In the Matter of the Determination of the Need for an Environmental Impact Statement for the Nolte Family Irrigation Project in the Township of North Germany, Wadena County, Minnesota.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0960

In the Matter of the Determination of the Need for an
Environmental Impact Statement for the
Nolte Family Irrigation Project in the
Township of North Germany, Wadena County, Minnesota.

Filed May 24, 2021
Affirmed
Smith, Tracy M., Judge

Minnesota Department of Natural Resources

Jamie Lynn Konopacky (pro hac vice), E nvironmental Working Group, Minneapolis,
Minnesota; and

Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, P.A., Minneapolis, Minnesota;
and

James P. Peters, Law Offices of James P. Peters, PLLC, Glenwood, Minnesota (for relators
Environmental Working Group, Northern Wa ter Alliance, Toxic Taters, Minnesota Well
Owners Organization, and Kathy Connell)

Keith Ellison, Attorney General, Peter J. Fa rrell, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Natural Resources)

Timothy Nolte, Sebeka, Minnesota (pro se respondent)

Joseph Maternowski, Joseph Reutiman, Hessian & McKasy, P.A., Minneapolis, Minnesota
(for amicus curiae Pollinator Stewardship Council)

Karuna Ojanen, Ojanen Law Office, Rocheste r, Minnesota (for amici curiae Ryan Pesch,
Larry Heitkamp, Janaki Fisher-Merrit, and Zachary Paige, and for amici curiae Willis
Mattison and Peder Otterson)

Frank Bibeau, Deer River, Minnesota; and

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Paul Blackburn, Honor the Earth, Callaway, Minnesota (for amici curiae Honor the Earth
and Pine Point Tribal Community Members)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this certiorari appeal , relators challenge the decision of the Minnesota
Department of Natural Resources (DNR) not to order an environmental impact statement
(EIS) for a proposed ag ricultural project known as the Nolte Family Irri gation Project.
Relators argue that the decision is erroneous , arbitrary and capricious, and not supported
by substantial evidence because it determines th at the project (1) is not part of a phased
action and (2) does not have the potential for significant environmental effects. We affirm.
FACTS
Respondent Tim Nolte operates a family farm in Wadena County. He and his family
have been farming there for d ecades. He seeks to convert 303 acres of former timberland
to irrigated agricultural land for row crop production and livestock grazing. As part of the
project, Nolte applied for three groundwa ter-appropriation permits from the DNR to
operate the irrigation systems. The three wells to be used in these irrigation systems would
collectively pump around 100 million gallons of water per year from two aquifers. The two
aquifers are connected to a shallow aquifer that provides drinking water to nearby residents,
and that shallow aquifer connects to the nearby Redeye River.
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The project sits within the Pineland Sands area in central Minnesota. The Pineland
Sands area is around 770 square-miles of surficial glacial outwash deposit that has
historically been used for timber production but, more recently, has been transitioning into
irrigated agriculture, sparking environmental concerns.
R.D. Offutt’s Operations in the Pineland Sands Area
The property at issue in Nolte’s applica tion is property that he had recently
purchased from R.D. Offutt—on e of the largest potato producers in the country. R.D.
Offutt’s expansion into the Pineland Sands ar ea drove much of the increase in irrigated
agriculture in the area over the previous several decades, leading to various environmental
effects to private wells, forests, rivers, and lakes.
Most pertinent to this appeal is an expansion effort by R.D. Offutt in 2014 and 2015.
In those years, R.D. Offutt submitted app lications for 21 groundwater-appropriation
permits and 33 preliminary well assessments. A preliminary well assessment is a precursor
to a groundwater-appropriation permit. R.D. Offutt sought grou ndwater-appropriation
permits to enable the conversi on of approximately 7,000 acres of pine forest, historically
managed for timber production, into irrigated farming.
In February 2015, the DNR ordered a di scretionary environmental assessment
worksheet (EAW) for R.D. Offutt’s proposed expansion. R.D. Offutt appealed the decision
but then withdrew all of its preliminary-we ll-assessment requests and three of its water-
appropriation-permit requests. The DNR evaluated the project as revised and, in June 2015,
again ordered a discretionary EAW. R.D. Offutt then withdrew the majority of its pending
water-appropriation-permit applications, leaving five applications remaining. In November
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2015, a group of citizens petitio ned for an EAW to be prepar ed in connection with the
remaining five applications. The DNR denied their petition. By the time the DNR denied
the citizen petition, only two of these applications were still pending and the DNR
determined the two pending applications did not have the potential for significant
environmental effects.1
In May 2018, anothe r group of citizens petitioned for an EAW regarding R.D.
Offutt’s operations. At that time, R.D. Offutt had three new water-appropriation-permit
applications pending before the DNR and had sought to amend four existing water-
appropriation permits. The DNR intended to grant the 2018 citizen petition, but, when the
DNR informed R.D. Offutt of its decision , R.D. Offutt withdrew its pending water-
appropriation-permit applications. After withdrawing these applications, R.D. Offutt only
had four permit-amendment requests pending with the DNR. The DNR determined that the
proposed amendments did not warrant an EAW. That decision was not appealed.
Nolte’s Purchase of Land from R.D. Offutt
In May 2017, Nolte entered into a contract for deed with R.D. Offutt to purchase
the property that is at issue in the Nolte project. The original contract for deed required
Nolte to “improve the Property by whatever means necessary to make it useful for potato
production” and to lease the property back to R.D. Offutt. In December 2017, Nolte
submitted his application for the Nolte pr oject to the DNR. Th e three groundwater-

