Howard Lake-Waverly Herald, April 26, 1999

MPCA and McLeod County butt heads over county ditch

By Luis Puga

The cleaning of County Ditch 11, which runs into Winsted Lake, has become an issue of concern for the Minnesota Pollution Control Agency (MPCA), McLeod County, the Winsted Lake Watershed Association, and area farmers.

The ditch runs into the northern tip of Winsted Lake. The portion that was recently cleaned for routine maintenance also extends into Wright County.

Of concern is the water and what it carries.

According to lake association President Gene Hausladen, the group has been trying to get 16-foot grass strips put along both sides of the ditch for about five or six years.

The strips would help prevent loose soil from falling into the ditch and, in turn, depositing in the lake.

However, the authority to add such grass stripping lies with the landowners whose land the ditch runs through.

Now, through Hausladen's prompting, MPCA has gotten involved in the issue. The ditch was recently cleaned out, a process where the soil is removed and spread out.

Hausladen said he saw this as an opportunity to get the strips in place and called in Keith Cherryhomes of the MPCA. Cherryhomes' determination was that the project required a National Pollutant Discharge Elimination System (NPDES) permit because it was a construction project which disturbed more than five acres of land and directly impacted waters that belong to the state.

Cherryhomes, who had approval on the issue from the federal Environmental Protection Agency (EPA), wrote a letter to McLeod County Commissioner Ray Bayerl, whose district this falls into, stating that the project needed the permit.

Bayerl referred the matter to County Attorney Mike Junge, who sent a reply that the county did not agree a permit was needed.

Whether a permit is required or not has serious implications for both the ditch and the lake.

If it is ruled that a permit is needed, it would require 100-foot grass strips to be placed temporarily on one side of the ditch to stabilize the site.

Hausladen estimates that an unacceptable amount of silt is falling into the lake. Though he has estimated numbers, he notes they are just that and are therefore debatable.

Hausladen's prediction is that the lake will fill up with dirt. Within another generation, he said, it could become a field.

However, he is also quick to note that "all of us pollute," and that the lake's only pollution issue isn't just the ditch.

Hausladen notes that the residential watershed, approximately 19 percent of the watershed area, contributes pollutants that are eight or nine times more potent than the agricultural sediment.

Hausladen hopes the landowners will not consider this action an attack. "The idea of grass strips is not to penalize farmers," he said.

Hausladen would like to negotiate with the landowners to get the 16-foot strips placed on each side permanently. He adds that the farmers would not have to pay for the strips and, in fact, that the strips would be enrolled into a county subsidy program that would pay the farmers for an easement.

For his part, Cherryhomes is going by the law of the permit calling for 100-foot strips.

When asked if he would consider 16-foot permanent strips instead, he said he would be willing to work with the landowners .

As for the county, its response is that the construction area is under five acres and therefore does not need a permit. The county measures the area in question as being 10 feet wide by 18,400 feet long.

However, Cherryhomes said that he is not convinced that the total acreage disturbed is less than five acres.

Moreover, if you add the part of the project that falls in Wright County, Cherryhomes is confident that the project involves more than five acres of land.

He noted that the permit also encompasses parts of larger projects, but does admit he would rather not cross political lines.

The county has generally kept its comments restricted to the fact that it is aware of the situation and has sent a response to MPCA.

However, Bayerl also wrote to Senators Paul Wellstone and Rod Grams, and Representative David Minge on the issue. The letter was presented to the county board and signed by all the commissioners.

In it, he wrote "I am certain you will share my concern for agency interference with drainage systems crucial to agriculture."

Lastly, he wrote, "Is this an attempt by another state or federal agency to restrict ditch maintenance, that to this point has been the jurisdiction of the county with oversight by the DNR (Department of Natural Resources) and BSWR (Board of Water and Soil Resources)?"

Repeated attempts by the Journal to get further comment from Bayerl or Junge were declined.

Cherryhomes admits he is not a ditch law expert, noting that this area of law is complex. For his part, he said he is corresponding to the legislation of the Clean Water Act which the permit falls under.

However, whether or not there is some sort of exemption for this project is not clear.

Ditch law attorney Kurt Deter of St. Cloud said that while he cannot comment specifically on this particular situation because he does not know all the facts, ditches and their maintenance are generally exempt from much regulation.

The final interest in this issue lies with the farmers and landowners it would affect.

Hausladen has written to them, asking them to consider grass strips, and offering information on where to get more information on programs to enroll the land.

None of the landowners contacted by the Journal responded to an opportunity to comment.

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