Minnesota’s new buffer law takes effect this fall

01e93ac3-ba96-4d34-b39c-5b57a0ebd7a1 It’s fair to say that Minnesota Gov. Mark Dayton shocked the vast majority of the hundreds of conservationists, hunters and fishermen who were gathered at the January 2015 DNR Roundtable when he stood before them and announced his plans to push for legislation that would require 50-foot vegetative buffers around all waterways in the state. The proposal was, in part, an outgrowth of the 2014 Minnesota Pheasant Summit in Marshall in the southwestern part of the state, where more than 300 hunters, farmers and others came together to discuss ways to improve things in the state for pheasants and pheasant hunting. At the time, Minnesota Department of Natural Resources Commissioner Tom Landwehr said he’d only learned in recent days about the initiative that Dayton planned to propose.
Following passage that spring at the state Legislature, Dayton signed the state’s buffer law in June 2015. Lawmakers amended the law during the 2016 session – clarifying that it applied only to public waters and public ditches – and Dayton signed off on those changes. During the 2017 session of the Minnesota Legislature, lawmakers made a number of attempts to alter, delay or eliminate altogether the state’s buffer law, but Dayton for the most part rebuffed them, indicating on a number of occasions that he wasn’t willing to negotiate the nuts and bolts of the law. One change made in the session allows certain landowners an eight-month waver to install buffers or alternative practices, but the core of the buffer law remains the same.
“Through frequent discussions with stakeholders and legislators, we have together achieved an approach to keeping Minnesota’s buffer law strong,” Dayton wrote in a letter to state lawmakers announcing that he’d signed the omnibus environment and natural resources budget bill. “The November 2017 deadline to install water quality buffers on lands adjacent to public waters and the November 2018 deadline for lands adjacent to public ditches will not change. Also, the Legislature and I worked together to provide additional flexibility to farmers and landowners who require financial and technical assistance to comply with the clean-water-buffer standards and are making good faith efforts with their local Soil and Water Conservation District (SWCD). Under the new law, in the case of hardships a landowner commits to a compliance plan with their local SWCD by November 1, 2017, and has until July 1, 2018, to implement their buffer or alternative practice. The waiver allows up to eight months to work collaboratively with their local SWCD to implement and improve alternative practices. The law was clarified on alternative practices to include the common practices the Board of Water and Soil Resources (BWSR) adopted this spring and it clarifies that landowners can still work with their SWCD on individual site-specific practices.”
Buffers have long been important conservation tools, primarily as a means to filter sediment from runoff and clean the water before it reaches waterways such as creeks and streams. They also have strong utility for game and nongame wildlife alike, ranging from ring-necked pheasants to pollinators. They can serve as feeding areas and at the same time be good for nesting birds, too. Generally speaking, the wider the buffer, the better. When Landwehr starts discussing buffers, he likes to reference the southwestern part of the state. There, it’s common for the wind to blow around the topsoil, and the cover in ditches oftentimes is the only thing that stops the wind-blown soil from entering waterways directly. “There’s no question that there’s a significant impact to water quality by virtue of not having buffers on those watercourses,” he said.

