$8 million to aid buffer enforcement

On May 30, 2017, Governor Dayton signed a tax bill and an environment omnibus bill that will provide “Riparian Aid” to watershed districts and counties that elect jurisdiction to enforce the Buffer Law. $8 million has been appropriated for fiscal year 2018 (which starts July 1, 2017) and $10 million for 2019. 

To be eligible for Riparian Aid in the coming year, a watershed district or county must file with the Board of Water and Soil Resources, by 4:30 p.m. on June 28, 2017, a signed resolution accepting jurisdiction to enforce the Buffer Law and a point of contact. BWSR will estimate the funding available to a watershed district if the watershed district provides data on the total miles of public drainage ditches in the watershed by 4:30 p.m on June 14, 2017.

Further details are available here.

Stormwater - reuse projects earn exemption from state permit

Watershed districts have been partnering with golf courses, city parks, and school districts to construct stormwater harvest and reuse projects. The regulatory burden on these projects will be a little lighter, as the 2017 Legislature exempted stormwater reuse projects from the requirement to obtain a DNR water appropriations permit.  

Harvest and reuse projects reduce use of drinking water for simple irrigation, and more policy work to help support such efforts is yet to come. The Clean Water Fund Water Reuse project involves an interagency work group that is expected later this summer to recommend further measures to promote successful reuse projects.

For a look at stormwater reuse projects around Minnesota, view our gallery.

Legislature creates confusion on levy certification deadline

The 2017 Legislature added "special taxing districts" to the list of entities that must under the Truth in Taxation law submit their proposed tax levy to the county auditor by September 30 for the following year. Watershed districts are included in the definition of "special taxing districts," but already have a longstanding deadline to adopt a budget and certify a tax levy by September 15. We are advising our clients that the September 15 date is still the one to follow. 

Joe Magner: Teaching a Water Ethic

Academic research is a second career for Joe Magner.  “When I retired from the State of Minnesota, I realized that we hadn’t quite accomplished what I’d hoped in the area of Nonpoint Source pollution,” he explains.  “ I want to pass on to the next generation the passion, interest, and desire to work toward better water management at watershed scales where land use decisions are made.”

Magner is a research professor in the University of Minnesota’s Department of Bioproducts and Biosystems Engineering, with a passion for seeing water improve in Minnesota and for passing on his water ethic that kept him in the field after a 34-year career at the Minnesota Pollution Control Agency (MPCA).

“My main thrust is helping people understand more about watershed management. People—not just government agencies and watershed districts—need to learn and understand how water systems work, how water moves above, on, and under the landscape,” he reflects.  “The value is that, over time, people make decisions based on an understanding of what it means to have sustainable water management. Given a strong natural resources ethic, most people will try to do the right thing.”                               

Partnership approach

According to Magner, partnering to address water challenges is necessary for better water management. “From a policy perspective, as a state we need to find ways to cooperatively work to meet challenges of water quality and quantity,” Magner notes. “As Governor Dayton and Commissioner Stine stated at the 2016 Water Resources Conference, we as a society need to develop an ethic where all Minnesotans recognize the value of water, and take ownership and responsibility.”

Partnerships require thinking beyond landowners and government entities. “We are trying to reach out and engage in more public private partnerships,” explains Magner. “The private sector can take a proactive stance of thinking beyond winners and losers, in terms of who is regulated and at what cost, and recognize the value of a high quality of life for all.” Magner sees the biggest partnership opportunity with private partners in rural areas.

“Industry has a vested interest in the communities on which it depends. The agricultural industry is dependent on famers doing well. Large agricultural companies are directly connected to rural agriculture and rural agricultural concerns, in terms of both water quality and quantity. They are ideal partners to help farmers build their soil health and manage water on the landscape better, because it benefits them in the long run. Working with watershed districts to help farmers get the appropriate best management practices in place is a way for the agricultural industry to show direct support to their constituents.”

