By Heather Luedke, Carleton College Class of 2020
In April 2017, Minnesota’s Department of Natural Resources (DNR) filed an order removing 640 miles of rivers, ditches, and other watercourses from the Public Waters Inventory (PWI), which was created to protect Minnesota waters. This means these waters no longer have to comply with statutory regulations that help keep Minnesota’s public waters clean and accessible. The DNR claims they had the legal authority to enact this order to correct a procedural error during the creation of the PWI in the late 1980s; however, as MCEA is currently arguing in court, the DNR’s order is unreasonable and lacks legal standing. It should be reversed.
Although the DNR tried to downplay the effects of their decision by claiming the removed waters were primarily “private ditches” (and therefore were not regulated by drainage authorities, didn’t belong on the PWI, or need protective statutory regulations), in reality, the eliminated segments include pristine, natural rivers and waterways that clearly meet the definition of public waters and will be impaired by this order.
For example, Image 1 depicts a removed section of the Blue Earth River (marked in purple) that flows into Walnut Lake Wildlife Management Area. Since the removed waterway is not required to comply with protective regulations, fertilizers, nutrients, and other pollution entering the river will flow into South Walnut Lake and the neighboring prairie wetlands, altering the composition and health of these ecosystems and rendering them unappealing to the public, who can swim and boat on the lake. Clearly, this river is not a “private ditch,” but rather a public water needing protection.
Image 1: A delisted segment of Blue Earth River (marked in purple) flows directly into a Wildlife Management Area.
Image 2 shows a removed stream (marked in purple) flowing into a drinking water supply management area (marked in yellow). Again, these streams are evidently not “private ditches”; they meet the definition of public waters, and removing them from the PWI impacts people across the county.
Image 2: Delisted streams (marked in purple) flow into a drinking water supply management area in Faribault County.
These are not the only examples; there are multiple, comparable situations directly undermining the protection of Minnesota waters. Therefore, MCEA is heading to the Minnesota Court of Appeals on January 24, 2017 seeking to have the DNR’s order reversed.
This case’s groundwork goes back to 1979, when the DNR created the PWI (for more information on the PWI’s importance, check out our blog post Minnesota’s Changing Ethic of Water Use). The DNR established a preliminary PWI map and list, gave counties 90 days to request changes, and distributed the revised, final PWI maps and lists to the counties. However, according to the DNR, due to a miscommunication about watercourses that met the requirements for both public waters and public ditches, some overlapping watercourses were left off the lists. The DNR suggests that it did not realize this until 2016, and now landowners have not been properly notified of the final PWI contents.
To resolve this supposed oversight, the DNR removed 543 segments of public watercourses from the PWI in April 2017, claiming the procedural error gave them the legal authority to eliminate 640 miles of watercourses as a means of correcting that error. Based on imprecise GIS data (it was translated from old, hand-drawn maps), paired with drainage system data, the DNR picked these segments based on the inaccurate assertion that they were in fact not public ditches, but rather “private ditches,” that weren’t under drainage authority regulations and thus didn’t need to be included on the PWI.
MCEA filed a brief in October 2017 requesting the Court reverse the DNR’s order and place the removed watercourses back on the PWI. MCEA argues that the DNR did not have the authority to remove the watercourses because statute only gives them the ability to correct “errors in the original inventory,” meaning they can only remove waters from the PWI if, with further case-by-case analysis, they discover those waters do not meet the definition of public waters. This does not give them the authority to correct an error in the process of inventorying, which is what occurred, so the removal of 640 watercourse miles was unwarranted. Additionally, even if they had the authority to correct a procedural error, removing 640 watercourse miles, especially without a case-by-case evaluation, does not correct the error, it exacerbates it. The PWI is inaccurate because the removed watercourses still meet the statutory definition for public waters.
The DNR’s order is also unsupported by substantial evidence, unreasonable, arbitrary, and capricious. Statute requires the DNR to evaluate each watercourse before delisting it, but they claimed there were too many watercourses to be able to look at each one carefully. Thus, the lack of thorough examination and collection of information proves this order is unjustified.
For example, Image 3 depicts removed portions of the Clearwater and Lost rivers (marked in purple), sandwiched between segments that are included on the PWI (marked in blue).
Image 3: Delisted segments of the Clearwater and Lost rivers (marked in purple) between river segments still included on the PWI (marked in blue).
