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Ralph S. Drum, Relator, vs. Minnesota Board of Water & Soil Resources, Respondent, and Douglas Soil and Water Conservation District, Respondent. C7-97-778, ...

STATE OF MINNESOTA IN COURT OF APPEALS C7-97-778 Ralph S. Drum, Relator, vs. Minnesota Board of Water & Soil Resources, Respondent, and Douglas Soil and Water Conservation District, Respondent. Filed January 20, 1998 Affirmed Toussaint, Chief Judge Minnesota Board of Water and Soil Resources File No. 96-6 William G. Peterson, Wm. Peterson & Associates, Ltd., 8400 Lyndale Avenue South, Suite 7, Bloomington, MN 55420 (for relator) Hubert H. Humphrey, III, Matthew Seltzer, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Minnesota Board of Water & Soil Resources) Daniel Lee, Assistant County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent Douglas Soil & Water Conservation District) SYLLABUS The Minnesota Board of Water and Soil Resources did not exceed its statutory authority in promulgating a rule defining wetland to exclude public waters wetlands and public waters as designated by the Commissioner of Natural Resources on public waters inventory maps. Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge.**

OPINION TOUSSAINT, Chief Judge Ralph S. Drum, a landowner, appeals by writ of certiorari from a decision of the Minnesota Board of Water and Soil Resources affirming a decision of the Douglas Soil and Water Conservation District to assert jurisdiction over a 15acre body of water. Because the Minnesota Board of Water and Soil Resources acted within its statutory authority to promulgate rules to implement the Wetland Conservation Act (the "Act"), we affirm. FACTS Ralph S. Drum owns a homestead near Lobster Lake in Douglas County. A marsh is situated about 50 feet from his

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Ralph S. Drum, Relator, vs. Minnesota Board of Water & Soil Resources, Respondent, and Douglas Soil and Water Conservation District, Respondent. C7-97-778, ...

home. In 1971, the township built a road between Drum's property and Lobster Lake. Drum acquired the property in 1987. The marsh grew over the years until the water got near Drum's house and undermined the foundation. Drum sought approval from the Douglas Soil and Water Conservation District (the "District") to install a drainage outlet at the elevation of 1374.9 Mean Sea Level (MSL). The District, on the other hand, did not want Drum to install a drainage outlet any lower than 1376.9 MSL. Drum requested an exemption or no-loss determination that would permit him to install the drain. In the proceeding the District received evidence regarding the history of the surface area and elevation of the marsh and the surrounding topography. Drum introduced evidence that (1) the Department of Natural Resources' findings that the marsh was at one time less than ten acres in size; (2) a report by Russell Kastelle, a registered land surveyor and cartographer, establishing the history of the marsh's surface area and elevation; (3) a ditch that ran south of his house towards Lobster Lake was intercepted by a road; (4) sediment blocked the channel in the ditch; and (5) at the time of the hearing the marsh covered 15 acres and the water level on the marsh was 1375.3 feet MSL. The District also received evidence from the Douglas County Technical Evaluation Panel (the "Panel"), which was established according to the requirements of the Act. See Minn. Stat.

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