History of water protection
Origin of State Authority over Public Waters
The conservation and protection of Minnesota's surface waters began to evolve shortly after Minnesota achieved statehood. In addition to promoting the doctrine of riparian rights, legal protection was generally afforded to deeper "meandered" lakes and "navigable waters." However, these early laws were primarily intended to promote the drainage of Minnesota's numerous shallow lakes and marshes. The intent was to convert these "waste" lands to productive agricultural lands.
In 1897, Minnesota Law first adopted the term public waters. These public waters included only those larger meandered lakes and streams that were capable of beneficial public uses such fishing, fowling, boating, or water supply. All other waters were considered "private" and their fate was of no interest to the state. Even public waters could be legally drained provided the project was approved by the county board of commissioners.
In 1919, the Office of State Drainage Commissioner was created to oversee the administration of the already numerous and conflicting drainage laws. The effect of this action was to transfer the power to regulate "legal" drainage from county to state government. By 1933, the new Department of Conservation (now known as the Department of Natural Resources) acquired the authority over drainage and water matters. The severe drought of the mid-1930's finally demonstrated the need for more serious protection of our surface and underground waters (i.e., within soils, water basins, watercourses, and aquifers) as waters of the state. The state would exercise permitting authority over these waters with respect to their use or appropriation for commercial, industrial, or agricultural purposes. The intent was to protect the public's interest in the amount of water available for use.
The state's second authority was set forth in 103A.201. This section stated that those waters of the state that served beneficial public purposes were public waters subject to control by the state for any work that would change the waters' course, current, or cross section. The state intended to protect not only the amount of public waters but also the "container" (i.e., lake, stream, wetland) that confined these waters.
During the next 39 years, a considerable controversy developed over which waters of the state were public waters, where these waters were located, and how much authority the state [i.e., the Department of Natural Resources (DNR)] had over them. The major cause of the controversy was the accelerating destruction of wetlands for agricultural use and urban development. These problems were further aggravated by a general feeling of distrust for government regulation. The DNR largely rectified the issue of how much authority it exercised over public waters by promulgating specific rules governing the issuance and denial of public waters work permits. The Minnesota Legislature, in 1976 and 1979, attempted to address the issues of which waters of the state were public waters and where they were located by establishing the Public Waters Inventory Program (re: Laws of Minnesota 1976, Chapter 83 and Laws of Minnesota 1979, Chapter 199).
Implementation of the Inventory Program
(For current information, see Public Waters Inventory Program.)
The DNR began the Public Waters Inventory (PWI) in 1976, and at least 20 of 87 counties actively participated in the inventory process. However, by 1979 there were no counties in which public waters had been officially designated. There were several reasons why the 1976 inventory proved unsuccessful. The problems that impeded the 1976 inventory included the following.
Introducing the Protected Waters Concept.
The word "public" connoted that public waters were open to the public regardless of their proximity to private lands. Although Chapter 105 (now Chapter 103G) granted no rights to the public to trespass on private lands, there was a general belief that the public would assume they could cross private land to reach any designated public waters. Because of this potential for misinterpretation, there was substantial demand to eliminate the term public waters from Chapter 105 and replace it with a more acceptable term (e.g., "protected waters"). However, the Minnesota Attorney General's Office advised the legislature that the sheer volume of case law, legal opinions, and state statutes that contained the term public waters made such a change impossible. This issue was finally resolved in 1981, when the DNR adopted the term protected waters by amending the administrative rules governing permits to alter public waters regulated under Chapter 105.
Clarifying the Public Waters Definition.
The definition of public waters set forth in Chapter 105 was too ambiguous. A 1978 report by the Minnesota Legislative Audit Commission found that "the ambiguity in Minnesota Statute 105.38 frequently renders a conclusive determination whether a given basin is public waters very difficult." This ambiguity existed because the statute stated that public waters were "all waters of the state which serve a material beneficial public purpose." Minnesota Statute 105.36, Subdivision 6, defined "beneficial public purpose" as including, but not limited to, any or all of the following:
- Water supply for municipal, industrial, or agricultural purposes;
- Recharge of underground water strata;
- Retention of water to prevent or reduce downstream flooding, thereby minimizing erosion and resultant property damage;
- Entrapment and retention of nutrients and other materials which impair the quality of natural resources;
- Recreational activities such as swimming, boating, fishing, and hunting;
- Public navigation other than for recreational purposes;
- Wildlife habitat areas for the spawning, rearing, feeding, and nesting of wildlife; or
- Areas designated as scientific and natural areas.
