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X

That Pulaski Lake has relatively few carp because of its present lack of carp spawning habitat.

XI

That Little Pulaski Lake, if connected to Pulaski Lake as proposed by the applicant, would provide excellent spawning area for carp.

XII

That existence of such a spawning area for the carp in Pulaski Lake would seriously endanger its value as a fish lake by causing an increase in the carp population.

XIII

That the plans of the applicant provide for construction work which is detrimental to the public interest.

ORDER

It Is Hereby Ordered, That the application of Pulaski Lake Shores Association be and is in all respects denied. Dated at Saint Paul, Minnesota, this 9th day of October, 1964.

WAYNE H. OLSON, Commissioner of Conservation. By ROBERT J. BROWN,

Deputy Commissioner.

STATE OF MINNESOTA, DEPARTMENT OF CONSERVATION IN THE MATTER OF THE APPLICATION OF ALBERT H. SHERIFF TO PLACE FILL UPON

THE BED OF LAKE MINNEWASKA, POPE COUNTY, MINN.

FINDINGS OF FACT-CONCLUSIONS-ORDER

The above entitled matter came on for hearing before Clarence Prout, Commissioner of Conservation, in the Courthouse in the City of Glenwood, Pope County, Minnesota, on Saturday, May 20, 1961, at 9:30 a.m. upon due notice pursuant to the provisions of Minnesota Statutes, Chapter 105, and was continued at that time to June 12, 1961, at 1:30 p.m. in the Centennial Building, St. Paul, Minn.

The hearing was held for the purpose of determining whether or not it is in the public interest to grant the application of Albert H. Sheriff for a permit to place fill upon the bed of Lake Minnewaska, Pope County.

The State of Minnesota appeared by Lawrence J. Vaubel, Special Assistant Attorney General in behalf of Walter F. Mondale, Attorney General. The Applicant, Albert H. Sheriff, appeared on his own behalf.

After hearing all interested parties and after due consideration of the evidence received at the hearing the Commissioner of Conservation makes the following:

FINDINGS OF FACT

I

Lake Minnewaska is a meandered public body of water situated in Pope County, Minnesota.

II

The natural ordinary high water level of Lake Minnewaska is 1138.1 feet, sea level datum, 1929 adjustment.

III Applicant is the fee owner of Lots 1 and 7, county auditor sub. of Government Lot 2, Section 15, Township 125 North, Range 38 West, Pope County, Minnesota, and has applied to the commissioner for a permit to place fill upon the bed of Lake Minnewaska adjacent to said lots.

IV

The portion of the bed of Lake Minnewaska requested to be filled in by the applicant lies below the natural ordinary high water level of the lake.

V

The ordinary high water level of the lake abutting applicants land extends to and upon the limits of a public highway which provides public access to Lake Minnewaska when same is at its ordinary high water level.

VI

The application requests permission to place fill upon the above described portion of the bed of Lake Minnewaska to raise the same above said ordinary high water level.

VII That portion of the lake bed that applicant seeks to fill in provides valuable habitat for wild animals that would be destroyed by filling in the same. Granting such permit to the applicant would be contrary to the public interest in maintaining that portion of the lake bed as a means of access to Lake Minnewaska and for wild life habitat.

Upon the foregoing findings of fact, the Commissioner of Conservation makes the following:

CONCLUSIONS

I Lake Minnewaska is a meandered public body of water having a natural ordinary high water level of 1138.1 feet, sea level datum, 1929 adjustment.

II

The application of Albert H. Sheriff requests a permit to fill in and reclaim a portion of the bed of Lake Minnewaska lying below the natural ordinary high water level thereof.

III

Filling in and reclaiming the bed of Lake Minnewaska as requested by the applicant will prevent the public from gaining access to the lake at the area in question, when the lake is at its ordinary high water level.

IV

The construction proposed by applicant in filling in the bed of Lake Minne waska would destroy a valuable wild animal habitat.

V

The filling in and reclaiming of the bed of Lake Minnewaska proposed in applicant's application is detrimental to the public interest.

Based upon the above findings of fact and conclusions, it is hereby ordered:

ORDER

I

That the application of Albert H. Sheriff to place fill upon the bed of Lake Minnewaska is rejected and in all things denied. Dated at Saint Paul, Minn., this 22d day of January, 1962.

CLARENCE PROUT, Commissioner of Conservation.

STATE OF MINNESOTA,
DEPARTMENT OF CONSERVATION,

St. Paul, December 3, 1964.
Hon. EDMUND S. MUSKIE,
Chairman, Special Subcommittee on Air and Water Pollution,
Washington, D.O.

DEAR SENATOR MUSKIE: This letter is written in response to your request for a statement by the commissioner of conservation of the State of Minnesota, to be presented to the Senate subcommittee hearing at Stillwater, Minn., on December 10 and 11, 1964, concerning the proposed construction of a steam-generated powerplant on the St. Croix River.

