Current through Register Vol. 49, No. 13, September 23, 2024
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.
