By Dan Nienaber
MANKATO — A long, expensive battle over who is responsible for allowing hundreds of acres of wetlands to drain and how the problem will be fixed is headed back to Nicollet County District Court.
The Minnesota Court of Appeals has ruled it is a district court judge’s responsibility to decide how high the water level should be for Little Lake and Mud Lake, two Nicollet County lakes that can’t be found any longer on an average road map.
The lakes are located about two miles east of Nicollet off Highway 99.
In 2003, the Swan Lake Area Wildlife Association filed a lawsuit against the Nicollet County Board of Directors under the Minnesota Environmental Rights Act. The association accused county officials of allowing the two shallow lakes and their surrounding wetlands to drain.
Mud Lake is part of Little Lake’s tributary system. A dam that had been placed on the outlet of Little Lake in 1949, which maintained the depths of both lakes and their wetlands, began to deteriorate in 1966. When the county requested a permit in 1972 to build a new, longer dam, the Commission of Natural Resources (now the Department of Natural Resources) noted that the natural elevation of the lake should be higher.
As a result, the county didn’t repair or replace the old dam.
“For the next three decades or so, various entities, including the DNR, asked the county to repair the dam,” the appeals court ruling said. “In 2002, the (Swan Lake Area Wildlife) Association became involved in the matter and offered to pay for the construction of the dam, but no one could agree on the appropriate crest elevation.”
After a trial in 2007, District Court Judge John Moonan ordered the county to build a dam that would maintain the lakes’ water levels at a minimum depth of three feet. But he also realized those water levels could cause flooding, so he also ordered the DNR to pay for the installation of a dike and lift system.
The association appealed, requesting that the lakes’ elevation be set at 976 feet above sea level instead of at a depth of three feet. The DNR also appealed, saying the county should be responsible for the flood concerns.
Meanwhile, Moonan died so the case was taken over by District Court Judge John Rodenberg. He issued a new order that deleted both the depth and lift station requirements. The ruling said state statutes make it the DNR’s responsibility to set and maintain water levels.
That ruling also was appealed, resulting in the latest Court of Appeals ruling. Released earlier this month, it sent the case back for Rodenberg to set the water level for the lakes. The ruling also said, however, that the county is responsible for maintaining those water levels.
“The neglected dam was built by the county as part of its drainage-improvement project which began in 1949, and it was the county’s responsibility to maintain the dam in good condition,” the ruling said.
Garry Barnett, the attorney who has represented the Swan Lake Area Wildlife Association, said he is expecting more court hearings and a partial trial before Rodenberg issues a new order.
The appeals court ruling is one that’s good for environmentalists and sets a precedent that hasn’t been seen for a century, Barnett said. He’s hoping, in the end, about 1,200 acres of wetlands will be restored and on the map again.
“We are where we are because the Swan Lake 5Wildlife Association has been able to stand there and say no, that’s not good enough,” he said. “They’re a small group, but they’re dedicated environmentalists.”
