How is the OHWL of a public water determined? Appeal of Quade, 1998 WL 61991 (Minn. App. 1998)(Unpublished) A property owner sought a permit from the DNR to expand a berm adjacent to DNR wetland for roadway access to an island. The DNR denied the request and after a contested case hearing, Quade appealed the DNR Commissioner's OHWL determination on which the permit denial was upheld. The "tree method," which looks to the existence or absence of trees as evidence of historical inundation, is the primary method of ascertaining the OHWL under DNR guidelines. The Court found substantial evidence to support the Commissioner's reliance on this method, including testimony by the DNR expert that it has been used for some 26 years. The appellant contended that the tree method yielded an artificially high water level because the flow of the ditch was blocked by an obstructed culvert. The court found that the appellant did not demonstrate that the OHWL would be lower if the ditch were not blocked. The opinion further suggests that a higher water elevation due to an artificial blockage may serve as the basis for a higher OHWL, if of sufficient duration.
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