Minnesota Administrative Rules

6115.0670 COMMISSIONER'S ACTIONS ON PERMIT APPLICATIONS.

Subpart 1.

In general.

Upon receipt of the information required from the applicant under parts 6115.0660 and 6115.0680 to 6115.0720, where applicable, the commissioner shall take action on the application as follows.

Subp. 2.

Review and analysis of data.

Review and analysis of data:

A.

The commissioner shall consider the following factors, as applicable:

(1)

the location and nature of the area involved and the type of appropriation and its impact on the availability, distribution, and condition of water and related land resources in the area involved;

(2)

the hydrology and hydraulics of the water resources involved and the capability of the resources to sustain the proposed appropriation based on existing and probable future use;

(3)

the probable effects on the environment including anticipated changes in the resources, unavoidable detrimental effects, and alternatives to the proposed appropriation;

(4)

the relationship, consistency, and compliance with existing federal, state, and local laws, rules, legal requirements, and water management plans;

(5)

the public health, safety, and welfare served or impacted by the proposed appropriation;

(6)

the quantity, quality, and timing of any waters returned after use and the impact on the receiving waters involved;

(7)

the efficiency of use and intended application of water conservation practices;

(8)

the comments of local and regional units of government, federal and state agencies, private persons, and other affected or interested parties;

(9)

the adequacy of state water resources availability when diversions of any waters of the state to any place outside of the state are proposed;

(10)

the economic benefits of the proposed appropriation based on supporting data when supplied by the applicant.

B.

The commissioner shall further consider the following factors for appropriation from watercourses:

(1)

historic streamflow records, and where streamflow records are not available, estimates based on available information on the watershed, climatic factors, runoff, and other pertinent data;

(2)

physical characteristics such as discharge, depth, and temperature, and an analysis of the hydrologic characteristics of the watershed;

(3)

aquatic system of the watercourse, riparian vegetation, and existing fish and wildlife management within the watercourse;

(4)

frequency of occurrence of high and low flows;

(5)

feasibility and practicability of off-stream storage of high flows for use in providing water supply during periods of normal low flows, when supply is limited by existing and anticipated use.

C.

The commissioner shall further consider the following factors for appropriation from basins:

(1)

total volume of water within the basin;

(2)

slope of the littoral zone;

(3)

available facts on historic water levels of the basin and other relevant hydrologic factors;

(4)

cumulative long-range ecological effects of the proposed appropriation;

(5)

natural and artificial controls which affect the water levels of the basin.

D.

The commissioner shall further consider the following factors for appropriation of groundwater:

(1)

type and thickness of the aquifer;

(2)

subsurface area of the aquifer;

(3)

area of influence of the proposed well(s);

(4)

existing water levels in the aquifer and projected water levels due to the proposed appropriation;

(5)

other hydrologic and hydraulic characteristics of the aquifer involved; and

(6)

probable interference with neighboring wells.

Subp. 3.

Decision on applications.

The commissioner is authorized to grant permits, with or without conditions, or deny them. In all cases, the applicant, the managers of the watershed district, the board of supervisors of the soil and water conservation district, or the mayor of the city may demand a hearing in the manner specified in Minnesota Statutes, section 103G.311, subdivision 5, within 30 days after receiving mailed notice outlining the reasons for denying or modifying an application.

Decisions by the commissioner are further subject to the administrative provisions of Minnesota Statutes, sections 103G.241, 103G.251, 103G.295, 103G.297, and 103G.301 to 103G.315. These sections include information and requirements on procedure, authority, timing of actions, fees, notice, investigations, violations and penalties, and special provisions regarding mining operations.

Based on these statutory requirements and other applicable provisions of Minnesota Statutes, section 84.083, and chapters 103A, 103B, and 103E to 103G, the commissioner shall make decisions as follows:

A.

No permit shall be granted if:

(1)

for application involving diversion of any waters of the state, surface or ground water, to a place outside the state, the remaining waters in the state will not be adequate to meet the state water resources needs during the specified life of the diversion (Minnesota Statutes, section 103G.265, subdivision 2);

(2)

there is no conflict between competing users but the quantity of available waters of the state, in the area involved, are inadequate to provide the amounts of water proposed to be appropriated;

(3)

the appropriation is not reasonable, practical, and does not adequately protect public safety and promote the public welfare (Minnesota Statutes, section 103G.315);

(4)

the appropriation is not consistent with approved state, regional, and local water and related land resources management plans, provided that regional and local plans are consistent with statewide plans (Minnesota Statutes, section 103G.271, subdivision 2);

(5)

there is an unresolved conflict between competing users for the waters involved and the conflict has not been resolved pursuant to provision of part 6115.0740.

