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Minnesota Supreme Court rules upper reaches of Limbo Creek in Renville County are public waters

A Minnesota Supreme Court public waters ruling issued Sept. 28 means an environmental assessment must be conducted before a proposed drainage project into the upper reaches of Limbo Creek can be

This is the County Ditch 77 outlet into Limbo Creek. Landowners on the system petitioned to excavate a 5,560 linear foot channel.
This is the County Ditch 77 outlet into Limbo Creek. Landowners on the system petitioned to excavate a 5,560 linear foot channel.
Tom Cherveny / West Central Tribune
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ST. PAUL — The upper reach of Limbo Creek in Renville County is a public water, and as a result, an environmental assessment must be conducted before a proposed drainage project can be allowed there.

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The Minnesota Supreme Court in a decision released Wednesday affirmed a Court of Appeals ruling that the upper reaches of the watershed are public waters.

“It helps the folks concerned about their community,” said attorney Kevin Reuthers, representing the Minnesota Center for Environmental Advocacy which had argued that the upper reaches of the creek are public waters.

Reuthers said the case brings attention to the fact that public waters belong to everyone, and that people can have a voice on projects that impact them.

“What a person does to water on their land is going to affect others when it rolls downstream, so we all have the right to comment on and be involved in and even be opposed to what people do on their land,” he said.

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He said an environmental assessment also assures that decision makers know of any potential harm before they act.

The landowners on County Ditch 77 who petitioned for the drainage project, as well as the Renville County Board of Commissioners, are disappointed by the decision, attorney Dean Zimmerli, representing the landowners, and Gerald Von Korff, representing the county, told the West Central Tribune.

Von Korff said the county will live by the ruling and order an environmental assessment worksheet, assuming the landowners decide to continue forward with the project. He contends that the ruling “runs the risk of throwing the whole regulatory process into chaos.”

Along with performing an environmental assessment, the landowners would need a permit from the Minnesota Department of Natural Resources to carry out the project in public waters if it is approved by Renville County, according to the attorneys.

In the decision, the state’s high court agreed with the Court of Appeals that the upper watershed of Limbo Creek is a public water because it meets the statutory definition of a public water. The statute defines public waters to include “natural and altered watercourses with a total drainage area greater than two square miles.”

The Supreme Court ruled that the statute is the determinant of what is a public water, and not the public waters inventory the Minnesota Department of Natural Resources is required to maintain.

Renville County and the landowners argued that the inventory should be the determinant of whether or not a water is a public water.

The upper portion of Limbo Creek was originally on the public waters inventory when it was developed in 1979 but removed when a final inventory list was published in 1985. A few years ago, the DNR indicated that it intends to correct the inventory and include Limbo Creek.

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Importantly, in this case, the court pointed out that while Limbo Creek was not on the inventory in 1985, the public water map published as the final version in 1985 represented the upper portion of Limbo Creek as a public water with a heavy dashed line. The representation on the map is what matters, not the inventory listing of public waters, the court determined.

Von Korff said that landowners and the county before petitioning for the project had obtained a written statement from the DNR, the state Board of Water and Soil Resources, and the local Soil and Water Conservation District stating the upper portion of Limbo Creek was not a public water. The agreement at that time was based on the fact that it was not on the public waters inventory, he said.

The Minnesota Center for Environmental Advocacy and a local group, Protecting Our Public Waters, subsequently challenged the drainage petition by arguing that the upper portion met the statutory requirement as a public water.

Reuther said modern mapping tools and technology allow for accurate determinations of whether a watershed meets the statutory requirements, and so the statutory definition should be used. Those tools were not available when the public water inventory was developed.

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Drainage is important to agriculture, but it also has significant environmental impacts, according to Reuthers. The environmental review process provides an opportunity to consider alternatives and ways to lessen those impacts, he said.

Landowners on County Ditch 77 are seeking to excavate a 5,560-linear-foot channel into Limbo Creek. The project carried an estimated cost of $699,880 when originally petitioned for in 2017.

Zimmerli said the landowners are evaluating their options on how to best go forward.

Von Korff said the ruling represents another hoop for landowners to jump through for the project. They need the project to clear the outlet of their ditch into Limbo Creek. He said he believes the DNR will permit the project.

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"I can’t imagine when it comes to permitting the DNR would be saying to those farmers: 'Too bad, you‘ll just have to get flooded.' "

Von Korff said waters now protected by inclusion on the public waters inventory could be challenged, and “unwound” if a future commissioner of the Minnesota DNR was not strong on environmental protection.

The court states in its decision that it is the "duty of the Legislature to clarify the relationship between the (public waters) inventory and the statute definition of public waters.”

The case has put farm and environmental groups at odds.

The Minnesota Corn Growers Association, Minnesota Farm Bureau Federation, Minnesota Farmers Union, and Minnesota Soybean Growers Association are among the farm organizations that filed briefs in support of the landowners and county.

Environmental groups filing briefs in support of requiring an environmental assessment included Clean Up the River Environment, Coalition for a Clean Minnesota River, Friends of the Minnesota Valley, Izaak Walton League, Lake Pepin Legacy Alliance, and the Minnesota Conservation and Federation.

Renville County filed a civil case against the DNR over its proposal to return the upper reaches of Limbo Creek to the public waters inventory. That case has been stayed pending the Supreme Court decision.

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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