Minnesota Court of Appeals' Limbo Creek decision could affect state's waterways
The Minnesota Court of Appeals agrees with environmental groups that the Renville County waterway is a public water, and that an environmental assessment worksheet is mandatory due to a proposed project's potential environmental impacts.
ST. PAUL — Renville County must perform an environmental assessment worksheet before it can decide whether or not to approve a petition by landowners for an improvement project for County Ditch 77, which outlets into Limbo Creek.
The Minnesota Court of Appeals issued the ruling in a precedent-setting decision Monday, Oct. 4, that could have implications for other waterways in the state.
In its decision, the Court of Appeals agreed with the Minnesota Center for Environmental Advocacy and Protecting Public Waters that Limbo Creek is a public water and entitled to protection.
The court found that the waterway meets the definition of a public water as being a "natural or altered watercourse with a total drainage area greater than two square miles." Its absence from a Public Waters Inventory developed by the Minnesota Department of Natural Resources in the 1980s is not reason for Renville County to treat it as not being a public water, according to the court.
"Because the statutory definition of 'public waters' is clear, we conclude that the county committed legal error by deciding that the upper reach of Limbo Creek is not a public water because it was not included on the (Public Waters Inventory) list," stated the court in its decision.
The court also agreed with the environmental groups that an environmental assessment worksheet is mandatory for a project in Limbo Creek. An environmental assessment worksheet is mandatory when a proposed project “will change or diminish the course, current, or cross-section of one acre or more of any public water,” the court noted.
The Renville County Board of Commissioners, acting as the ditch authority, approved a project in November 2020 to excavate a 5,560-linear-foot-channel into Limbo Creek at the outlet of County Ditch 77. Petitioned for by landowners in 2017, the project originally carried an estimated cost of $699,880. The commissioners rejected a request to perform an environmental assessment worksheet for the project as asked by the project opponents.
At stake in the decision is protection for the last remaining, free-flowing waterway in Renville County and natural habitat along it, as well as the impacts that increased flow could bring to downstream landowners and communities, according to Elise Larson, attorney for the Minnesota Center for Environmental Advocacy. The decision gives the public an opportunity for input as an environmental assessment worksheet is prepared.
“The whole purpose of this (environmental assessment worksheet process) is for the public and decision makers to know the environmental impacts before making a final decision,” she said.
Limbo Creek outlets into the Minnesota River in Skalbekken Park in Renville County. The environmental groups contend that the project would increase the load of sediment and farm chemicals reaching the river.
The county has 30 days to decide whether to appeal the decision to the state Supreme Court. The county’s lead attorney, Gerald VonKorff of the Rinke Noonan law firm in St. Cloud, did not immediately respond to a request for comment from the West Central Tribune.
The Court of Appeals decision could have implications beyond the Limbo Creek controversy. The DNR is currently evaluating whether to return 640 miles of waterways to the Public Waters Inventory — waterways that were originally included in the state’s Public Waters Inventory developed in the 1980s and then removed in 2017 by a commissioner’s order. The upper reaches of Limbo Creek and three other small watercourses in Renville County and one in Pope County are among the first of these waterways to be considered as part of that process.
While not directly addressed in this decision, the finding that Limbo Creek is a public water suggests that Renville County will need a permit from the Minnesota Department of Natural Resources for a project in it. The DNR has repeatedly told Renville County it considers Limbo Creek a public water and that a permit would be required for work. Renville County has challenged the DNR on whether the state agency has the authority to require a permit, and that matter remains pending in the courts.
The Minnesota Center for Environmental Advocacy and co-litigant Protecting Public Waters were supported with court filings by Clean Up the River Environment, Coalition for a Clean Minnesota River, Friends of the Minnesota Valley, Izaak Walton League, Lake Pepin Legacy Alliance, the Minnesota Conservation and Federation and Sever Peterson.