Freeborn County Board of Commissioners.
Considered and decided by Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
1. Minnesota's drainage statute authorizes a county board, as a drainage authority, to accept petitions for the drainage of clean industrial cooling water from a source outside an incorporated area.
2. A county board, as a drainage authority, has authority to assess reasonable, volume-based user fees for benefits and maintenance for discharge of a predictable quantity of water into a ditch system.
The opinion of the court was delivered by: Minge, Judge
On appeal from the county's imposition of a volume-based fee as a basis for discharges into a ditch, relator argues that Chapter 103E of the Minnesota Statutes regarding ditches does not authorize a volume-based user fee. Respondent county board argues that it lacked the jurisdiction to grant the outlet for industrial wastewater and that its order should be vacated. Because we conclude that a county board, as a ditch authority, may accept the drainage of clean industrial wastewater, and because the statute allows a county board to assess fees as they relate to benefits and maintenance, we affirm.
Relator Agra Resources Coop (Exol) is the owner of an industrial plant approximately five miles from Albert Lea, in rural Freeborn County, that produces ethanol from corn. This process produces approximately 250,000 gallons of industrial wastewater per day. The industrial wastewater is originally drawn from a well, is used for non-contact cooling, and is clean. The plant is connected with Albert Lea's wastewater-treatment facility. Although this cooling water has been included with other discharges from the plant, the Minnesota Pollution Control Agency (MPCA) has determined that Albert Lea may no longer accept Exol cooling water that does not require treatment as discharge to its wastewater facility.
In November 2002, Exol submitted a petition to respondent Freeborn County Board of Commissioners (Board), as the drainage authority for County Ditch No. 16 (CD 16), seeking approval for a private drain tile outlet connecting to Lateral 1-A for the discharge of its non-contact industrial cooling water. Lateral 1-A is an underground drain tile that was initially constructed to benefit lands owned by Exol beyond the plant site and to benefit the lands of others. Although a subsurface line, Lateral 1-A was designed to accept the drainage of surface waters. The benefited land, which did not include the plant site, had previously been assessed for the cost of CD 16 and Lateral 1-A.
In response to Exol's petition, the Board appointed an engineer and viewers and ordered survey reports. While subsequently expressing concern about overloading the drainage system, the March 2003 engineer's report nonetheless recommended that Exol be allowed to discharge its cooling water at a rate of 250,000 gallons per day. The June 2003 viewers' report recommended an outlet fee and determined the amount of drainage benefit to Exol. Additionally, the viewers recommended that the Board establish a user fee in the amount of three one-hundredths of a dollar (.03 cents) per 100 gallons discharged, to be metered every six months and billed twice a year. The viewers subsequently amended their report, reducing the user fee to two one-hundredths of a dollar (.02 cents) per 100 gallons discharged. The Board considered and adopted the amended viewers' report at a county board meeting. The Board subsequently issued its final order and findings of fact with the provision that the user fees would be reviewed after two years.
Exol appealed and this court issued a writ of certiorari on September 30, 2003. Exol challenges the user fees in the final Board order pursuant to Minn. Stat. § 103E.401, subds. 2, 3 (2002), alleging that the Board's imposition of a user fee is beyond its authority. For the first time on appeal, the Board, as respondent, asserts it had no jurisdiction or authority to accept Exol's private ...