6-2000-10236-2

1. What is the ordinary high water level (OHWL) of the portion of unnamed Wetland 29-320W, located in the Northeast 1/4 of Section 28, Township 139 North, Range 32 West along Lateral Number 3 of Judicial Ditch 1 in Hubbard County?

2. Does the Applicant need a permit to place fill along the ditch spoil berm of Lateral Number 3 of Judicial Ditch 1 which runs through his property in Section 28, Township 139 North, Range 32 West in Hubbard County to create a roadway to three wildlife ponds on Applicant’s property in Wetland 29-320W which were previously approved by the DNR for construction?

3. Was DNR’s denial of a permit to perform work along the ditch spoil berm located on his property in the vicinity of Lateral Number 3 of Judicial Ditch 1 supported by the evidence?

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Background

1. A large complex of public waters, wetlands, and low-lying uplands, known as the Badoura Bog, covers approximately 4,000 acres in Hubbard County. Part of the bog is within the Badoura State Forest and part of the land is privately-owned. The Applicant owns a parcel of land within the bog including 160 acres in the NE 1/4 of Section 28, Township 139 North, Range 32 West. The Applicant purchased the property in 1992. Exhibit B. The earliest indications of the topography of the land at issue in this proceeding, dating from 1860, show upland areas surrounded by marshes with tamarack trees growing though most of the area. Exhibits M and N.

2. On February 4, 1919, a group of landowners in Hubbard County petitioned the Hubbard County District Court to establish a judicial ditch system through substantial portions of the Badoura Bog, including the property now owned by the Applicant. Exhibit E. The stated purpose of the ditch system was to drain the land making it suitable for agricultural purposes and to dry the land for construction of a public highway. Id. The authority to construct the ditch system was granted by the Hubbard County District Court in an Order dated August 27, 1920. Exhibit F. The ditch system ordered by the court consisted of a ditch (Judicial Ditch 1) which runs North/South along what is now Trunk Highway 64; and two laterals, Lateral Number 2 which runs East/West on the east side of Trunk Highway 64, and Lateral Number 3 which runs West/East on the west side of Trunk Highway 64 (hereinafter “Highway 64”). Each landowner benefiting from the drainage was assessed for the cost of construction. Id. The ditch lien assessed against the Applicant’s property was released upon full payment of the assessed amount on April 21, 1952. Exhibit H.

3. Lateral Number 3 runs through the Applicant’s land in Section 28, Township 139 North, Range 32 West. The ditch spoil excavated from the lateral forms a berm on the south side of the lateral. The ditch extends, to the extent relevant to this matter, directly west from Highway 64 for approximately 400 feet and then southwest for another 1000 feet. Exhibit 16. From there, the lateral runs northwest through Section 21 for approximately another 2500 feet. Exhibit 9. A gravel road runs along the south side of Lateral Number 3 westerly from Highway 64 for approximately 450 feet. Exhibit 13. After the gravel road ends, the berm consists of mounded soil covered with vegetation. The only significant topographical features along the lateral are uplands to the north (hereinafter “North Upland”) and to the south (hereinafter “South Upland”). The North Upland comes within fifty feet of the lateral at the 1000-foot mark. The South Upland begins at the point where the lateral turns to the northwest (approximately 1400 feet from the easternmost end of the lateral).

4. Judicial Ditch 1 is located immediately east of Highway 64. The flow of water in Judicial Ditch 1 is from north to south. Exhibit A; Transcript, at 556. Highway 64 was built along the spoil line of Judicial Ditch 1. Exhibit I. Lateral Number 3 connects to Judicial Ditch 1 by a culvert under Highway 64. Exhibit 24A. The overall plan for the judicial ditch system shows the westernmost point of Lateral Number 3 at position 42x21. Exhibit J. The plan for Lateral Number 3 also shows the highest elevation within the lateral to be at position 42x21. Id. The direction of flow in Lateral Number 3, when not obstructed, is from west to east under Highway 64 into Judicial Ditch 1. Exhibit A; Transcript, at 556. Another lateral, Lateral Number 2, runs into Judicial Ditch 1 at the same connecting location from the west.. Exhibit 24A. The direction of flow in Lateral Number 2 on the east of Highway 64 is from east to west into Judicial Ditch 1. Exhibit A; Transcript, a 556.

5. An aerial photograph taken on August 17, 1939, shows most of the area around Lateral Number 3 (from the most westerly point to Highway 64) under cultivation. Exhibit 28 and Exhibit Z, Figure 6; Transcript, at 525. The lateral is clearly visible and appears to connect at its westernmost end to another ditch extending northeast into a wetland area in the center of Section 21. Id. The property in that area also shows signs of cultivation. Also visible from photographs of that location is a structure at the end of an unimproved road. This property in the center of section 21 is privately owned. Exhibit A (noting the owner as of 1988 as Mason Bates). The contours of all significant land features are clearly visible. The stain lines of a large body of water (informally known as Oelsuhalger Slough) directly west from Lateral Number 3 indicate that the aerial photograph was taken during a dry period. Id. Signs of cultivation are present in Oelsuhalger Slough within its northwestern end. Id. Significant numbers of trees are present between the westernmost point of Lateral Number 3 and the stain lines of Oelsuhalger Slough. Id. The nearest precipitation data collection station that has enough records to get 30-year normalized and long-term data is Park Rapids, Minnesota. That data indicates that 1939 was a dry year, with 20.96 inches of rain. The 30-year normal is 26.32 inches. Transcript, at 525.

