E. Commissioner's Preliminary Advisory Report Revision as of 16:45, 27 October 2016 by Bfische (talk | contribs) (Added text back in Sect. E)(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff) E. Commissioner's Preliminary Advisory Report

E. Commissioner’s Preliminary Advisory Report

The Commissioner of the Department of Natural Resources (“DNR”)⁶⁴² is required to review the engineer's preliminary survey report and prepare a preliminary advisory report to the drainage authority with an opinion about the adequacy of the preliminary survey report.⁶⁴³ The preliminary advisory report must:

1. State any additional investigation and evaluation that should be done relating to public waters that may be affected;
   
2. State any additional investigation and evaluation that should be done relating to the environmental, land use, and multipurpose water management criteria in Minn. Stat. § 103E.015, subd. 1; and
   
3. Cite specific portions of the preliminary survey report that are determined inadequate.⁶⁴⁴
   

This may also be a good time for the DNR Commissioner to notify the drainage authority of its position on applicable requirements for DNR permits, permissions, or other reviews and approvals, and to mention to the drainage authority requirements that may apply under other state and federal agency jurisdiction.

The DNR Commissioner’s preliminary advisory report must be filed with the auditor or watershed district secretary before the date of the preliminary hearing.⁶⁴⁵ The DNR Commissioner may request additional time for review and evaluation of the preliminary survey report if additional time is necessary for proper evaluation.⁶⁴⁶ A request for additional time may not be made more than five days after the date of the notice by the auditor that a date is to be set for the preliminary hearing and an extension of time may not exceed two weeks after the date of the request.⁶⁴⁷ The preliminary hearing may be convened even though the DNR Commissioner’s preliminary advisory report has not been received if the Commissioner fails to file the report prior to the preliminary hearing or fails to request additional time as directed in the public drainage code.

Since the DNR Commissioner must later make a final advisory report on the engineer’s final survey report,⁶⁴⁸ the DNR Commissioner’s comments should be carefully considered. Problems not addressed at this stage will likely show up in the DNR Commissioner’s final advisory report, probably causing delay and possibly giving project opponents grounds for appeal based on failure to consider the environmental, land use, and multipurpose water management criteria in Minn. Stat. § 103E.015.

FOOTNOTES

⁶⁴² While the public drainage code directs the DNR Commissioner to make a preliminary advisory report, this authority is typically dedicated to the Director of the Division of Ecological and Water Resources within the DNR.
⁶⁴³ Minn. Stat. § 103E.255 (2015).
⁶⁴⁴ Minn. Stat. § 103E.255 (2015).
⁶⁴⁵ Minn. Stat. § 103E.255 (2015).
⁶⁴⁶ Minn. Stat. § 103E.255 (2015).
⁶⁴⁷ Minn. Stat. § 103E.255 (2015).
⁶⁴⁸ See Minn. Stat. § 103E.301 (2015).