Implementation of Minnesota’s Buffer Law is Underway: Enforcement

This update, the third in a series of updates about the Buffer Law’s implementation, will summarize existing and developing provisions on how the law will be enforced. Click here to read part one, part two, and part four. 

Local Implementation and Assistance

Soil and water conservation districts (SWDCs) are required to provide landowners with technical assistance. The statute says that SWCDs “must assist landowners with implementation of the water resource riparian protection requirements established in this section.  For the purposes of this subdivision, assistance includes planning, technical assistance, implementation of approved alternative practices, and tracking progress towards compliance with the requirements.”[1]

SWDCs must determine and track Compliant and Not Complaint statuses on a parcel basis as identified by a unique locally defined property identification number or description. Each bank or edge of a water body on each parcel will be reviewed independently to determine if a compliant buffer or alternative practice has been installed.[2]

Corrective Actions

If the soil and water conservation district staff determines that a landowner is not in compliance with the Buffer Law, these are the next steps in the enforcement process:

1. If the soil and water conservation district has determined that a landowner is not in compliance, it must notify both the county or watershed district with jurisdiction over that site and the Minnesota Board of Water and Soil Resources (BWSR).[3]
2. Next, the county or watershed district with jurisdiction or the [BWSR] must provide the landowner with a list of corrective actions needed to come into compliance and a practical timeline to meet the requirements in this section.  “The county or watershed district with jurisdiction must provide a copy of the corrective action notice to the board [BWSR].”[4]

If the landowner does not comply with the corrective actions in the time provided, the case can proceed to the enforcement phase.

Enforcement

Enforcement provisions are still being developed.  There are three entities that have the authority under the statute and may issue administrative penalty orders (citations) for violations of the Buffer Law:  the Minnesota Board of Water and Soil Resources and the county or watershed district with jurisdiction over the site.[5]  But before any of these entities can begin issuing penalty orders, they have to – not surprisingly – take some steps to create the process they will use in enforcement.

• For the BWSR, it must publish its initial plan containing procedures for the issuance of administrative penalty orders by the BWSR or by local governments in the State Register no later than July 1, 2017.   The plan and any amendments will become effective 30 days after being published in the State Register.[6]
• For a county or watershed district, it must first “affirm its jurisdiction and identify the ordinance, rule, or other official controls to carry out the compliance provisions by notice to the BSWR prior to March 31, 2017.” Then it has to adopt a plan that is “consistent with the plan adopted by the board [BWSR] containing procedures for the issuance of administrative penalty orders and may issue orders beginning November 1, 2017.” Presumably, this means that counties and watershed districts have to wait until July 1 to adopt their enforcement plans but they need to have them in place by November 1.

If a county or watershed district decides not to exercise its enforcement authority, the BWSR must do so.[7]

Penalties

The county or watershed district with jurisdiction or the BWSR may issue an administrative penalty order requiring violations of the Buffer Law to be corrected, and administratively assess a monetary penalty of up to $500 for noncompliance commencing on the first day of the 11^th month after the noncompliance order was issued.[8] So, in other words, a land owner has ten months to comply with an order.

Appeals

A landowner can appeal the terms and conditions of a soil and water conservation district validation[9] or an administrative penalty order within 30 days of receipt of the written or electronic notice.  The appeal must be in writing.  It must also include a copy of whatever is being appeal, the basis for the appeal, and any supporting evidence.  The appeal can be submitted personally, by first class mail, or electronically to the executive director of the Board of Water and Soil Resources.[10]

The executive director must review the appeal and supporting evidence and issue a decision within 60 days of receipt of the appeal.  The executive director’s decision is appealable directly to the Minnesota Court of Appeals.[11]

Updates regarding implementation of the Buffer Law are published on an ongoing basis on the Minnesota Board of Water and Soil Resources website, so be sure to check it frequently:  http://www.bwsr.state.mn.us/buffers/.