments, provided that the rule finally adopted is based on facts appearing in this rule hearing record.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that
the proposed rules, as modified, be adopted.
Dated: January 7, 2009.
|
/s/ Richard C. Luis |
|
RICHARD C. LUIS |
|
Administrative Law Judge |
Recorded: Transcribed by Kirby A. Kennedy & Associates (4 volumes)
[1]
[2]
[3] Statement of Need and Reasonableness (SONAR), p. 10.
[4] SONAR, p. 10.
[5] SONAR, p. 10.
[6] SONAR, p. 11.
[7] SONAR, p. 9.
[8] SONAR, p. 9.
[9] SONAR, p. 9.
[10] SONAR, p. 9.
[11] 30 SR 651 (Dec. 19, 2005); DNR Ex. 1.
[12] Ex. 7.
[13] Dept. Comment, Dec. 1, 2008, Attachments 7-9.
[14] Ex. 8.
[15] Ex. 1.
[16] Ex. 2.
[17] Ex. 3.
[18] Ex. 7.
[19] Ex. 8.
[20] Ex. 4.
[21] Ex. 6.
[22] Ex. 8.
[23] Ex. 9.
[24] Ex. 10.
[25] Ex. 11.
[26] Ex. 12.
[27] A further discussion of the DNR’s statutory authority as it relates to licensed commercial pesticide applicators is contained elsewhere in this Report.
[28] Ex. 8; Ex. 9.
[29] SONAR, p. 1.
[30] SONAR, p. 1.
[31] Ex. 11.
[32] Ex. 11
[33] SONAR, p. 1.
[34] SONAR, p. 4.
[35] SONAR, p. 4.
[36] SONAR, p. 4.
[37] SONAR, p. 4.
[38] SONAR, pp. 4-5.
[39] SONAR, p. 5.
[40] SONAR, p. 6.
[41] SONAR, pp. 7-8.
[42] SONAR, p. 8.
[43] SONAR, p. 6.
[44] SONAR, p. 6.
[45] SONAR, p. 7.
[46] Dept. Comment, Dec. 1, 2008, Attachments 7-9.
[47] Minn. Stat. § 14.127, subd. 1.
[48]
[49] SONAR, p. 7.
[50] Comment, Dec. 1, 2008.
[51]
Minn. Stat. § 14.14, subd. 2;
[52] Mammenga v. DNR of Human Services, 442
N.W.2d 786 (
[53] DNR Ex. 3.
[54] In re Hanson, 275 N.W.2d 790 (
[55] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[56] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v.
[57] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[58] Federal Sec. Adm’r v. Quaker Oats Co.,
318
[59]
[60] The Department’s proposal to phase out the “grandfathered” status for specific metropolitan area lakes will be discussed below, in detail.
[61] Ex. 16, p. 3, citing SONAR, p. 5.
[62] Ex. 16, p. 3, citing SONAR, p. 3.
[63] Ex. 16, p. 5.
[64] Ex. 16, pp. 3, 5.
[65] Ex. 35D.
[66]
Ex. 16, p. 6, Attachment I (Minnetonka Conservation District Debriefing on the
[67] Ex. 16, p. 6, Attachments D, E, F, G, H.
[68] Dept. Comment, Dec. 1, 2008, p. 13-14.
[69] Hirsch Test., Waseca, p. 157.
[70] Dept. Comment, Dec. 1, 2008, p. 16.
[71] See Ex. 16, Attachment E; Dept. Comment Dec. 1, 2008, p. 21-22, Attachment 14; see also Ex. 37.
[72] Ex. 16, Attachment F, G, H; Dept. Response, Dec. 1, 2008, p. 21.
[73] Dept. Comment, Dec. 1, 2008, pp. 13-14.
[74] Hirsch Test., Waseca, pp. 155-156.
[75] SONAR, p. 10.
[76] Ex. 16, p. 4, citing SONAR, p. 9.
[77] See Ex. 13 (postcards from residents on
[78] The italicized portion of the text is language that the DNR has added to the proposed rules as a result of comments received at the public hearings.
[79] SONAR, p. 28.
[80]
Ex. 16, p. 5; see also Ex. 37
(Comment from
[81]
Ex. 35D; Test.,
[82] SONAR, p. 10, citing SONAR Ex. 1 (ALJ Report, In the Matter of Proposed Amendments to Permanent Rules Governing Aquatic Plant Management and Aquatic Nuisance Control, OAH Docket No. 6-2000-10699-1, Dec. 9, 1996, pp. 14-16).
