Update on Renville County Ditch 77 and whether Limbo Creek is a public water
By Dean M. Zimmerli
The Minnesota Court of Appeals has recently issued a decision that could have far-reaching implications on agricultural lands throughout the state, including Renville County Ditch 77 (CD 77). The case followed a petition to improve CD 77 by cleaning the outlet into a stretch of Limbo Creek. Historically, this section of Limbo Creek had been maintained as a private ditch and periodically cleaned. However, over the past several years, sediment has built up, along with cattails and other vegetation, which has severely restricted the flow of water and degraded the effectiveness of CD 77 by restricting its ability to outlet into the creek.
Throughout the drainage-improvement project, the landowners asking that the improvement be completed have worked with engineers on the project to reduce any environmental impact, and sought only to restore CD 77 to its original capacity. Early in the planning process, the Minnesota Department of Natural Resources (DNR) acknowledged that the section of Limbo Creek where the improvement would be constructed was not a public water and, therefore, no permit was required to complete the improvement. As these plans were finalized, environmental groups mistakenly claimed that the drainage improvement would occur in a public water or that it should be treated as a public water either way.
By way of background, in the 1980s, a law was enacted requiring that the DNR make a complete inventory of all waters in the state that meet the definition of “public waters.” This process involved numerous public hearings and opportunities for both landowners and environmental groups alike to challenge waters that they believe should be included or excluded from the final inventory. In Renville County, the stretch of Limbo Creek that was classified as a public water did not include the project area, and ended some miles downstream. In other words, the inventory process determined that the stretch of Limbo Creek affected by CD 77 was not a public water, and, to this day, Renville County’s public-water inventory still does not list this stretch of Limbo Creek as a public water.
Despite this inventory process and final determination, environmental groups have argued that this section of Limbo Creek is a public water and, therefore, the project requires permits and a heightened environmental review. The Minnesota Supreme Court is considering whether to hear this case.
This case impacts the ability of producers and others throughout the state who rely on the public waters inventory completed following the comprehensive process in the 1980s. Until this case, it was generally thought that the public waters inventory was final and binding for essentially all purposes. Landowners and developers were safe in concluding that, if a water course or body of water was not on the inventory, it was not a public water and the permitting and other environmental reviews applicable to public waters therefore did not apply. Even when a landowner later believed the list was mistaken and that a water was erroneously included, courts have held that the list is binding and cannot be challenged afterward. The DNR and environmental groups have nonetheless taken the opposite position here, namely that the status of any water as a public water can be reevaluated at any time to subject the water to additional regulation. For example, the DNR could, if its position is ultimately approved by the courts, reevaluate private ditches and swales that are not currently listed as public waters and determine that they are and require that 50-foot buffers be established around those water courses. This likely includes 640 miles of public drainage systems and other waters that the DNR admitted in 2017 were never properly designated as public waters on the inventory. Farmers looking to clean private ditches would no longer be safe in concluding that their private ditch was not a public water because it wasn’t on the list; instead, the DNR could retroactively determine that the ditch was a public water and fine the landowner for cleaning in a ditch without a permit. Drainage projects similar to CD 77 would be at risk of additional cost and uncertainty if the public waters inventory was not deemed final any longer.
Because of the important impacts this case may have on Minnesota Corn Growers Association’s members, MCGA continues to closely monitor this case.
Dean Zimmerli is a partner at Gislason & Hunter LLP and represents the landowners proposing the CD 77 project. Dean regularly advises clients on water regulations, drainage, and other agricultural issues.
The Minnesota Corn Growers Association is a client of Gislason & Hunter LLP.
