Does the Wetland Conservation Act apply to Type 3, 4 and 5 wetlands greater than 2.5 acres in incorporated areas and 10 acres in unincorporated areas but not identified on the DNR protected waters inventory? Drum v. Douglas Soil and Water Conservation District, 574 N.W.2d 71 (Minn. App. 1998) Ralph Drum owned land next to a 15-acre marsh in Douglas County. Drum sought approval from the Douglas Soil and Water Conservation District (the "District") to install a drainage outlet because the marsh was growing and threatened to undermine the foundation of his house. The District denied Drum's request under the Wetland Conservation Act (the "Act"). Drum appealed the decision to the Minnesota Board of Water and Soil Resources (BWSR), which affirmed the District's decision. As a Type 4 wetland larger than 10 acres, the marsh in question was subject to DNR regulation under the State's protected waters statute and, if so regulated, excluded from operation of the Act. However, under DNR practice, only those protected waters identified on the DNR's public waters inventory maps are regulated by the DNR. The District claimed jurisdiction over the disputed wetland pursuant to a BWSR rule applying the Act to all wetlands except "public waters, wetlands, and public waters that are designated on the public waters inventory maps . . . ." Minn. R. 8420.0112, subpt. 52C. Drum argued that the Act did not authorize BWSR to apply the Act so broadly. The court disagreed. The purposes of the Act are to "achieve no net loss in . . . wetlands;" "increase the quantity, quality, and biological diversity of . . . wetlands;" avoid destroying or diminishing "the quantity, quality, and biological diversity of wetlands; and replace wetlands impacted by activity." Minn. Stat. § 103A.201, subd. 2(b)(1)-(4). The court concluded that leaving some large wetlands in an unprotected gap between the Act and the protected waters statute would undermine these purposes. Drum also argued that he fell within an exception to the Act stating that a wetland replacement plan is not required for wetlands "created solely as a result of . . . actions by public or private entities that were taken for a purpose other than creating the wetland." Minn. Stat. § 103G.2241, subd. 5(3) (1996). Drum argued that the marsh was expanding due to a road constructed next to the marsh. The court found that BWSR was not arbitrary or capricious in finding that the marsh expanded due to precipitation rather than the road built next to it. Even though the road could have been a factor in the expansion of the marsh, Drum had not proven that the wetland was enlarged "solely" due to the road.
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