6. An aerial photograph taken on July 9, 1955, shows the area around Lateral Number 3. Exhibit Z, Figure 7; Exhibit 29. The photograph shows the lateral containing water, with more water nearer the connection with Judicial Ditch 1. The lateral appears dry at its westernmost end. Oelsuhalger Slough shows more evidence of water closer to the stain line than in the 1939 photograph, but the water level is below the stain line. There is no standing water in the areas north or south of Lateral Number 3 and no evidence of aquatic vegetation. Judicial Ditch Number 1 has standing water where Laterals 2 and 3 join it and for some distance north of the connection. Judicial Ditch 1 is completely dry within one mile south of the connection. Id. Rainfall data for 1955 was close to normal at 26.20 inches. Transcript, pg. 527.

7. The area around lateral Number 3 experienced an extensive fire in 1959. Transcript, at 739. This fire was set by forestry personnel to remove woody vegetation and establish the area for grassland to be used as wildlife habitat. Id.

8. In 1976, a fire destroyed all of the existing trees in the immediate area of Lateral Number 3. The Applicant walked the land to survey the damage and noted that the fire had burned the organic matter in the soils to the extent that many of the trees died and fell soon after the fire. Transcript, at 382-384. None of the surviving trees were in the vicinity of Lateral Number 3. Id. at 385.

9. In 1984, most of the area known as the “Bedoura Bog” was included in the Public Waters Inventory (PWI) by the Hubbard County Hearings Unit. It was described as “unnamed water basin number 29-320W” Exhibit D. The location of the included land was noted at sections “various,” T138; 139, R31;32. Id., at 3. The Findings of Fact including the land in the PWI noted that “Ownership of the land is primarily state and county.” Id., at 3. The Hubbard County Hearings Unit also made the following additional findings about this parcel:

No definable banks. Private land ownership should not be included within the protected water basin. It would be economically feasible for the private lands to be developed for agriculture. *The area should be changed from a basin (P) to a wetland (W).

Exhibit D, at 3.

The unnamed Wetland 29-320W was included in the final inventory of protected waters and wetlands on August 5, 1985. Exhibit 14.

10. Rob Naplin, Area Wildlife Manager for the DNR, visited the property in April, 1986, while conducting a wildlife survey. Naplin recalled walking through water for most of the length of the berm to reach the South Upland. Transcript, at 319-322. He believed that the water was about two feet deep near the South Upland. Id. at 322. The vegetation observed was cattail, fragmities, and “some scattered willow.” Id. In the years after that visit, Naplin has observed the water level on the property change from “two to even three feet difference.” Id. at 338.

11. An aerial photograph taken on May 4, 1987, shows the infrared image of the area around Lateral Number 3. Exhibit 20. Oelsuhalger Slough shows water up to the stain line on its banks. Water is present all along Lateral Number 3. No water is present in the area immediately southwest of the westernmost end of Lateral Number 3. A small amount of open water appears approximately six hundred feet west of Highway 64, approximately two hundred feet north of the lateral. There is no open water visible to the south of the lateral between the South Upland and Highway 64.

12. An aerial photograph taken on June 9, 1988, shows the area around Lateral Number 3. Exhibit 30. The photograph shows water in both Lateral Numbers 2 and 3, Judicial Ditch 1, and all other bodies of water identified in the area. The land immediately north and south of Lateral Number 3 shows evidence of saturated soils and aquatic vegetation, but no standing water in the immediate vicinity. The area immediately southwest of the westernmost end of Lateral Number 3 shows evidence of water, but not in any great quantity. There is no indication that water is moving from Lateral Number 3 toward Oelsuhalger Slough. The photograph shows Oelsuhager Slough containing open water to the pre-1939 stain lines established on its banks. As it moves to the northeast, the Slough becomes shallower as it approaches the Badoura State Nursery. Exhibit 30. These characteristics are identical to those shown on the U.S. Department of the Interior Geological Survey (USGS) map of the area. Exhibit 9.

13. On October 31, 1994, Quade applied for a permit from the DNR to construct three wildlife ponds, each one-half acre in size on his property in the Northeast 1/4 of Section 28 in the vicinity of Lateral Number 3. Exhibit 4. Quade later clarified that he would reconstruct the ditch spoil berm along the south side of Lateral Number 3 to provide access for the dredging equipment and to allow access to the ponds and the South Upland. Exhibit 5. As part of the permit process, Naplin; Shelly Hanson, Hubbard County Wetland Coordinator; and Leo Grabowski of the US Corps of Engineers visited the project site on November 29, 1994. Exhibit 21. Naplin and Quade visited the site together on November 15 and 21, 1994. Id. Naplin concluded that:

We did, however, determine Mr. Quade’s proposal to clean out the existing ditch and deposit the spoil on the remnant ridge would constitute fill in a wetland and be creating a road to an island. I recommend denial of this portion of his application.

Exhibit 21.

