Creek in limbo no more

This overhead shot of Limbo Creek is a screengrab from a video shot by plaintiffs MCEA. (Image Courtesy MCEA)

 

Court of Appeals orders environmental assessment before ditch project can proceed

 

Despite repeated assurances from the Minnesota Department of Natural Resources that a proposed ditch improvement would impact Limbo Creek, Renville County commissioners decided otherwise.

Therefore, the board refused to order an environmental assessment worksheet (EAW) for its County Ditch 77 Project (CD 77). The county determined that since the creek was not on a DNR list, it was not a “public water.”

On Monday, the Court of Appeals reversed that decision and ordered the county to prepare an EAW, deeming a remand unnecessary.

The precedential case is In the Matter of Petition of MCEA for Commencement of an Environmental Assessment Worksheet. The court’s unanimous opinion was written by Judge Tracy M. Smith, joined by judges Michelle A. Larkin and Carol Hooten.    

Plaintiffs in the case were the Minnesota Center for Environmental Advocacy and the group Protecting Public Waters.

In deciding whether the worksheet must be prepared, the court said, the creek’s absence from the DNR’s public water inventory (PWI) does not dictate whether it is “a public water” as defined by Minn. Stat. § 103G.005, subd. 15(a)(9).

Accordingly, it decided that the county’s decision is unsupported by substantial evidence and is arbitrary and capricious.

“We conclude that the county erred by deciding that, because the upper reach of Limbo Creek does not appear on the DNR’s PWI list, it is not a public water. We further conclude that, when the proper definition of ‘public waters’ is applied, there is not substantial evidence in the record supporting respondents’ contention that the upper portion of Limbo Creek is not a public water. Finally, we conclude that the record lacks substantial evidence to support respondents’ other contention that, even if the upper portion of Limbo Creek is a public water, a mandatory EAW is not required based on other regulatory provisions. We therefore reverse and remand for the county to prepare a mandatory EAW,” Smith wrote.

 

Lines and dashes

The ditch was dredged and channeled in 1918 by farmers in order to connect wetlands.    

In 2016, landowners filed a drainage petition in Renville County in order to improve CD 77’s drainage capacity. The proposal would extend the drainage system downstream to the upper portion of Limbo Creek, which has a 14-square-mile watershed.

Confusion became apparent in 2017 when the DNR issued preliminary comments to the county stating that the project does not affect public waters. At the time, the upper reach of Limbo Creek did not appear on the DNR’s public waters inventory list. However, it did appear as a heavy dashed line on a PWI map that indicated public waters with solid lines and ditches with dashed lines.

The MCEA, which calls Limbo Creek “one of the last free-flowing, unditched streams in Renville County,” petitioned the DNR to include its upper reach as public water. After an engineering report, but without notice and comment, the DNR advised the county in September 2020 that the creek is a public waterway and should never have been identified as a ditch.

In November 2020, the DNR again advised the county that the creek is public water and that its ditch project exceeded the mandatory threshold for projects that will change the course, current or cross-section of one acre or more of public water.

The county then denied the petition for an EAW because it is not public water and had no potential for significant environmental effects. It said that only the lower portion of Limbo Creek is listed on the official public waters inventory list.

 

Public waters

The statutory definition of public waters, Minn. Stat. §103G.005, subd. 15(a)(9), includes natural and altered watercourses with a total drainage area of greater than two square miles. The court found the definition plain and unambiguous and that whether the water was on the DNR’s list or map was not conclusive.

At this point, the court decided not to remand the matter to the county in the absence of any substantial evidence that the creek is not a public water. But it noted, without elaboration, that the respondents made “policy arguments” against the definition of public waters.

Respondents argued that Limbo Creek is artificial, therefore not a natural or altered watercourse under the public waters definition. The court was unconvinced.

“[T]he record includes photographic evidence from 1938 depicting Limbo Creek meandering through Renville County and evidence from the county that Limbo Creek is a natural watercourse,” Smith wrote.

 

Course, current or cross-section

The county further argued that even if the upper portion of Limbo Creek is a public waterway, the ditch project does not call for a mandatory EAW because it will not “change or diminish the course, current or cross-section” of Limbo Creek as required by Minn. R. 4410.4300, subp. 27(A). It will just restore the creek to its historic function, they argued.

But that was not the basis for the county’s decision, the court said.

“The decision does not address the course, current, or cross-section of Limbo Creek or changes to any of those features. In any event, we disagree with respondents’ argument that restoration of previous conditions related to a century-old ditch means that a mandatory EAW is not required.”

The court then reversed with an order for the county to prepare an EAW.

A press release from plaintiffs MCEA on Monday touted the ruling.

“Today’s decision clearly establishes that all public waters are subject to protections of the state,” said Elise Larson, the group’s senior water attorney. “Those protections include studying the environmental impacts of a project that would forever damage the last largely free-flowing stream in a county and cause continued damage to downstream communities.”