I am attaching hereto a copy of the application of Northern States Power Co. for a permit to appropriate water from the St. Croix River to be used in cooling condensers in the proposed plant and returned to the river. A public hearing to consider the merits of the permit application has been tentatively set for January 13, 1965.

The authority of the commissioner of conservation of the State of Minnesota to consider the application is set forth in Minnesota Statutes, 1961, chapter 105, which also prescribes the procedure to be followed, and matters to be considered in reaching a decision as to whether or not a permit should be granted. Pertinent portions of that chapter read as follows:

“105.37 Definitions.--Subdivision 1. Unless the language or context clearly indicates that a different meaning is intended, the following words and terms, for the purposes of sections 105.37 to 105.55, shall have the meanings subjoined to them :

“Subdivision 2. "Commissioner' means the commissioner of conservation of the State of Minnesota.

"Subdivision 3. 'Division' means the Division of Waters of the Department of Conservation of the State of Minnesota.

"Subdivision 4. 'Director' means the director of the Division of Waters of the Department of Conservation of the State of Minnesota.

"105.38 Declaration of policy.--In order to conserve and utilize the water resources of the State in the best interests of the people of the State, and for the purpose of promoting the public health, safety, and welfare, it is hereby declared to be the policy of the State:

“(1) Subject to existing rights, all waters in streams and lakes within the State which are capable of substantial beneficial public use are public waters subject to the control of the State. The public character of water shall not be determined exclusively by the proprietorship of the underlying, overlying, or surrounding land or on whether it is a body or stream of water which was navigable, in fact, or susceptible of being used as a highway for commerce at the time this State was admitted to the Union. This section is not intended to affect determination of the ownership of the beds of lakes or streams.

"(2) The State, to the extent provided by law from time to time, shall control the appropriation and use of surface and underground waters of the State.

“(3) The State shall control and supervise, as far as practicable, the construction, reconstruction, repair, removal, or abandonment of dams, reservoirs, and all control structures in any of the public waters of the State.

"105.41 Appropriation and use of waters.--It shall be unlawful for the State, any person, partnership, or association, private or public corporation, county, municipality, or other political subdivision of the State to appropriate or use any waters of the State, surface or underground, without the written permit of the commissioner, previously obtained upon written application therefor to the commissioner. The commissioner may give such permit, subject to such conditions as he may find advisable or necessary in the public interest. Nothing in this section shall be construed to apply to the use of water for domestic purposes serving at any time less than 25 persons or to any beneficial uses and rights, outside the geographical limits of any municipality, in existence on July 1, 1937, or to any beneficial uses and rights, within the geographical limits of any municipality, in existence on July 1, 1959.

“105.44 Procedure upon application.-Subdivision 1. Permit: Each application for a permit required by sections 105.37 to 105.55 shall be accompanied by maps, plans, and specifications describing the proposed appropriation and Use of waters, or the changes, additions, repairs or abandonment proposed to be made, or the public water affected, and such other data as the commissioner may require.

If the proposed activity for which the permit is requested is within or affects a watershed district, a copy of the application together with maps, plans, and specifications shall be served on the secretary of the board of managers of the district. Proof of such service shall be included with the application and filed with the commissioner.

"Subdivision 2. Authority: The commissioner is authorized to receive applications for permits and to grant the same, with or without conditions, or refuse the same as hereinafter set forth. Provided, that if the proposed activity for which the permit is requested is within or affects a watershed district, the commissioner may secure the written recommendation of the managers of said district before granting or refusing the permit. Said managers shall file their recommendation within a reasonable time after receipt of a copy of the application for permit.

"Subdivision 3. Waiver of hearing: The commissioner in his discretion may waive hearing on any application and make his order granting or refusing such application. In such case, if any application be granted with conditions or be refused, the applicant may within 10 days after mailed notice thereof file with the commissioner a demand for hearing on the application. The application shall thereupon be fully heard on notice as hereinafter provided, and determined the same as though no previous order had been made. If no demand for hearing be made, the order shall become final at the expiration of 10 days after mailed notice thereof to the applicant.

"Subdivision 4. Time: The commissioner shall act upon all applications within 20 days after the application and all required data is filed in his office; either waiving hearing and making an order therein or directing hearing thereon.

"Subdivision 5. Notice: The notice of hearing on any application shall recite the date, place, and time fixed by the commissioner for the public hearing thereon and shall show the waters affected, the levels sought to be established, or any control structures proposed. The notice shall be published by the applicant, or by the commissioner if the proceeding is initiated by him, once each week for 2 successive weeks prior to the day of hearing in a legal newspaper published in the county in which a part or all of the affected waters are located. Notice shall also be mailed by the commissioner to the county auditor and the chief executive official of any municipality or watershed district affected.

“Subdivision 6. Hearing: The hearings shall be public and shall be conducted by the commissioner or a referee appointed by him. All affected persons shall have an opportunity to be heard. All testimony shall be taken under oath and the right of cross-examination shall be accorded. The commissioner shall provide a stenographer to take testimony and a record of the testimony and all proceedings at the hearing shall be taken and preserved. The commissioner shall not be bound by judicial rules of evidence or of pleading and procedure.