1 The DNR, however, did express some conc ern about the environmental impact of
expanded irrigated agriculture in the Pineland Sands area and proposed a study with various
state agencies as well as R.D. Offutt to addr ess its concerns. Due to a lack of funding,
however, the DNR never completed the study.
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appropriation permits that Nolte sought co rresponded to three of R.D. Offutt’s 54
previously submitted applications.
In May 2018, the parties amended their co ntract for deed to remove the clause
requiring improvement of the property and lease-back to R.D. Offutt. A warranty deed was
properly recorded on August 12, 2019, conveying title of the land to Nolte, reflecting no
further interest in the property on the part of R.D. Offutt.
The EAW and Public Comments

In June 2019, a citizens’ group, including relators Toxic Taters, the Minnesota Well
Owners Organization, the No rthern Water Alliance, the Environmental Working Group,
and a local organic farmer, petitioned the DNR to conduct an EAW for the Nolte project.
They argued that the expansion would lead to decrease d water availability in the area,
increased pesticide exposure for nearby homes and water res ources, and increased nitrate
levels in the soil and water. The DNR granted the petition in August 2019. In issuing its
decision to prepare an EAW, the DNR sepa rated the Nolte project from R.D. Offutt—
meaning that the DNR analyzed the environmental effects of the Nolte project only.
While preparing the EAW for the Nolte pr oject, the DNR sought input from the
Minnesota Pollution Control Agency (MPCA), the Minnesota Department of Agriculture
(MDA), and the Minnesota Department of Health (MDH). The DNR also solicited
information from Nolte. As part of this process, the DNR or dered a partial aquifer test,
which is not typically part of the EAW process. The DNR-designed test required Nolte to
pump one of the three project wells and did not require m onitoring of surface water
resources, including the nearby Redeye River. The DNR used the results from the project
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well that was pumped to model the project’s anticipated impact caused by the other two
project wells. Nolte completed this test around a week before the DNR published the EAW.
The DNR conducted two periods of interagency review of the proposed EAW. Each
agency raised different concerns. The MDH was particularly concerned with pesticide use
and the potential risk of pesticide drift into local homes. The MDH also expressed concern
that certain pesticides could leach into the groundwater. Finally, the MDH flagged potential
decline in the water quality of nearby wells and the water quantity in nearby surface water
resources. Reviewing officials at the DNR also expressed concern about pesticide use—in
particular, noting that the draft EAW needed to include more sp ecificity on the use,
aggregation, and risks of particular chemical s at the project site. Similarly, the MPCA
expressed concern about nitrate surface water contamination in the Straight River.
The DNR released the EAW for the Nolte project on April 6, 2020. During the 30-
day public comment period following the EA W’s publication, the DNR received 98
comments, and, of those, 18 were deemed substantive.
The Record of Decision
On June 18, 2020, after reviewing the co mments, the DNR released its record of
decision (ROD). In it, the DNR determined that an EIS wa s not required for the Nolte
project because the project “ does not have the potential for significant environmental
effects.”
Relators appeal the DNR’s decision.
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DECISION
Relators assert two primary challenges to the DNR’s decision that an EIS is not
required for the Nolte project. First, they argue that the DNR did not properly evaluate the
Nolte project because it wrongly determined that the Nolte project is a stand-alone project.
They contend that the Nolte project is part of a phased action with a larger expansion effort
by R.D. Offutt and that the DNR’s determination to the contrary is not based on substantial
evidence, is arbitrary and capricious, and is legally erroneous. Second, they argue that, for
a number of reasons, the DNR’s determination that the Nolte project does not have the
potential for significant environmental effects is not based on substantial evidence, is
arbitrary and capricious, and legally erroneous. Before turning to relators’ arguments, we
begin with an overview of the governing environmental law and our standard of review.
I. Minnesota Environmental Policy Act and Standard of Review
The Minnesota Environmental Policy Act (MEPA), Minn. Stat. §§ 116D.01-.11
(2020), provides for two levels of envir onmental review of proposed actions—an EAW
and an EIS. An EAW is a “b rief document which is designed to set out the basic facts
necessary to determine whethe r an environmental impact statement is required for a
proposed action.” Minn. Stat. § 116D.04, subd. 1a(c). Persons concerned about the
environmental effects of a proposed action may petition for an EAW. Id., subd. 2a(e). The
responsible governmental unit (RGU) must grant the petition if the petitioners demonstrate
that there “may be potential for significant environmental effects.” Id. The RGU prepares
the EAW. Minn. R. 4410.1400 (2019).
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The EAW informs the decisi on whether to order a sec ond level of environmental
review—an EIS. “An EIS is an exhaustive envi ronmental review that the party proposing
the project must conduct at its own expense.” Citizens Advocating Re sponsible Dev. v.
Kandiyohi Cty. Bd. of Comm’rs , 713 N.W.2d 817, 824 (Minn. 2006) ( CARD) (citations
omitted). If an RGU determin es that a project has “the potential for significant
environmental effects,” the RGU must issue a “positive declaration” requiring the
completion of an EIS. Minn. R. 4410.1700, subps. 1, 3 (2019). If the RGU concludes that
the proposed project does not have the poten tial for significant environmental effects, it
must issue a “negative declarati on” on the need for an EIS. Id., subp. 3. The RGU must
base its decision “on the information gathered during the EAW process and the comments
received on the EAW.” Id. The RGU must “maintain a record, including specific findings
of fact, supporting its decision.” Id., subp. 4 (2019). Here, the DNR acted as the RGU, and
it issued a negative declaration regarding an EIS.
On appeal, the decisions of administra tive agencies “enjoy a presumption of
correctness, and deference should be shown by courts to the agencies’ expertise and their
special knowledge in the field of their technical training, education, and experience.” Minn.
Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 463 (Minn.
2002) (quotation omitted) (citing Minn. Stat. § 14.69 (2000)). “A determination whether
significant environmental effects result from [a] project is primarily factual and necessarily
requires application of the agency’s techni cal knowledge and expertise to the facts
presented.” Id. at 464.
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However, this deference does not apply if the agency’s decision reflects an error of
law, the findings are arbitrary and capricious, or the findings are unsupported by substantial
evidence. See Minn. Stat. § 14.69 (2020) (identifying bases for reversing or modifying an
administrative agency decision). A decision is arbitrary and capricious if it
(1) is based on factors that the legislature did not intend for the
RGU to consider; (2) entirely fa ils to address an important
aspect of the problem; (3) offers an explanation that is counter
to the evidence; or (4) is so implausible that it could not be
explained as a difference in view or the result of the RGU’s
decision-making expertise.
Friends of Twin Lakes v. City of Roseville, 764 N.W.2d 378, 381 (Minn. App. 2009) (citing
CARD, 713 N.W.2d at 832). A decision is based on substantial evidence if “the agency has
adequately explained how it derived its conclusion” and “that conclusion is reasonable on
the basis of the record.” Matter of NorthMet Project Perm it to Mine Application Dated
Dec. 2017, No. A18-1952, 2021 WL 1652768, at *11 (Minn. Apr. 28, 2021) ( NorthMet
Project).
A party challenging the DNR’s decision on the need for an EIS “has the burden of
proving that its findings are unsuppo rted by the evidence as a whole.” Friends of Twin
Lakes, 764 N.W.2d at 381. “Our role when re viewing agency action is to determine
whether the agency has taken a ‘hard look’ at the problems involved, and whether it has
‘genuinely engaged in r easoned decision-making.’” CARD, 713 N.W.2d at 832 (quoting
Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)).
We turn to relators’ arguments.
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II. The DNR’s determination that the Nolte project is not part of a “phased
action” in connection with R.D. Offu tt is reasonable, supported by the
evidence, and consistent with MEPA.