14. On February 23, 1995, John Scherek, Survey Crew Supervisor for the DNR, made a hydrographic survey of the wetland area around Lateral Number 3. An OHWL of 1401.9 mean sea level (MSL) was calculated by Scherek using the elevations of trees in the vicinity of the lateral. Exhibit 11. Following the methodology in the DNR’s Guidelines for Ordinary High Water Level (OHWL) Determinations, the diameter of four tree trunks at breast height was measured, and the ground elevation at the base of each tree was reduced by half the diameter, due to the water tolerant nature of the chosen tree species. Exhibit 8, at 3-4. Scherek measured seven aspen trees, all to the northern side of the lateral, and rejected three of the highest tree elevations. Exhibit 11 and Transcript, at 43-45. The trees farthest west and south were located on the Northern Upland at about 1,200 feet west of Highway 64. Exhibit 13 and Transcript, at 57, 72-74. The level of the ice encountered in the wetland was noted as 1401.05 MSL. Exhibit 11 and Transcript, at 88. The ice surface level in the lateral was observed to be 1400.7 MSL Exhibit 11. There was some ice observed outside the lateral’s banks. Transcript, at 82.

15. Scherek’s notes indicate that “most of old spoil appears to be on N. side of ditch and is low and ill defined.” Exhibit 10, at 3. In the Hydrographic Survey Report, Scherek noted that “the above elevations are specific to this site.” and that “site specific O.H.W. determinations are the only reasonable approach to dealing with permit matters pertaining to this protected basin.” Exhibit 11. This conclusion was based on the differences in elevations throughout the Badoura Bog. Id. However, Scherek did not shoot elevations in areas of the Badoura Bog outside the general project site.

16. Based on the survey evidence, on June 14, 1995, the DNR granted a limited permit to Quade, allowing him to dredge the wildlife ponds, but prohibiting him from depositing spoil on the ditch spoil berm to construct a roadway or pathway or to improve access to the ponds and the South Upland. Exhibit 6. The prohibition was based upon the DNR’s conclusion that nearly the entire “pathway” to the South Upland was below the OHWL of the wetland, and “there is no question that the island (South Upland) is truly an island, and not a peninsula”. Id Accordingly, the DNR determined that the proposal would violate Minn. Rule 6115.0190, subpart 3.F. Id. Quade requested an appeal of the decision on July 7, 1995, claiming the project site is not a wetland , due to the lawful drainage of the area by the construction of Judicial Ditch 1 and Lateral Number 3; and, even if it is a wetland, the “pathway” is not below the OHWL because the water level is artificially high due to existing beaver dams and obstructions in the outlet culverts. Exhibit 7.

17. On July 25, 1995, Kirk English, Area Hydrologist for the DNR and Gerald Paul, Regional Hydrologist for the DNR, visited the property to determine if the South Upland is an island. The observed water level was 0.9 feet below 1401.9, the OHWL determined by Scherek. Exhibit 18. At the narrowest point of the berm, there was standing water on both sides of the berm. Id. The physical condition of the area was hard to observe due to the growth of vegetation all over the berm area. Transcript, at 225. At one point along the trail, English broke through into water up to his knees. The dense vegetation made it impossible to tell whether the berm had broken down or whether he had stepped off of the berm. Transcript, at 224. Paul concluded that the South Upland is an island and recommended that Quade’s application be denied as prohibited by DNR rules. Id.

18. On November 15 and 16, 1995, Scherek made a topographic survey of the project site in the area around Lateral Number 3, beginning from the midpoint of Highway 64 and going west along the gravel road and berm. Scherek determined that the top of Highway 64 was at an elevation of 1404.4 MSL. Exhibit 13. The gravel road was at an elevation of approximately 1403.5 MSL along its entire length. A Minnesota Department of Transportation (MnDOT) marker on the north side of the gravel road halfway along its length indicates that the elevation is 1403.3 MSL. Exhibits 13, 16, and X-2. The survey shows the elevation of the berm ranging from a high point of 1402.4 MSL to a low point of 1400.8 MSL. Exhibit 13.

19. During the survey, two cross-sections of the ditch were taken. The first cross-section taken, at 650 feet west of Highway 64, shows a ditch depth of 1397.7 MSL, a northern bank elevation of approximately 1399.2 MSL, and berm elevation of 1401.7 MSL. Exhibit 13 (Section A-A). The second cross-section taken, at approximately 1,100 feet from Highway 64, shows a ditch bottom of 1397.8 MSL, a northern bank level between 1400.1 and 1400.6 MSL, and berm elevation of 1402.1 MSL. Id. (Section B-B). The survey shows Lateral Number 3 running from 1300 feet west of Highway 64 to 450 feet west of Highway 64. Id. The survey does not show the lateral continuing to Highway 64. Two contour lines are present on the survey which show the elevation of the ground through which the lateral must pass at 1400 and 1401 MSL. Id.

20. At the time the topographic survey was conducted, the lateral was covered with ice. Scherek measured the water surface level by chopping holes in the ice, allowing the water to reach equilibrium inside the hole, and then determining the level of the water surface. Transcript, at 87. The surface water level determined was 1401.05 MSL. Id. at 88, Exhibit 13. Scherek did not notice any direction of flow in the water when he opened the holes. Transcript at 88. He did not look for any obstructions in the lateral or at the outlet. No outlet elevations were determined, either at the northwest end of the lateral or where the lateral joins Judicial Ditch 1. Transcript at 91-94.