[83] SONAR, p. 10.
[84] Dept. Comment, Dec. 1, 2008, p. 15, citing SONAR, pp. 6, 10-11.
[85] SONAR, p. 29; see also Dept. Comment, Dec. 1, 2008, p. 14.
[86] Dept. Comment, Dec. 1, 2008, p. 14, citing Ex. 22A.
[87] SONAR, p. 29.
[88] SONAR, p. 29.
[89] SONAR, p. 29.
[90] SONAR, p. 29.
[91] Dept. Comment, Dec. 1, 2008, p. 9.
[92]
Dept. Comment, Dec. 1, 2008, p. 9; Hirsch Test.,
[93] Dept. Comment, Dec. 1, 2008, Attachment 5.
[94] Dept. Comment, Dec. 1, 2008, p. 9.
[95] Dept. Comment, Dec. 1, 2008, p. 9.
[96] SONAR, p. 19.
[97]
Dept. Comment, Dec. 1, 2008, p. 10; Hirsch Test.,
[98]
Dept. Comment, Dec. 1, 2008, p. 10; Hirsch Test.,
[99]
Hirsch Test.,
[100] Dept. Comment, Dec. 1, 2008, p. 10.
[101] See, e.g., Ex. 13 (Judith A. Wood Postcard and Comment), Ex. 14 (Andrew Walz Comment, Oct. 26, 2008; David A. Lutz Comment, Oct. 23, 2008; Steve Youngquist Comment, Oct. 13, 2008); Ex. 15 (Bob and Mary A. Hullsiek Comment, Oct. 22, 2008; Kevin and Casey Kelly Comment, Oct. 22, 2008); Ex. 34; Ex. 37; Ex. 38; Ex. 39; Ex. 40; Test. of M. Pennings, Maplewood, p. 89; Test. of E. Kucera, Maplewood, p. 114; Test. of M. Feist, Maplewood, pp. 116-117; Test. of R. Thompson, Maplewood, p. 138; Test. of N. Quitevis, Maplewood, p. 146; Test. of Joe Bester, Maplewood, pp. 168-171.
[102]
Test. of R. Thompson,
[103]
Ex. 37; Pokonosky Test.,
[104]
Test. of R. Thompson,
[105]
See, e.g., Ex. 14 (Jane Ullmann
Comment, Nov. 3, 2008); Test. of J. Bester,
[106] Ex. 38, p. 4.
[107] Ex. 16, p. 4.
[108] Ex. 14 (Comment, Oct. 20, 2008).
[109] Test. of R. Thompson; Ex. 39.
[110] Ex. 39.
[111] Ex. 42A (Jon Schroeder Comment, Nov. 5, 2008); Ex. 42C (William C. Schumacher Comment, Nov. 3, 2008); Ex. 42B (Scott Skimek Comment, undated); Ex. 42E (Timothy C. Theisen Comment, Nov. 5, 2008); see also 42F (Patrick Olek Comment, Nov. 4, 2008).
[112] Ex. 16.
[113] Douglas D. Wild Comment, Nov. 2, 2008.
[114]
Ex. 38; Test of R. Thompson,
[115] Ex. 34.
[116] Ex. 16, p. 5, citing April 2008, Staff Report 43 from the DNR Division of Ecological Resources.
[117] Hirsch Test., Waseca, pp. 160-163; Ex. 22; Ex. 22A.
[118]
Pokonosky Test.,
[119] Ex. 38.
[120]
Ex. 40; Testimony,
[121] Ex. 42A (Jon Schroder Comment, Nov. 5, 2008); Ex. 42F (Patrick Olek Comment, Nov. 4, 2008); see also Ex. 42B (Scott Klimek Comment, undated).
[122]
Ex. 34; Test. of R. Thompson,
[123]
Ex. 38; Test. of R. Thompson,
[124]
Ex. 38; see also Ex. 34, Ex. 39
(noting large amount of fishing on
[125] Ex. 38; Ex. 39.
[126]
Ex. 38; see also T. of R. Thompson,
[127]
See Test. of M. Pennings,
[128]
Test. of R. Thompson,
[129]
Ex. 37; Pokonosky Test.,
[130] Ex. 14 (Comment, Oct. 22, 2008).