Relators first argue that the DNR’s deci sion must be reversed because the Nolte
project is part of a “phased action” with R.D. Offutt’s 7,000-acre expansion into the
Pineland Sands area and the entire phased action therefore should have been considered in
determining the need for an EIS.
“Phased actions” must be evaluated by the DNR as a single project in determining
the need for an EIS. See Minn. R. 4410.1700, subp. 9 (2019).
“Phased action” means two or more projects to be undertaken
by the same proposer that a RGU determines:

A. will have environmental effe cts on the same geographic
area; and
B. are substantially certain to be undertaken sequentially over
a limited period of time.

Minn. R. 4410.0200, subp. 60 (2019). A “project” is defined by Minnesota regulations as
a “governmental action, the re sults of which would cause ph ysical manipulation of the
environment, directly or indirectly.” Minn. R. 4410.0200, subp. 65 (2019). “Governmental
action,” in turn, is defined by MEPA to mean “activities, in cluding projects wholly or
partially conducted, permitted, assisted, financed, regulat ed or approve d by units of
government.” Minn. Stat. § 116 D.04, subd. 1a(d). Interpreting these definitions together,
this court has explained that a “project” for purposes of MEPA is “a definite, site-specific
action that contemplates on-the- ground environmental changes.” Minn. for Responsible
Recreation v. Dep’t of Nat. Res. , 651 N.W.2d 533, 539 (Min n. App. 2002). Whether a
project exists depends on “both the definiteness of the locati on and the maturity of plans
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for development.” In re Envtl. Assessmen t Worksheet for the 33rd Sale of State Metallic
Leases, 838 N.W.2d 212, 216 (Minn. App. 2013) (Metallic Leases), review denied (Minn.
Nov. 26, 2013).
A. The DNR’s determination that the Nolte project is not part of a “phased
action” is based on substantial evidence.

