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County slowly enforces buffer rule (07/02/2014)
By Chris Rogers

     Photo by Chris Rogers

Last week, Winona County Farm Bureau President Glen Groth showed off a strip of grass and clover protecting a wash in the middle of his hay fields. An environmental group reports that 30 percent of Winona County streams lack buffers. The county is in the process of enforcing state rules that require them. Meanwhile, the federal government is eyeing changes to stream rules, too.

It is a rare occurrence — water trickled through an intermittent stream on Glen Groth’s farm last week. Every spring, the Winona County Farm Bureau president lifts up his tractor implements 50 feet before reaching the crease in his fields. Normally it is a dry wash, but after weeks of rain soaking soils, the drainage and the buffer strip were put to use.

Across the region, similar grass mats slow down water running off fields, catch top soil, fertilizer and manure, and pesticides, and keep big rains from carving out gullies. They may seem like isolated rural streams, but local creeks and rivers are tied up in issues at the county, state, and national levels.

A state rule prohibits cultivation of shorelines and requires Minnesota farmers to keep a 50-foot-wide strip of grass or other permanent vegetation next to any stream or wash. However, according to a report by the national environmental organization, Environmental Working Group (EWG), many properties in Winona County and across the state are missing these buffer strips. The EWG report, titled “Broken Stream Banks” stated that 70 percent of required buffers were in place, and 30 percent were missing. Across the state, intermittent streams were the most common sites of missing buffers, according to the report.

The role of enforcing the state buffer strip rule falls on county planners. Winona County staff began efforts to enforce the long-standing rule in 2011, and planned to complete initial notifications of noncompliance by this year and finish any follow-up enforcement in 2015. The county is behind schedule, in part because enforcing the rule is time-consuming for the county’s limited staff. After identifying which properties appeared to be missing buffer strips via an aerial survey, county staff sent out letters notifying farmers of the rule and alerting them to the fact that they might not be in compliance. Letters are followed by field inspections to determine compliance. Inspections are followed by civil legal charges, if necessary. With so many affected properties identified in 2011, county leaders split the county in thirds geographically, and directed planning staff to move through one third at a time. So far, the first third is, according to county staff, fully in compliance. The county is close to finishing notifications and field visits for the second third. The final third of the county has yet to be notified of potential noncompliance. Planning and Environmental Services Director Jason Gilman said that, so far, land owners have been cooperative and that no legal charges have been made.

Asked whether the EWG report was accurate, Gilman said he could not say for sure. He questioned whether the EWG report was based on old data — from 2008 aerial photographs — or more recent information. An EWG spokesman said that the study of Winona County land was based on 2013 images.

Gilman acknowledged that constant enforcement of the buffer strip rule is not possible, because “the farming landscape just changes constantly,” noting that a buffer strip that may have existed a year ago could be tilled under this year and the county does not have the resources to conduct aerial photography or field visits of every farm, every year.

Last month, citizen members of the Winona Parks and Environment Committee and county commissioner Steve Jacob, who sits on the committee, discussed the affect of the rule on farmers. The committee is not involved with the enforcement process, but an interested member brought up the subject, wondering whether the county was on schedule to enforce the rule.

Jacob responded, saying that citizens are frustrated by the rule because the use of their property is restricted by the government without any compensation. “Do you have any appreciation for what they’re going through, or is it just ‘Do it. Do more. Do it faster?’” he asked the rest of the committee.

Committee Chair George Howe said he would advise frustrated farmers that while the rule may seem like an inconvenience, it benefits everyone by improving streams. “No one landowner has the right to pollute the public waterway, so that’s why we have this regulation which is a reasonable attempt to try to [keep] the agricultural erosion and pollution back from the public waterway,” he said. “It’s a balancing of rights; it’s a tough issue.” In an interview, Land Stewardship Organizer David Rosmann noted that the buffer strips may qualify for conservation tax breaks.

“It’s not dissimilar to a factory,” said committee member Todd Paddock. Other industries have “gone through a lot of regulation, and farmers have to face up, too,” he added.

During the meeting, Jacob responded, “Well, do you want to argue with these [farmers] or do you want to reach out to them?” Instead of asking “who’s the biggest problem?” ask, “who’s the biggest solution?,” he continued. The answer is “these same farmers you’re condemning,” he added.

To be part of the solution, you need to offer up solutions, said Paddock.

“I think where the trouble starts is that people start to think, ‘Well, it’s a law.”

“Why should we thank you for following a law?’” Howe observed. “But any successful program needs to have more carrots than stick, more ‘atta boys’ than condemnation.”

“I think most farmers understand about erosion, too,” committee member Carol Jefferson said. “If you’re going to plant your corn right up to the edge of the river, your field is going to wash away.”

In an interview, Groth agreed. Farmers have long recognized the value of grass strips in preserving their land; “if the soil washes away, the farmer loses a big investment,” he said. It may be “a hard pill to swallow” to sacrifice a depression that carries water once or twice a year and would otherwise be a tillable acre, but “the rule is the rule; farmers should follow it.”

He noted that many of the streams in Winona County are in steep, wooded areas that are not tillable anyway. Asked about EWG’s report, he acknowledged, “there’s always going to be people who get away with things,” but “to say it’s widespread or common practice — I would take offense to that. I don’t think that’s right.” For most farmers who are in noncompliance, it is likely due to an honest mistake or ignorance of the rule, he said.

Jacob and Groth are both concerned about a proposed rule change by the U.S. Environmental Protection Agency (EPA) that would alter the definition of “waters of the U.S.,” which are subject to the federal Clean Water Act. The EPA states that the change is simply a clarification and will have no effect on which waterways fall under the act; however, agricultural organizations across the country are not so sure. Groth said the change would make spring ponds on crop fields “one court decision away” from falling under federal regulation. Gilman said that the EPA proposal “was somewhat vague and difficult to follow,” noting that specific changes were buried in scores of pages of Federal Register documents. 


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