Minnesota’s Changing Ethic of Water Use

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.

Sources:

1. Sherry A. Enzler, Suzanne Sutro Rhees, and Deborah L. Swackhamer, “Finding a Path to Sustainable Water Management: Where We’ve Been, Where We Need to Go”. William Mitchell Law Review, 2013.
2. Application of Christenson, 417 N.W.2d 607, Supreme Court of Minnesota, 1987.
3. Christopher J. Schulte, “Minnesota Wetland Conservation Act of 1991: ‘Did Minnesota Miss the Boat to Protect Artifically Created Wetlands?’” Hamline Law Review, 1992.
4. Minnesota Department of Natural Resources, “Findings of Fact, Conclusions and Order Revising PWI Maps”. MN DNR, 2017.
5. MN DNR, “Brief of Respondent in the Matter of the Improper Inclusion of Certain Water Courses within Public Waters Inventory Maps for 71 Counties”, State of Minnesota in Court of Appeals, 2017.
6. Environmental Protection Agency, Federal Water Pollution Control Act, EPA, last amended 2002. https://www.epa.gov/sites/production/files/2017-08/documents/federal-water-pollution-control-act-508full.pdf
7. State of Minnesota, Minnesota Statute 103G “Waters of the State”, Office of the Revisor of Statutes, published 2017. https://www.revisor.mn.gov/statutes/?id=103G
8. Minnesota Pollution Control Agency, “The State of Water” web page, MN PCA, page accessed December 2017. https://www.pca.state.mn.us/water/state-water
9. Minnesota Department of Natural Resources, “Draft Strategic Plan for the MN DNR Groundwater Management Program”, MN DNR, 2013. http://files.dnr.state.mn.us/waters/gwmp/gwsp-draftplan.pdf
10.  Map produced by Andra Bontrager at MCEA on December 12, 2017. Map data: MN Dept of Natural Resources, Public Waters Inventory (2016). Map produced in ArcMAP, v10.5, ESRI 2017. This map is meant for illustrative purposes only. MCEA is not responsible for any inaccuracies herein contained.