The DNR determined that the Nolte project is not part of a phased action because it
is not one of “two or more projects to be undertaken by the same proposer.” Minn. R.
4410.0200, subp. 60. The DNR explained that information provided by Nolte “indicated
that there is no existing agreement with [R.D. Offutt] to conduct agricultural practices” on
the subject property and that environmental review cannot be premised on “speculation.”
It observed that any relationship between envi ronmental effects of the proposed project
and the environmental effects of other agricultural operations is “properly addressed as part
of [cumulative potential effects].”
Relators argue that substantial evidence does not support the DNR’s decision. They
contend that the Nolte project is part of R.D. Offutt’s 7,000-acre expansion plan, reflected
in the 54 permit applications that it sought (including for the three wells related to the Nolte
project), and is being “directed” by R.D. Offutt. They emphasize that Nolte purchased his
land from R.D. Offutt and that their contract initially required Nolte to lease the land back
to R.D. Offutt, and they cite R.D. Offutt’ s initial involvement in Nolte’s application.
Relators assert that the environmental effects of both “projects” would pertain to the same
geographic area—the Pineland Sands area—and that R.D. Offutt’s efforts are substantially
certain to be undertaken ov er time because R.D. Offutt submitted detailed plans and
12
specifications for future stages of irrigated farming when it applied for the 54 permits and
because R.D. Offutt has built infrastructure to support future stages.
The DNR counters that substa ntial evidence supports th e decision that the Nolte
project is not part of a phased action. It ar gues that there is no 7,000-acre R.D. Offutt
“project” because the expansion plan that relators rely on was abandoned by R.D. Offutt
when it withdrew most of its 54 permit app lications during environmental review and
relators’ “speculation” about R.D. Offutt’s future plans does not make those plans a
“project.” In addition, the DNR argues that substantial evidence supports the determination
that Nolte is not the “same proposer” as R.D. Offutt, noting that the lease-back requirement
in the parties’ original contract for deed was deleted, that Nolte represented to the agency
he has no relationship with R.D. Offutt, and that Nolte’s independence from R.D. Offutt is
consistent with Nolte’s long history of farming in the area and R.D. Offutt’s representations
that is divesting itself of property in the area because of environmental scrutiny.
Our review of the record persuades us that the DNR’s determination that the Nolte
project is not part of a phased action is base d on substantial evidence. First, substantial
evidence supports the determinat ion there is not an expansion “project” of R.D. Offutt.
After planning a 7,000-acre expansion into the Pineland Sands area, R.D. Offutt withdrew
many of its permit applicati ons. The 2014 and 2015 prelim inary well assessments were
withdrawn after the DNR ordered a discretionary EAW for the expansion in February 2015.
And the majority of the 2014 and 2015 water-appropriation permits applications were
withdrawn after the DNR ordered a discretiona ry EAW for the revised expansion in June
2015. R.D. Offutt executed smaller expans ions in the years between these initial
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applications and the Nolte project, but th e DNR determined none warranted an EAW.
Should R.D. Offutt decide to return to its planned 7,000-acre expansion of irrigated farming
in the area, it would again need to seek pe rmits and would be subject to environmental
review. The record does not lack substantial evidence that R.D. Offutt’s abandoned 7,000-
acre expansion plan is not a definite, mature “project.”
Our decision in Metallic Leases supports this conclusion. In that case, we concluded
that the sale of metallic-mineral leases, without more, did not constitute a “project” under
MEPA, triggering environmental review, because any future exploration and mining under
the leases was “indefinite” and would require future approval and permits. 838 N.W.2d at
215, 217-18; see also Iron Rangers for Res ponsible Ridge Action v. IRRRB , 531 N.W.2d
874, 881-82 (Minn. App. 1995) (holding an agency cannot be compelled to prepare an EIS
based on speculative data), review denied (Minn. July 28, 1995). Similarly, here, any future
actions by R.D. Offutt to expa nd into the Pineland Sands area would be subject to new
applications and approval by th e DNR. Relators argue that Metallic Leases is
distinguishable because the leas es in that case were not linked to definite locations,
whereas, here, the location of an expansion by R.D. Offutt is definite based on its past
applications. But even if the location is definite, any plans by R.D. Offutt remain indefinite
because R.D. Offutt would still need to appl y for permits from the DNR to expand its
irrigated-farming operations and would still be subject to environmental review.
Second, substantial evidence also suppo rts the DNR’s determination that R.D.
Offutt and Nolte are not the “same proposer.” It is true that Nolte purchased the land at
issue from R.D. Offutt and that the original contract for deed included a clause requiring
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Nolte to improve the property for potato produc tion and lease it back to R.D. Offutt. But
the contract for deed was amended in May 2 018 to remove this clause, and the warranty
deed executed in 2019 estab lishes that R.D. Offutt has no current interest in Nolte’s
property. In addition, in resp onse to the DNR’s inquiry, No lte confirmed that he has no
written contracts with anyone to farm his land. Finally, R.D. Offutt told the DNR that it
was divesting itself of property in the Pine land Sands area because of regulatory scrutiny
by the DNR and other environmental agencies. Th is evidence provides a sufficient basis
for the DNR’s determination that Nolte and R.D. Offutt are not the “same proposer.”
On this record, the DNR’s determination that Nolte’s proposal is not part of a phased
action consisting of two more projects by the same proposer is based on substantial
evidence.
B. The DNR did not act arbitrarily and capriciously by considering Nolte’s
assurances.

