At the request of Lincoln County Environmental Administrator Robert Olsen the county Board of Commissioners has sent a seven-page letter to the federal Environmental Protection Agency, signed by Olsen and Chairperson Joan Jagt - a letter that might prove to be the opening salvo in a jurisdictional dispute with far-reaching consequences.
A motion to authorize Jagt and Olsen to sign the letter passed unanimously at the regular board meeting on Tuesday.
"We were made aware a couple of months ago of a study commissioned by the EPA and the Army Corps of Engineers that looks on the connectivity of all waters in the United States and the effects on all navigable waters," Olsen said.
The study, titled "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence," brings together and summarizes current scientific understanding about the interconnection of the nation's waters, factors affecting them, and how waters upstream affect waters downstream.
According to Olsen, a major concern of the study is the relationship between the northern Mississippi drainage basin and the effects of modern agriculture on the waters of the Lower Mississippi. The nation is dependent on intensive agriculture, which requires fertilizer. But excess fertilizer tends to run off into receiving streams, especially after heavy rains.
Lincoln County is concerned the EPA and the Corps of Engineers may use the report to interpret parts of the Clean Water Act of 1972 to extend federal jurisdiction over what amounts to all waters in the nation, including local streams and drainage ditches.
Before drafting the letter Olsen consulted the St. Cloud-based law firm of Rinken Noonan, which work with drainage and water law issues, concerning a potential expansion of federal jurisdiction.
"It's pretty broad and I don't think the statement that all water is connected is anything new," attorney Kale VanBruggen said. "I think it takes away local control of those lands which, in the opinion of a lot of people, were never intended to be regulated under the Clean Water Act."
Olsen said he recognizes the EPA and the Corps are in a difficult position between the agricultural needs of the northern breadbasket and the water quality concerns of the Lower Mississippi, but said he doesn't see the solution in extending federal jurisdiction over local waters, and referred to a backlog of disputes over ditch cleaning and maintenance where ditches cross federal lands.
"If we have to permit through them to get permits for public drainage and tiling and this is done in a timely manner, that would be fine," Olsen said, "but that has not been the case in the past."