Image 4 shows a partially delisted waterway; the upstream segment on one property is still a public water (marked in blue), but the downstream segment on a neighboring property was delisted (marked in purple), and therefore doesn’t have to comply with regulations. Clearly, the DNR did not sufficiently research this order. It is completely illogical to remove some portions of a waterway and leave other portions on the PWI; the pollution from the delisted segment will contaminate rest of the waterway, rendering regulatory protections ineffective. This is not fair to landowners either; altering designations between properties is sure to cause disputes. Therefore, it is only logical to include entire waterways on the PWI so regulations are consistent and effective.
Image 4: Water on the PWI (marked in blue) on one landowner’s property flowing into a delisted segment of water (marked in purple) on a neighboring property.
The DNR responded to MCEA’s brief in November 2017, contesting MCEA’s points and requesting the Court dismiss MCEA’s appeal. MCEA filed a reply brief in early December 2017, and will take this issue to the Minnesota Court of Appeals on January 24, 2018. MCEA does not believe the DNR has the legal authority to implement this order, and we will not stand for a regulation that harms the health of Minnesota’s waters or its people. We will continue to update this post as the case progresses.
By Julia Braulick, Carleton College Class of 2020
Land of 10,000 Lakes: Minnesota’s nickname brings to mind summers at the cabin spent enjoying the wealth of natural beauty that flows from our waters. But as plentiful and beloved as Minnesota’s water resources are, they are not unlimited. In some places, there isn’t enough groundwater to supply the needs of growing cities, while in others the soil is too wet and has to be drained to make farms more productive. Pollution, species loss, and the diminishing health of our aquatic ecosystems threatens the water we count on for drinking, fishing, and sustaining our daily lives.
Minnesota’s water management policies exist to ensure there is plenty of clean water for all our needs. Originally, Minnesota only exercised its right over waters involving a navigational interest. The only waterbodies and watercourses that Minnesota subjected to its jurisdiction were those that could be used for commercial boat traffic. But Minnesota’s original definition of navigability was inherently flexible, as any body of water deemed usable “for the ordinary purposes of life” could be classified as public. Sherry A. Enzler et al., Finding a Path to Sustainable Water Management: Where We’ve Been, Where We Need to Go, 39 Wm. Mitchell L. Rev. 842, at 6 (2013). Accordingly, Minnesota increasingly expanded the use of its jurisdiction over time.
From the 1860s to the 1920s, water-use laws remained minimal. They included prohibitions against placing offal in public waters and obstructing rivers, and regulations governing agricultural drainage and the logging and milling industries. The State Board of Health had some authority over water, but local government and district courts had more. In 1925, the entire state government was reorganized, and the state agency now called the Department of Natural Resources was born. By the late 1920s, then, Minnesota was ramping up state control over water, setting fishing limits on particular species and considering how river pollution and obstruction affected fish populations.
In 1947, Minnesota adopted a water policy explicitly defining public waters as those waters “capable of substantial beneficial public use.” Enzler et al., supra, at 10. And in 1957, the concept of navigability was abandoned, codifying the beneficial-use test that the Minnesota Supreme Court had historically followed. In 1973, the wording was subtly changed again, to “beneficial public purpose.” This reflects a corresponding statewide shift to a more ecological point of view. Public waters now included groundwater supplies, and concerns about watershed health, sediment entrapment, and wildlife habitat were now valid reasons for classifying more public waters.
Although Minnesota exercised its authority over public waters more broadly than ever before, lakes and streams were still being classified as public water on a case-by-case basis. The lack of a definitive list led to uncertainty and excessive litigation. To streamline things, in 1979 the state asked the DNR to create a Public Waters Inventory (PWI) that outlined which waters were public and which were not. The PWI took the form of lists and maps that clarified the status of every public water in the state.
Today, by Minnesota statute, a water has to fit one of eleven definitions to be considered public. If the water is located within publicly owned lands, for example, or designated as a trout stream, it is automatically public water. Also included as public waters are all “natural and altered watercourses with a total drainage area greater than two square miles.” Minn. Stat. § 103G.005, subd. 15(9). A two-square-mile drainage area excludes many of our streams, since only 46,000 of the 73,000 stream miles in the PWI fall into this category.
However, streams excluded by the drainage area requirement are often covered by one of the other ten definitions. This means that Minnesota extends its jurisdiction over practically all waters in the State. Even ditches for draining cropland can be considered public water if they drain a large enough area. And ditches that do not drain two-square miles are generally under the control of drainage authorities, and thus subject to government jurisdiction.
