Minnesota’s buffer law is likely to change — no matter who wins the governor’s race

Starting in November, 16.5-foot buffers along ditches will also be required under the law.
Research says buffers help filter out pollutants such as phosphorus and nitrogen from rivers, lakes and other sources of water.

Gov. Mark Dayton’s signature clean water law requiring buffers along Minnesota waterways is in many ways well established. It first went into effect in November of 2017, and state officials say compliance is high — more than 95 percent on all bodies of water in Minnesota.

But despite that level of participation, debate over the regulation is hardly settled. Opponents of the law, including some in the agriculture industry, say it forces farmers to give up productive land without anything in return, and they bristled at what they said was a lack of input in writing the regulation.

Supporters, including Dayton and environmental groups, contend the rule is necessary to prevent farm runoff from harming wildlife and contaminating drinking water, a costly and dangerous problem in many areas of the state. Research says buffers help filter out pollutants such as phosphorus and nitrogen from rivers, lakes and other sources of water.

But with Dayton leaving office, the buffer law has become one of the top natural resource issues in the governor’s race between Republican Jeff Johnson and DFLer Tim Walz, and both are likely to forge their own path on balancing clean water and agricultural production by changing the program — even if it’s not entirely clear what those changes will be.

“The buffer thing has become kind of the tip of the spear, you might say, how farmers feel so frustrated,” said state Rep. Dan Fabian, R-Roseau.

Repeal (and replace?)

Johnson, a Hennepin County Commissioner, has made his intentions simple: he wants to repeal Dayton’s buffer regulations completely.

In an interview Tuesday, Johnson said the buffer law has been faulty and inflexible and doesn’t compensate farmers for what they say is lost land. Johnson also criticized Dayton for not properly consulting producers for his original proposal, which has been a frequent gripe from some farmers and the GOP.

While Dayton has said he should have done better to convene agriculture interests ahead of the initial rollout of his proposal, the measure has been softened before and after it was passed by the Legislature in 2015. But that hasn’t been enough for Johnson.“I would start over with it,” he told MinnPost. “It’s clearly not working for many farmers.”

What comes next is less clear.

Johnson said he wants to address clean water in some fashion as governor. But he said he’s not sure whether he would secure a replacement deal before repealing the buffer law. He also gave scant details on what he’d propose as an alternative.

“I suspect we’d come to a solution relatively quickly but it probably would take a [legislative] session to do that,” he said. “And it might look similar, but I want to make sure that what we have in place — farmers have at least had the opportunity to be heard and to offer their suggestions about how best to protect water.”

That doesn’t necessarily mean buffers would be a thing of the past in a Johnson administration. He said they’re “obviously” a part of his vision for protecting water quality. But he said he also wants to ensure farmers will be paid for the land used for buffers. He likened requiring them to the government exercising eminent domain to obtain property.

That’s not a new concept in St. Paul. The Minnesota Corn Growers Association has been pushing for the Legislature to offer farmers $50-an-acre tax credits for land use. The proposal stalled in the 2018 session, however, because lawmakers and the governor couldn’t agree on a source for the money. The state Department of Revenue estimated in May the proposal would cost Minnesota roughly $27 million over the two-year budget cycle, starting in 2020.

But Johnson said he’d like to go further than the Corn Growers’ proposal, paying farmers directly for any land used for buffers. He said he did not have an estimate for how much that plan might cost, but said payments would vary depending on the value of property.

“Frankly, I think people should be justly compensated for the property and I think the Corn Growers put that out because — based upon the current governor — they realized they aren’t going to get compensated so they’re looking for at least something,” Johnson said.

Tweak and build

Walz rejected the idea of repealing the buffer law, but also said in an interview that he would build on 2017 legislative amendments that gave farmers more flexibility with buffers, depending on the unique features of their land and water.

The buffer law first passed in 2015, but its general requirement of 50-foot buffer strips along lakes, rivers and streams went into effect late last year despite urging from some Republicans to delay. Starting in November, 16.5-foot buffers along ditches will also be required under the law.

