By Jim Erkel, MCEA Attorney and Director, Land Use and Transportation
Last session, the Minnesota Legislature statutorily directed about $250 million/year from the general fund to the highway user tax distribution fund. Road interests argued that roads were a priority for Minnesota and should be entitled to support from the general fund as are other priorities such as health care, education, and aid to local governments. This session, the Legislature is considering an amendment to Minnesota’s constitution that would take the monies directed to roads, increase the total by 50%, and constitutionally dedicate it only to roads so that it is not available to health care, education, and aid to local government.
Having argued that roads should be weighed equally with other priorities, road interests now argue that the general fund proceeds directed to roads should be permanently protected from them. In fact, the coalition supporting the proposed amendment is now arguing that “(w)e need to keep the money to improve roads and bridges in a lockbox so politicians can’t use these funds for other projects(.)” This is bait-and-switch, pure and simple. It also runs against the recent experience of other states that have had to balance all priorities in the use of their general funds particularly in the context of meeting the critical needs of education.
Starting only three months ago, a number of states have experienced walk-outs and other political action by teachers frustrated by each state’s chronic lack of funding for education. It began in West Virginia and has spread to Kentucky, Oklahoma, and Arizona. In other states such as Utah and Colorado, budget solutions for education are also being considered in an effort to fend off ballot initiatives teachers have been pursuing to raise substantial amounts for education through income tax increases. All of the states direct monies to roads from the general fund. To date, the legislative solutions passed by states other than West Virginia and Colorado have relied on road-related taxes to raise new monies for their general funds or to backfill for general fund proceeds that are being re-directed from roads to education.
West Virginia -- Teachers walked and demanded 5% raises. The budget solution relied on cuts to other portions of the general fund.
Kentucky -- Teachers walked out when the Legislature unexpectedly made detrimental changes to their pensions. They demanded the repeal of the pension changes and increases in per-pupil funding levels. The changes were repealed and the budget solution relied on a 50-cent increase in the cigarette tax and a 6% sales tax that was extended to specific services including auto repairs.
Oklahoma – Teachers walked out and demanded $3.3 billion for education. The Legislature passed a $447 million package that will give teachers raises of $6,100 and smaller raises for other school staff. The package is funded by increases in an oil and gas production tax, cigarette taxes, hotel taxes, and a 3-cent gas tax. The gas tax increase is intended to backfill for sales tax proceeds that are being re-directed from roads to education.
Arizona – Teachers walked out to protest low salaries and budget cuts to education. They demanded 20% raises for teachers, raises for school staff, and restoration of budget cuts to education since the Great Recession. The Legislature passed a package proposed by the Governor which should give teachers 20% raises by 2020 and restore about 25% of the budget cuts to education. One of the mechanisms used to fund the raises is a new estimated $18 highway safety fee, an add-on to vehicle registration fees, which will support the Arizona Highway Patrol. The new road-related fee is intended to backfill for proceeds from the general fund that are being re-directed to education.
Colorado - Teachers walked out after the Legislature quickly moved a bill that would have cut teacher raises, raised their retirement age, and increased employee contributions to the pension fund. In a final budget bill, an additional $150 million was directed to education and $225 million was directed to the pension fund. The monies came from a surplus in Colorado’s general fund.
North Carolina - Teachers have received small raises in recent years but average pay remains below the national level. Teachers walked out and rallied on the first day of the Legislature’s work session. They demand that per-pupil spending and pay for teachers and school staff be increased to the national averages and that new school construction be undertaken to meet the needs of growing student populations. To fund their demands, teachers propose rescinding tax cuts on businesses and high-income households.
Arizona – Teachers are not satisfied with the package of funding passed by the Legislature and are pushing a ballot initiative to increase income tax rates on the wealthiest 1% of Arizona residents to more adequately fund education. The initiative would annually raise $690 million which would be split 60% for teacher salaries and 40% for school operations and maintenance which would fund all-day kindergarten. Signatures are being collected to put the initiative on the ballot this November.
