The Minnesota Court Supreme Court recently issued a decision concerning which watercourses in the state could be treated as “public waters” under various state statutes and regulations. The case arose out of a petition to improve Renville County Ditch 77 by cleaning the outlet into a stretch of Limbo Creek. Historically this section of Limbo Creek had been maintained as a private ditch and periodically cleaned. However, over the past several years, sediment, cattails and other vegetation has built up, which has severely restricted the flow of water and has degraded the effectiveness of CD 77 by restricting its ability to outlet into the creek.
By way of background, in the 1980s, a law was enacted requiring that the DNR make a complete inventory of all of the waters of the state that met the definition of “public waters.” This process involved numerous public hearings and opportunities for both landowners and environmental groups alike to challenge waters that they believe should be included or excluded from the final inventory. The result of this process created a list of public waters, described by their beginning and end point, as well as a map depicting that list over the landscape.
In Renville County, a preliminary list of waters included the entirety of Limbo Creek, but the final list only described about half the length of Limbo Creek, all downstream of the CD 77 project area. The final map of public waters for Renville County, in contrast, showed the entire length of Limbo Creek as both a public drainage system (which it was not) and a public water.
Ultimately, the history of the classification of Limbo Creek as a public water was confusing at best. Even the DNR initially acknowledged that the section of Limbo Creek where the improvement would be constructed was not a public water and therefore no permit was required to complete the improvement. As the drainage improvement plans for CD 77 were finalized, environmental groups and the DNR later argued that Limbo Creek should be treated as a public water, even though the portion in question was not on the public waters inventory list.
Environmental groups argued that an environmental assessment worksheet—a high level environmental review of a project and potential impacts—was required because the project would impact a “public water.” Renville County and the landowners on the project argued that the failure to include the impacted section of Limbo Creek on the public waters list for Renville County was a final decision by the DNR that could not be challenged in a new regulatory matter. The Supreme Court set out to determine whether the public waters inventory decision was final for determining whether a watercourse constituted a “public water”, or whether government entities or environmental groups could argue later that a water should be treated as a public water even it was excluded from the list.
Ultimately, the Supreme Court seemed to sidestep the major legal question—the finality of the public waters inventory—and instead determined that under the unique history of Limbo Creek, it was sufficiently designated as a public water during the inventory process to count as a public water, even though it was not included on the final list. The Court relied on the fact that the upper reach of Limbo Creek where the project would take place was designated as a public water on the map of public waters for Renville County.
Regrettably, the Supreme Court, although suggesting that the public water inventory would typically be treated as final, left the door open to challenges in future drainage, zoning, and similar proceedings that additional waters that are not currently regulated as public waters should be subject to additional regulation. Further, there are numerous other waterways that were shown on public waters maps that were not included on the inventories; it isn’t clear how the DNR or other regulators may treat these waterways in the future.
While these questions could be clarified by the legislature, for now the finality of the public waters inventory remains in flux.
* Dean Zimmerli is a partner at Gislason & Hunter LLP and represents the landowners proposing the CD 77 project. Dean regularly advises clients on water regulations, drainage, and other agricultural issues.