Is an OHWL properly based on an elevated lake level caused by an unpermitted structure? Farnes v. State (In re Goose Lake), 2001 Minn. App. LEXIS 1190 (Oct. 30, 2001) (unpublished). The DNR Commissioner set an Ordinary High Water Level (OHWL) on Goose Lake in Carver County at a level at least partially created by a control structure built on the lake in the 1960s without a DNR permit. An OHWL is defined as the "highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape." See Minn. Stat. § 103G.005, subd. 14(1) (2000). The water level established by the Commissioner had been maintained for a sufficient time to leave "evidence upon the landscape." The control structure was a flow-through fish barrier that had been used to control lake levels disturbed by ditching in the 1940's. Harold Farnes challenged the Commissioner's decision, asserting that the lake level hearing was called for an improper purpose and that the DNR should have directed its attention to removal of the structure. The Goose Lake Property Owners' Association, conversely, had asked the Commissioner to set the OHWL at the higher "natural" level that existed before the ditching. The Court of Appeals first noted the Commissioner's broad authority, under Minnesota Statutes § 103G.401, to initiate lake level investigations and hearings. It then held that the OHWL set by the Commissioner was valid even though it was based on "water levels influenced by the control structure." The Court determined that the Commissioner properly considered the control structure and ditching to the extent that they have been maintained and used so as to affect water level sufficiently to leave a mark on the landscape. The record also evidenced the Commissioner's determination that the established OHWL was one that could be maintained under existing lake conditions. The Commissioner did not err in disregarding the circumstances under which the lake level was raised.
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