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Minnesota environmental group challenges DNR stream action

DULUTH — An effort by the Minnesota Department of Natural Resources to relax standards for drainage ditches that aren't public waterways has also led to miles of rivers and creeks losing their status as public waters.

That was the claim made Friday by the Minnesota Center for Environmental Advocacy, which has filed an appeal with the Minnesota Court of Appeals.

The agency order issued in April "used a one size fits all approach to delete over 640 miles of waterways from Minnesota's public water inventory with no public notice, no chance for the public to comment and with no transparency," the MCEA said Friday. "Because there was no public input, many public waters that should be protected would lose that protection if the DNR's order is implemented."

The agency order, which is now in effect, was in response to complaints by agriculture groups that the state's waterway buffer law, aimed at protecting streams from agricultural runoff, was being applied to private, farm-area drainage ditches, said Barb Naramore, a DNR assistant commissioner.

The waterways the DNR is removing from public protections were included as public waters that would qualify for the new buffer law — but were not included on a master list of state public waterways, established in the 1980s, that landowners at the time could review and comment on, she said.

"We're responding to a procedural error, and we needed to do it in a timely fashion," she said, adding that the DNR needed to move quickly to clarify which waterways new buffer laws would apply to before upcoming deadlines for landowners, including a November 2017 deadline for compliance.

The DNR's order listed hundreds of mapped waterways in dozens of counties — including St. Louis, Aitkin, Carlton and Pine counties in the Northland — that are now exempt from the buffer regulations.

"Some of the waterways, we might agree, may meet the criteria of public waterways but they weren't on the list that was put out" in the 1980s, Naramore said, adding that the DNR, regional ditch authorities or local soil and water conservation districts may still decide to re-establish public status for some of the waterways, using established procedures with public input.

The MCEA said the order went too far, and that the DNR action "erased" a 20-mile stretch of the Lost River in Red Lake County, 8 miles of Badger Creek in Faribault County and a 3.4-mile section of a creek that flows into the Cannon River in Rice County, among many more.

"As we investigated waterways that DNR deleted as public waters, we were shocked to discover many weren't private ditches, but were clearly public waters," said Leigh Currie, staff attorney for MCEA. "DNR's order, supposedly to correct mistakes, only made issues with the public waters map worse."

MCEA officials say they are concerned the DNR order could wrongly allow nearby landowners to drain, fill, plow or develop the public waters wrongly listed as private.

The Court of Appeals has the option whether to hear the case or not.

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