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.
By David Patton, MCEA Staff Attorney
My family and I visited the Apostle Islands for the first time in the summer of 2016. On this trip, we discovered the National Park Service’s Junior Ranger program. The Park Service provided us with a free workbook of environmental education activities. After my son and I completed the activities together, a ranger gave him a plastic ranger badge and swore him in as Junior Ranger.
He pledged: “As a Junior Ranger, I promise to teach others about what I learned today, explore other parks and historic sites, and help preserve and protect these places so future generations can enjoy them.”
My four-year-old son took that oath. He didn’t think of it as a cute program the Park Service did for kids. In his mind, he had been inducted into an elite corps of environmental protectors. He had made a pledge and now he has been entrusted with a duty to protect animals and their environment. This was, without a doubt, a watershed moment in his young life.
We got him the official Junior Ranger vest that day. He still wears it to school at least three days a week. After rain storms, he saves earthworms by moving them from the sidewalk to the grass. He carries plastic gloves in his ranger vest specifically for this purpose. And, of course, we always have to stop to help turtles across the road.
My son’s ranger fascination even led to some interesting family revelations. We learned that when my dad was younger, he worked in Yellowstone National Park, Wyoming and was a ranger in Carlsbad National Park in New Mexico and Death Valley National Monument in California (where I was conceived). We also discovered that my great-uncle Harry (pictured below with his Llewellyn setter and horse – Pat and Irish, respectively). My cousin sent us pictures of him and a newspaper article from the Great Falls Montana Tribune dated February 19, 1928. Harry was a ranger in Glacier National Park for many years. He is recorded as saying, “I loved that country and I want them to keep it always just like it is right now.” He died just seventeen months after leaving his beloved park.
One day last year, I brought my son to work with me on the Mille Lacs reservation where I represented the Band’s Department of Natural Resources. As we were driving by Mille Lacs Lake, I tried to explain what I did for the tribe. I said that I worked with the Band to protect the trees and the water, and especially the fish. He got real quiet in the back of the car like he was thinking hard. After a minute, he piped up, “Dad, you’re a lawyer-ranger.”
“Yeah”, I thought, “I’m a lawyer-ranger.”
I told that story in my interview for MCEA. When MCEA offered me the Staff Attorney position, I told my son that he had helped me get the job. A few days after that, he was sitting in the back seat of the Prius (I know – cliché). Out of the blue, he declared, “You and me have something in common.” I replied, “What’s that?”
“We spend all day, every day trying to protect the environment.”
We're currently planning a Junior Ranger-themed party for his sixth birthday. At the tender age of five years and 11 months, he gets something that I think a lot of us miss. He gets up and goes to school every day. He plays and watches TV like any kid. But in his mind, all day, every day he’s trying to protect the environment. He is looking for earthworms to save. He’s reminding Dad to turn off the light or asking Mom to turn off the water while she brushes her teeth. He pays attention to the world around him and gathers cool rocks and neat looking leaves. He’s also raising a Venus Flytrap named Snapper. Being a Junior Ranger is core to his identity and, even though he doesn’t know the word, being an environmentalist is core to being a Junior Ranger.
Not everyone gets to be a lawyer-ranger. I was recently told that my job is the “Unicorn of Lawyer Jobs”. But every one of us can save earthworms and help turtles across the road. We can make conservationism and environmentalism core values. We can aim our lives toward incremental changes that will improve the quality of life for our kids and their kids. Even if the environment isn’t your job, it can be your priority.