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Minnesota Supreme Court hears Renville County drainage dispute

A dispute in Renville County over a proposed drainage improvement project that would outlet into Limbo Creek has implications for waters across the state. Environmental organizations call Limbo Creek the last remaining, free-flowing waterway in the county. Landowners say their inability to improve an outlet into the creek is flooding their upstream farmlands.

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Landowners on County Ditch 77 petitioned in 2017 for a project to excavate a channel where the ditch outlets into Limbo Creek at this site in Renville County. The Minnesota Court of Appeals ruled Oct. 4, 2021, that the waterway is a public water and that the county must perform a mandatory environmental assessment worksheet, due to the potential environmental impact, before a proposed project to excavate a channel can be approved.
Tom Cherveny / West Central Tribune file photo
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ST. PAUL — Arguments in a longstanding dispute in Renville County over farmland drainage were voiced before the Minnesota Supreme Court on Monday.

The justices heard oral arguments in an appeal by Renville County and landowners along County Ditch 77 over their petition to improve their outlet into Limbo Creek.

The case has pitted some of the state’s largest farm organizations — including the Farm Bureau, Farmers Union and Corn and Soybean Associations — against some of the state’s leading environmental organizations, including the Minnesota Center for Environmental Advocacy and Izaak Walton League, as well as local groups Protecting Public Waters and Clean Up the River Environment.

The Minnesota Department of Natural Resources has also filed a court brief supporting the environmental groups' position on the law.

Renville County and the landowners petitioning for the drainage project are challenging a decision by the Minnesota Court of Appeals. The appeals court ordered Renville County to prepare an environmental assessment worksheet on the landowners’ plan to excavate a channel, measuring 5,560 linear feet, into a Limbo Creek wetland to improve the drainage of the ditch system.

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The Renville County Board of Commissioners, acting as the drainage authority, approved the project in November 2020 and determined that an environmental assessment worksheet was not needed. Environmental assessment worksheets are mandatory for projects in public waters, but the commissioners pointed out that the upper reaches of Limbo Creek are not on the Public Waters Inventory developed by the Minnesota Department of Natural Resources.

At issue for the court is whether “the absence of a watercourse from a public waters inventory list conclusively establishes that the watercourse is not a public water,” according to the Supreme Court docket for the case.

The Court of Appeals concluded that the Public Waters Inventory list does not conclusively determine what are public waters. It ruled that the determination should be made based on the state statute defining public waters as “natural and altered watercourses with a total drainage area greater than two square miles.”

The arguments voiced Monday focused on the issue of whether the Public Waters Inventory should or should not be the only basis for determining the status of waters. The attorney representing the landowners, Dean Zimmerli, said the Legislature ordered the creation of the Public Waters Inventory in 1979 and “intended for it to be final and binding.”

Attorney Gerald Von Korff, representing the county, also argued for using the Public Waters Inventory as the basis. He warned the court that using both the Public Waters Inventory and the state statute in making the determinations “cuts both ways (and) environmentally is a very dangerous proposition.” It subjects waters now on the list to challenges, and creates the potential for case-by-case disputes and litigation, he said.

There is no such Pandora’s Box being created by the use of the state statute along with the Public Waters Inventory, attorney Elise Larson, representing the Minnesota Center for Environmental Advocacy, told the court. She said the Public Waters Inventory serves mainly as an informational tool to allow counties and landowners to know which waters are protected, but it does not serve the role of being the ultimate determination.

The state statute defining public waters is what matters, she said. “This court has said over and over and over again that the plain language controls,” she said.

She was referring to a previous case in which the court had affirmed the language of the state statute over a quasi-judicial determination of public waters.

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She also pointed out that modern technology allows for objective determinations of what are public waters based on the plain language of the state statute.

Larson said her clients are only asking that the county assess the potential environmental harm before moving the project forward.

“The environmental review is the important mechanism that this state uses to study and prevent real environmental harm and, more important here, this is the tool to protect our public waters,” said Larson.

The justices took the matter under consideration. They noted during the arguments the extensive briefs filed by organizations on behalf of both sides.

Tom Cherveny is a regional and outdoors reporter for the West Central Tribune.
He has been a reporter with the West Central Tribune since 1993.

Cherveny can be reached via email at tcherveny@wctrib.com or by phone at 320-214-4335.
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