The Legislative Audit Commission report noted that "it is still not easy to answer questions such as the following: How many waterfowl must a basin produce annually before its value as habitat is material? What amount of nutrients or potential pollutants must it entrap for that purpose to be served materially? How many hunters or campers must use it for its recreational purpose to be material?
The only realistic solution to this problem was for the legislature to define public waters in quantifiable terms. The 1979 revision of the Public Waters Inventory Program (Laws of Minnesota 1979, Chapter 199) finally corrected this problem by adopting the following definitions:
"Public waters" includes and shall be limited to the following waters of the state:
- All water basins assigned a shoreline management classification by the commissioner, except wetlands less than 80 acres in size which are classified as natural environment lakes;
- All waters of the state which have been finally determined to be public waters by a court of competent jurisdiction;
- All meandered lakes, except for those which have been legally drained;
- All water basins previously designated by the commissioner for management for a specific purpose such as trout lakes and game lakes;
- All water basins designated as scientific and natural areas;
- All water basins located within and totally surrounded by publicly owned lands;
- All water basins where the State of Minnesota or the federal government holds title to any of the beds or shores, unless the owner declares that the water is not necessary for the purposes of the public ownership;
- All water basins where there is publicly owned and controlled access which is intended to provide for public access to the water basin; and
- All natural and altered natural watercourses with a total drainage area greater than 2 square miles, except that trout streams officially designated by the commissioner shall be public waters regardless of the size of their drainage area.
For the purpose of statutes other than Chapter 105 (now 103G), the term public waters was intended to also include "wetlands," unless those statutes expressly stated otherwise. Wetlands that would receive protection similar to public waters were defined as:
"Public Waters Wetlands" includes, and shall be limited to types 3, 4, and 5 wetlands, as defined in U.S. Fish and Wildlife Service Circular No. 39 (1971 edition), not included within the definition of public waters, which are 10 or more acres in size in unincorporated areas or 2 1/2 or more acres in incorporated areas.
These definitions not only established objective criteria for identifying public waters but also, for the first time, gave specific statutory protection to many of Minnesota's wetlands.
Mandating the Inventory Process.
The 1976 public waters inventory process was not mandatory for any county and set no termination deadlines for either the counties or the DNR. In fact, there was at least one instance where a county refused to have anything to do with the inventory process. Under the 1976 statute, a county that did not wish to see public waters designated did not have to work with the DNR. Consequently, no public waters would be designated within that county. In addition, a seemingly cooperative county board could deadlock the inventory through perpetual discussion and negotiation. In one case, the DNR and a county agreed to hold a public hearing that was subsequently canceled (at the county's request) in order to resume negotiations. Without specific compliance or termination dates, a county or the DNR could indefinitely postpone a final public waters designation.
The 1979 amendment to Chapter 105 also corrected this problem. Under the amendment, the inventory was made mandatory for both the DNR and the 87 counties of Minnesota. A specific deadline was established for the DNR to complete the preparation of a statewide inventory (December 31, 1982), and a mandatory procedure for public review was adopted. The amendment established the following framework for completing the statewide public waters inventory:
- The DNR would prepare a list and a map for each county, describing those waters preliminarily determined to be public waters and wetlands and send them to the county board for review and comment. These "preliminary" maps and lists were prepared from historical data gathered by the department between 1975 and 1978.
- The county board conducted at least one public informational meeting regarding the preliminary designation and supervised a local review of the preliminary map and list. A grant of $1,746 was provided by the state to assist the county. After conducting the meetings and within 90 days after receiving the list and maps, the county board presented its recommendations to the commissioner, listing any waters where the board disagreed with the commissioner's preliminary designation and stating the reasons for disagreement.
- Within 30 days of receiving the county board's recommendations, the commissioner was required to review their recommendations and notify the board as to which recommendations he accepted and rejected and the reasons for his decision. Where the board's recommendations were accepted, the lists and maps were revised to reflect the changes.
- After the revision of the map and list or if no response was received from the county board within the 90-day review period, the commissioner filed the revised list and map with the recorder of each county, and submitted the list and map to be published in the official newspaper of the county. The published list and map included notice that any person or the county could challenge the designation of specific waters as public waters or wetlands or could request the designation of additional waters as public waters or wetlands by filing a petition for a hearing with the commissioner within 90 days following the date of publication. The petition had to identify which waters were disputed and state the reasons for disputing the designation.
