Did the Board of Water and Soil resources act within its statutory authority in adopting a rule that does not allow an exemption from the state's wetland replacement requirement for ditch maintenance, if the ditch work will cause a loss of wetlands?

Hentges v. Minnesota Board of Water and Soil Resources et al., 638 N.W.2d 441 (Minn. App. 2002).

Yes. Landowners adjacent to Anoka County Ditch 53-62 sought to lower the elevation of a culvert in the ditch at I-35W, complaining that natural forces had caused the culvert to rise, and in turn caused water from the ditch to overflow and flood their lands. The culvert was installed in the 1950s, and the ditch work and culvert relocation proposed by the landowners would partially drain nearby wetlands that have existed for over 25 years.

The state Wetland Conservation Act requires that partially drained wetlands be replaced, unless an exemption from this requirement applies, as determined by the Local Government Unit (LGU). Here, the LGU is the Rice Creek Watershed District, which rejected the landowners contention that the proposed work was simply “ditch maintenance,” exempted by federal law. The landowners appealed to the Board of Water and Soil Resources (BWSR), which affirmed the watershed district’s decision.

On appeal, the Minnesota Court of Appeals held that BWSR acted within its statutory authority in promulgating a rule that expressly excludes the exemption for federal approvals for projects “with the purpose of converting a wetland to a nonwetland, either immediately or gradually, . . . or partly draining it. . . .” Minn. R. 8420.0122, subp. 3A (Supp. II 2000). The Court found that the rule comports with the legislative intent to achieve “no net loss” of wetlands, and that the interpretation urged by the landowners was “clearly at odds with both the express language of the statutes and the state’s policy.”

The Court further held that BWSR properly applied the rule to ditch maintenance; that BWSR did not deny due process or equal protection to the landowners, nor take action resulting in an unjust taking of their property; and that BWSR did not err in allowing civic and environmental groups to participate in the administrative appeal from the watershed district decision.

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