Clearly, then, the exercise of public control over water is extensive today. It has only gotten more so over the decades since the creation of the PWI. As this has happened, lawsuits have inevitably challenged the extent of the state’s control. One of the most important lawsuits was filed by landowner Allard Christenson in 1987. He wanted to drain a wetland located on his property that had been determined to be a public wetland in 1980. Christenson argued to the Minnesota Supreme Court that because the wetland had once been drained he had “an existing right under the statute” to re-drain it. In re Christenson, 417 N.W.2d 607 (Minn. 1987). The Supreme Court denied his request, establishing that the Court did not find his complaints substantive. Another lawsuit on this issue is taking place right now. Today, some of the waters historically considered public could be removed from the PWI, because the DNR has recently announced plans to remove 640 miles of watercourses. MCEA disagrees about the aptness of this decision. For a detailed look at this case, see our post “MCEA Stands up for Minnesota’s Public Waters.”
As the laws of Minnesota have evolved, the State has exercised its jurisdiction more and more to protect the public’s interest in water. From the 1800s, when commercial navigability was the only concern, to today, when an ethic of preservation guides our current statutes, the Minnesota legislature’s concern with water resources has strengthened. The state must continue to protect the quality and abundance of Minnesota waters by making use of its regulatory authority. Pollution from agriculture and cities is affecting water quality and therefore quality of life. Groundwater is distributed unevenly through the state and some areas are already experiencing shortages. Minnesota’s people, economies, and ecosystems depend on the state government’s continued diligence in overseeing and protecting our essential resources, of which water is certainly one.
By Julia Braulick,
Carleton College Class of 2020
I was excited to extern at the Minnesota Center for Environmental Advocacy, because I am passionate about the environment and I wanted to get a feel for the world of environmental law. Most of my environmental experience is in sustainable agriculture and ecology, but I knew I would be just as interested in the legal side of things. I’d even considered going into environmental law, although I knew almost nothing about the field in reality. I had never even had a conversation with a lawyer or a lobbyist. Naturally, I was very happy to remedy that by spending two weeks at MCEA.
As an extern, I spent a lot of time getting to know what members of the MCEA staff do on a daily basis. I was lucky to be able to do informational interviews with almost everyone on staff. From my talks with more than a dozen lawyers and policy experts, I got a sense of how they spend their time, the projects they’re working on, and the path that got them to MCEA. I also sat in on many meetings, both within MCEA and at other groups like the Drainage Work Group of BWSR (the Board of Water and Soil Resources). As well, my co-extern Heather and I did some writing for the MCEA blog. The two of us wrote a post on the tension between urban and rural Minnesotans, and I also did one on the history of public waters in Minnesota.
I had never read a legal document in my life. But to gain a foundational understanding of public water in Minnesota, I read a thick stack of briefs and law-review articles. Frankly, it was exhilarating to find that I largely understood them, especially after learning a few legal terms. I also gained a greater understanding of how legal change is achieved and the processes by which a law can be altered. It is surprising to realize how mutable the law can be, despite its great authority. I have to admit I was a little awed by the way the Drainage Work Group edited a document outlining their proposed edits to Minnesota statute as if it were routine. Law was being molded right before my eyes.
As a consequence, I’m continuing to think about this paradox: government seems removed from everyday life, yet laws are made by essentially ordinary people who have been delegated to do that work. The law, time-tested as it is, doesn’t come from on high. It is still profoundly imperfect. I realized this more fully than ever during my time at MCEA. Indeed, I think I matured significantly as a citizen—and that is a gift much greater than the sum of its parts. To me, being a good citizen consists of: a basic comprehension of important current events; a desire to build bridges for the sake of progress and fairness; an understanding of others’ perspectives; and willingness to devote some personal time to civic matters. Externing at MCEA helped me develop each of these qualities. Especially, this experience motivated me to be more active in civic affairs because it showed me the major difference that a few highly focused individuals can make. If I do decide to go into law, I will use the knowledge I gained at MCEA to more confidently assess the merits of various career options within the law. Externing at MCEA broadened my perspective, and I know I will use this expanded worldview, along with my deepened knowledge of environmental regulation and policy, in the future.
By Heather Luedke, Carleton College Class of 2020
As a sophomore at Carleton College, I came into my two-week internship at Minnesota Center for Environmental Advocacy knowing I want to pursue a career related to the environment in some capacity, but not knowing any of the details. With a science-heavy background, I hadn’t really had the opportunity to explore the legal and political sides of environmentalism before my time at MCEA. So, I had no idea what to expect when I walked into the office the first day. What I got, however, was a valuable, insightful experience with a wonderful organization that reconfirmed my desire to pursue a career in an environmental field.