"Subdivision 7. Witnesses; contempt: The cominissioner may subpena and compel the attendance of witnesses and the production of all books and documents material to the purposes of the hearing. Disobedience of every such subpena, or refusal to be sworn, or to answer as a witness, shall be punishable as a contempt in like manner as a contempt of the district court on complaint of the commissioner before the district court of the county where such disobedience or refusal occurred.

“Subdivision 8. Permit to irrigate agricultural land: When an application for permit to irrigate agricultural land from public waters is made, a general statement in the application of the purpose of the proposed use of public waters and the acreage to be irrigated shall be sufficient compliance with the require ments of subdivision 1 with respect to maps, plans, and specifications, unless the commissioner reasonably may require additional specified information within 10 days of the filing of the application. In any such case the commissioner shall make his order granting the application unless he finds after hearing that granting thereof would be against the public interest or would deprive another than the applicant of the share of public water which such other has requested and to which he is entitled. In the case of an application for permit to irrigate agricultural land, failure of the commissioner to act thereon by granting or denial or other hearing thereon within 30 days after filing of the aplication, or in case the commissioner has reasonably required additional specified information than that given in the application within 20 days after the filing of such additional information, shall be deemed an order granting the application.

"Subdivision 9. Limitations on permits: Except as otherwise expressly provided by law, every permit issued by the commissioner of conservation under

the provisions of Minnesota Statutes, 1949, sections 105.37 to 105,55, or any amendment thereof, shall be subject to the following:

“(1) Cancellation by the commissioner at any time if deemed necessary by him for any cause for the protection of the public interests;

(2) Such further conditions respecting the term of the permit or the cancellation thereof as the commissioner may prescribe and insert in the permit;

“(3) All applicable provisions of law existing at the time of the issuance of the permit or thereafter enacted by the legislature;

“(4) Any applications granted under subdivision 8, or deemed granted under the provisions thereof, shall likewise be subject to the foregoing provisions of this subdivision, and shall be subject also to cancellation by the commissioner upon the recommendation of the supervisors of the soil conservation district wherein the land to be irrigated is located.

"105.45 Permits and orders of commissioner; notice.—The commissioner shall make findings of fact upon all issues necessary for determination of the applications heard by him. All orders made by the commissioner shall be based upon findings of fact made on substantial evidence. He may cause investigations to be made, and in such event the facts disclosed thereby shall be put in evidence at the hearing or any adjournment thereof.

"If the commissioner concludes that the plans of the applicant provide for the most practical use of the waters of the State and will adequately proteci public safety and promote the public welfare, he shall grant the permit, and, if that be in issue, fix the control levels of public waters accordingly. If the commissioner concludes that the proposed appropriation or use of State waters or the proposed construction is inadequate, wasteful, dangerous, or impractical, or detrimental to the public interest, he shall reject the application or he may require such modification of the plan as he deems proper to protect the public interest.

"In granting a permit the commissioner may include therein such terms and reservations with respect to the amount and manner of such use or appropriation or method of construction or operation of controls as appears reasonably necessary for the safety and welfare of the people of the State.

"Notice of all orders made after hearing shall be given by publication of the order once each week for 2 successive weeks in a legal newspaper in the county where the hearing was held, and by mailing copies of the order to all parties who entered an appearance at such hearing.

“The commissioner shall make his order pursuant to hearing within 60 days after the completion of the hearing.

"105.46 Time limit.—The commissioner shall fix the time within which all construction authorized in the permit must be completed, or within which the appropriation or use of water must be made, which time shall not exceed . years from the date of the permit. Such time may be thereafter extended by the commissioner for good cause shown. Permits granted in connection with the mining, transporting, concentration, or shipment of taconite, as defined in Minnesota Statutes, 1945, section 93.20, shall be irrevocable for the term thereof without the consent of the permittee, except for breach or nonperformance of any condition of the permit by the permittee and the commissioner may allow and prescribe therein such time as he deems reasonable, regardless of the limitations of time contained in this section, for the commencement or completion of any construction or operations under such permit, or the exercising of the rights granted thereunder, or may extend such time, for cause shown, upon the application of the permittee.

"105.47 Appeals.--Any party in interest may appeal from any determination of the commissioner to the district court of the county in which the project is wholly or partly located, at any time within 30 days after notice of the commissioner's order. Notice by publication shall be sufficient.

"The appellant shall serve notic of appeal on the commissioner and on the attorney for any adverse party who appears of record in the proceeding. The notice of appeal with proof of service thereof shall be filed with the clerk of the court to which such appeal is taken within 5 days after the service thereof: thereupon the district court shall have jurisdiction over the appeal. The notice of appeal shall set forth the order appealed from and the grounds opon which the appeal is taken.

"When an appeal is taken from any order of the commissioner under the provisions of sections 105.37 to 105.55, the commissioner shall forthwith cause

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