Court decision affirming Limbo Creek is not a ditch could affect waterways across Minnesota

A creek winding through the fields in Renville County is a public water, not a ditch, and the Minnesota Court of Appeals says the county must evaluate the environmental impacts of a proposed drainage project that farmers want.

Renville County commissioners erred when they decided that Limbo Creek is not a public water because the stream's upper reaches aren't on the state's official public waters inventory, Court of Appeals Judge Tracy Smith wrote for the court.

The state Department of Natural Resources (DNR) repeatedly advised the county that Limbo Creek meets the statutory definition of a public water and so any work on it requires completing an environmental assessment worksheet, Smith wrote. For purposes of an environmental review, the public waters inventory "does not dictate" whether a water is public or not, she wrote.

The decision, released Monday, is a victory for the Minnesota Center for Environmental Advocacy, which challenged the county's decision not to do an environmental review.

It could also influence the fate of other river and creek segments scattered around the state that were accidentally marked as ditches on public waters inventory maps years ago. The mistake affects some 500 waterways, and is something the DNR has been seeking to correct.

Elise Larson, a lawyer at the Minnesota Center for Environmental Advocacy, said the appellate decision makes it clear that if a waterway meets the definition of public waterway, then it can't be dredged, drained, ditched or dammed without evaluating the impact and getting a permit from the DNR.

"Really this case is just asking the county to do what any other person who deals with public waters has to do," Larson said.

The DNR and Renville County have sued each other over the Limbo Creek matter in Renville County District Court. That litigation, which has been on hold, is separate from the appeals court decision, but could be influenced by it.

The DNR did not immediately respond to a request for comment Monday.

Limbo Creek is one of the last largely unaltered waterways in heavily farmed Renville County. It empties into the Minnesota River, which the state has struggled unsuccessfully for many decades to clean up. Like many other tributaries, the creek carries sediment and farm chemicals into the Minnesota River, along with growing volumes of water flowing off fields that farmers have tiled for drainage, leading to erosion.

The Minnesota River is a major source of pollutants in the Mississippi River.

Olivia City Council Member Tom Kalahar, a retired Renville County Soil and Water Conservation District technician, applauded the decision. He said the case pulls back the curtain on little-watched agricultural drainage decisions, which he sees as crucial to protecting water quality in the state.

"Without a change in the water drainage rules we don't have prayer of saving the Minnesota River," Kalahar said.

Kalahar said he thinks an environmental review will show that the ditch project in Limbo Creek's upper reaches will do even more harm to the endangered Minnesota River.

He also said the decision will send a message to other drainage authorities in the state.

"I think it's going to be really hard for drainage authorities … just to have their way like they've always had," he said. "I think it's going to embolden other folks to say 'Hey, enough is enough.' "

Gerald Von Korff, a lawyer for the Renville County Board, said they must decide whether to seek Supreme Court review.

He said the decision undermines the importance of Minnesota's public waters inventory.

"I think that will be troubling to the county and probably a number of other folks," Von Korff said.

This latest collision over the creek began when a group of farmers and landowners petitioned the county in 2016 for a $700,000 project to improve drainage on the marshy upper reaches of Limbo Creek.

Sacred Heart farmer Paul Lanning, one of the petitioners, called the new decision a disappointment.

"It just means we're going to have more standing water," Lanning said. "Our fields aren't going to dry out like they should because that end of the crick is blocked up."