In a recent decision, a Minnesota judge accepted the Minnesota Pollution Control Agency’s (MPCA) argument that it does not have the authority to regulate public agricultural drainage systems, infrastructure that aids crop production but funnels significant water pollution into Minnesota’s lakes, rivers, streams, and drinking water.
Ramsey County District Court Judge Leonardo Castro’s said in his August 19th order that public drainage systems are waters of the state, not disposal systems subject to state water pollution permitting requirements. Because disposal systems would need a permit but waters of the state do not, Judge Castro concluded that MPCA lacks authority to control water pollution from drainage systems through the state-mandated Clean Water Act permitting program.
CURE was a plaintiff in the lawsuit brought by Minnesota Center for Environmental Advocacy (MCEA), along with Friends of the Minnesota Valley, Minnesota Division of the Izaak Walton League of America, and Minnesota Valley Chapter of the Izaak Walton League of America. These groups and other conservationists petitioned MPCA last August asking for a rulemaking process to create a common-sense regulatory permit program for public agricultural drainage projects. When MPCA denied that petition, some of the petitioning groups sought relief from the courts. The district court’s denial is likely not the end of this story.
“Rural communities deserve better than this outcome and CURE thinks the court got it wrong. If the MPCA cannot regulate public drainage under its broad authority then rural residents are going to keep on having to pick up industry’s tab for flooding, washouts, pollution, and drinking water degradation,” said Hudson Kingston, Legal Director at CURE. “The Legislature gave MPCA broad responsibility to protect Minnesota’s waters. That means MPCA has a responsibility to act for rural people, not sit on the sidelines. We hope the Court of Appeals understands drain tile and ditches are not beyond the capabilities and duties of our expert state agencies, and that polluters should bear the responsibility of controlling and preventing harms they cause.”
Ag drainage has dramatically changed how water moves across southern Minnesota. Water that once soaked slowly into the ground is now quickly diverted by underground tile lines and ditches and carried downstream, taking fertilizer and sediment with it. In some watersheds, tile drainage is the largest source of nitrogen reaching rivers and streams, contributing to water quality problems for communities downstream.
These impacts aren’t theoretical. Cities like Mankato and Fairmont experience recurring nitrate spikes in their drinking water sources, while communities have spent millions of dollars stabilizing eroding riverbanks, roads, and bridges. Along rivers like the Le Sueur and Minnesota, some families are watching the river steadily eat away at their property. Too much nutrient pollution chokes our lakes and rivers, fuels algae blooms, kills fish, and contributes to dead zones as far away as the Gulf.
“Farmers have used drainage for generations to make some land easier to farm, improve crop production, and farm income. No one wants to cause their neighbors harm, but widespread use and large public drainage systems have growing costs to people downstream that often aren’t accounted for,” commented Peg Furshong, Director of Constituent Relations with a focus on water at CURE. “At the end of the day, everyone pays the price, including farmers, when townships and counties have to continually repair roads and other infrastructure. And when nitrate pollution rises in our water, it puts the health of the whole community at risk.”
There are common-sense ways to reduce these impacts. But it has been made clear over the years that asking individual landowners to voluntarily solve the problem won’t get us there. That’s why Minnesota needs clear rules that apply to everyone and a state agency willing and able to enforce them.