- If any designations were disputed by petition, the commissioner ordered a public hearing to be held within the county within 60 days following the 90-day period, notice was published in the state register and the official newspaper of the county. The hearings were conducted by a three-member hearings unit composed of one person appointed by the affected county board, one person appointed by the commissioner, and one person from the board of the local soil and water conservation district.
- Within 60 days following completion of the hearing, the hearings unit was required to issue its findings of fact, conclusions, and an order.
- The commissioner, the county, or any person aggrieved by the decision of the hearings unit could appeal the hearings unit order within 30 days of receiving the order of the hearings unit.
These procedures were followed in every county. The DNR, as required by statutes, completed its portion of the inventory process by December 31, 1982. The last county hearing was held on June 19, 1984, and except for a few outstanding appeals, the inventory process has been completed.
Amending the Hearing Process.
Under the 1976 inventory procedure, the final public hearing was held by the Office of State Hearings Examiners. The average cost for such a hearing was about $4,000. The budget approved for the DNR only allowed $48,000 per year for public hearings. This meant that no matter how many counties were ready for public hearings, only 12 hearings could be held each year. At this pace, completing a statewide public waters inventory would take more than 7 years at a total cost of more than $348,000.
The 1976 hearing process also consumed a great deal of time. Under 1976 statutory requirements, it took a minimum of 6 months from the time the DNR and county agreed to hold a public hearing to the time the public waters designation became a legal document. Allowing for possible appeals, hearing extensions, and other unforeseen administrative problems, the average duration of the hearing process would likely be from 9 months to a year.
As pointed out earlier, the 1979 amendment corrected this problem by creating the three-member hearing panel. In addition, the 1979 legislature reappropriated $150,000 to be disbursed to the counties as a grant to defray their review and hearing expenses (each county received approximately $1,746). Specific time constraints were placed on the hearing panel's deliberations (see above), and final appeals were allowed to be taken directly to district court.
Addressing Public Concerns.
Finally, many landowners and rural legislators felt that the protection of these waters (via a state permit system) was a taking of their rights or property without compensation. The 1976 public waters inventory also included the establishment of a state Water Bank Program to address this issue. The Water Bank Program was only intended to compensate rural landowners who intended to drain wetlands for agricultural purposes. Under Minnesota Statutes, Section 105.492 (now defunct), a wetland qualifies for compensation if drainage is lawful, feasible, and practical and, if drained, the wetland would provide high-quality cropland.
In addition, the 1979 Minnesota Legislature enacted a system of wetland tax exemptions and credits to encourage wetland owners to maintain their natural wetlands (Laws of Minnesota, 1979, Chapter 303). Between the state Water Bank Program and the Wetlands Tax Exemption, the taking issue was successfully avoided.
Conducting the Inventory.
Actually conducting the inventory turned out to be a rather mechanical process. Paraprofessional staff would research available archive data (e.g., original Government Land Office surveys, historical aerial photography, U.S. Geological Survey topographic maps) and collect on-site inspection reports from various DNR field personnel (area wildlife managers and hydrologists). Professional staff would then direct the paraprofessional personnel in preparing preliminary maps and lists for each county using the statutory criteria for identifying public waters and wetlands (Minnesota Statutes, Chapter 105.37, Subdivision 14 and 15, now 103G.005, Subdivision 15 and 15a). At this point, the rigid agenda set forth in Minnesota Statutes Section 105.391 (now 103G) superseded, and after a 10- to 15-month period, a final (except for court appeals) inventory was delivered.
Recent Measures for Wetland Protection
In 1991 the Minnesota Legislature passed Chapter 354, the Wetlands Conservation Act, which created a "no-net loss" policy for wetlands. This was the first time wetland protection regulations were divided between two state agencies: the DNR and the Board of Soil and Water Resources (BWSR). The law provided for mitigation of drained or filled wetlands, allowed local units of government administrative authority, and authorized BWSR to adopt rules and acquire permanent easements for type 1, 2 and 3 wetlands. The law also changed the term DNR used for wetlands to public waters wetlands.
