Farm Horizons, June 2016

Amended buffer legislation offers clarification, but not all questions answered

By Marie Zimmerman

The revised buffer strip legislation signed by Governor Mark Dayton in April is meant to provide clarification on the controversial law passed in 2015, but it also generated more questions.

“All we can really do so far is try to describe the law to the best of our ability, knowing that there’s a lot of questions, in particular in regards to the alternative practices section, the other waters section, and how enforcement is going to be handled,” said Mike Wanous, district manager for Carver County Soil and Water Conservation District.

The Minnesota Department of Natural Resources (DNR) is in the process of mapping all waters subject to the buffer requirements. The public comment period ended May 31 for preliminary buffer protection maps, and the completed maps are expected by July.

Under the law, buffer widths will be an average of 50 feet, with a minimum of 30 feet on public waters, and a minimum of 16.5 feet on public drainage systems (ditches). The starting point for measuring the 16.5 foot buffer along ditches was changed in the 2015 law to match the language in state drainage law (103E.021).

Public waters must be in compliance by Nov. 1, 2017, and public drainage systems by Nov. 1, 2018. Public ditches are drainage systems that were legally established under Minnesota Statue 103E.

“In the case of a public ditch, the people whose land drains into that public ditch system are assessed benefits. They basically pay a tax to maintain that ditch system,” Wanous said.

By contrast, public waters are those identified by the DNR in its public waters inventory conducted in the late 1970s, including streams, lakes, and wetlands.

Language state agencies were using to expand the buffer mandate to private drainage ditches “within the benefited area of public drainage systems” was deleted from the 2015 law.

While there’s no way to quantify acres affected in his county, Joe Norman, district technician for Meeker County Soil and Water Conservation District, said he’s looking at a lot less of a workload than he anticipated under the original law.

“We were worried before when the private ditches were going to be a part of it because we have a lot of old private ditches in the county,” Norman said.

Additional updates to the law shift buffer jurisdiction from state to local agencies. The local SWCD will be the reporting party in instances of noncompliance, with either the county government or, if the county declines the responsibility, the Minnesota Board of Water and Soil Resources (BWSR) issuing penalties.

“I believe the state wants to know by the end of March 2017 which counties will enforce themselves or give the power back to the state,” Wanous said.

Local SWCDs will also offer technical assistance, including guiding landowners through options for paid programs such as the Conservation Reserve Program and Reinvest in Minnesota, and advising each landowner what’s required on his or her property specifically.

“That’s our role — to work with the landowners to try to get it in place. Where we can’t get it in place, then we have to report to the enforcement body,” said Kerry Saxton, district manager for Wright Soil and Water Conservation District.

Alternative practices

The updated law offers expanded opportunities for something other than perennial buffers to provide comparable protection for waterways, including retention ponds or alternative practices that prevent overland flow to the water resources.

“BWSR is currently working on providing some more guidance on that use of alternative practices. We don’t have a lot of details on that yet, but that should be coming out this summer,” Wanous said.

These practices will be based on the NRCS Field Office Technical Guide or those approved by the Board of Water and Soil Resources. Some such options may be control basins (similar to terracing), side inlet pipes, which Norman noted can be very cost-effective, or even hay.

“People are looking for hay, so just doing perennial crops like that and just allow them to hay it. That still meets the buffer rule, but not everybody knows that,” Norman said.

If a landowner fails to install buffers on identified waters, penalties may include a $500 fine. Whether that is per tract, per landowner, per waterway, or per year is unclear.

“My sense is people will get a notice and probably no enforcement action at first. They’ll have the opportunity to reestablish those areas. If they don’t do it, enforcement will have to decide how to move forward,” Saxton said.

Additional watercourses

Local soil and water conservation districts will have the opportunity to add areas of concern in the county —“other waters” — where water quality would benefit from buffers. These areas would be voluntary on the part of the landowner, and would not be enforceable with penalties.

For example, a stream requiring a 50-foot buffer could be fed by a tributary not included in the DNR buffer maps. The soil and water conservation district could recommend that tributary as an additional resource if there is a water quality concern.

Adding recommended watercourses to the county water plan is expected to take place over the next year, said Ryan Freitag, program director for McLeod Soil and Water Conservation District.

“We’re pretty preliminary as far as even looking at those right now,” he said.

Compensation

The 2015 buffer law relies on federal, state, and local programs to provide financial support to landowners to implement buffers or alternative water quality practices. Landowners may use federal Farm Bill resources such as the Conservation Reserve Program, Continuous CRP, and the Environmental Quality Incentives Program to get buffers installed. State resources include the Reinvest in Minnesota easement program, Conservation Cost-Share, and the Minnesota Agricultural Water Quality Certification Program.

“Right now, the number one thing, the easiest thing to get into, is to go ahead and get CRP . . . CRP’s going to be one of the better routes to go,” Norman said.

Compensation for buffers along public ditches, through the process of re-determination of benefits, was clarified in the new legislation to establish the basis of value to be land use prior to being planted to a buffer or implementation of an alternative practice. For example, if the ditch goes through an area that was formerly seeded to crops, compensation after buffers would be at higher rate than if the area had been grassland.

Not much for complaints

Despite the bill’s heated public debate, there have been few complaints at local SWCD offices, like Meeker County’s.

“They’re just concerned, they don’t want to be left behind the eight ball and not be in compliance,” Norman said.

For landowners in McLeod County, the public waters inventory encompassed some ditches that came as a surprise.

“They thought it was a private ditch, and a lot of them are kind of surprised when they find out it’s a DNR protected water,” Freitag said.

“I can’t say (landowners) are happy, but I haven’t spoken to anybody that’s terribly upset. I think it’s kind of a shock for everybody with it. I know there was one younger operator that was more frustrated that now the state’s telling him to do it and he was willing to do it before,” Freitag said.

In Carver County, a few inquiries about the Conservation Reserve Program have come in, and a few criticisms.

“We’ve had a few landowners that just wanted to express their opinion that they feel the buffer strip is a bit of taking of land. Overall, it’s been fairly quiet so far. I anticipate once the final DNR buffer maps are released, it will be a much hotter topic . . . and once we get a little closer to the implementation deadlines,” Wanous said.

Wright County could see a considerable amount of land affected overall, Saxton said, noting there may be a substantial reduction in acres for a few landowners, but for most people it will be a small area.

“There are many ditches that do not have filters, and there are a number of public waters that are closer than 50 feet,” Saxton said.

He knows of a number of impaired bodies of water in his county, and said the buffer legislation will help stop erosion, sedimentation, and pollution.

Landowners can expect to hear more about buffers as the final DNR maps are issued and SWCDs make plans to advertise options and help everyone get in compliance, Freitag said.

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