Relators also argue the DNR’s determination that the Nolte project is not part of a
phased action is arbitrary and capricious because the DNR relied solely on Nolte’s “fickle”
word that he is not working with R.D. Offutt though the evidence shows otherwise. They
emphasize that Nolte to ld the DNR that he might grow pot atoes on the site and that his
“unofficial” position was that it was “none of anyone’s business how he and his family run
their family farm.” They also argue that Nolte faces substantial economic pressure to grow
potatoes and that those pressures demonstrate that his project is part of a phased action with
R.D. Offutt.
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Relators’ argument that the DNR’s decision is arbitrary and capricious is essentially
a reframing of their argument that the decision is not supported by substantial evidence. In
the previous section, we cited the substant ial evidence that supports the DNR’s decision
that the Nolte project is not part of a phase d action with R.D. Offutt. Although there may
be evidence in the r ecord suggesting a contrary result, a court’s “judgment concerning
inferences to be drawn from the evidence should not be substituted for that of the agency.”
Red Owl Stores, Inc. v. Comm’r of Agric., 310 N.W.2d 99, 104 (Minn. 1981). The DNR’s
determination is not arbitrary and capricious.
C. The DNR did not fail to look at on-the-ground project realities.
Finally, relators argue that the DNR erred as a matter of law by defining the Nolte
project as a stand-alone project because the DNR did not look at “on-the-ground project
realities” and instead focused on the agency review proce ss. They observe that the
definition of “project” in the Minnesota Rules states that “[t]he determination of whether a
project requires environmental documents sha ll be made by reference to the physical
activity to be undertaken and not to the governmental process of approving the project.”
Minn. R. 4410.0200, subp. 65. Relators ar gue that the DNR rejected R.D. Offutt’s
operations as a “project” by narrowly focusing on the DNR’s 2018 decision not to require
environmental review of R.D. Offutt’s four permit-amendment requests and by failing to
consider R.D. Offutt’s previous 54 permit applications. In so doing, they argue, the DNR
erroneously focused on the ag ency review process and not on the on-the-ground project
realities.
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We are not persuaded. The record reflec ts that the DNR looked to on-the-ground
realities when distinguishing between the Nolte project and any R.D. Offutt expansion. The
DNR evaluated the contract for deed and dete rmined that it no longer included any land-
lease language. And Nolte submitted his warranty deed showing his outright ownership of
the land. Because Nolte owns the land—and has no agreement with R.D. Offutt to use the
land—the DNR had a substantial basis for determining that the on-the-ground realities do
not connect the Nolte project to any R.D. Offutt expansion effort.
In sum, based on our review of the record and the ROD, we conclude that the DNR
took a “hard look” at whether the Nolte project was part of a phased action and engaged in
reasoned decision-making. CARD, 713 N.W.2d at 832. And because we defer to the
agency’s reasonable interpretation of the facts, cf. Red Owl Stores, 310 N.W.2d at 104, the
DNR did not err by determinin g that the Nolte project is separate from R.D. Offutt’s
expansion project and evaluating the Nolte project as a stand-alone project.
III. Relators’ challenges to th e DNR’s determination that the Nolte project does
not have the potential for significant environmental effects fail.