21. There is a culvert under Highway 64 which, if not obstructed, would drain water which flows from Lateral Number 3 easterly into Judicial Ditch 1. Rocks, four to eight inches in diameter, have been placed in the culvert. There is also sand and gravel over the rocks. In front of the rocks are oiled boards approximately three inches thick which have been placed vertically. To hold the boards in place, someone has driven two fencing stakes in front of the planks to hold them in place. There is no flow from west to east under Highway 64. There is a second culvert which is also filled and blocked. These obstructions are manmade.

22. The Applicant, in an effort to determine who placed the obstructions in the culvert, consulted with the Department of Transportation in Bemidji. A MnDot official informed the Applicant that MnDot was aware of the obstructions, and it was likely that the obstructions were placed there by MnDot personnel to prevent washout of Highway 64 at that location. Since the spring of 1995, Quade has repeatedly asked the MnDOT to remove the obstructions in the culvert. Transcript, at 390. A crew from MnDOT visited the site and issued a report on the condition there. The report states:

Here’s a sample of the “Badoura Bridge” Looks like a 24” cmp take the Boards away and at a minimum you’ll loose [sic] those (Big) 8” shoulder & part of the mat. (East side is rotting away) - take the rocks out of the pipe ends so water runs thru [sic] the pipe and the road will washout. that pipe has more holes in it than a screen door! top of pipe is 4.0’ below Bit surface.

Exhibit 26.

23. On July 13, 1996, Ken Donaghue, Land Management Supervisor for MnDOT, responded to Quade’s request as follows:

Observations indicate a badly deteriorated metal culvert with the water flow obstructed by the installation of wooden planking at the culvert ends. The opinion is that the removal of the wooden planking could create possible erosion problems and damage to the shoulders and roadway.

This highway section is scheduled for major construction in 1998. It is not in the best interest of the District to proceed with the drainage maintenance requests outlined in your letter dated July 10, 1996 at this time. However, your concerns will be given consideration in the development of the road construction plans.

Exhibit C.

24. In early September, 1996, Paul visited the project site to refresh his memory of the area in preparation for the hearing. On that visit, conditions were much drier, and Paul was able to traverse the entire length of the berm to the South Upland. Transcript, at 231-233. Paul was able to walk entirely through the South Upland area and returned through the area south of the berm to Highway 64. The only water seen at this time was in occasional puddles. Id. at 233. The lateral was dry. Id. Paul’s opinion that the South Upland is an island remained unchanged due to the saturation of soils in areas south of the berm. Id. at 234.

25. Paul did not observe any flowage of water in the lateral in either of his visits. Based solely on the contours of maps of the area, Paul concluded that water in the lateral flowed from east to west, away from Highway 64. Transcript, at 273 Paul opined that the current situation is similar to what was present prior to the lateral being created. Id. at 274. Paul never examined the culvert under Highway 64 connecting Lateral Number 3 with Judicial Ditch 1. Id. at 278. He has seen the area from Highway 64 in the spring when there was water on both sides of the Highway, that is, in the lateral to the west and in the judicial ditch to the east . Id. at 280.

26. On October 11, 1996, Naplin took sample cores of three trees in the approximate location of the easternmost trees used by Scherek to determine the OHWL. Transcript, at 741 (location denoted by T 1 and 2. marked on Exhibit 13). The cores taken from those trees indicate that the trees were between 28 and 34 years of age. Naplin noted that smaller, younger aspen were growing toward lower elevations. Transcript, at 747.

27. There was visible evidence of beaver activity within the bounds of Lateral Number 3 during the site inspection on November 6, 1996. Transcript, at 732, 734-36. The only standing water on the site was contained within the lateral, and approximately one foot below the string measurement made by Quade. Id. at 733.. The trees used by Scherek to determine the OHWL of Wetland 29-320W could not be identified. Id. at 732-35. Some of the trees used to determine the OHWL were not within Quade’s property boundaries. Id. at 735.

28. A Notice of and Order for Hearing was issued in this matter on August 25, 1995. Exhibit 1. The Notice was published in the EQB Monitor on September 11, 1995. Exhibit 2. The Notice was published in the Park Rapids Enterprise on September 2 and 9, 1995. Exhibit 3.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge and the Commissioner of Natural Resources have jurisdiction over the permit application herein pursuant to Minn. Stat. §§ 14.50, 103 G.311, and 103 G.315.

2. All relevant substantive and procedural requirements of law and rule have been fulfilled and therefore, the matter is properly before the Administrative Law Judge.

3. Unnamed Basin 29-320W has been designated as a public wetland under Minn. Stat. § 105.37, subd. 14. It has been preliminarily designated as a wetland under the Public Waters Inventory process (PWI) since October 6, 1984, and officially designated since August 5, 1985. (Exhibit 14.)

4. The DNR has not proved by a preponderance of the evidence that the ordinary high water level (OHWL) of Wetland 29-320W in the Northeast 1/4 of Section 28, Township 139 North, Range 32 West in the vicinity of Lateral Number 3 of Judicial Ditch 1 is 1401.9 MSL within the meaning of Minn. Stat. § 103G.005, subd. 14(1) and 2.