[131] See e.g., Ex. 14 (David A. Lutz Comment, Oct. 23, 2008).
[132] See e.g., Ex. 14 (Mark Christopherson Comment, Oct. 30, 2008; Chuck and JoAnn Copeland Comment, Nov. 3, 2008; Megan Malvey Comment, Nov. 4, 2008; Melvin M. Rohling Comment, Nov. 4, 2008); Ex. 15 (Jim and Trudy Burkholder Comment, Sept. 24, 2008; Geraldine Hedlund Comment, Sept. 24, 2008; Tom Kenyon Comment, Sept. 27, 2008; Boyd Schreiber Comment, Oct. 1, 2008; Connie Blanchard Comment, Oct. 3, 2008; Tom Burton Comment, Oct. 22, 2008; Bob and Mary A. Hullsiek Comment, Oct. 22, 2008; Kevin and Casey Kelly Comment, Oct. 22, 2008; Marjory Williams Comment, Oct. 22, 2008); Ex. 42B (Scott Klimek Comment, undated); Ex. 42F (Patrick Okek Comment, Nov. 4, 2008); Bill Schultz and Sara Mohn Comment, Nov. 3, 2008; Carolyn Mohn Comment, Nov. 7, 2008.
[133] Douglas D. Wild Comment Nov. 2, 2008.
[134]
See e.g., Test. of E. Kucera,
[135] Ex. 34.
[136] Ex. 40.
[137]
Test. of P. Skrede,
[138] Ex. 43 (signed by six homeowners).
[139]
Test. of P. Skrede,
[140] Ex. 37.
[141] Ex. 42A (Jon Schroeder Comment, Nov. 5, 2008).
[142] Hirsch Test., Waseca, pp. 143-144.
[143] Ex. 38.
[144]
Whitman Test,
[145] SONAR, p. 3.
[146]
Kelsey Test.,
[147] Kelsey Comment, Dec. 1, 2008.
[148] Hirsch Test., Waseca, p. 145.
[149] Dept. Comment, Dec. 1, 2008, p. 10.
[150] Dept. Comment, Dec. 1, 2008, p. 10.
[151] Ex. 16, p. 8.
[152] Ex. 16, p. 8 (see discussion in Dept. Comment, Dec. 1, 2008, p. 17 regarding distinction between “survey” and “inspection”).
[153]
Test.,
[154] Ex. 35D.
[155] SONAR, pp. 10-11, 38, 43.
[156] Hirsch Test., Waseca, pp. 147-148.
[157]
Dept. Comment, Dec. 1, 2008, p. 23; Hirsch Test.,
[158] Dept. Comment, Dec. 1, 2008, p. 24.
[159] Dept. Comment, Dec. 1, 2008, p. 17; Hirsch Test., Waseca, pp. 166-167.
[160] Dept. Comment, Dec. 1, 2008, p. 18.
[161] Ex. 16, p. 8.
[162] SONAR, p. 4.
[163] Hirsch Test., Waseca, pp. 148-149.
[164] Dept. Comment, Dec. 1, 2008, p. 18.
[165] Hirsch Test., Waseca, pp. 149-150.
[166]
Ex. 16, p. 9, Attachment B, C; see also
D. Pennings Test,
[167] Dept. Comment, Dec. 1, 2008, p. 17.
[168] Dept. Comment, Dec. 1, 2008, Attachment 13.
[169] Dept. Comment, Dec. 1, 2008, p. 21.
[170]
Test. P. Skrede,
[171] Dept. Comment, Dec. 1, 2008, pp. 26-27.
[172] Minnesota Aquatic Management Society’s Response to the DNR’s Statement of Need and Reasonableness (“MAMS Response”), submitted November 26, 2008, at p. 2.
[173]
See
[174]
MAMS Response at p. 4. See
[175] MAMS Response at p. 5.
[176]
MAMS Response at p. 6. See
[177] Ex. 23.
[178] MAMS Response at pp. 7-8.
[179] Ex. 25; p. 43 of the Little Falls Transcript.
[180] SONAR, p. 11.
[181] Ex. 16, Attachment A, p. 1.
[182] Hirsch Test., Waseca, p. 169.
[183] SONAR, p. 12.
[184] See Findings 144-150, summarizing the arguments of MAMS.
[185] SONAR, p. 12.
[186] Hirsch Test., Waseca, pp. 169-70.