I spent a large portion of my time at MCEA in truly engaging meetings, and the conversations I had and arguments I observed made the entire experience. Whether it was a one-on-one “interview” with an MCEA staff member, a small team meeting within a specific MCEA program, or a larger meeting with other organizations, stakeholders, and legislators, I got something unique out of each session. Talking with MCEA staff about their career paths, roles at MCEA, and current projects made the experience. Because everyone is an expert in their field and passionate about their work, I learned so much about environmental regulations and politics, and it made me realize I want to reach that level of expertise one day. This cemented my tentative plans on grad school; I definitely plan on attending. Additionally, the conversations I had and the bigger meetings I attended made me seriously think about law school. I learned so much about environmental regulations and politics, and the legal arguments and language were interesting to me in unexpected ways. Since I hadn’t had much legal experience prior to my internship, my time spent in meetings and with MCEA’s legal team helped me to understand the field better, and I realized I might want to pursue environmental law in the future.
When I wasn’t in meetings, I was reading legal briefs, writing blog posts, attending fundraisers or events, and touring the capitol. These experiences gave me a better idea of what a career in an environmental field could actually look like, the day-to-day commitments and pace, and I loved it. Being surrounded by people who care about the environment and dedicate their time to caring for it was inspiring and reminded me how much I enjoy environmental work. I’ll definitely be even more involved in the future as a result.
All these experiences created a great internship. The entire MCEA staff is incredibly knowledgeable, dedicated, and willing to collaborate on environmental issues, and witnessing that made me optimistic for the future. It was clear to me that everyone at MCEA truly cares about the work they’re doing, and are enacting real change as a result. The experience gave me an immeasurably better sense of what I can and want to do after college than any class could, and the real conversations and opinions from experts’ viewpoints opened my eyes to new alternatives for my future.
By Betsy Lawton, MCEA Program Attorney
Earlier this month an Administrative Law Judge (ALJ) rightly told the Minnesota Pollution Control Agency (MPCA) that it could not adopt regulations that violate the federal Clean Water Act, which sets the minimum water quality requirements in all states. The ALJ’s decision acknowledges a basic tenet of the Clean Water Act: that decisions regarding how much pollution is too much, and when pollution control costs are too high to justify, must be based on the latest science, and economic and water quality considerations of the affected community. Blanket decisions exempting upgrades to pollution controls are not allowed by the Clean Water Act.
How Are Decision About Water Pollution Made?
Every five years the MPCA issues permits to sewage plants that treat human waste (and often industrial waste too). These permits include limits on the amount of pollution each facility can put into Minnesota’s streams and lakes. The limits, which are designed to limit pollution to levels that the MPCA deems “safe” for swimming, fishing, and drinking, also impact the types of pollution controls a facility uses to achieve “permitted” levels of pollution. Water pollution permits expire after 5 years for good reason: decisions about pollution must consider the latest science and technology. For example, a permit issued 5 years ago would not have considered limits to meet a more recently adopted clean-up plan for phosphorus pollution, and a permit issued today would not consider the science about safe level of pharmaceuticals that will be developed during the next 5 years. If, when a new permit is issued, the pollution controls needed to keep streams and lakes “safe” would create an undue economic burden on the community, additional time to install pollution control can be granted.
What Went Wrong (or Right)?
The faulty rule, required by a directive of the 2017 legislature, would have allowed municipal sewage treatment plants to avoid installing any new pollution controls to achieve needed pollution reductions for 16 years after its most recent upgrade. This is regardless of the impact of the pollution or the costs of the pollution controls. That means that for emerging pollutants (like pharmaceuticals), even if the state identified an unsafe level and technology to address it, a sewage treatment plant would not need to do anything to address it for nearly two decades. Or if new technology were developed to effectively address a pollutant, the permittee wouldn't have to use it for two decades.
How Did This Happen?
ALJs review most Minnesota rules before they take effect. The ALJ must find that the rules do not conflict with state and federal law. MCEA submitted comments to the ALJ explaining that the rule violates the Clean Water Act and is unnecessary because the MPCA can use a number of tools to be flexible in applying the law where treatment costs are prohibitive. It is yet to be seen whether this decision will be appealed to the Court of Appeals.