Relators next challenge the DNR’s determ ination that the Nolte project does not
have the potential for significant environmental effects. Under MEPA, an RGU must order
an EIS if a project poses the potential for si gnificant environmental effects. Minn. Stat.
§ 116D.04, subd. 2a(a). The Minnesota Rules identify four factors that an RGU must
consider in determining whether a project ha s the potential for significant environmental
effects: (1) “the type, extent and reversibilit y of environmental effects”; (2) “cumulative
potential effects”; (3) “the extent to whic h the environmental effects are subject to
17
mitigation by ongoing public re gulatory authority”; and (4) “the extent to which
environmental effects can be anticipated and controlled as a result of other environmental
studies undertaken by public agencies or the project proposer.” Minn. R. 4410.1700, subp.
7 (2019).
An RGU’s evaluation of the four factors is “primarily factual and necessarily
requires application of the agency’s techni cal knowledge and expertise to the facts
presented.” Minn. Ctr. for Envtl. Advocacy, 644 N.W.2d at 464. The agency’s decision is
presumed correct and will not be disturbed unless it is “unsupported by substantial evidence
in view of the entire record as submitted or was arbitrary and capricious.” Id.
Relators assert six arguments challenging the DNR’s determination that the Nolte
project does not warrant an EIS. We address each in turn.
A. The Kraft Report
Relators first argue that the DNR erred as a matter of law by failing to consider a
report by Dr. George Kraft, which was s ubmitted as part of Environmental Working
Group’s public comments on the EAW. By rule, an RGU must “maintain a record”
supporting its decision and “[t]he record must include specific responses to all substantive
and timely comments on the EAW.” Minn. R. 4410.1700, subp. 4.
Kraft is a hydrologist who researches “agricultural groundwater quality and quantity
issues in sandy soils and glacial aquifer syst ems in the Northern Gr eat Lake States.” His
report focuses on groundwater-quantity concerns , nitrate contaminati on of groundwater,
and the effectiveness of mitig ation efforts. The report asserts that the EAW failed to
consider the cumulative enviro nmental impact that the th ree wells will have on water
18
quantity—especially on connected water sources. The report asserts that Nolte’s plan for
the land will likely result in contamination of double to quadruple the ten-milligrams-per-
liter statutory limit for nitrates in drinking water.
The DNR argues that it adequately addressed the issues raised by Kraft in his report,
even if it did not address Kraft’s report by na me. It explains that, in the ROD, “[s]imilar
comments were grouped together, each gr oup was analyzed, and a single response to
comment was developed for the category.” While Kraft’s name was never mentioned, the
DNR points to the ROD’s section on “water quality” and asserts that it responds to Kraft’s
report. In that section, the ROD discusse s whether the project would “significantly
contribute to any increase in nitrate concentr ation in nearby wells or cause those wells to
exceed the drinking water standa rd of 10mg/L.” It also stat es that “nitrate and pesticide
groundwater contamination could originate beneath the cropped proj ect site and could
migrate offsite into deeper aquifers and di scharge to wetlands, streams, and the Redeye
River” but that “it is challengi ng to determine any measurable impact . . . of a Project of
this limited size.” These statements in the ROD indicate that the DNR at least considered
and responded to the concerns in Kraft’s report.
Relators challenge the adeq uacy of the DNR’s response . They note that the ROD
concludes that, “[g]iven the number of va riables involved in pr edicting groundwater
quality in the environmentally relevant area, it is unlikely that a modeling exercise would
produce definitive results that could be relie d upon in decision making.” Relators argue
that Kraft’s report provides that modeling and therefore should have been considered. But
relators’ argument goes to the substance of the DNR’s determination about reliable
19
modeling, and we defer to the DNR’s technical knowledge and expertise. See Minn. Ctr.
for Envtl. Advocacy, 644 N.W.2d at 464.
Relators also challenge the DNR’s argument that it responded to the Kraft report by
grouping it with the comments of another expert, geologist Jeffrey Broberg. Relators argue
that, because the two experts have different qualifications and examined different aspects
of the potential nitrate pollution of nearby groundwater, the ROD’s discussion of Broberg’s
comments is not responsive to the issues raised by the Kraft report. But this argument again
goes to the DNR’s assessment and weighing of the evidence, and we defer to the DNR’s
technical knowledge and expertise. See id.
B. Water-Quality Effects
Relators next argue that the DNR’s dete rmination that effect s on water resources
will be “limited in extent, temporary, or re versible” and that “ongoing public regulatory
authority” can address these effe cts is arbitrary and capricious. An agency’s decision is
arbitrary or capricious if it represents the agency’s will, rather than its judgment. Trout
Unlimited, Inc. v. Minn. Dep’t of Agric. , 528 N.W.2d 903, 9 07 (Minn. App. 1995)
(quotation omitted), review denied (Minn. Apr. 27, 1995).
Relators argue that the DNR improper ly concluded that any modeling of
groundwater quality would be unli kely to produce definitive re sults. They again point to
Kraft’s and Broberg’s research and argue that the DNR, by ignoring the results of their
studies in favor of conclusi ons “without supporting refere nces,” acted arbitrarily and
capriciously. Relators also contend that the DNR was more interested in narrowing the
20
boundaries by which they need ed to measure cumulative e ffects and in turn failed to
analyze local groundwater-quality effects.
In response, the DNR points to several por tions of the ROD that discuss various
local impacts on water resources—including information from the aquifer test allowing the
DNR to assess the risk to domestic wells and the Redeye River and the impact of required
and voluntary mitigation strategies to help manage any future contamination.
The ROD determines that “[t]he proposed nitrate and pesticide contribution from
the Project, as mitigated, would be minimal. ” In reaching this conclusion, the DNR
analyzed the size of the project area, Nolte’s certification under the Minnesota Agricultural
Water Quality Certification Program (MAWQCP), other mandatory mitigation strategies,
and several reports and analyses. This sort of weighing of eviden ce falls within the
expertise of the DNR, and, thus, we defer to the agency’s determinations. See Minn. Ctr.
for Envtl. Advocacy, 644 N.W.2d at 463-64. We conclude that the DNR took a “hard look”
at the evidence regarding water quality. CARD, 713 N.W.2d at 832
Relators also argue that the DNR acted arbitrarily and capriciously by disregarding
other agencies’ concerns and relying on mitigation measures rather than studying potential
effects. They cite to our decision in Trout Unlimited, 528 N.W.2d 903. In that case, we
reversed the MDA’s decision not to require an EIS for a water-appropriation permit for a
97-acre irrigation project. Id. at 905-07. The MDA’s decision was opposed by several other
government agencies due to the potential impact of pesticides on a nearby creek. Id. at 908-
09. In reaching its decision, the MDA determin ed that, because “[m]onitoring and permit
conditions can identify signi ficant impacts and modify or terminate the project if
21
necessary,” an EIS was unnecessary. Id. at 909. We reversed, explaining, “The very
purpose of an EIS . . . is to determine the potential for significant environmental effects
before they occur. By deferring this issue to later permitting and monitoring decisions, the
Commissioner abandoned his duty to require an EIS where th ere exists a ‘potential for
significant environmental effects.’” Id. Relators argue that, because of similarities here
with the facts in Trout Unlimited —including the projects’ re gion, the concerns of
groundwater contamination, and the sim ilar focus on mitigatio n—we should likewise
reverse the agency’s decision here.
But the DNR persuasively responds that this case is not like Trout Unlimited. Here,
the DNR consulted with other agencies in the EA W process, but relators point to no
opposition by those agencies to not ordering an EIS. In addition, here, unlike the agency in
Trout Unlimited, the DNR did not defer analysis of potential environmental effects to post-
project monitoring and permitting. Rather, this case is more like Friends of Twin Lakes ,
where we affirmed the decision no t to order an EIS. 764 N.W.2d at 379. In that case, we
distinguished Trout Unlimited because the city in Friends of Twin Lakes , rather than
waiting to see if significant environmental effects occurred, instead incorporated measures
“to prevent negative environmental effects before they occur.” Id. at 382. Similarly, here,
the EAW and ROD outline specific mitigati on measures that th e DNR concludes will
prevent negative environmental effects fr om occurring. The DN R is not deferring
environmental review until after the effects have occurred.2

2 Relators raise another argument in their reply brief. Relying on the brief from amici
Mattison and Otterson, relators argue that, by determining that an EIS is not required in
22
C. Public Comments on Mitigation Efforts
Relators next argue that the DNR did no t take into account public comments
regarding the efficacy of mitigation efforts a nd that the DNR’s decision to rely on those
efforts is arbitrary and caprici ous. Relators rely on Kraft’s and Broberg’s reports opining
that the mitigation measures would be in effective in preventing deterioration of
groundwater quality. They contend that, beca use the DNR did not ad equately assess the
potential for groundwater deterioration, the DNR cannot rely on mitigation of these impacts
as a basis for its decision not to order an EIS.
This argument is unpersuas ive. The DNR did evaluate comments regarding the
effectiveness of these mitigation strategi es. For example, in responding to the
Environmental Working Group’s comment pointing to the study of the farming row crops
in Byron Township in Cass County as evidence that mitigation will be ineffective, the ROD
states that “[t]his study is providing importan t information to better understand cropping
and nitrogen management practices that ca n minimize the loss of nitrogen below a crop
root zone.” The ROD states, “The Byron study provides some general reference regarding
nitrogen concentration reductions that might be observed under similar fields. The behavior
of nitrogen in the environm ent is, however, governed by a complex set of interrelated
chemical and biological transf ormations.” In response to Broberg’s contention that the