5. The OHWL of Wetland 29-320W in the Northeast 1/4 of Section 28, Township 139 North, Range 32 West in the vicinity of Lateral Number 3 of Judicial Ditch 1 is below 1400 MSL.

6. The DNR lacks jurisdiction to require a permit for the deposition of soil along the existing ditch spoil berm of Lateral Number 3 at or above the 1400 MSL elevation. The elevation shown by the topographical survey along the entire length and width of the Applicant’s proposed project is at or above the 1400 MSL elevation.

7. Any of the foregoing Findings of Fact more appropriately considered Conclusions of Law are hereby adopted as such.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED that the Commissioner of Natural Resources take no action to prevent the Applicant from depositing soil along the existing ditch spoil berm of Lateral Number 3 as described in the Application of Stephen L Quade, provided the fill activities do not occur below the 1400 MSL elevation along the pathway shown on the DNR’s topographical survey of the area.

Dated this ______ of March, 1997.

PHYLLIS A. REHA

Administrative Law Judge

Reported: Kirby A. Kennedy & Associates

Transcript, Five Volumes.

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the Department is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

MEMORANDUM

Quade has argued that Wetland 29-320W should not be considered a public wetland subject to the DNR’s jurisdiction. He has cited tax records and exhaustively cataloged the wetland types present on the property (predominantly types 3 and 6) to demonstrate that his land is not properly included in the public waters inventory for Hubbard County. Exhibit Z, Figure 2. These issues were addressed in the Order on Summary Disposition in this cases issued by the Administrative Law Judge on March 14, 1996 (reconsideration denied, June 3, 1996). While the inventory description of Wetland 29-320W was somewhat ambiguous, the time period for challenging the inclusion of Wetland 29-320W in the PWI has long expired.

While the DNR has jurisdiction over Wetland 29-320W, that jurisdiction is limited by the OHWL of the wetland. As defined in Minn. Stat. § 103G.005, subd. 14(1) and (2), OHWL is defined as:

(1) . . . [A]n elevation delineating the highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape, commonly the point where the natural vegetation changes from predominantly aquatic to predominantly terrestrial;

(2) for watercourses, the ordinary high water level is the elevation of the top of the bank of the channel.

The effect of having a judicial ditch through property designated as a wetland has been analyzed in several cases. Where a ditch has failed to function, restoring the ditch can be subject to the permit requirements of the DNR. In re Application of Christenson, 417 N.W.2d 607, 615 (Minn.1987). See also In the Matter of a Culvert Cleanout of Protected Basin 34-407P Located in the Southwest Quarter of Section 11, Township 120 North, Range 35 West, by Kandiyohi County, OAH Docket No. 9-2000-4768-2 (Recommendation issued on October 15, 1990); Commissioner’s Order (February 13, 1991); Affirmed, 1991 WL 180041 (Unpublished Opinion) (Minn. App. 1991).

The interrelation of a county judicial ditch system and the varying authorities with jurisdiction was analyzed in 1996 Court of Appeals decision which states:

The Minnesota Supreme Court has stated that

Once a ditch system is established, the order creating it constitutes a judgment in rem. * * * Thereafter, every owner of land who has recovered damages or been assessed for benefits has a property right in the maintenance of the ditch in the same condition as it was when originally established.

Fischer v. Town of Albin, 258 Minn. 154, 156, 104 N.W.2d 32, 34 (Minn.1960) (quoting Petition of Jacobson v. Kandiyohi County, 234 Minn. 296, 299, 48 N.W.2d 441, 444 (1951)). Thus, the landowners have a right to have the ditch maintained, and it is the county that must undertake the maintenance. However, as a political subdivision of the state, the county has a greater duty than does a private individual to see that legislative policy is carried out. As a creature of the state deriving its sovereignty from the state, the county should play a leadership role in carrying out legislative policy. County of Freeborn v. Bryson, 309 Minn. 178, 188, 243 N.W.2d 316, 321 (Minn.1976). Therefore, when the county undertakes the maintenance of a ditch, pursuant to statute, "it must do so in a way that is consistent with the objectives of the statute and other announced state policies." Kasch v. Clearwater County, 289 N.W.2d 148, 151 (Minn.1980).

The supreme court has stated that Aldo Leopold's " 'land ethic simply enlarges the boundaries of the community to include * * * the land.' " In re Application of Christenson, 417 N.W.2d 607, 615 (Minn.1987) (quoting Bryson, 309 Minn. at 189, 243 N.W.2d at 322). The court has reaffirmed that the state's environmental legislation had given this land ethic the force of law, and imposed on the courts a duty to support the legislative goal of protecting our state's environmental resources. Vanishing wetlands require, even more today than in 1976 when Bryson was decided, the protection and preservation that environmental legislation was intended to provide. Id. Thus, the county has an obligation to maintain the ditch in a manner consistent with the policies established by the legislature in the Act.

McLeod County Bd. of Com'rs as Drainage Authority for McLeod County Ditch No. 8 v. State, Dept. of Natural Resources, 549 N.W.2d 630, 633-34 (Minn.App. 1996).

Following the analysis set out in McLeod County, a judicial ditch may be maintained by the proper drainage authority, but that maintenance cannot be inconsistent with the wetlands policy of the State. Thus, the DNR is entitled to jurisdiction over permit issuance consistent with the DNR’s statutory authority, which is the OHWL of the public waters wetland.