In 1993, the legislature passed Chapter 175, which allowed counties or watersheds that had 80 percent or more of the presettlement wetlands remaining to mitigate for draining or filling on a 1-to-1 acre basis. The law created a deminimis exemption of up to 400 square feet of wetland area. Also, BWSR adopted rules under the 1991 Wetland Conservation Act.
In 1994, the legislature passed Chapter 627, which allowed local governments some flexibility in adopting a comprehensive wetland management plan that could substitute for parts of the BWSR rule on wetlands. It also allowed existing roadways to be upgraded to current construction and safety standards if wetland impacts were minimized and less than 2 acres of wetland area was affected.
In 1996, the legislature passed Chapter 462, which amended the Wetland Conservation Act to provide a more streamlined notification process. Exemptions were reformatted for easier interpretation with expansion of exemptions covering agricultural land, individual sewage treatment systems, wildlife habitat improvement projects, drainage, and deminimis. The 1996 amendments provided that local governmental units may develop Local Comprehensive Wetland Protection and Management Plans as an alternative to the state rules with flexibility in the application of sequencing standards, replacement standards, and certain exemptions. Changes in 1996 also amended the requirements for public road project replacement, including the provision that the BWSR will replace wetlands drained or filled from the repair, reconstruction, or rehabilitation of existing local government public roads.
In 2000, the legislature passed Chapter 382 (Senate File 83) which amended parts of Minnesota Statutes 1998, section 103G in order to consolidate state wetland laws. The law was changed to maintain wetland protection to current standards, to better coordinate with federal wetland programs, and to simplify and make wetland regulation consistent for landowners. Specific details of the bill included the refinement of the Public Waters Inventory, established a consistent statewide definition of wetland, gave state conservation officers enforcement flexibility in pursuing Wetland Conservation Act and DNR violations, standardized wetland replacement/mitigation standards among state wetland agencies, and added an appeals process for landowners to challenge a wetland boundary or type determination.
In 2002, DNR Waters revised the Public Waters Work Permit Program rules (effective October 14, 2002). The initial version of these rules, adopted in 1978, was based on existing procedures developed by DNR Waters since the inception of the permit program in 1937. The rules were amended once before in 1983 due to concerns raised during the implementation of the Public Waters Inventory. In 2000, the Legislature enacted law changes that resulted in rule amendments for a two-year interim period.
The amendments to the DNR Public Waters Work Permit rules included two areas of change. Within the first area of changes, amendments were made to make permanent the interim rules adopted by the DNR in 2000, and to reflect legislative changes enacted since 1983. The changes included:
- 1990 legislation recodifying water law;
- adoption of public waters terminology to distinguish these waters from wetlands subject to passage of the 1991 Wetland Conservation Act;
- 1995 and 1996 legislation granting the DNR the authority to issue general permits;
- 1996 legislation addressing regulation of permanent lake level controls;
- 1997 legislation defining the DNR's authority to regulate boathouses;
- 2000 legislation addressing changes in enforcement authority, waiver of public waters wetland permit requirements, and addressing procedures for developing written agreements between the local government unit administering provisions of the wetland Conservation Act and the DNR;
- 2001 legislation authorizing the DNR to waive the requirement for a public waters work permit for public road projects affecting wetland areas of public waters to the local government unit administering the Wetland Conservation Act;
- technical changes making it clear that activities subject to aquatic plant management permits, water aeration system permits, watercraft and buoys, and water appropriation permits that are regulated under other statutes and rules do not require a separate public waters work permit; and
- definition changes, including defining marinas as commercial facilities; changing the ordinary high water terminology to make it consistent with DNR practices; and adding definitions on permits, projects, public water wetlands, and local government unit and projects consistent with language found in the Wetland Conservation Act rules.
The other broad area of changes included those initiated by the DNR under its ongoing statutory authority to adopt rules. These changes include language relating to:
- adoption of provisions to address the sequencing concepts of impact avoidance, minimization and compensation comparable to language found in the Wetland Conservation Act program rules;
- adoption of provisions to address when compensation for a major change in the public waters resource is necessary;
- replacing "protected vegetation" with a reference to the authority the DNR has to regulate the taking of threatened or endangered species;
- adoption of procedures that allow plans developed and adopted on a local basis that are approved by the commissioner to form the basis for public water work permit decisions;
- changes to exempt docks from permit requirements if the docks are in compliance with city or county zoning ordinances, and to clarify breakwater and mooring facility development criteria; and
- adoption of a new section in the rules to address natural resource restoration projects.