Dayton objects to proposed buffer law penalty hikes

The ditch on Rollie Norton's farmland
The ditch on Rollie Norton's farmland in rural Waseca, Minn., already has a 33-foot water buffer.
Jackson Forderer for MPR News 2016

Gov. Mark Dayton is asking the state's Board of Water and Soil Resources to withdraw a proposal that could significantly increase fines for landowners who don't comply with the state's buffer law.

Penalties laid out in the current buffer rules allow a financial penalty ranging from $200 to $500 for each parcel of land where there is a waterway out of compliance with the law. The proposed amendment that was released for public review last week would allow a penalty of $200 to $500 per linear foot of waterway.

Dayton told water and soil board members Monday that he was "surprised and disturbed" to learn the board had put the penalty plan out for public comment. "The proposed fines are unreasonable," he wrote in a letter. "They have come as a shock to not only myself, but also to Minnesota farmers."

The penalty plan had already drawn condemnation from farm groups.

"The proposed penalties are quite severe, beyond excessive in fact for non-compliance," said Minnesota Corn Growers Association President Kirby Hettver. "So that's really the red flag that caught our attention."

Penalties could quickly escalate to hundreds of thousands of dollars under the new option, said Hettver, and in some cases, "That fine would be of greater value than the land which is being fined."

Board of Water and Soil Resources staff said the proposed amendment was never intended to replace the per parcel penalties, or be used to collect large penalties, but was developed in response to a request from counties for additional penalty options.

The penalty proposal will be on the agenda when the BWSR board of directors meets Thursday afternoon.

"We've received comment and now the board will react to that comment," said board chair Gerald Van Amburg of Moorhead. "I can't speak for the board, but I would guess (it's) very likely this will go away, it will never be instituted."

The House Agriculture Policy Committee has scheduled a hearing Thursday morning on the proposed rule amendment. But Rep. Paul Anderson, the committee chair, said BWSR staff had apologized to him for "a lack of clarity" and "not communicating it very well."

"I think it's going to be a lot of to-do over what I think is going to be nothing, because I don't think this is going to go anyplace because it's that bad," said Anderson, R-Starbuck. "It's so onerous and expensive potentially that it's just going to create a lot of bad feeling if this were to go forward."

But Anderson said the furor in farm country over this proposed rule underscores the need for legislative oversight of agency rule making. "We just want to make sure it's done, and follows the legislative intent," said Anderson.

Hettver believes the confusion over the proposed rule adds to farmers' mistrust of state agencies.

"We gotta have better communication, better transparency, better understanding of where an amendment like this came from and what possible good outcome could it have," he said.

Van Amburg defended BWSR staff, saying the agency has been transparent, and that putting proposed rules out for public comment is part of the process.

"I think the Board of Water and Soil Resources bends over backwards to get out and talk with stakeholders to hear their concerns and hear how we should react," said Van Amburg.

He expects BWSR to simply leave the existing buffer penalty provisions as the only option for enforcing noncompliance with buffer rules.

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