The DNR determined the OHWL of Wetland 29-320W to be 1401.9 MSL. To reach this determination, the DNR relied upon two surveys conducted by John Scherek, the supervisor of the DNR survey crew. One survey was a topographic survey and the other was a hydrographic survey. During the hydrographic survey, Scherek used the methodology for OWHL assessment that measures trees that are growing in close proximity to the subject water basin. The ground elevation of sample trees are recorded and then the diameter of the trees are measured at breast height (four and a half feet above the ground). Depending on the water tolerance of the species of a sample tree, either a full diameter or half diameter is used to reduce the ground elevation of the tree to an elevation that is supposed to simulate the base of the tree’s root structure. The methodology is based upon the theory that if the tree’s roots are inundated with water for too long, it will die; or the tree would not have started to grow in an area that was too wet. Trees are used rather than aquatic vegetation because aquatic vegetation will grow on an annual basis depending upon the short term water conditions; whereas trees are the most permanent expression of upland vegetation which are not effected by short term water conditions. The average ground elevation of the selected indicator trees after the diameter reductions becomes the OHWL of the subject wetland. In this case the only trees available near the project site were aspen trees. Scherek obtained the ground elevation of seven trees, but chose the four lowest trees that seemed to have the most consistent elevations. The DNR considers aspen trees to be water tolerant, so the breast height diameter of the indicator trees were reduced by one-half . The average of the reduced elevations of the four indicator trees was calculated to be 1401.9 which became the OHWL of Wetland 29-320W. Transcript, pg. 36-47; Exhibit 11.

The Applicant has criticized the use of tree evidence as unreliable, and the science underlying the method as suspect. The DNR has used the tree method to establish OHWLs throughout the state for many years. The methodology has been challenged on many occasions both at the agency level and in the courts, but has been able to withstand criticism when properly applied. Although the setting of an OHWL is not a precise science, it has been shown to be accurate when reliable evidence is available. The OHWL elevation generated by the DNR’s methodology is completely dependent upon variables which may differ markedly each time a sample is gathered and analyzed. In addition, the law mandates the DNR to look for evidence on the landscape of past water levels, whether these levels are recent or of many years ago. The time frame to be used in evaluating evidence in an OHWL determination is the time within which reliable evidence is available. In the Matter of determining the Ordinary High Water Level of Lake Pulaski 384 N.W. 2d 510, 516 (Minn.Ct.App. 1986). In this case there was historical evidence available, primarily maps, aerial photographs, and land owner observations which could be used to scrutinize the tree evidence gathered by Scherek. Any evidence left by water must be considered in determining the ordinary high water level. See Lindbergh v. Department of Natural Resources, 381 N.W.2d 494, 496 (Minn.Ct.App. 1996).

The circumstances affecting tree evidence on the property in Quade’s application are unusual. First, there is no basin present in Wetland 29-320W. Other than occasional uplands, there is no distinct edge to where the water comes to rest. Thus it is difficult, if not impossible, to determine what is being measured from the location of any particular tree. Second, there were two fires in the immediate area. The fire set in 1959 was for the express purpose of removing woody vegetation. The fire in 1976 either consumed or undermined most of the trees in the vicinity of Lateral Number 3. Third, there is significant beaver activity including beaver dams in Lateral Number 3. One such structure was identified by the DNR witnesses as a “bridge”. The beavers are most likely to cut trees closer to the lateral than farther away. Aspen is their preferred species of tree for cutting. Transcript, at 780. When taking the core samples in November of 1996, Naplin observed young aspen growing in the direction of the wetland from the larger trees. Transcript, at 765. The aerial photograph from June, 1988, does not show significant numbers of trees. Exhibit 30. The aerial photographs taken from 1981 through 1995 show vegetation recovering in the area, consistent with an extensive fire having occurred in 1976. Exhibit DD. The age of each aspen tree Scherek measured has not been determined. The ages of other similar trees shows that the aspen at the elevation measured have not reached full maturity. Taking a measurement later from those same trees could result in a significantly higher OHWL than was determined in 1995. More significantly, a lower OHWL could be determined when the younger aspen trees observed by Naplin to be growing closer to the wetland reach maturity.

The proper measurement of an OHWL for Wetland 29-320W is also affected by the outlet of Lateral Number 3. Scherek testified that knowledge of the outlet elevation was “definitely” important to determining the OHWL of a wetland. Transcript, at 92. The DNR Guidelines identify the “runout elevation of the basin“ and “outlet geometry and capacity” as “IMPORTANT” (emphasis original) supporting evidence of an OHWL based on tree evidence.” Exhibit 8, at 4. Despite the importance of that knowledge, Scherek had no idea what the outlet elevation of Lateral Number 3 is, or even what direction the water flows in the lateral. Id. at 92-95. Of the four DNR witnesses, three have never observed water flow in Lateral Number 3. All of the DNR witnesses relied upon contour maps to conclude that the water in Lateral Number 3 flows west. However, none of the contour maps relied upon by the DNR witnesses shows the elevation levels inside Lateral Number 3. The only relevant elevations to determine how water flows through the lateral would be inside elevations.

