Summary of a Recent
Judicial Development in
Environmental Law

Landowners Not Entitled to Exemption from Wetland Replacement Requirement

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Hentges v. Minnesota Board of Water and Soil Resources, 638 N.W.2d 441 (Minn. Ct. App. 2002), the Minnesota Court of Appeals affirmed the decision of the Board of Water and Soil Resources ("Board"), which had affirmed the watershed district's denial of the landowners' petition for exemption from the wetland replacement requirement. Landowners challenged the Board's affirmance. The instant court held that Board was within its statutory authority in adopting a state rule limiting federal exemption from the wetlands replacement requirement for certain non-prohibited activities, and the Board properly applied the wetlands replacement rule to ditch maintenance.

Background

In the late 1950s, the Minnesota Department of Transportation installed a culvert in Anoka County Ditch No. 53-62, located at I-35W in the Rice Creek Watershed District. Id. at 443-44. Landowners, who owned land located near the ditch, alleged that the ditch culverts "caused water to overflow and to flood their lands." Id. at 444. Over time, the water level in the culvert rose as a result of natural forces including the buildup of sediment. Id. The landowners requested that the water level be lowered and the sediment removed, which would partially drain wetlands that had built up over the previous 25 years. Id. Minnesota state law requires "that partially drained wetlands be replaced, unless the work that caused the drainage is exempt from the replacement requirement." Id. The landowners requested an exemption from the watershed district. Id. The watershed district denied their request, and the Board affirmed. Id. The landowners then sought a writ of certiorari from the instant court. Id.

Arguments

On appeal, the landowners challenged: "the authority, propriety, and constitutionality of the Board's rule; the propriety of dividing the exemption process into two phases; and the propriety of participation by civic and environmental-advocacy groups in the appeal to the Board and in this appeal." Id.

Analysis and Holdings

Minnesota law does not allow wetlands to be drained unless they are replaced by other wetlands of greater or equal value. Id. One federal exception to the state law is for maintaining "currently serviceable structures," 33 U.S.C. § 1344(f)(1)(B) (1994). Id. at 445. However, the federal exemption is qualified by a state rule requiring proof of eligibility and providing that "the exemption is not applicable to any project that will partly drain a wetland." Id. Additionally, the local government unit in authority may authorize an exemption only "if the landowner furnishes proof of qualification for one of the exemptions from the United States Army Corps of Engineers." Id.

The landowners obtained proof of qualification for the federal exemption from the United States Army Corps of Engineers; however, the Board denied the exemption based on Minnesota's additional qualifications. Id. In response, the landowners claimed that the Board "exceeded its statutory authority in adopting" the additional qualifications, Minn. R. 8420.0122, subp. 3A. Id. The instant court disagreed with the landowners' argument, stating that "[a]lthough there [was] some ambiguity in how the federal approvals exemption [was] to be applied, [the landowners'] interpretation seem[ed] clearly at odds with both the express language of the statutes and the state's policy of achieving no net loss of wetlands." Id. at 445-46. Therefore, the court concluded, "the Board did not exceed its statutory authority in adopting [the qualification]." Id. at 446.

The court then addressed the landowners' contention that the Board misapplied the statute. Id. The landowners argued that the court should follow the law set forth in United States v. Sargent County Water Resource District, 876 F. Supp. 1090 (D.N.D.1994), a case where dredge and fill activities were exempted from the wetlands replacement requirement. Id. The landowners claimed that, as in Sargent, the focus of their request was strictly the maintenance of the ditch system, and therefore, it was also exempt from the requirement. Id. The court disagreed, holding that "the exemption ha[d] a focus different from what apparently [would] be done in th[e] ditch work and because of the unassailable conclusion that the legislature intend[ed] that there be no net loss of Minnesota wetlands"; therefore, the court was "not persuaded that the Board misapplied the law in denying the exemption." Id.

The case was decided on January 4, 2002.