Minnesota lawmakers assert protections for public waters

Published 7:31 am Tuesday, May 28, 2024

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A new state law expands legal protections for hundreds of miles of Minnesota waterways whose status had been uncertain.

In the final days of the session, lawmakers passed language clarifying that a waterway that meets the legal definition is a public water, even if it’s not on a decades-old state inventory.

The change was included in an omnibus environment and natural resources budget bill, which Gov. Tim Walz signed into law last week.

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“This is a backstop to say water courses that meet the definition in state law are water courses that belong to all of us as Minnesotans, and are due these protections that we’ve outlined for public waters,” said Carly Griffith, water program director for the Minnesota Center for Environmental Advocacy.

The bill’s passage followed a lengthy legal dispute over Limbo Creek, the last free-flowing stream in heavily-farmed Renville County.

The county board did not require an environmental review of proposed improvements to the upper reaches of the creek, because it wasn’t listed on the public waters inventory.

Environmental groups and the Department of Natural Resources argued the stream met the legal definition of a public water, warranting greater protection. A lower court agreed, and the Minnesota Supreme Court upheld that decision in 2022.

In Minnesota, “where water is really central to our identity,” the state has taken an expansive view of what counts as a public water, Griffith said. That definition includes natural and altered waterways with a total drainage area greater than 2 square miles.

“So that means it can include streams and creeks that aren’t the Mighty Mississippi River, but that are important to the local communities that rely on them,” Griffith said. She estimates the new law will affect at least 640 miles of waterways across the state.

Griffith said there are errors in the state’s public waters inventory, which was created in the 1980s when the technology used to identify drainage areas was less advanced. The new law includes $8 million over the next eight years for the DNR to update the inventory.

Some farm groups are concerned the new law could expand legal protections to more waterways and create uncertainty for farmers. Public waters have more regulations, including restrictions on draining and filling, and requirements to maintain vegetative buffers.

Pierce Bennett, public policy director for the Minnesota Farm Bureau Federation, called it “a pretty dramatic expansion” of what could be labeled public waters, leaving farmers “in a little bit of limbo.”

“Our view is that this would allow for a lot of waters that aren’t currently under that inventory to just simply be put in,” Bennett said. “And that is concerning.”

He said farmers shared their concerns about the bill with legislators throughout the session, and plan to work with state regulators to understand its impacts.

“We need to have a greater understanding of what this might mean for the future,” Bennett said.