Research to inform current challenges

Magner advises students like Katherine McLellan, who he works with alongside other student researchers to quantify riparian systems, understanding how water moves over, into, and though riparian zones. This work is directly tied to Minnesota’s 50-foot buffer rule and the “built in ‘equivalent to’ language in the rule that does not require a 50-foot buffer everywhere in the landscape and allows water managers to identify a practice that is equivalent," says Magner. “With a better idea of riparian dynamics, we hope to go back to local units of government and offer specific practices that achieve equivalent water quality benefits.” Adaptive management is enabled by allowing alternative practices under the buffer law, an example of the type of regulation Magner thinks is more helpful than historical “hard and fast rules.”

In addition to this work, Magner and his students are focused on several multi-year projects showcasing the benefits of water management plan implementation at smaller scales (acres up to a few square miles) to help inform the state’s use of best water management practices. They are also tackling a new project to help the Board of Water and Soil Resources link targeted watershed funding with the statewide One Watershed, One Plan program. “I have seen ‘watershed’ become a more common term in how we talk about water; however, defining watershed for the general public is a bit more challenging. Nevertheless, it is exciting to see watershed thinking and vocabulary used around a kitchen table,” notes Magner of a change he has seen in his 38 year—and counting—career in water resources.

Confronting the enigma of changing precipitation patterns

According to Magner, one of the biggest challenges facing Minnesota’s water resources is learning how to adapt to the way that rainfall magnitude and patterns are changing, and understand the implications for land and water management. “Until recent, we’ve been using return periods from 30-year moving averages of precipitation and runoff,” comments Magner. “Based on what we’re seeing and what climatologists have predicted in terms of cooler, wetter springs and summers, we need to learn how to adjust our expectations in both urban and rural settings.” Magner provides the example of culverts in rural watersheds, once sized appropriately but increasingly too small to handle bigger rain events, and the resulting issue of water flowing over roads or blowing holes below the culvert.

Magner also notes a somewhat decreasing snowpack and the corresponding decrease in deep aquifer groundwater recharge from snow. “It seems clear now that we get some recharge in the fall, due to warmer temperatures and corresponding late fall rain events.” Magner says that fall has not historically been considered an important time of year for groundwater recharge. “How we adapt to these changes will require systems thinking,” notes Magner. “The change is not necessarily good or bad, but different from what we have historically seen.”

Magner adds that a secondary hydrological question is how the quality of water will change with time if precipitation magnitude and pattern changes. “Many upland rural areas have developed methods to control soil erosion. Now, with mega storms coming through more frequently, the result may be more erosion and runoff that exceeds the capacity of historical best management practice [BMP] design,” says Magner. “Some of my colleagues are working to identify the longer-term BMPs based on current and predicted runoff events.”

Looking ahead

Some days, Joe Magner reflects, “I could have taken my retirement and gone to Belize, and really have been retired.” He says, though, that his continued work at the University of Minnesota has given him perspective on how positive change, albeit slow, is possible through partnerships. “If partnership projects like One Watershed, One Plan are really successful in building comprehensive partnerships—between landowners, government entities, and the private sector—they will be very fruitful going forward in managing water on a watershed scale,” notes Manger. “Their success requires a willingness to come together to make them work, and a consistent level of energy going forward with sights on the long-term goals.” He appreciates the role of patience in such projects. “Successful planning processes and implementation projects do not happen quickly; we need people who will stick with the effort over time. Then, I think, we can declare the Clean Water Legacy a success.”

Waters of the United States – Still Murky

A flurry of recent executive and judicial actions concerning the Waters of the United States (WOTUS) Rule seem to highlight process and perception more than substance, suggesting that while we can look forward to years of more litigation, not much will really change. The reach of the federal government’s jurisdiction over “navigable waters” will continue to be applied on a ‘case by case’ basis for the foreseeable future. Here are the latest developments:

  • The White House signed an Executive Order (EO) on February 28, 2017 that orders Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to review the 2015 Rule, develop a new proposed rule to rescind or revise it, and to interpret the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos;
  • On April 4, the Supreme Court denied the Administration’s request for a stay of its current review of the Sixth Circuit’s decision that the 2015 Rule may be reviewed directly to the Circuit Court of Appeal;
  • It is likely that the Administration will repeal the 2015 Rule and then take much more time to develop a new rule.  Meanwhile, the Eighth Circuit Court of Appeals holds that either the Scalia or Kennedy test may apply;
  • Federal District Judge Ann Montgomery’s recent decision in Hawkes Co. v. Army Corps of Engineers reflects a judicial desire to see the Corps apply the Kennedy test based on a sound record, and impatience with the impact of the Corps lengthy process on land owners. 

