On October 4, 2021, the Minnesota Court of Appeals delivered a significant win for public waters across the state as well as Renville County’s last free-flowing stream, ruling that environmental review of a ditch proposal to channelize Limbo Creek is required because Limbo Creek is a “public water” entitled to protection.
The precedential opinion extends protections to hundreds of miles of rivers and streams that meet the legal definition of “public waters,” but aren’t explicitly listed on Minnesota’s Public Waters Inventory (PWI). Limbo Creek plainly meets the definition of a public water in statute, but due to a quirk in timing, it was omitted from the PWI when it was compiled in the 1980s. The ruling today clearly establishes that waters that meet the statutory definition are protected, even if they are not listed on the PWI.
It also means that the ditch project proposed for the waterway at the center of this case – aptly named Limbo Creek — must undergo environmental review before a decision can be made on permitting the project. As the county charged with reviewing the project to dredge Limbo Creek, Renville County must now study the environmental consequences and give Minnesotans the opportunity to weigh in on the future of this important waterway.
“Today’s decision clearly establishes that all public waters are subject to protections of the state. 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,” said Elise Larson, senior water attorney for Minnesota Center for Environmental Advocacy (MCEA).
“The decision declaring Limbo Creek a public water is correct and necessary to legitimately protect Minnesota’s water quality and flooding issues,” said Tom Kalahar, a retired conservationist who worked in Renville County for 35 years in the Soil and Water Conservation District and former CURE board member. Kalahar is also a part of Protecting Public Waters (PPW), a co-litigant in this case. “Minnesota’s local drainage authorities have been abusing the PWI definition and process for decades. This ruling allows a renewed effort to hold local drainage authorities accountable to the rule and to give voice to all citizens, not just the agriculture interest.”
“Proposals to add to or change the flow of waters in the Minnesota River watershed affect this namesake of our State. Today’s decision recognizes that such activity is subject to a reasonable level of environmental review,” said David Minge, former congressman, retired Minnesota Court of Appeals judge and founding board member of CURE.
In contrast to the scores of straightened ditches that otherwise crisscross Renville County designed to move water quickly off land and into rivers, eroding their banks, Limbo Creek meanders through the landscape. Its natural contours allow it to play a pivotal role in preventing additional erosion and pollution in the Minnesota River Valley.
Worsening erosion exacerbated by ditching and tiling projects over the years has destroyed farmland, displaced homes, and caused millions of dollars in damages throughout the region. The City of Mankato alone has incurred more than $10 million in costs to prevent a major city well from being swallowed by the eroding bank of the Minnesota River. While Limbo Creek is just one of the tributaries that feed the Minnesota River, the cumulative impact of hundreds of ditches funneling the water from hundreds of thousands of acres of tiled farmland has transformed the entire Minnesota River Valley.
Despite its unique and pivotal role, landowners proposed to ditch and straighten over a mile of Limbo Creek to improve drainage on their land, and Renville County approved the project’s engineering plans without subjecting the proposal to environmental review.
Working alongside farmers, adjacent landowners and local conservation groups, MCEA and PPW – a group of citizens concerned with protecting public watercourses – sued the county on the grounds that Limbo Creek meets the state’s definition of public waters, therefore entitling it to special protections under the law, including mandatory environmental review of any proposed project that would alter it.
While not explicitly included on the state’s PWI, Minnesota’s definition of public water includes any natural or previously natural stream or creek that has a drainage area of two square miles or more. Since Limbo Creek meets that definition, MCEA argued it should be treated as a public water under the law.
The Court agreed.
Update: On October 12, 2021, the Renville County Board of Commissioners approved bringing a petition for review to Minnesota’s Supreme Court. The court will review the petition and responses from the original litigants and then decide if they will take up the appeal of the lower court ruling.
