BWSR backtracks after buffer law backlash


(4/16/2018)

State proposed fines up to $500/foot

by CHRIS ROGERS

Early this month, the Minnesota Board of Water and Soil Resources (BWSR) released a plan for hefty new fines — potentially many thousands of dollars — for landowners who do not comply with Minnesota’s buffer law. After outraged farmers, local governments, and lawmakers flooded BWSR with comments and Governor Mark Dayton decried his own agency’s proposal, BWSR officials apologized and withdrew the proposal before a planned public comment period had even ended.

What BWSR proposed

The buffer law requires permanent vegetation be maintained around all rivers and streams in order to catch runoff, slow down erosion, and improve water quality. In most cases, local governments are responsible for enforcement of the law, but state law and BWSR rules define what enforcement steps counties may take if landowners refuse to comply. State law allows for fines of up to $500. The current BWSR rules allow for local governments to fine landowners up to $500 per property. BWSR’s recent draft rule would have allowed landowners to be fined up to $500 per foot.

The proposed per-foot fines were based on the total stream frontage on a property, not just the noncompliant portion. So even if only one foot of stream bank was out of compliance, a property owner would be charged for the entire length of the stream on their property. The dollar amounts declined as total footage increased, so landowners with over 1,000 total feet would only be fined $25-$30. Still, for one 120-acre parcel outside Lewiston with roughly 3,200 feet of stream bank, that would translate to a $96,000 fine. That is on par with the highest fines the Minnesota Pollution Control Agency has leveled against industrial companies for pollution violations in Winona in recent history.

The proposed per-foot fines were just an option counties could use to enforce the buffer law; they could also stick with per-parcel fines. Additionally, under both the proposed and existing rules, farmers would have 11 months before any fines could be charged, and once they bring their property into compliance, the fines may be forgiven.

BWSR released the draft administrative penalty order (APO) plan for public comment on April 2. Then the agency got an ear full.

How people reacted

“If a farmer had a measly 100 feet of buffer that might not meet these made-up standards, you’re saying he or she would have to pay $50,000?!?! Outrageous!!” a Northwestern Minnesota crop consultant wrote. “Quite frankly I view your new APO plan as excessive and overbearing in nature,” a Polk County official told BWSR. East of Albert Lea, a fourth-generation farmer wrote, “Many farm families in Minnesota are already facing tight margins with the downturn in agriculture, but yet the state of Minnesota looks to add to the struggle by adding a fine of up to $500 PER LINEAR FOOT … It is extremely disheartening that this amendment is even being considered. Sounds like the Minnesota government is more in favor of supporting the views and thoughts of the ‘out of touch with agriculture’ citizens of the greater Metro than the livelihood of rural Minnesota farm families.” BWSR received hundreds of negative public comments in less than two weeks.

Winona County Soil and Water Conservation District (SWCD) Director Daryl Buck said he and the SWCD Board only heard about BWSR’s proposal through word-of-mouth — rumors, he called them. Buck said the only notice BWSR gave him was an email late on Thursday announcing that the proposed APO plan had been withdrawn. “They sent us an email saying that something was voted down that they didn’t even tell us was an option or possibility,” Buck said. In a letter to BWSR, SWCD Board Chair Leo Speltz wrote, “SWCDs spent the last year creating a working relationship with landowners regarding buffer law implementation only to have this amendment stir the pot.” If BWSR had sought input beforehand, Buck added, “We may have been able to help reduce the amount of hysteria that came out of all of this.”

Senate leader ‘disgusted’

When BWSR Executive Director John Jaschke appeared at a joint committee meeting last Wednesday, state senators excoriated him. Assistant Senate Majority Leader Bill Ingebrigsten (R-Alexander) said he was “very disgusted” by BWSR’s proposal. If this had happened in the private sector, people would lose their jobs, Senator Mike Goggin (R-Red Wing) told Jaschke.

Several people pointed out that last spring, Jaschke told senators, “It’s only up to $500. It cannot exceed that. And again, the point of that fine and any of the enforcement mechanisms is not to collect it, but to use it as a way to get the compliance on the ground.”

Minnesota Farmer’s Union Government Relations Director Thom Petersen said that while the buffer law the Legislature passed was a little vague whether fines were limited per parcel, it was never supposed to be $500 per foot. Several senators agreed: this was a textbook case of a state agency trying to bend the law to give itself more authority than elected lawmakers intended.

“I’m really concerned about the leadership capabilities at your department, the people on the board, the people within your department,” Goggin told Jaschke. “Trust is earned, and it’s broken. It’s been broken really bad.”