Walz said he’d be open to approving the tax rebate plan from the Corn Growers Association — if it met one condition: the money shouldn’t come from the Clean Water Fund as proposed by the corn group. That fund doles out dedicated sales tax cash from the 2008 Clean Water, Land and Legacy Amendment approved by voters.

Money in the Clean Water Fund must be spent to “protect, enhance, and restore water quality,” according to the state constitution and must “supplement” normal spending on those goals.

Walz said paying for the tax credit with Clean Water Fund money would be challenged for breaking those constitutional limitations. Dayton had essentially the same stance in the 2018 legislative session, and the bill did not pass. (Johnson said he thinks using the Clean Water Fund would be constitutional, but he’d prefer any money spent on tax rebates for farmers to come from the state’s general fund or another source of money.)

Walz also said he’s looking to the Congressional Farm Bill, which is still being debated in Washington D.C., to offer money to farmers for buffers through the Conservation Reserve Program and others as it has in the past.

“When I hear this discussion, ‘We should get rid of it,’ that’s not what my producers are saying,” Walz told MinnPost about Dayton’s buffer law. “It’s certainly not what Pheasants Forever, Ducks Unlimited and others are saying. So it’s about tweaking it. It’s about finding those sources. It’s about having the courage to go back and figure out where we can fund this.”

Political debate continues

While Walz supports the buffer law, he did not call for future regulation of agriculture in the aim of improving drinking water. Walz said he wants the state to work “as partners” with agriculture and that politics over regulations are “getting in the way” of finding middle ground.

He also said Minnesota should push research and technology to fix and prevent drinking water and habitat contamination. “In agriculture, our silver bullet has always been innovation in technology — that we continue to move forward,” Walz said. “I really believe that’s going to have to be the fix.”

It’s not clear if Walz’s strategy of smoothing out old fights by having “feet in a lot of camps,” as he put it, is working. Consensus has been hard to come by at the state Capitol, even within his own party.

Rep. Rick Hansen of South St. Paul, the DFL lead in the House’s environmental committee, said he sees the buffer law as a first step. While he said he supports incentives for farmers to entice practices that improve water quality, he said stricter rules for agriculture to prevent pollution and pay for clean up are necessary, too.

For one, Hansen said he’d like to put new fees on fertilizer to help pay for infrastructure projects that treat water. He also likened the buffer law to Minnesota’s ban on smoking in bars, saying businesses should not be paid to comply with what he sees as a necessary public health regulation. “In a perfect world I’d hope the small vocal minority of the ag industry would realize they’re flogging a dead horse and move onto other issues like trade, profitability and anti-consolidation of agriculture,” Hansen said of the buffer law.

That notion roiled Fabian, the Roseau Republican and chairman of the House environmental committee, who said he’s “willing to work with” Johnson on repealing the buffer law, despite some reservations that it could be accomplished.

Fabian acknowledged there are likely greater concerns for farmers’ pocketbooks than the buffer law. But he said farmers take water quality seriously and are dedicated to its improvement. The “top-down” nature of the initial regulation roll out — and the insistence from some DFLers to fall in line rather than keep working on the issue since — have left deep wounds in the agriculture community, Fabian said.

“The buffer thing is something that has just re-reared its ugly head,” Fabian said. “Simply because it’s kind of the symbolic crown jewel of the lack of respect and understanding for agriculture. So it goes much deeper than just the implementation of the buffer law.”

Comments (17)

  1. Submitted by Peter Gove on 10/25/2018 - 11:13 am.

    Great story, Walker on a very important issue. Here’s hoping Rep. Fabian no longer chairs the House Environment Committee in the next session.

  2. Submitted by Hugh Gitlin on 10/25/2018 - 11:17 am.

    I listened to The Gist form Slate on Wednesday. The guest was Art Cullen, who won the Pulitzer for writing about the buffer fight in Iowa. Follow the money…It leads right back to Big Ag. I recommend listening to it. The name of the episode is “Something in the Water”.

