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Buffer law will change the rural landscape

OLIVIA, Minn. -- One of the state's best-known attorneys in the area of farm drainage law expects that there will be court challenges to the state's new buffer law, and possible legislative efforts for change in the coming two years, but he also ...

Mike Sullivan and Kurt Deter
Mike Sullivan, left, discusses the new buffer legislation with attorney Kurt Deter of the Rinke Noonan law firm, St. Cloud, Monday following a meeting that attracted over 150 people to the Renville County government center in Olivia. (TOM CHERVENY | Forum News Service)

OLIVIA, Minn. - One of the state’s best-known attorneys in the area of farm drainage law expects that there will be court challenges to the state’s new buffer law, and possible legislative efforts for change in the coming two years, but he also encouraged Renville County farmers to comply with its requirements.

 “It is not going to go away,’’ said Kurt Deter, of the Rinke Noonan law firm in St. Cloud. Deter and John Jaschke, director of the Minnesota Board of Water and Soil Resources, were among those addressing a crowd of more than 150 gathered Monday at the Renville County Government Center in Olivia to learn about the new law.

Deter said Governor Mark Dayton is sure to keep the law intact, and he pointed to strong support from urban area legislators as well.

The law makes landowners responsible for installing a 16.5-foot perennial cover along public ditches by November 2018. It requires an average of a 50-foot buffer - with a 30-foot minimum - along-ublic waters by November 2017.

Deter expects the law will have a larger impact than predicted. The requirement for buffers along public ditches also requires the same along private ditches that are “within the benefited area of public drainage systems.’’

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“Most of your private ditches in Renville County will have to be buffered …’’ he said.

Current state law allows public systems to compensate affected landowners for the cost of installing buffers. Those costs can be assessed to all of those benefiting by the system. The costs could be considerable. He noted that placing a buffer on both sides of a ditch for one mile would require about 14 acres of land, worth $140,000 in some areas of Renville County.

As a result, Deter said he expects that many owners of private ditches will initiate petitions to make their branches public so that all of those benefiting share in the costs.

Deter said he also believes the law will significantly increase the amount of new tile lines that will be installed in coming years. To avoid the costs of the buffer requirement, he noted that many in the upper portions of a private ditch could replace the open ditch with underground tile.

The law is likely to bring about lots of other changes as well, including a redistribution of property taxes in counties most affected by the law. Statewide, it is estimated that from 110,000 to as many as 250,000 acres will be placed in buffers as a result of the law, he said.

Much of the litigation he expects will address issues not fully delineated by a law drafted in the final hours of the session. One example he cited is the landowner’s responsibility to keep all “invasive and noxious weeds’’ from the buffers. When does a violation occur? Who determines and enforces it? These are among the types of issues yet to be answered, he said.

As do many others, he also expects that there will be litigation challenging the law as an “illegal taking’’ of property. He cautioned that there is a very high burden to meet to make that case. If science shows there are water quality benefits from a buffer, it would not be an illegal taking, he explained.

Jaschke agreed that there are many elements of the overall law that are yet to be worked out. But he emphasized that the law is aimed at improving water quality, and encouraged landowners to meet with their local Soil and Water Conservation Districts for technical assistance and possible financial assistance in complying with it.

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