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.