There is one map showing inside elevations of Lateral Number 3. That map is the topographical survey of Lateral Number 3 and the surrounding area prepared from the topographical survey conducted by Scherek. The two elevations identified are 1397.8 and 1397.7. While these measurements do not show any precipitous drop in elevation, the higher elevation is to the west, suggesting that the flow of water would be to the east. Further, the USGS map shows Lateral Number 3 terminating at its westernmost end at the contour line of 1400. Exhibit 9. There is no other contour line shown before the water surface measurement of Oelsuhager Slough at 1398. That body of water is approximately 2,000 feet from the end of Lateral Number 3. For Lateral Number 3 to flow to the west, as DNR contends, the lateral would need to be significantly deeper at its westernmost end than the 1397.8 and 1397.7 measurements taken near the easternmost end. With a body of water having a surface level of 1398 in the vicinity, the lateral could not disgorge any water it took in. Rather than effectuate drainage, the lateral would cause water to collect along its length and perhaps pond at its westernmost end. None of the aerial photographs shows any evidence that such conditions have ever occurred.

Further evidence of the lateral’s flow was provided by Quade, who noted that the lateral is shallower at its westernmost end than toward the east. The straight line at the westernmost end of Lateral Number 3 extending northeast onto the Bates Property also appears to be a ditch, although not formally part of the lateral. Exhibit 28. If this topographic feature is a ditch, it suggests that the flow of the lateral carried water out of that area, not into it. The property map created for local use shows arrows indicating flow in watercourses and watersheds in the area. Exhibit A. That map shows the flow of Lateral Number 3 is to the east. The original plans for the ditch system show that the flow of the lateral is to the east. Exhibit J.

Naplin testified that he observed water flowing west inside the ditch. Transcript, at 767. This testimony is contradicted by his earlier testimony that he had not observed water flowing in either direction in the lateral. Transcript, at 356-57. The only water flow Naplin could positively identify to the west occurred one-half mile to the west, where water in the spring of 1987 was flowing into Oelsuhager Slough. Id. at 357. The USGS map indicates that any water not contained within the lateral’s westernmost point would normally flow west toward Oelsuhager Slough. The evidence of such water flow is irrelevant to the direction of water contained within the lateral. The only conclusion possible from the evidence is that the outlet of Lateral Number 3 is blocked at the culvert running under Highway 64.

With the destruction of previously existing tree evidence, the existence of trees at a lower elevation than those measured, the obstruction at Lateral Number 3 at its outlet from the property, and the absence of any awareness of the outlet level or the outlet geometry, the evidence used by the DNR to establish the OHWL is unreliable. When tree evidence cannot be used to establish the OHWL, other methods are set out in the DNR Guidelines. Exhibit 8. The first alternative is vegetative evidence, particularly in wetlands. Id. at 5. However, the same information regarding outlet level and geometry, absent in the DNR’s OHWL determination, is also important for establishing an OHWL through vegetative evidence. Id. Evidence of aquatic vegetation cannot be used to determine the OHWL in this case.

For disturbed or drained wetlands, the DNR Guidelines suggest using aerial photographs and other information to establish the OHWL. Exhibit 8, at 6. The other information mentioned includes channel or wetland slope, artificial drainage out of the basin, outlet conditions (including artificial controls on water levels), maps and survey data of the basin and its environs, eyewitness testimony to historical water conditions, and “aerial photographs ... that show water level conditions within the basin.” Id. Where public waters have been drained through illegal ditching, the DNR has used aerial photographs to demonstrate the long-standing OHWL prior to the wetland being disturbed. See, eg., In the Matter of the Alteration Without a Permit of the Cross-Section of Byrne Lake by Howard Mesenbrink and Don Ascheman, OAH Docket No. 7-2000-5836-2 (Recommendation issued on April 24, 1992). Here the functioning of a lateral has been interrupted by the blockage of a culvert. The evidence from aerial photographs, under high and low water conditions and over a span of fifty-six years, including 1939, 1955, 1971, 1981, 1982, 1984, 1987, 1988, 1993, 1995, shows that the OHWL in Wetland 29-320W does not result in standing water in the wetland in the immediate vicinity of Lateral Number 3 on Applicant’s property. The USGS map does not show wetland in the immediate vicinity of Lateral Number 3 at a contour of 1400 MSL elevation or higher. Exhibit 9. Since the lowest level of the soil throughout Wetland 29-320W (outside of the lateral) is approximately at 1399 MSL, the OHWL must be below 1400 MSL.

The 1400 MSL elevation is important for the purposes of this matter, because the survey along the berm indicates that all of the soil that Quade seeks to deposit is at or above 1400 MSL. The DNR’s jurisdiction, and therefore Quade’s obligation to obtain a permit to fill, stops at the OHWL of Wetland 29-320W. While there is insufficient evidence in the record to set an OHWL for Wetland 29-320W, there is enough evidence in the record to conclude that the high water conditions observed on occasion at Wetland 29-320W are caused by the blockage of the outlet culvert under Highway 64. The blockage of the culvert by MnDOT is the only obstruction that results in the retention of significant amounts of water inside the lateral. Exhibit 24. While there is beaver activity in the lateral, there is no evidence that the lateral has failed to function due to the presence of that debris or lack of maintenance. Thus, the facts in this matter differ from those in Christenson, where the wetland existed, as per 1938 aerial photographs, over an area of 85.2 acres. Christenson, 417 N.W.2d at 614. The evidence in this record is sufficient to show that the OHWL in Wetland 29-320W is below the 1400 MSL contour. Adding fill along the ditch spoil berm at or above 1400 MSL is not subject to the DNR’s permit requirement.