this case, the DNR changed its internal policy without explaining the reasoning behind the
change in policy and that change in policy thus constitutes an arbitrary and capricious
decision. Because relators did no t raise this issue in their pr incipal brief, it is outside the
scope of their reply brief, and we decline to consider it. See Moorhead Econ. Dev. Auth. v.
Anda, 789 N.W.2d 860, 887 (Minn. 2010). And we decline to address an issue raised only
by an amicus. See NorthMet Project, 2021 WL 1652768, at *16.
23
mitigation strategies will only ha ve “short-term ephemeral benefits,” the ROD states that
“nitrogen concentrations measured at one loca tion should not be taken as a direct analog
for what can be expected at another location.” Relators’ argument again asks us to reweigh
the evidence, something we will not do. See In re Appeal of Rocheleau, 686 N.W.2d 882,
891 (Minn. App. 2004) (“The reviewing court is not to retry the facts or make credibility
determinations.” (quotation omitted)), review denied (Minn. Dec. 22, 2004).
D. Evidentiary Support for Proposed Mitigation Efforts.
Relators next assert that the DNR’s de termination regarding the sufficiency of
proposed mitigation measures is not supported by substa ntial evidence. The DNR may
consider “mitigation measures as offsetting the potential for significant environmental
effects . . . if those measures are specific, ta rgeted, and are certain to be able to mitigate
environmental effects.” CARD, 713 N.W.2d at 835. In evaluating the effect of mitigation
measures, an RGU may consider current regulatory requirements and “whether mitigation
measures may be applied by a regulatory authority.” Id. at 834. Voluntary mitigation
measures may also be considered. Minn. Ctr. for Envtl. Advocacy, 644 N.W.2d at 468.
Relators challenge the DNR’s reliance on Nolte’s MAWQCP certification. But
voluntary mitigation efforts may be considered. And Nolte’s certification is contingent on
his following the University of Minnesota’s recommended best management practices for
fertilizer use. The certification also require s Nolte to implement a list of mitigation
measures meant to protect the surrounding water quality. This condition is repeated in an
agreement between Nolte a nd the Wadena Soil & Wate r Conservation District.
Consideration of these conditions as mitigation measures was not improper.
24
Relators also argue, though, that the DNR’s reliance on Nolte’s MAWQCP
certification is error because the certificati on is for Nolte’s current farming operation,
which does not include irrigated agriculture. But the terms of the certification require Nolte
to inform the certifying agent of all land used for agricultural operation.
Relators also argue that the DNR did not adequately examine the efficacy of
mitigation measures. Relators’ argument again appears to compare the DNR’s analysis to
Kraft’s report. Our role is to assess whethe r the DNR took a “hard lo ok” at the evidence
when coming to their conclusion and not to reweigh the evidence. See CARD, 713 N.W.2d
at 832; Rocheleau, 686 N.W.2d at 891. Provided that the DNR “genuinely engaged in
reasoned decision-making,” we presum e the DNR’s conclusions are correct. CARD, 713
N.W.2d at 832 (quotation omitted). Substantial evidence in the record supports the DNR’s
conclusion. The EAW highlights Nolte’s crop rotation as a mitigating measure for nitrates.
And the ROD determines that Nolte’s obligations under the MAWQCP certification and
his agreement with the Wadena Soil & Conservation District will “reduce nitrogen losses”
and “diminish the potential for cumulative effects to groundwater.” We defer to the DNR’s
evaluation of the effectiveness of mitigation measures. Id.
E. Water-Quantity Effects
Relators next contend that the DNR erred by determining that that the Nolte project
does not pose potentially significant water-depletion effects to residential wells, wetlands,
and the nearby Redeye River.
Relators first contend that the DNR’s d ecision violates Minn. R. 4410.1700, subp.
2a (2019), because necessary information is lacking that could be reasona bly obtained.
25
Specifically, they contend that, because the DNR-designed aquifer pump test pumped only
one well, the full impact of the project’s im pact on local ground water quantities is not
determined. They argue that a simultaneous a quifer pump test on all three wells must be
run to be provide necessary information.
Rule 4410.1700, subp. 2a, provides that, if the RGU determines that it is lacking
necessary but obtainable information to make a reasoned decision ab out the potential for
environmental impacts, it must either make a positive declar ation and include in the EIS
studies to obtain the information or postpone the decision on the need for an EIS in order
to obtain the lacking information. The question posed by relators’ argument is whether the
DNR improperly determined that additional information is n ecessary to make a reasoned
decision.
Substantial evidence supports the determination that info rmation was sufficient to
make a reasoned decision. Th e DNR conducted an aquife r pump test and obtained
modeling information from the te st that identified potential water drawdown effects on
nearby residential wells from th e Nolte project. The DNR then took this information and
included certain permitting restrictions in the EAW to prevent interference with residential
wells. The ROD does defer some fact-findi ng for the water-appropriation permitting
process. But the DNR did not ignore the pot ential significant environmental effects on
residential wells arising from the Nolte project. See Pope Cty. Mothers v. Minn. Pollution
Control Agency, 594 N.W.2d 233, 237 (Minn. App. 1999) (determining that the MPCA
ignored the potential for significant environmental effects from hydrogen sulfide emissions
by deferring the issue to later permitting). The aquifer test that was completed provided the
26
DNR with information to impose certain mitigation requirements meant to prevent water-