Buffers On The Ground

In terms of new acres of habitat across the state, ditches will be the most likely locations. According to the buffer law, many public waters will require “a 50-foot average width, 30-foot minimum width, continuous buffer of perennially rooted vegetation.” Public drainage systems require a “16.5-foot minimum width continuous buffer.” Officials estimate just 20 percent of the state’s legal ditches have the required buffers. The remaining 80 percent will need to be in compliance by November 2018. “That’s thousands of miles of buffers, and thousands of acres of habitat,” Landwehr said.
As of March this year – eight months before the first deadline – the state’s counties were already making strong headway in achieving compliance with the buffer law. Following the release of the DNR’s water quality protection map, which shows waterways where buffers are required, Dayton announced 64 of Minnesota’s 87 counties – or 74 percent of the entire state – were between 60 percent and 100 percent compliant with the buffer law.
“Minnesota farmers should be commended for their initial efforts to help improve the state’s water resources,” said Dave Frederickson, commissioner of the Minnesota Department of Agriculture. “Our farmers have committed to being national leaders in land and water stewardship by installing buffers and enrolling in the Minnesota Ag Water Quality Certification program, which can serve as an alternative to the buffer requirement. With the ag community’s continued hard work, we know we can make an impact to improve our environment.”
Indeed, there are a variety of alternative practices that, in some areas, may be a better fit than traditional buffers but provide comparable water quality benefits. Landowners should contact their local SWCDs for an evaluation of whether buffers or alternative practices are better fits on specific sites, Jaschke said. “The buffer law’s flexibility provides options for landowners to accomplish water quality improvement practices that meet the purpose of the law on landscapes where buffers aren’t the best fit,” he said.

Eight-Month Waiver

One of the primary changes to the buffer law was the allowance of a waiver for some landowners. Said Landwehr: “Really, what came out of this session was an agreement that in the case of hardships, you can grant an eight-month waiver. It’s not reducing buffer widths, it’s not reducing the miles of waterfront that are covered, and it doesn’t delay the overall implementation.” The change, according to Rep. Dan Fabian, R-Roseau and chair of the House Environment and Natural Resources Policy and Finance Committee, makes the buffer law “more workable, while still protecting Minnesota’s water quality.”
The waiver will give some flexibility to landowners who face circumstances – weather conditions, for example – that don’t allow them to install a buffer by Nov. 1 of this year, Jaschke said. “It’s to deal with those circumstances where someone does have a legitimate reason to have a deferral of the timeline,” he said.

Buffer Programs

Landowners will have a number of options in terms of financial and technical assistance in installing buffers. Officials say they should contact their local SWCDs with questions. In terms of conservation programs that would meet buffer requirements, one of the main ones is the continuous Conservation Reserve Program (CRP). “Almost any riparian area that would be identified as (needing) buffer protection also would be eligible for CRP,” Jaschke said. One thing landowners should keep in mind: There’s some uncertainty regarding the federal cap on CRP acreage, so landowners should check with their local United States Department of Agriculture (USDA) Farm Service Agency office to see if there are acres available in their county.
Additionally, Minnesota’s new Conservation Reserve Enhancement Program (CREP) – enrollment for which began in mid-May – also will provide opportunities for landowners. Earlier this year, Dayton signed a CREP agreement with USDA under which a $150 million state investment will leverage $350 million in federal funds. CREP, which will protect 60,000 acres in 54 counties, combines the federal CRP program and the state Reinvest in Minnesota program. About half of the state’s total acreage is slated for buffer practices; the other half will be split between wetland restoration (25,000 acres) and municipal wellhead protection (5,000 acres), Jaschke said. To date, the state has appropriated about two-thirds of the funds it needs to leverage the full federal amount. Dayton and lawmakers this year provided CREP money from a variety of sources, including the capital investment bill, Legacy bill, and the Environment and Natural Resources Trust Fund bill.
In his letter to lawmakers, Dayton wrote: “In 2018 I will be submitting a bonding request that will assure that CREP is fully funded. It would be my hope that we invest funds in CREP to leverage the maximum federal funding to support Minnesota farmers.”

Beyond Minnesota

While Minnesota’s buffer initiative has generated headlines in the state and beyond, it’s not the only place where state officials recognize the importance of buffers on the landscape. In March of this year, South Dakota Gov. Dennis Daugaard – who convened a Pheasant Habitat Summit in that state in December 2013 – signed a bill that provides incentives to landowners who establish riparian buffer strips on private land. Under the new law, riparian buffer strips are assessed at 60 percent of the land’s agricultural income value, according to Daugaard’s office. The bill, he said, “received broad, bipartisan support and I expect many South Dakotans will choose to participate in this program to help improve water quality in our state.”
Story by Joe Albert
Photo courtesy of NRCS