Jaschke apologized and said that his agency would trash the proposal. Last Thursday, a BWSR committee did just that. Jaschke said that there really had been no need to change the existing fine system in the first place. “People asked, ‘Why are you doing this now?’ and that was our mistake. There was no reason to do this now,” he stated. “It shouldn’t have gotten this far, and that’s on me,” Jaschke said. “It was a mistake and we’re sorry for the concerns that we caused you and many others,” he told the senators.

Jaschke can’t take the fall for everything, Senator Andrew Lang (R-Olivia) said. The full Board of Soil and Water Resources voted to formally propose the new fines. That board includes top brass from the Minnesota departments of agriculture, health, natural resources, and the pollution control agency — people who are either directly in Governor Dayton’s cabinet or are the lieutenants of cabinet members. “For them not to question the advisability of something that was, quite frankly, this egregious, makes me feel that they don’t see it as egregious,” Senator Bill Weber (R-Luverne) said. “The buck ultimately does stop with [Dayton], and he should know what’s going on, as well,” Ingebrigsten said.

For his part, Dayton sent an open letter to the board saying he was “surprised and disturbed” by its proposal. “The proposed fines are unreasonable. They have come as a shock to not only myself, but also to Minnesota farmers,” Dayton wrote. “The success of the buffer law, so far, has occurred without penalties. Let us continue to work together with the agriculture community to maintain that approach to the fullest extent possible,” he added.

Repeat fines still on the books

It is not just the per-foot fines that are outrageous, Senator Torrey Westrom (R-Elbow Lake) argued. The existing BWSR APO plan calls for landowners to be fined over and over again until they comply, he pointed out.

Winona County’s buffer law enforcement ordinance echoes BWSR’s template. There is leeway for county officials to be patient with landowners and Winona County officials have stressed their commitment to do so; however, in the most serious cases, the enforcement plan allows the county to charge $500 per property per month for first-time violators. For repeat violations, it calls for charges of up to $500 per property per day.

Westrom contended that these repeat fines are not permitted under the buffer law, and criticized BWSR for telling county officials in Western Minnesota that they had to enact them.

On this issue, Jaschke stood up for his agency’s interpretation of the law, saying that the law does allow for repeat fines.

Locally, the Winona County Planning Commission and County Board approved the fine schedule last year with the understanding that county staff would do everything they could to get voluntary compliance first. The Planning Commission also insisted on creating a local appeal process for landowners.

Winona County preparing enforcement letters

The vast majority of Winona County landowners are already in compliance, but for the small percentage of landowners who have neither installed buffers nor asked for more time, Winona County Planning and Environmental Services Director Kay Qualley said her department is working with county attorneys to prepare enforcement letters that will be sent to landowners notifying them that they are out of compliance. Those letters will trigger the start of an 11-month grace period before the county issues fines.

“We expect so few people to be in noncompliance after they have a chance to work out a plan and get wildflower seed or alfalfa seed … that I hope to never have to administer any penalties,” Qualley said. “We hope it’s none, but it certainly gets people’s attention if they’re going to dilly dally about too long,” she stated.

Qualley added, “We’re going to work with people as much as possible. Even if someone were to get a fine, we have the ability to forgive all or part [of it].”

Goggin pushes for giving farmers more time

Local farmers need more time to comply with the buffer law, Goggin said.

Currently, landowners who have told authorities they plan to install buffers, but that they need more time, have until later this year to install their buffers. Goggin authored a bill — senate file 2579 — that would give them another year, extending the waiver until 2019.

“I received a number of calls and emails and correspondence from my constituents saying, ‘We’re doing everything we can [to plant buffers], but the weather hasn’t been cooperative,’ [or] they’ve had other issues that have taken away their resources to be able to meet the date,” Goggin explained. “These people do want to be in compliance, they don’t want to be fined, and they do want to do the right thing,” he added.

Petersen agreed. This season is already going to be a late-planting, late-harvest year, and many farmers were trying to utilize the Conservation Reserve Programs (CRP) to fund their buffers, but that program filled up, he explained. Farmers deserve another growing season to get in compliance, the Farmers Union representative said.

Goggin’s bill is still in committee.

Chris@winonapost.com


Fines for buffer law violations in Winona County

Below are the county’s existing rules for fining landowners who do not comply with the buffer law. They include per-parcel fines instead of the per-linear-foot fines that the Board of Soil and Water Resources recently proposed. The Winona County Board approved the fine schedule last year.

Before a landowner is fined, they will receive letters from the county and the local Soil and Water Conservation District, and landowners have the right to appeal.

First violation:

- $0 for the first 11 months.
- $100 per parcel per month for the next six months.
- After that, $500 per parcel per month.

Repeat violations:

- $100 per parcel per day for the first 180 days.
- After that, $500 per parcel per day.

 

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