Louis Smith reviewed these and other developments in Water Law yesterday, April 20, 2017, at the annual Minnesota Environmental Law Institute.  

The direction to follow Scalia’s opinion in Rapanos would mean shifting the definition away from Kennedy’s “significant nexus” test.  To discern the details of a Scalia test, commentators have pointed to Scalia’s preference for direct surface connections between waters, and for “relatively permanent, standing or continuously flowing bodies of water” as opposed to “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”  Since Rapanos, Circuit Courts of Appeals find jurisdiction when Kennedy’s test is satisfied, or when either Kennedy’s or Scalia’s test would be satisfied, but no published opinion has ever held Scalia’s test alone governs.

Until there is a new rule, the Eighth Circuit continues to follow U.S. v. Baileyand consider jurisdiction valid if it satisfies either the Kennedy significant nexus, or the Scalia direct surface connection test.

  • The Seventh and Eleventh Circuits have held that Kennedy’s test alone governs. 
  • The First, Third, and Eighth Circuits have held that jurisdiction is proper if either Kennedy’s or Scalia’s test is fulfilled.
  • The Fourth and Ninth Circuits have applied Kennedy’s test, but without ruling whether Scalia’s test should be used in the future. 
  • The Fifth and Sixth Circuits have applied both tests, but without ruling whether one or both should be preferred in the future. 

Getting to the Bottom of Buffers

What exactly is going on in the water flowing beneath the surface from fields into waterways? Smith Partners Sustainability Fellow Katherine McLellan is digging up the answer.  Ms. McLellan and her colleagues at the University of Minnesota Water Resources Center are getting to the bottom of how buffers and alternative practices can help Minnesota attain water quality goals. 

One hot topic in the buffer conversation is whether we can identify sound alternatives to buffers.  Mc. McLellan is investigating the sources of nitrate to shallow groundwater in riparian zones of the Cottonwood River in southwestern MN.  “I hope to be able to determine the relative amounts of nitrate from various water sources such as tile drainage, deep groundwater, and precipitation,” she reports.  “If we can calculate the amount of nitrate that is taken up in the riparian zone before it reaches the stream, this information will help to determine which sources of nitrate are most in need of BMPs or alternative management practices.” 

Model Buffer Rules for Watersheds

Most watershed districts in Minnesota have taken a cautious approach in deciding whether to assume a role in local enforcement of Minnesota’s buffer law.  If the Legislature approves state funding for local buffer implementation and enforcement, that may affect their decisions. For watershed districts that decide that a local watershed approach to buffer enforcement is preferable to state enforcement only, a model watershed district rule for buffers is available.  The Board of Water and Soil Resources and the Red River Watershed Management Board retained Smith Partners to draft a model rule, guidance document, and memorandum of understanding.   BWSR is continuing to update these materials.


Assessing for Runoff or Sediment?

There is growing interest among water resource managers to find an alternative means to assess for drainage system maintenance and repair costs.  The Red River Watershed Management Board, the International Water Institute, and BWSR have been hard at work to develop a practical, transparent, science-based and cost-effective GIS application for use by drainage authorities to assess maintenance/repair costs for public drainage systems based on each parcel’s relative contribution of runoff and sediment to the system. They asked Smith Partners to assess the legal authority for this alternative approach and provide suggestions for legislation.  The BWSR Drainage Work Group is continuing to work on these issues.

Reduced Salt Diet

Smith Partners presented a model snow and ice management policy, guidance document, and model contract exhibit to the Freshwater Society’s 16th Annual Road Salt Symposium. As Minnesota waters struggle with the permanent pollution from chlorides, the Freshwater Society and Fortin Consulting asked Smith Partners to develop the model policy to manage the liability risk of cities and counties that want to take environmental, cost, and social considerations into their road salt application decision making.