B.

Approval of any surface water appropriation application shall be further subject to the following:

(1)

For all watercourses, proposals for appropriation during periods of flood flows and high water levels shall be given first consideration unless this is not practical, reasonable, or feasible (Minnesota Statutes, section 103G.261).

(2)

For natural and altered watercourses, except for drainage ditches established under Minnesota Statutes, chapter 103E, consumptive appropriation may be limited consistent with Minnesota Statutes, section 103G.285, subdivision 2, provided that adequate data are available to set such limits for watercourses. Where protected flow is designated by the commissioner, no appropriation shall be allowed when the flow is below that protected flow.

(3)

Permits to appropriate water for any purpose from streams designated trout streams by rule, pursuant to Minnesota Statutes, section 97C.021, shall be limited to temporary appropriations when not in conflict with the special designation, such as during periods of high flows or high water levels (Minnesota Statutes, section 103G.285, subdivision 5).

(4)

For natural and altered basins the commissioner shall:

(a)

Establish a protection elevation below which no appropriation shall be allowed (Minnesota Statutes, section 103G.285, subdivision 3, paragraph (b)).

(b)

Limit the collective maximum annual withdrawals to not exceed a total volume of water amounting to one-half acre-foot per acre of surface water basin based on Minnesota Department of Natural Resources Bulletin No. 25, "An Inventory of Minnesota Lakes." The actual collective annual allocation may be considerably less than the maximum. This limitation is as provided by Minnesota Statutes, section 103G.285, subdivision 3, paragraph (a).

(c)

For natural and altered basins less than 500 acres, an application shall not be approved if the commissioner determines that the proposed appropriation would lower the water level in the basin to an extent which would deprive the public and riparian property owners of reasonable use of and access to the water.

(5)

The establishment of protection elevation and limitation on maximum withdrawals contained in units (a) and (b), shall not apply to artificial and altered basins constructed primarily for the purpose of storing high waters and flood flows as water conservation or contingency flow alternatives when such alternatives are approved by the commissioner.

(6)

Protected flows and protection elevations shall be established for the purposes as defined in part 6115.0630 and shall be based on available information considered in subpart 2, items B and C. For new applications the proposed establishment of protected flows or protection elevations shall be part of the permit process outlined in subpart 3 including opportunity for public hearing. Existing permittees who will be affected by the proposed establishment of protected flows or protection elevations shall be notified of such proposals and shall be provided opportunity for public hearing before modification of their permits based on the procedures outlined in part 6115.0750, subpart 5, item B. Upon the submission of data set forth in part 6115.0670, subpart 2, item A or B for the specified watercourse segment or basin by a state agency agreeing to pay the costs of any necessary public hearings, the commissioner shall establish requested protected flows and elevations.

C.

Approval of appropriation from ground water shall be further subject to the following:

(1)

The amounts and timing of water appropriated shall be limited to the safe yield of the aquifer to the maximum extent feasible and practical.

(2)

If the commissioner determines, based on substantial evidence, that a direct relationship of ground and surface waters exists such that there would be adverse impact on the surface waters through reduction of flows or levels below protected flows or protection elevations the amount and timing of the proposed appropriation from ground water shall be limited.

(3)

Appropriation of ground water shall not be approved or shall be issued on a conditional basis in those instances where sufficient hydrologic data are not available to allow the commissioner to adequately determine the effects of the proposed appropriation. If a conditional appropriation is allowed, the commissioner shall make further approval, modification, or denial when sufficient hydrologic data are available.

(4)

The commissioner shall limit the use of dug pits for appropriating water when such pits are so located that they may reasonably be expected to affect protected flows of watercourses or protection elevations of basins.

Subp. 4.

Waiver.

The commissioner shall waive any of the provisions of subpart 3 if it is determined that conditions are such that implementation of a provision would be unnecessary or inapplicable or if an applicant provides sufficient evidence to show just cause why such provision would not be reasonable, practical, or in the public interest. In the event the commissioner does not grant an applicant's request for waiver the applicant may demand a hearing.

Subp. 5.

Specific types of appropriation and use.

Additional requirements and decisions governing agricultural irrigation, public water supplies, dewatering, water level maintenance, and mining are also contained in parts 6115.0680 to 6115.0720.

Statutory Authority:

MS s 103G.315; 105.415

History:

L 1985 c 172; L 1991 c 259 s 23

Published Electronically:

June 11, 2008