  3. Submitted by James Hamilton on 10/25/2018 - 11:24 am.

    Preventing their operations from polluting public waters is a cost of doing business, to be borne by farmers. Under existing law, they can do that by creating buffers or by some other, equally effective means. The law is fine as it is and should remain as it is.

    • Submitted by Paul Hamilton on 10/30/2018 - 09:37 pm.

      Ah, but ag has a sweetheart deal that exempts farming from many environmental laws. I suggest we take up the offer to buy the land, then charge farmers for treating the volume of water traveling through the now public ditch.

  4. Submitted by Nancy Gibson on 10/25/2018 - 11:40 am.

    If farmers “take water quality seriously” we wouldn’t need buffers. But they don’t and farm country has the worst water quality in the state. Plus they want those living downstream to pay to clean it up. Everyone needs to put their mark on clean water.

  5. Submitted by Edward Blaise on 10/25/2018 - 11:54 am.

    If a farmer wants to participate in any federally sponsored farm program they should comply with clean water initiatives. Too many farmers will quickly say: “get the gummint outta my bizness” all he while getting a nice check in the mail from that same government. And Jeff Johnson takes their side in this dispute? Corporate welfare, fine and dandy, all other forms, a blight on society. Go Tim Walz…

  6. Submitted by Frank Phelan on 10/25/2018 - 12:33 pm.

    I can see by the comments here that a lot of folks just don’t understand a lot of how the modern economy works. There are two key rules.

    1) Profits are private

    2) Losses are socialized.

    Now, keep your stinkin’ government hands off my medicare!

  7. Submitted by Terry Beyl on 10/25/2018 - 12:46 pm.

    This issue is just one reason why farmers don’t vote for Democrats. Rather than working with and supporting farmers or getting to know rural issues Dayton and the Dems dictate to them from St. Paul and penalize them. As a progressive who grew up in North Dakota, I’ve never seen a more anti-farmer party than the DFL.

    Farmers not only have to battle the increasing costs of capital, health care, fuel and machinery, they now have to give up land and profit without recompense. Most farmers want to protect the environment, including water. There are many environmental stewardship programs promoted by farmers and environmentalists. All ignored by the governor and legislature.

    But for businesses, the state offers multitudes of tax breaks, tax refunds and incentives. Both parties hand over millions of our tax dollars to private sports facilities that enrich the 1%. Many of these businesses and the stadiums are environmentally harmful. Are they being taxed to clean up the environment? No. They are actually subsidized by state taxpayers.

    The DFL should drop the outdated notion of being for farmers and labor. They long ago stopped advocating for the progressive stands of the Farmer-Labor party. Just true up by changing the FL to a B, and become the DB, Democratic Business party.

    • Submitted by Edward Blaise on 10/25/2018 - 01:21 pm.

      If a farmer ever had to undergo an OSHA inspection like a manufacturing business routinely has to, both the farmer and the OSHA inspector would fall over in cardiac arrest. The farmer because the list of violations would stretch from the barn door to the kitchen door, and the inspector because of complete shock that any business could so neglect basic safety and health requirements. Farmer can let their cows swim in the stream; yet, let a manufacturer spill a quart of solvent in their parking lot and they are shut down until remediation of the problem.

      From farm program dollars to lax enforcement, farmers are the golden child of federal regulations.

      Federal farm subsidies alone give MN farmers the equivalent of a US Bank Stadium every year for the last 20 years.

    • Submitted by Dennis Litfin on 10/25/2018 - 01:41 pm.

      Terry….same old, same old from Johnson and republicans. To them the
      Buffer law is just like the ACA, repeal it without having a replacement for it…Trumpism at it’s best.

      • Submitted by Terry Beyl on 10/25/2018 - 02:59 pm.

        My post was not coming from a Republican or Trump perspective. Might be a good idea if Minnesotans left their urban bubble and learned about the work of national rural Democratic leaders like Sen. Sherrod Brown of Ohio and Sen. Heidi Heitkamp of North Dakota. They are representing and working with farmers and rural communities to support.balanced legislation for the benefit of everyone, not a few. Google their campaign websites and under Issues select Agriculture. They have common sense ideas. It is farmers who put food on your tables after all, unlike a stadium.