Colorado – Teachers were not satisfied with the legislative package that the legislature passed and are continuing to push for a ballot initiative that would increase income tax rates on the highest income households and on corporations to more adequately fund education. The initiative would annually raise $1.6 billion. Signatures are being collected to put the initiative on the ballot this November.
Utah – Teachers did not walk out but they are pushing for more funding for education. The Legislature passed a package that included adjustments to several sales taxes to raise more funding for schools and put an advisory question on the ballot this November to increase the state’s gas tax by 10¢/gallon. If the question is supported by the public and the Legislature raises the gas tax, it would backfill for general funds that would be re-directed from roads and, with some property tax reforms, annually raise $375 million for education.
As long as it is willing to abdicate its role and engage in budgeting at the ballot box, the Legislature should drop its proposed roads-only constitutional amendment in favor of an advisory question that asks voters which priority of the state should benefit the most from increased funding that is constitutionally protected -- education, health care, social services, transit, aid to local governments, or roads. Either straight up or with ranked choices, the trend in Minnesota polls suggests that roads would not win that contest.
By Jim Erkel, MCEA Attorney and Director, Land Use and Transportation
Volkwagen manufactured and installed a secret bit of code in the emission controls of the diesel engines in its VW and Audi-branded 2.0 and 3.0 Liter TDI models that only turned on the controls when emissions testing was being performed. As a result, about 600,000 of the TDI vehicles ran without emission controls and emitted pollution, particularly nitrogen oxides (NOx), that exceeded legal limits by a factor of at least 30 times.
When VW's cheating was revealed, the State of California and the United States brought civil enforcement cases against VW for clean air violations. Through consent decrees, VW agreed to settle the claims through a series of payments totaling $14.9 billion. Of the total, $2 billion is being directed to states for the installation of zero emission vehicle charging stations and $2.9 billion to states for actions that will mitigate for the diesel pollution that has been or will be emitted by the TDI vehicles already on the road.
Minnesota will be eligible for about $47 million of the $2.9 billion for mitigation. The monies are subject to a mitigation trust agreement which states that actions should be directed at reducing NOx emissions, should be located where the TDI vehicles emitted NOx at rates of more than 30 times the legal limits and should take into consideration how mitigations will impact "benefit communities that have historically borne a disproportionate share of the adverse impacts of such emissions."
There has been a push to spread the monies like peanut butter so that all portions of Minnesota will get a taste. To fulfill the intent of the trust agreement, MCEA has argued in comments on a draft mitigation plan issued by Minnesota Pollution Control Agency (MPCA) that the monies must be directed to the areas where the TDI vehicles are or will be located and must be prioritized to actions that will benefit communities of color and low-wealth neighborhoods that have disproportionately bored the public health burden of vehicle-related air pollution.
The comment period for MPCA's draft mitigation plan has ended. MCEA will be interested to see if MPCA will modify the plan to reflect the commitment of the Dayton Administration to eliminating Minnesota's racial disparities in education, employment, housing, and public health and its own acknowledgement of racial disparities in environmental protection and its specific commitment to integrate environmental justice principles into all of its work.
By Julia Braulick, Carleton College Class of 2020 & Heather Luedke, Carleton College Class of 2020
Beyond simple geography, small Minnesota towns and the state’s urban areas have had different experiences based on their histories, lifestyles, livelihoods, and demographics. Current population trends are exacerbating these long-standing differences. Many rural counties have lost population--peaking in population in the 1950’s and 60’s--while cities continue to grow (Minnesota State Demographic Center). The different trajectories of urban and rural areas create tension known as the urban-rural divide. This phenomenon influences everything from Minnesota’s economy to its environment and hinders dialogue between individuals and communities. In order to move forward and solve problems, we need to reevaluate our perceptions of each other. We have to ask: what effects do these differences cause, how extensive are they, and where can we find common ground?