quantity issues.
Moreover, as the DNR observes, any pe rmit issued to Nolte is subject to
modification through additional permitting conditions and cancellation if necessary. Minn.
Stat. § 103G.315, subd. 11 (2020). And because the DNR can rely on mitigation measures
applied through regulation, see CARD, 713 N.W.2d at 834, several of relators’ concerns
can be addressed through continuing regulation. Relators contend that this reasoning is
flawed because the DNR cannot modify wa ter-appropriation permits during the summer
months unless “the authori zed amount of appropriation endangers a domestic water
supply.” Minn. Stat. § 103G.271, subd. 3 (2020). But the DNR can cancel a water-
appropriation permit “at any time” to protect the public interest with the recommendation
of the supervisors of the Wadena Soil & Water Conservation District. See Minn. Stat.
§ 103G.315, subd. 11(a)-(b). Therefore, the DNR is correct that future regulatory authority
allows the DNR to intervene in the event of unexpected environmental effects.
In sum, the DNR reasonably concluded that it had sufficient information and that
an aquifer pump test on the remaining two wells was not necessary to make a reasoned
decision whether to order an EIS in this case.
Relators also argue that Kraft’s report shows that the DNR’s initial analysis is
incorrect and that the project will lead to “declines in aquifers, connected wetlands and the
Redeye River.” But the DNR did conduct a partial aquifer test that included modeling for
potential Redeye River water decline when a ll of the irrigation we lls are pumping. The
modeling shows that the irrigation wells ar e not expected to impact nearby wetlands.
27
Again, this argument asks us to reweigh evidence, but we defer to the DNR’s
determination. See CARD, 713 N.W.2d at 832.
Finally, relators challenge th e timing and design of the aqui fer test that did occur.
Their challenge relates to a subject matter that is squarely within the DNR’s “expertise and
[its] special knowledge in the field of [its] technical training, education, and experience.”
Minn. Ctr. for Envtl. Advocacy , 644 N.W.2d at 463 (quo tation omitted). The DNR’s
decisions in crafting and executing that aquifer test is entitled to judicial deference. See id.
F. Pesticide Drift Effects
Finally, relators argue that the DNR failed to address comments regarding pesticide-
drift effects, rendering its decision legally erroneous and arbitrary and capricious. Relators
point to three comments in particular: To xic Tater’s comment hi ghlighting a 2012 air-
quality study of the Pineland Sands area showing that pesticide residues were common in
the area, the Kraft report’s discussion of negative consequences for aquatic and terrestrial
invertebrates if pesticides leach into the groundwater, and agency comments encouraging
a more site-specific pesticide risk evaluation of the Nolte project. The DNR argues that it
responded to these comments and analyzed pot ential environmental and health risks that
were tied to pesticide use.
The ROD “recognizes that off-target air m ovement of pesticides can present risks
to humans and the environment” and identifie s specific pesticides of concern. The ROD
discusses the role of the federal Environm ental Protection Agency (EPA) in regulating
human exposure to pesticides. And it reports that experts from the MDA and the MDH
reviewed the EPA’s most recent bystander risk assessments and determined that “[n]o
28
unacceptable bystander inhalation risks were identified . . . based on the currently labeled
uses and established buffers.” The ROD also cross-references portions of the EAW. In the
EAW, the DNR reiterates that the EPA’s risk evaluations “ensure that use according to the
label directions will not result in . . . unr easonable harmful effects on wildlife and the
environment.” Further, both the EAW and ROD st ate that all pesticides must be handled
and applied by licensed applicators and include measures to avoid, minimize, or mitigate
adverse effects, such as following the label requirements, safety sheets, and the MDA rules
and permit programs. On this record, we determine that the DNR did not fail to respond to
public comments on pesticide drift.
Relators also argue the DNR acted arbitr arily and capriciously in assessing the
potential impact of pesticide use on nearby residents because it ignored studies confirming
the association between pesticide exposure and non-Hodgkin’s lymphoma and, in fact,
“affirmatively lied in the ROD” by denying that association. Relators appear to be referring
to the statement in the ROD that “Wadena County did have statistically significantly higher
colorectal cancer and non-Hodgkin’s lymphoma rates than the state rates but these cancers
are not associated with the use of pesticides .” But, regardless of the accuracy of that
statement, the issue remains wh ether the agency’s determination regarding the effect on
residents from pesticide drift from the Nolte project is arbitrary and capricious. The ROD
identifies the mitigation measur es that will apply: followin g the EPA instructions and
guidelines on pesticide use, a nd adherence to best manageme nt practices as required by
Nolte’s MAWQCP certification. The ROD dete rmines that the “[r]i sk to human health
from off-site air movement is considered negligible - low.” Despite relators’ disagreement
29
with the conclusion, the DNR’s decision is not “so implausible that it could not be
explained as a difference in view or the re sult of the DNR’s decision-making expertise.”
Friends of Twin Lakes, 764 N.W.2d at 381.
After reviewing the administrative record, we find none of relators’ challenges to
the DNR’s decision not to order an EIS for th e Nolte project persuasive and affirm the
agency’s decision.3
Affirmed.

3 Although amici raise additional issues not ra ised by the relators, again, we generally do
not decide issues raised solely by an amicus brief. See League of Women Voters Minn., 819
N.W.2d at 645 n.7.