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Buffer Strips On Minnesota’s Waterways And Ditches

At the January 16, 2015 Minnesota Department of Natural Resources (“DNR”) Roundtable meeting, Governor Mark Dayton announced his intent to propose to this Legislature that all waterways in the state be buffered with strips of grass or other vegetative cover 50 feet wide. The Governor’s pitch claimed to provide 125,000 acres of additional pheasant habitat, while also helping to improve the quality of our state’s waters. Any cost to the proposal, the Governor suggested, would be covered by levied fines enforced by the DNR. See Dennis Anderson, Dayton to Propose Environmental Buffer Zone for All State Waterways, Star Tribune, Jan. 16, 2015, available at http://www.startribune.com/politics/statelocal/ 288839371.html.

The announcement left landowners, farmers, and contractors wondering, “Am I currently out of compliance?” and “Can the state fine me for not maintaining a 50 foot vegetative buffer?” While many reporters and farm organizations have offered comments on these questions, their answers cry out for legal clarification. While the authors of this article do not intend to claim vegetative buffers are not an effective tool for improving water quality, the intent is to call out the false allegation that landowners and counties are currently violating state and local buffer strip rules and that establishment of buffer strips can be accomplished without compensation to landowners.

Current law requires vegetative buffer strips in two instances:  (1) on each side of a public drainage ditch managed under Minnesota’s public drainage code; and (2) as a condition to a permit or zoning requirement under county shoreland management rules.

Under the public drainage code, drainage authorities must order “a permanent strip of perennial vegetation . . . be established on each side of the [public drainage] ditch.” Minn. Stat. § 103E.021, subd. 1 (2014). The permanent strips must be 16.5 feet (one rod) in width. Id. Because certain agricultural practices are prohibited on any portion of the buffer strip, damages (compensation) must be paid to the landowner when the buffer strip is acquired. Id. at § 103E.021, subd. 6.

The shoreland management rules consist of standards and criteria developed by the DNR for the use, subdivision, and development of shorelands. In 1989, the DNR updated the rules, combining municipal and county standards into one set of minimum, statewide standards which each LGU must adopt.

General cultivation farming, grazing, nurseries, horticulture, truck farming, sod farming, and wild crop harvesting are permitted uses if the shore impact zones are maintained in permanent vegetative buffer or operated under a conservation plan approved by the soil and water conservation district or the NRCS. Minn. R. 6120.3300, subp. 7(B) (2014). The “shore impact zone” is equal to a line parallel to and 50 feet from the ordinary high water level. Minn. R. 6120.3300, subp. 7(A) (2014).

Blaming half-hearted enforcement of the shoreland management rules by Minnesota’s counties, Governor Dayton’s proposal seeks to take enforcement of the buffer strip rules away from LGUs, and place that power with the DNR. See Josephine Marcotty, Dayton Wants Tougher Water and Wildlife Protection Law, Star Tribune, January 17, 2015, available at http://www.startribune.com/politics/statelocal/ 288891021.html. But the allegation that Minnesota counties are not doing their job, or that landowners are not in compliance, is misleading. It ignores, completely, a major constitutional and legal hurdle of enforcing new land-use ordinances: the law of preexisting, nonconforming uses.

A “nonconformity” can be a lot size, structure, building, or land use. When a new land use ordinance is adopted, land uses already in existence that are not in compliance with the new ordinance are called “nonconformities.” Minnesota is most familiar with this concept when applied to lake cabins, or shoreline retaining walls that are sometimes referred to as being “grandfathered in.”

Minnesota law permits nonconformities to continue in existence after a new ordinance is adopted. See Minn. Stat. § 462.357, subd. 1e (2014) (cities and townships); id. at § 394.22, subd. 8 (counties). It is a property right held by the landowner. If a zoning authority desires to eliminate the nonconformity, the legislature has provided several remedies that allow an LGU to do so. For example, if the landowner changes the use of the property or abandons the use of property, the ordinance applies to the new use.

Another method of eliminating preexisting nonconformities is by “amortization,” which allows the nonconforming use to continue for a limited period of time to allow recovery of the established or assessed value of or investment in the property. In 1999, however, the legislature prohibited the use of amortization. Minn. Stat. § 394.21 (counties); id. § 462.357 (municipalities). Without the availability of “amortization” to eliminate preexisting nonconformities, the only way a county may enforce the 50 foot vegetative buffer against property that was in agricultural use at the time the ordinance was adopted, is to purchase or condemn the vegetative buffer area from the landowner. It is not the counties’ half-hearted enforcement of the rules that is the issue, but the Governor’s ambitious proposal of taking away property rights from Minnesota’s landowners without just compensation.

On March 9, 2015, Governor Dayton’s riparian buffer bill was introduced by Representatives Torkelson, Carlson, Bly and Hansen (House File No. 1534). A companion bill was introduced by Senator Marty (Senate File No. 1537). The bill requires a “50-foot wide buffer of perennially rooted vegetation” adjacent to “all perennial waters.” Perennial waters are defined to include all public waters as defined in chapter 103G and other watercourse that have a defined bed and bank, evidence or indicators of flow during the majority of the growing season in most years, and are mapped by the Commissioner.

The bill directs the DNR Commissioner to establish and maintain an inventory map of each county that shows waters which are subject to the buffer requirement. Proposed maps must be prepared by April 1, 2016 and invite comments or suggested adjustments from affected cities, counties, watershed districts, and soil and water conservation districts within 60 days of receiving the map. Final maps are to be published by August 1, 2016 and updated every five years.

Areas enrolled in the federal conservation reserve program, used as a public or private water access or recreational use area, are covered by a road, building, or other structure, or are regulated by a NPDES/SDS permit for MS4s, CSW, or ISW are exempt. These exemptions remove some of the most polluting land uses adjacent to waters from the bill’s requirements because they are expensive to eliminate and present the greatest potential for strong and well-organized opposition to the bill. Imagine if lakeshore owners were required to remove cabins and retaining walls and replace them with vegetative buffers. These exemptions lift the veil on a bill that, at heart, wants to go after existing, lawful agricultural uses.

The bill charges local soil and water conservation districts with implementation of the riparian buffer requirements. It grants the DNR Commissioner authority to issue orders requiring violations of the vegetative buffer requirement to be corrected. If corrective orders are not complied with, penalties can range from $1,000 to $20,000 depending on the severity of the violation.

The bill raises the same issues created by the shoreland management rules:  How will the preexisting nonconformities be addressed? Will the local soil and water conservation districts be expected, and authorized, to exercise eminent domain authority to acquire buffer areas or retire land uses? Will public grants funds currently available for voluntary compliance practices, such as the Clean Water Fund and the Land & Legacy Fund, be used to acquire buffer areas by eminent domain? What about lakeshore properties that are currently developed with retaining walls, riprap, landscaping, or mowed lawn down to the water’s edge?

Landowners, farmers, and contractors should watch this bill closely as it goes through Committee. Many of these questions need to be adequately answered lest the bill, if approved, be challenged through litigation.

© 2015 Rinke Noonan