[187] Ex. 16, Attachment A, p. 4.
[188] Dept. Comment, Dec. 1, 2008, p. 10.
[189] SONAR, pp. 15-16.
[190] Ex. 16, Attachment A, p. 5.
[191] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, p. 171.
[192] Ex. 16, Attachment A, p. 6.
[193] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, p. 174.
[194] SONAR, p. 16.
[195] Ex. 16, Attachment A, p. 6.
[196] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, p. 175.
[197] SONAR, p. 18.
[198] Jeffrey L. Peterson Comment, November 25, 2008.
[199] Jeffrey L. Peterson Comment, November 25, 2008.
[200]
[201] Dept. Response, Dec. 8, 2008, p. 8.
[202] Ex. 16, Attachment A, p. 8.
[203] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, pp. 175-77.
[204] 1854 Treaty Authority Comment, Nov. 4, 2008.
[205] Dept. Comment, Dec. 1, 2008, pp. 25-26.
[206] SONAR, p. 20.
[207] Ex. 16, Attachment A, p. 9.
[208] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, pp. 177-78.
[209] SONAR, p. 21.
[210] Ex. 16, Attachment A, pp. 9-10.
[211] SONAR, pp. 21-22.
[212] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, pp. 178-79.
[213] SONAR, p. 22. The DNR has proposed to delete the current rule language regarding inspections, supervision, and monitoring at Minn. R. 6280.0350, subp. 1.
[214] Ex. 16, Attachment A, p. 10.
[215] Dept. Comment, Dec. 1, 2008, p. 19; Hirsch Test., Waseca, pp. 179-81.
[216] Ex. 26, p. 3. See also, SONAR, pp. 23-26.
[217] Ex. 26, p. 3.
[218] Ex. 26, p. 4.
[219] Ex. 26, p. 4.
[220] Ex. 16, Attachment A, p. 11.
[221] Dept. Comment, Dec. 1, 2008, p. 19; Ex. 26.
[222] Ex. 16, pp. 6-7.
[223] Ex. 36 (Comment, Nov. 7, 2008).
[224] Dept. Comment, Dec. 8, 2008, p. 2. See also proposed rule part 6280.0250, subp. 3a, item B.
[225] Ex. 16, Attachment A, p. 14.
[226] Dept. Comment, Dec. 1, 2008, p. 19.
[227] SONAR, p. 31.
[228] SONAR, p. 31.
[229]
Dept. Comment, Dec. 1, 2008, p. 2. See also Ex. 31; Colman Test.,
[230] Dept. Comment, Dec. 1, 2008, p. 3.
[231] See SONAR, p. 31.
[232] Ex. 16, Attachment A, p. 14.
[233] Dept. Comment, Dec. 1, 2008, p. 20.
[234] SONAR, pp. 31-32.
[235] Ex. 16, Attachment A, p. 14.
[236] Dept. Comment, Dec. 1, 2008, p. 20.
[237] SONAR, p. 36.
[238] SONAR, p. 36.
[239] SONAR, pp. 36-37.
[240] SONAR, pp. 37-38.
[241] Ex. 16, Attachment A, p. 18.
[242] SONAR, pp. 38-42.
[243] SONAR, pp. 38-39.
[244] SONAR, pp. 39-40.
[245] SONAR, pp. 40-42.
[246] SONAR, p. 42.
[247] Ex. 16, p. 9.
[248] Hirsch Test., Waseca, pp. 167-168.
[249] Dept. Comment, Dec. 1, 2008, p. 18.
[250] Ex. 17 (Dean E. Johnson Comment); see also, comments of Shane R. Johnson, Arnold Lofgren, and Donna Lee Stratioti.
[251] Dept. Comment, Dec. 1, 2008, p. 30.
[252] Dept. Comment, Dec. 1, 2008, p. 30.
[253] MNAFS Comment, November 25, 2008, pp. 6-7; Henry VanOffelen (on behalf of MCEA) Comment, December 1, 2008.
[254] MNAFS Comment, November 25, 2008, p. 7.
[255] Dept. Response, Dec. 8, 2008, pp. 3-4.
[256] MNAFS Comment, November 25, 2008, p. 7; Henry VanOffelen (on behalf of MCEA) Comment, December 1, 2008.
[257] Dept. Response, Dec. 8, 2008, p. 4.
[258] MNAFS Comment, November 25, 2008, p. 7.