ELR Citation: ELR 20947
No(s). C5-86-332 (Minn. Dec 24, 1987)

The court holds that Minnesota's wetland's mapping and inventory statute does not violate due process and that the statute's reservation of existing water rights does not allow a permit applicant to enlarge or rebuild a private drainage ditch and drain a protected wetland on his property. The applicant had applied for a permit to excavate existing drainage ditches on his farm. The permit was denied on the grounds that the excavation would substantially drain a protected wetland. The court first holds that the provision for published notice of the inventory and mapping, rather than personal notice, is constitutional on its face. The statute provides adequate procedural safeguards such as review by the county, informational meetings, review and comment period, publication in newspapers, and public hearings. The court holds that this permit applicant's due process rights were not violated. Notice by publication is adequate where neither the applicant's ownership interests or public access to his wetlands is affected, and his property right is not in jeopardy of being lost. The court then holds that the statute's reservation of existing riparian rights does not allow the applicant to enlarge or rebuild private drainage ditches and drain a protected wetland. The proposed drainage project does not qualify as an existing riparian right, since the applicant does not plan to use and enjoy the water but rather drain it. The drainage of the wetland would also cause a loss of significant wildlife habitat and aggravate water quality problems at a nearby lake. Finally, the wetland is not protected under the nonconforming use doctrine, since no maintenance has been done on the ditches since their construction in 1914.

Counsel for Appellant
Gregory A. Fontaine
Dorsey & Whitney
2200 First Bank Place East, Minneapolis MN 55402
(612) 340-2600

Counsel for Respondent
Gail I. Lewellan
Office of the Attorney General
102 State Capitol, St. Paul MN 55155
(612) 296-6196

Affirmed.

KELLEY and POPOVICH, JJ., took no part in the consideration or decision of this case.