Is a ditch repair that will drain a public waters wetland exempt from department of natural resources approval and wetland replacement?

Minnesota Center for Environmental Advocacy v. Big Stone County, 2002 Minn. App. LEXIS 76 (Jan. 15, 2002).

No. The Big Stone County Board of Commissioners, as ditch authority, approved a repair involving sediment removal from a county ditch downstream of a Type 5 public waters wetland. There was no dispute that the repair would transform the wetland into a Type 2 wetland, an inland meadow typically without standing water that does not meet the definition of a public waters wetland. After obtaining an Environmental Assessment Worksheet, the Board determined that the repair did not have the potential for a significant environmental impact requiring preparation of an Environmental Impact Statement (EIS) and ordered the work.

Respondents Minnesota Center for Environmental Advocacy, the Coalition for a Clean Minnesota River, and the New Ulm Sportfishermen sought a declaratory judgment that the repair required an EIS and, further, that it required: (a) DNR permission under Minnesota Statutes section 103E.011; (b) a DNR public waters work permit under Minnesota Statutes section 103G.245; and (c) an approved wetland replacement plan under Minnesota Statutes section 103G.222. The District Court for Big Stone County issued a ruling largely favoring Respondents, followed by an appeal and a cross-appeal.

The Court of Appeals noted the section 103G.245 exception from the public waters work permit requirement for ditch repair "undertaken according to chapter ... 103E." Section 103E.011, subdivision 3, requires DNR approval before any ditch work that would change the level or drain any part of a public water. Observing that the County Board had not obtained DNR approval, the Court ruled that the criterion for the section 103G.245 exception had not been met, and that the County Board must obtain either DNR approval under section 103E.011 or a public waters work permit under 103G.245.

The Court also ruled that an EIS was required. It found that Minnesota Rules 4410.4600, subpart 17, exempting certain ditch repairs from EIS preparation, does not supersede the mandatory EIS requirement of Minnesota Rules 4410.4400, subpart 20, for any action "that will eliminate a public water or protected wetland."

Finally, the Court reviewed the County Board's claim that the proposed sediment removal does not require a wetland replacement plan because it is activity "exempted from federal regulation under [33 U.S.C.] section 1344(f)." Minn. Stat. §103G.2241, subd. 3(1). The Court rejected this claim, noting that the section 1344(f) exemption explicitly applies only to the deposit of dredged or fill material, and not to wetland draining.

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