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Renville County hopes to resolve dispute with DNR over Limbo Creek public waters designation

The Renville County Board of Commissioners is preparing to challenge the listing of Limbo Creek as a public waterway in court, but board members would prefer to resolve the issue without a legal challenge. They intend to formally decide their stance on the issue by Nov. 1, ahead of the Nov. 11 deadline to raise objections.

Landowners along Renville County Ditch 77 filed a petition in 2017 to extend this open channel in Limbo Creek to improve the Ditch 77 outlet, which is covered by sediment. The Minnesota Department of Natural Resources recently proposed to place Limbo Creek on the inventory of public waters, which would give the agency authority over drainage projects affecting it. The Renville County Board of Commissioners, acting as the drainage authority, is challenging the DNR. Tom Cherveny / West Central Tribune

OLIVIA — Renville County is moving forward with plans to challenge a proposal by the Minnesota Department of Natural Resources to place four waterways in the county on the state’s public waters inventory, but the County Board of Commissioners is also hoping to resolve the issue without a legal challenge.

The commissioners indicated that they would prefer to extend an olive branch to the DNR while also reserving their rights to take legal action by filing an objection to the DNR plans.

“Maybe there is some way of working this out,” said Commissioner Randy Kramer as the commissioners took up the issue at the drainage authority meeting on Tuesday. They met with attorney Jerry Von Korff of the Rinke Noonan law firm of St. Cloud.

Von Korff told the commissioners that only a small stretch of Limbo Creek was listed as part of the public waters inventory when it was created in the 1980s. The DNR is now seeking to place the entire 7.1 miles of the waterway on the list, along with three other waterways in the county, including a portion of Sacred Heart Creek.

While reviewing the public waters inventory as part of the 2017 legislation to require buffers, the DNR discovered that some of the waterways had been designated as public waters in the 1980s without the required process of notifying landowners, Von Korff said.

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As a result, it removed those waters from the inventory list in 2017. Now it is proposing to correct the error and return the waters to the inventory with an open comment period for landowners.

But Limbo Creek represents a different sort of error, according to Von Korff. The Minnesota Center for Environmental Advocacy and other environmental organizations have told the DNR it made a mistake in not including all of Limbo Creek on the original list, and should use this opportunity to do so.

But here's the conflict: Von Korff pointed out that there is a petition by landowners on County Ditch 77 to improve its outlet into Limbo Creek. Sediment covers the outlet, and the landowners are seeking a permit to open a 5,560-linear-foot channel into the creek.

From a legal perspective, Von Korff maintains that the decision not to include a large portion of Limbo Creek in the 1980s public waters inventory “wasn’t a mistake.”

“There were people who disagreed with the decision but nobody appealed. What they are trying to do is redo that decision,” he said.

He believes the county can challenge whether the DNR has authority to do so.

He also cautioned that if the county does so, the Attorney General’s Office could take the position that the challenge needs to go directly to the Court of Appeals.

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The county has until Nov. 11 to formally state its objections to the inclusion of Limbo Creek. Von Korff encouraged the commissioners to obtain comments from landowners who could be adversely affected by the DNR decision.

Kramer said the DNR is “caught in the middle” in the dispute. It is likely to face a legal challenge from the Minnesota Center for Environmental Advocacy if it does not place all of Limbo Creek on the public waters inventory, or a legal challenge by the county if it does. He said the DNR appears to be holding out its own olive branch in comments it made on the petition for the County Ditch 77 improvement, and that possibly the two sides could reach an agreement to resolve the issue.

He said his concern is that a public waters designation could prevent clean-outs in the bottom portions of creeks such as Limbo and Sacred Heart, which would negate the effectiveness of upstream drainage systems.

“That is a killer for Renville County,” he said. "These are CDs (county ditches) that are meant for drainage.”

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