Enforcement & public hearings

Description

Work done without a public waters work permit or in excess of an issued permit is a violation of the law. The action chosen to achieve compliance with the law and may include one or more of the following: criminal prosecution, civil restoration order, or injunctive relief.

  • The basis for criminal prosecution is contained in Minnesota Statute 103G.241 and 103G.141. Such action may be directed toward the person(s) who ordered the work to be done and/or the contractor who actually did the work. All criminal cases are prosecuted as a misdemeanor with a maximum penalty of a $700 fine and/or 90 days in jail. In accordance with the procedures and policies of the Division of Enforcement, all criminal prosecution will be the responsibility of the local conservation officer.
  • The basis for civil restoration order is contained in Minnesota Statute 103G.315 and 103G.251. The commissioner may issue restoration orders regardless of whether a permit application has been submitted. Contested orders are subject to the rules and procedures established in the Administrative Procedures Act (see Minnesota Statute 14). Individuals aggrieved by final orders are entitled to judicial review. In accordance with the procedures and policies of the DNR Ecological and Water Resources, the preparation of civil restoration orders will be the responsibility of the area hydrologist.
  • The basis for injunctive relief is contained in Minnesota Statute 103G.135. Injunctive relief may be sought whenever an ongoing violation constitutes an immediate and irreparable threat to the existence of a public water or wetland, or where work continues in violation of previous enforcement action (i.e., criminal prosecution or civil restoration order). Subject to the procedure noted later in this section, injunctive relief will be a coordinated effort by the Regional Manager, DNR Ecological and Water Resources violations coordinator, and the Attorney General's staff.

 

Public hearings

If a permit applicant or recipient of a DNR Commissioner's Order is aggrieved by a decision made by the DNR, the applicant or local unit of government (Soil and Water Conservation District, Watershed District, or mayor of a city) may demand a public hearing. The demand for hearing must be submitted in writing to the commissioner, accompanied by a $500.00 bond (cashier's check or bond surety) made payable to the Department of Natural Resources within 30 days' receipt of the Commissioner's Order (local units of government are exempt from the bond requirement). Bond surety forms are available from the DNR hearings coordinator in St. Paul, or they may be downloaded from this web site (available under the DNR Ecological and Water Resources forms page). If the $500.00 bond is not included with the demand, the DNR hearings coordinator will write or phone the hearing demander to inform him or her of this requirement. Under Minnesota Statute 103G.311 Subdivision 7, the hearing demander must pay hearing costs up to $750 if the DNR Commissioner's Order is affirmed without material modification.

Public hearings are held before an "independent" Administrative Law Judge (ALJ) assigned to cases by the Minnesota Office of Administrative Hearings. The hearings are generally held at a public facility in the county where the dispute exists. The DNR is represented by the Minnesota Attorney General's Office and the hearing demander is generally represented by an attorney although one is not required. The ALJ hears testimony from the hearing demander, DNR personnel, witnesses, and the general public. After collecting all testimony from the hearing, the ALJ writes a final report on the matter. The DNR and Attorney General's Office then conducts an "independent" review of the ALJ's report and hearing record. The DNR may or may not arrive at the same findings and conclusions as the ALJ. The DNR then issues the hearing demander a final Commissioner's Order either affirming what the demander originally wanted to do or ordering them to do what the order specifies. If the hearing demander is aggrieved by the Commissioner's Order, they may ask the State Court of Appeals to review the DNR's decision. Several cases have even progressed to the state and federal Supreme Court levels to resolve the issue(s) raised in the original hearing demand.