Urban and rural Minnesotans undeniably have differing perspectives, but a lot of the distrust between them stems from misconceptions. Even though rural Minnesotans often feel as if they are suffering for the benefit of metropolitan centers, this doesn’t mean small towns aren’t important or necessary. Additionally, even though metro areas are often seen as self-sufficient economic and cultural hubs, they rely on rural areas in a lot of ways. In reality, rural and urban areas are codependent. For example, a study done by the MN Rural Partners shows that if the rural manufacturing sector decreased its output by 6%, the Twin Cities region would lose over 1,000 jobs and over $200 million in revenue--and this is only one sector! As well, despite common misconceptions, rural areas rely on metro funding for transportation infrastructure and maintenance; over 80% of roads are in rural areas, and taxes from the Twin Cities help support their upkeep (Kaul). These economic ties aren’t the only examples. Minnesota is not only economically intertwined; we are also culturally and politically dependent on one another. The Twin Cities and Greater Minnesota need each other.
We are so caught up in this us vs. them mentality that it’s almost impossible to make any progress or to address the many overarching issues that affect all Minnesotans. Regardless of age, race, and income differences, both rural and metro communities face problems such as the environmental degradation, healthcare, and unemployment. These issues are statewide, and solving them will require cooperation.
Pollution is one of these issues. We all need clean water and air, whether we live on a farm or in the city. Understandably, these discussions are complicated because environmental efforts inevitably affect so many stakeholders. But because environmental issues have real implications for everyone in the state, regardless of where you live, it’s vital that we make progress. There are business owners, manufacturers, and families making their homes in both Greater Minnesota and the Twin Cities, even if some sectors, like agriculture, are centered in one region or the other. Moreover, polluted water and air don’t stay put. The smokestack emissions from a factory in Minneapolis drift downwind to Zumbrota, and nitrogen pollution from a farm near Little Falls will show up in the Twin Cities. Not only are locals affected if they don't prioritize their own air and water quality, but people in other areas suffer as well. Conversely, environmental improvements in one area create far-reaching benefits in other communities. Therefore, in order to improve environmental health across the state, Minnesotans from both urban and rural backgrounds need to realize that, despite the pervasiveness of the urban-rural divide, they have a lot in common.
It’s also important to realize the differences between urban and rural communities can be positive. Each should value the other because their unique perspectives can bring innovative solutions to the table. Cities, the economic centers of a region, provide a level of sophistication, culture, and diversity not found in rural settings. However, small towns allow for a familiarity between neighbors and community members of different backgrounds in ways that are rare in big cities (Vogel). In a small community, people can connect to one another, nature, and food in ways that are much harder to achieve in city life. Cities and small towns are each uniquely equipped to resolve problems between humans and the environment, and among people. Greater Minnesota and the Twin Cities can learn from each other, and oversimplifying and disregarding one another is counterproductive. Instead, people from all across Minnesota should be eager to learn from each other's experiences and leverage our common ground to collaborate on statewide issues.
Kaul, Greta. “Politicians love to talk about the urban-rural divide in Minnesota. But how much of a divide is there, really?” MinnPost, 1 Sept. 2017,
https://www.minnpost.com/politics-policy/2017/09/politicians-love-talk-about-urban-rural-divide-minnesota-how-much-divide-the. Accessed 15 Dec. 2009.
Minnesota State Demographic Center. “Greater Minnesota Refined and Revisited.” Minnesota State Demographic Center, Jan. 2017, https://mn.gov/admin/assets/greater-mn-refined-and-revisited-msdc-jan2017_tcm36-273216.pdf. Accessed 15 Dec. 2017.
Searls, Kate. “Pilot Study: Estimating Rural and Urban Minnesota’s Interdependencies”
Minnesota Rural Partners, Inc., 2011,
Vogel, Jennifer. “Fighting for an American Countryside” Minnesota Public Radio, 2013, http://minnesota.publicradio.org/collections/groundlevel/fighting-for-an-american-countryside/appendix.html. Accessed 15 Dec. 2017.
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.