Whether or not the latest buffer penalty controversy would have impacted landowners depends on action taken by their commissioners or watershed district board.

As of April 15, 73 of 87 counties in Minnesota have elected to have jurisdiction to enforce the state’s buffer law, according to the Board of Water and Soil Resources. Fourteen watershed districts also have elected to enforce the law.

That means once a county has an ordinance in place, it is tasked with enforcing the statute, not BWSR.

Once the county elects to locally enforce the ordinance, it must provide a copy of its ordinance or rule to BWSR. The agency reviews the local control’s ordinance or rule for accuracy in following the law, such as providing procedures for issuing Administrative Penalty Orders, enforcement and appeals, and then BWSR approves it.

Of those 73 counties, 12 intend to use or are using existing local land use authorities, 23 intend to follow or are following an APO plan, and 38 intend to follow or are following a combination of these options.

“The numbers show the mix of the enforcement mechanisms counties have chosen,” says Tom Gile, BWSR buffers and soil loss operations supervisor, based in Rochester, Minn. “The [buffer] law does not prescribe that they have to use just an APO or just existing authorities.”

The numbers above may change a bit, too, as counties finalize their buffer law enforcement plans. BWSR officials have asked counties and watershed district boards to provide their plans by June 15 so the agency has time to review them. BWSR is required by law each year to report which local governments are certified with jurisdiction to the Department of Revenue by July 1.

As of April 15, the Minnesota counties shown in green have elected to have local buffer enforcement jurisdiction. The counties shaded in yellow elected, but have not yet adopted, a local control. The Board of Water and Soil Resources expects these counties to be ready by July 1, and then they will be shaded green on the map. Counties colored orange did not elect to enforce the law locally. In those counties, BWSR is tasked with enforcement using its Administrative Penalty Order provisions adopted in June 2017. Watershed districts highlighted in green with dots have elected to have local enforcement; the dashes indicate they have elected, but have not yet adopted, local control. 

Some guidance
To help boards with the rule writing process, BWSR developed a model rule and a model ordinance for boards to use as a guide. State statute directed BWSR to develop an APO plan.

“We have also offered to do preliminary reviews of any local official control prior to adoption to provide feedback,” Gile says. “It is much easier logistically for them to make the changes locally prior to adopting it than it is to adopt then amend at a later date.”

Watershed districts as well as county boards have varied from the language in the model rule and some aspects of the APO.

“To be clear, we are totally OK with that,” Gile says. “We engage in a discussion with them to ensure how they are proposing things, and to make sure they meet the minimum standards of the respective statutes and APO plan.”

Gile says the agency anticipates that all 73 counties who have elected to have jurisdiction will “be good to go.”

“Those who have already elected to enforce and who have adopted an ordinance and provided it to us — we have issued a ‘determination of adequacy,’” Gile says.

Gile adds that BWSR appreciates the efforts of SWCD staff and boards of local governments working on the buffer law.

“Most importantly, we appreciate the efforts of all landowners in the state who either have already brought their land into compliance or are working to do so,” he says. “Because of the hard work of so many, we hope that much of the discussion around enforcement isn’t even needed.”

Mower County to enforce buffer law
Mower County conservation officials pointed out in a recent news release that local landowners never would have faced the potentially stiffer penalties related to the buffer law that became a widely discussed statewide issue last week.

In fall 2017, the Mower County board of commissioners approved an ordinance for buffer law enforcement locally after working with Mower Soil and Water Conservation District staff. The ordinance, which takes effect this summer, created a penalty order process much less severe than the recent penalty proposed by BWSR, according to Justin Hanson, Mower SWCD district manager.

The local ordinance will be used for enforcement in Mower, Hanson noted.

“We have been hearing [last] week from landowners in Mower County who believe this proposed buffer penalty is a local problem, and that’s due to a lot of misinformation getting put out by organizations,” Hanson said.

The proposed buffer penalty no longer exists for comment. BWSR’s Buffers, Soils and Drainage Committee voted unanimously, due to negative public feedback, to reject a draft APO amendment that had proposed stiff penalties for noncompliance with the buffer law. BWSR apologized for not talking with stakeholders prior to issuing the proposed amendment.

Like most counties in Minnesota, Mower County and Mower SWCD officials decided last year they did not want the state involved with buffer enforcement on local landowners, Hanson said.

“We wanted to handle it locally, given the great level of volunteer participation in Mower County with buffer compliance. We have made great progress toward achieving full compliance,” Hanson said. “We did not feel the need for an overly restrictive and steep penalty for buffers.”

Mower County had nearly 95% compliance before the state buffer law along public waterways. As of mid-April, 98.5% of Mower landowners have notified Mower SWCD that their buffers comply with state law or will comply by this spring.

Fines, however, will be a possibility for Mower County landowners who do not comply with the buffer law requirements. When the local ordinance takes effect July 1, Mower County will have an escalating fine that starts at $100 per parcel monthly. If a landowner refuses to implement the proper buffer, the fine could grow to $500 per parcel each month.

July 1 is the deadline statewide for compliant buffers along public waterways. Landowners will need to contact Mower SWCD when their buffers are in place prior to the July 1 deadline to avoid potential fines, Hanson said.

Mower SWCD conducted two mailings, in January 2017 and September 2017, to Mower County landowners identified by local staff as likely needing to add vegetative buffer to comply with state law.

During the 2017 legislative session, state lawmakers approved extended deadlines for buffer compliance.

Public waterways are designated by the Minnesota Department of Natural Resources. Public drainage ditches also have vegetative buffer requirements. Those must be compliant with the law by Nov. 1.

For more information on the buffer law, visit BWSR’s webpage at bwsr.state.mn.us/buffers.

Mower Soil and Water Conservation District contributed to this report.