Minnesota Center for Environmental Advocacy 26 East Exchange Street Suite 206 Saint Paul, MN

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1 Minnesota Center for Environmental Advocacy 26 East Exchange Street Suite 206 Saint Paul, MN CONTACTS JUNE 9, 2017 Aaron Klemz Leigh Currie Mark Ten Eyck Communications Director Staff Attorney Program Director (763) (651) (612) DNR order removes protections from dozens of Minnesota public waters MCEA files appeal to protect downstream water users SAINT PAUL, MINNESOTA Today, Minnesota Center for Environmental Advocacy (MCEA) appealed an order of the Minnesota Department of Natural Resources (DNR) that removed public water protections from many miles of Minnesota streams and rivers. A DNR order 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. Because there was no public input, many public waters that should be protected would lose that protection if the DNR s order is implemented. MCEA appealed to reverse DNR s order and protect these public waters from being filled, drained, dammed or altered without a permit. 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 at MCEA. DNR s order, supposedly to correct mistakes, only made issues with the public waters map worse. Dozens of public waters that are not private ditches were erased incorrectly. Examples of rivers and streams that MCEA believes were mistakenly erased from the public waters map by the DNR s order include: An over 20 mile stretch of the Lost River near Oklee, Minnesota. Upstream of the deleted section, the river would remain a public water. Two tributaries of the deleted section of the Lost River would remain public waters, but the Lost River itself would no longer be a public water. Over 8 miles of Little Badger Creek and Badger Creek upstream of the Blue Earth River in Faribault County. An erased section of the creek flows through the Drinking Water Supply Management Area for Blue Earth, Minnesota. A 3.4 mile section of a creek that flows into the Cannon River in Rice County. The creek runs right behind the City of Faribault Public Works and for most of its length is within the Drinking Water Supply Management Area for Faribault. The Cannon River is already impaired by unacceptable levels of E. coli bacteria and low water clarity. Public waters provide benefits to the public. They are protected from being filled, drained, dammed or altered without a permit. Permits protect downstream users from being adversely impacted by actions upstream. If DNR s order is allowed to stand, these waterways could lose that protection.

2 DNR didn t do its homework before making this blanket decision, stated MCEA s Currie. In a rush to correct what they felt were errors, DNR compounded the problem. Now we are asking the court to require DNR to go back and do it right. Maps and other information about the waterways used as examples above are attached to this press release. The entire packet is available online at ABOUT THE ORGANIZATION The Minnesota Center for Environmental Advocacy is a nonprofit organization using law, science, and research to protect Minnesota's natural resources, wildlife and the health of its people. ( ###

3 FREQUENTLY ASKED QUESTIONS MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY PUBLIC WATERS APPEAL What is a public water? Minnesota law clearly defines public waters. That definition includes the waters that were improperly deleted by the DNR because they are natural and altered watercourses with a total drainage area greater than two square miles. Minn. Stat. 103G.005, subd. 15 (a)(9) (2016). How does Minnesota law protect public waters? Minnesota law requires that any work that change[s] or diminish[es] the course, current or cross section of public waters by any means, including filling, excavating, or placing of materials in or on the beds of public waters requires a public-waters-work permit. See Minn. Stat. 103G.245, subd. 1(2) (2016). A permit may be issued only if the project will involve a minimum encroachment, change, or damage to the environment, particularly the ecology of the waterway See Minn. Stat. 103G.245, subd. 7(a) (2016). Does deleting a waterway from the public waters map remove these protections? Yes. DNR s regulations apply only to waters identified on public water inventory maps. Minn. R Therefore, if a waterway is deleted from the public waters map because the DNR says it was added in error, it would no longer be a public water and protected under Minnesota law. Even if a waterway was somehow still entitled to protection, nobody would know because it would not be identified as a public water on the map or the inventory. Weren t some of these waterways private ditches and therefore they were properly deleted? Unknown. DNR has provided no evidence showing that any of the waters it removed from the inventory are not, in fact, public waters as defined by the Legislature in statute. As the DNR order notes traditionally [t]he DNR addresses requests to correct errors in the original inventory on a case-by-case basis. It did not do so in this case and we therefore have no specific information about the individual watercourses removed. Doesn t the DNR have the ability to correct errors in the public waters maps? Yes, DNR has authority to remove public waters from the inventory if it is shown that they did not meet the definition of a public water at the time the inventory was developed. By failing to examine the deleted public waters on a case-by-case basis, the DNR is committing additional errors.

4 EXAMPLES OF DELISTED PUBLIC WATERS MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY PUBLIC WATERS APPEAL LOST RIVER NEAR OKLEE, MN RED LAKE COUNTY An over 20 mile section of the Lost River would be removed as a public water if the DNR order is implemented. The DNR's order creates several obvious contradictions. First, the Lost River would continue to be a public water upstream of this section but would be removed from near Oklee to the confluence with Clearwater River. Also, two tributaries (Hill and Poplar Rivers) that enter the Lost River along this stretch would continue to be public waters. The water from the Lost River flows into the Clearwater River, which is impaired for turbidity (low water clarity) and mercury in fish. BADGER AND LITTLE BADGER CREEKS NEAR BLUE EARTH, MN FARIBAULT COUNTY Over 8 miles of Badger and Little Badger Creeks in Faribault County would no longer be public waters if the DNR order is upheld. The lower portion of Badger Creek flows through the Drinking Water Supply Management Area for Blue Earth, MN. Sections of these creeks are altered in portions but many sections flow naturally. The water from Badger Creek flows into the Blue Earth River which is impaired because of low water clarity and mercury in fish. UNNAMED TRIBUTARY OF THE CANNON RIVER NEAR FARIBAULT, MN RICE COUNTY The DNR order removes an unnamed tributary of the Cannon River that flows 3.4 miles from Roberds Lake to Wells Lake from the public waters map. The creek is mostly heavily wooded and there are several wetlands along stretch. The creek is mostly unaltered except near some fields and where it runs by Highway 35. The creek runs right behind Faribault Public Works and for most of its length is within the Drinking Water Supply Management Area for Faribault.

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