NOTICE OF HEARING
The Minnesota Department of Natural Resources (“DNR”) has initiated this action to determine whether cause exists for DNR to direct that restoration of the unnamed tributary to the Red River of the North, No. 35024a, be undertaken pursuant to Minn. Stat. § 103G.251 as set forth in the Restoration Order dated November 6, 2013, as modified by the DNR letter dated August 21, 2014.
A telephonic prehearing conference will be held on September 14, 2015, at 9:30 a.m., at the Office of Administrative Hearings, 600 North Robert Street, St. Paul, Minnesota. The parties should call: 1-888-742-5095, and enter conference code: 447 260 8685# to join the call.
1. This matter involves excavation work performed in an unnamed tributary to the Red River of the North located in Kittson County, Minnesota, that has been identified in the Public Water Inventory pursuant to Minn. Stat. § 103G.201, subd. 1, as unnamed tributary to the Red River of the North, No. 35024a (hereinafter referred to as “Unnamed Tributary”). The Unnamed Tributary is an altered natural watercourse as defined in Minn. Stat. § 103G.005, subd. 3, and therefore is a public water as set forth in Minn. Stat. § 103G.15(a)(9). The Unnamed Tributary is identified as a public water on the Kittson County Protected Waters and Wetlands Inventory map dated 1984 located and made publically available at the Kittson County Courthouse.
2. DNR’s jurisdictional boundary for public watercourses is defined in Minn. Stat. § 103G.005, subd. 14 as all public waters found below the ordinary high water level (“OHWL”). The OHWL for the Unnamed Tributary is the top of the bank of the watercourse.
3. A public waters work permit is needed to “change or diminish the course, current, or cross section of public waters, entirely or partially within the state, by any means, including filling, excavating, or placing of materials in or on the beds of public waters.” Minn. Stat. § 103G.245, subd. 1(2).
4. On August 21, 2013, Brian Krippner of the Kittson County Soil and Water Conservation District (“Kittson County SWCD”) alerted DNR Hydrologist Stephanie Klamm (“Klamm”) that he had received an anonymous complaint of an unpermitted cleanout of a public altered natural watercourse located in Tegner Township, Kittson, County, Minnesota, in the Southwest Quarter (SW1/4), Township 160 North, Range 48 West, Section 26.
5. DNR’s investigation determined that the owner of the subject real property is Bonnie Kostrzewski, 1218 340th Ave., Karlstad, MN 56732 (“Kostrzewski Property”).
6. On August 27, 2013, Klamm inspected the Kostrzewski Property. Klamm observed that excavation had taken place below the OHWL of the Unnamed Tributary and excavation materials (“spoil”) had been placed in the adjacent riparian type 1 wetland areas. No public waters work permit had been issued by DNR for this work. A total of 3.32 acres were disturbed, including 1.57 acres in an adjacent type 1 wetland where spoil was deposited.
7. Type 1 wetlands and the filling of such wetlands are regulated by the Wetland Conservation Act (“WCA”), Minn. Stat. §§ 103G.221-.2372. In this instance, the Kittson County SWCD is responsible for enforcing the WCA. The wetlands are also governed by Section 404 of the Clean Water Act, which is enforced by the U.S. Army Corps of Engineers.
8. On September 16, 2013, Klamm called Perry Kostrzewski, husband of Bonnie Kostrzewski, (jointly referred to as “the Kostrzewskis”) about the activity that had taken place on the Kostrzewski Property. During the course of the conversation, Perry Kostrzewski acknowledged to Klamm that excavation activity had occurred in the Unnamed Tributary without the necessary public waters work permit. He also stated that excavation within the same watercourse had been done in the past without a permit. Perry Kostrzewski stated that his son had done the excavation.
9. On September 18, 2013, Klamm and other DNR staff met with Perry Kostrzewski at the Kostrzewski Property. During the visit, DNR staff observed that the bottom of the Unnamed Tributary had been excavated for approximately 4,983 feet. The work resulted in a watercourse bottom that varied between six to ten feet wide with approximately 3:1 side slopes. In addition, three meanders in the channel had been cut and straightened.
10. The excavation of the Unnamed Tributary without a public waters work permit violated the following Minnesota Statutes and Rules:
Minnesota Statutes § 103G.245, subd. 1(2);
Minnesota Statutes, § 103G.245, subd. 7(a)
Minn. Stat. § 103G.245, subd. 7
Minnesota Rules 6115.0200, subp. 3(F)
Minnesota Rules 6115.0200, subp. 3(G)
Minn. R. 6115.0200, subp. 3(G), 5(G).
Minnesota Rules 6115.0200, subp. 5(C)
Minnesota Rules 6115.0201, subp. 7(D)
Minnesota Rules 6115.0201, subp. 7(N)
Minnesota Rules 6115.0201, subp. 7(O)
Whether DNR appropriately found that the excavation of the Unnamed Tributary is in violation of applicable public waters work permit statutes and rules, supporting its Restoration Order, as modified.
For a complete copy of the Notice and Order for Prehearing Conference and Hearing, contact Max Kieley, Minnesota Attorney General’s Office, 445 Minnesota Street, Ste. 900, St. Paul, Minnesota 55101, phone (651) 757-1244.
Dated this 31st day of July, 2015. MINNESOTA DEPARTMENT OF