MnDOT has indicated that Highway 64 will be reconstructed, perhaps as soon as 1998. Exhibit C. If a culvert is installed in the reconstructed Highway 64 with an outlet geometry similar to the existing (unblocked) culvert, the occasional high water levels observed in Wetland 29-320W would be eliminated. Even if the lateral were to function with only limited efficiency after the blockage is removed from the existing culvert, the water level would not ordinarily exceed the northern bank of Lateral Number 3. The DNR cannot take advantage of the temporary situation created by another State agency to set an abnormally high OHWL. The obstruction of flow of water out of Lateral Number 3 is an abnormal circumstance.

The DNR may find that the OHWL is more appropriately set by applying the OHWL definition for watercourses (Minn. Stat. § 103G.005, subd. 14(2)), once the culvert is no longer obstructed. Setting a true OHWL for Wetland 29-320W should await the removal of the obstruction from the outlet culvert when MnDot reconstructs Highway 64. Then a more accurate OHWL can be determined.`

The current condition of Lateral Number 3 has been assessed and the lateral is capable of supporting significant drainage from the property, if the culvert is unplugged. Transcript, at 567. Even with the blockage, in low water periods the lateral banks are discernible. Exhibits X-1 and X-2. The only cause of the lateral’s failure to drain the property is the obstruction of the culvert under Highway 64 connecting Lateral Number 3 to Judicial Ditch 1. This obstruction was created by the Minnesota Department of Transportation to prevent erosion of the road bed under Highway 64. Exhibits 26 and C. There is no direct evidence of when the culvert was filled with rocks and covered with boards at both ends. Since there is evidence the property was drained as of 1976, and testimony and photographs show the water levels elevated in 1986, 1987, and 1988, a reasonable inference is that the culvert was obstructed between 1976 and 1986. The conditions present on the property are consistent with the conclusion that if the outlet culvert were not blocked, Lateral Number 3 would function by draining water to Judicial Ditch l.

The testimony concerning the historical effectiveness of Lateral Number 3 for drainage demonstrates that the lateral has functioned to drain the property at issue in this application. The fire in 1976 compels the conclusion that the lateral was functioning for drainage purposes at that time. By 1986, however, persons visiting Wetland 29-320W observed spring water levels sufficient to inundate the wetland and rise above the level of the lowest portion of the berm. The water levels shown in both the May, 1987, and the June, 1988 aerial photographs show Oelsuhager Slough at or near its OHWL (as evidenced by stain lines and USGS maps). Exhibit 30. At that same time, there is no photographic evidence of standing water on the ground north or south of Lateral Number 3. If the OHWL of Wetland 29-320W was at (or even near) 1401.9 MSL, open water should be visible all around the lateral. Rather, the north bank of the lateral (at approximately 1399 MSL) is visible from the photograph. The photograph shows that the water present was contained within the lateral’s banks. While a large number of aerial photographs have been introduced into evidence, not one has shown evidence of standing water around the lateral. A reasonable inference from this evidence is that the water drained easterly to Judicial Ditch 1.

An argument could be made, under the holding in McLeod County, that the blockage of the culvert has resulted in the creation of a wetland and no action can now be taken to drain the wetland. In previous matters, the impact of restricting the flow of water through a culvert in a judicial ditch system has been treated as carefully as improper draining of a wetland. See Byrne Lake, Commissioner’s Order at 9-10 (February 25, 1993).

The year 1976 is important, because of the statutory approach to wetlands recently adopted in the Wetlands Conservation Act (WCA), Minn. Stat. §§ 103G.221-.2373. The WCA balances the interests of the State and landowners where public drainage systems cross public waters wetlands. Under Minn.Stat. § 103G.222, subd. 1(a), replacement of wetlands is required when placing fill in a wetland. However, replacement of wetlands is not required when the wetland (types 3, 4, and 5) is connected to a public drainage system and was created pursuant to maintenance and repair of the system, so long as the wetland has not been in existence for more than twenty-five years. Minn.Stat. § 103G.2241, subd. 2(c). The evidence in the record shows Wetland 29-320W has been created by blockage of the culvert at some time since 1976, within the twenty-five year exemption period. While Quade’s proposed placement of fill is not for the purpose of maintaining the lateral, the removal of the culvert blockage will have the effect of reducing the water level in Wetland 29-320W. Such a reduction in water level is consistent with the Legislative policy governing wetlands affected by public drainage systems and the DNR’s approach to ad hoc blockages of culverts in judicial ditches.

The evidence in the record demonstrates that the DNR established on OHWL for Wetland 29-320W using a method inapplicable to the circumstances present and without accounting for important information needed to corroborate the OHWL determined for the wetland. All available evidence shows that the OHWL of Wetland 29-320W does not exceed 1400 MSL. There is no basis for preventing Quade from depositing fill at or above that elevation. Therefore, the Administrative Law Judge recommends that the Commissioner take no action to prevent the placement of fill along the berm of Lateral Number 3, provided that such fill is not placed below 1400 MSL.

P.A.R.