        • Submitted by Edward Blaise on 10/26/2018 - 11:08 am.

          Can’t we have a stadium and eat too?

          Come to think of it, I did have some of that fine Revival chicken at a recent people’s stadium visit…

    • Submitted by Pat Terry on 10/25/2018 - 02:00 pm.

      The outdated notion that needs to be dropped is the idea that farmers care about the environment. For all the taxpayer handouts that farmers get, its really not too much to ask that they don’t pollute everything around them.

  8. Submitted by Pat Terry on 10/25/2018 - 12:49 pm.

    Its not safe to swim in any of the lakes in southwestern Minnesota. They are all too polluted by agricultural runoff.

    http://www.citypages.com/news/there-are-no-swimmable-lakes-left-in-southwestern-minnesota-6543570

  9. Submitted by Ray Schoch on 10/25/2018 - 01:32 pm.

    Terry Beyl should read James Hamilton, Nancy Gibson and Pat Terry. Buffer strips are a low-cost way for farmers to mitigate life-threatening and very expensive-to-fix water pollution from fertilizer application. Failure to do so, simply illustrates a level of irresponsibility that puts the lie to any claims from rural areas that they’re “conservative,” and/or have the welfare of society at heart. Polluting the water that everything and everybody else depends on is not an abstract concept. Pesticides and fertilizers turn water into liquid poison when in high enough concentration, and as Pat Terry has pointed out with the link to the City Pages article, that’s the state of far too many bodies of water in rural areas.

    Even if farmers had deep enough pockets to fork over cash as compensation, it wouldn’t address the underlying problem of jaw-dropping selfishness and nihilism on the part of those who’d like to be able to continue poisoning their neighbors and fellow Minnesotans without restriction or cost.

    That there are business and “public” facilities subsidized by taxpayers that also pollute the environment is also pernicious, and bad policy, which is why Republican President Richard Nixon initiated the EPA, but “what about him?” arguments do not magically render one group innocent in order to place blame on another group. Farmers are responsible for poisoning an awful lot of water in Minnesota, and water is the most precious resource on the planet.

  10. Submitted by David Broden on 10/25/2018 - 03:38 pm.

    Lots of opinions and few with information based comments considering some of the reasons we have the run-off issue. I grew up in Swift county– so did Mn Ag Commisioner Dave Frederickson — we both saw the problem evolve. Swift county is prairie pot hole country. In the 1950’s thru early 1970’s there was demand for expanded acreage and increased production- so conservation took a secondary role to expansion of land by draining swamps and digging drainage and waterflow ditches. Land use expanded and along with more fertilizer the issue grew. County, state, and national concerns about impact of this tailoring of the land and water resources was minimal and often encouraged. Some of this drainage work was appropriate and some was not needed and made the problems we face today. Because of lack of conservation management 40-50 years ago now the state is faced appropriately with the cost impact of barriers. I grew up when local community farm implement dealers were a special breed working with farmers. My father was a conservation advocate and president of Mn Farm Equipment Dealers Associaiton – he worked with the other dealers to focus on long term agriculture and conservation collaboration. Seeking a rationale fact based approach is reasoanalble and can be done without repeal or requiring excesive fees on farmers. The problem evolved by all groups seeking expansion without good understanding of inmpact and management- we know this now and can learn by expericne and applying the community based solutiions common to rural Mn and valued communiation with the urban concerned citizens.

    Dave Broden

  11. Submitted by Kevin Powers on 10/26/2018 - 07:10 am.

    After a career spent cleaning up water pollution, I can tell you that we are not making pollution like we used to. Regulations governing the activities and practices of businesses and communities have made a difference. The cost of implementing those changes was borne by those industries and communities.
    The big remaining source of pollution is agriculture, or what is often referred to as “non-point source pollution” to avoid offending the agriculture industry. The costs of this pollution are real. Communities in farm country are seeing their water supplies ruined by nitrate from agriculture. Rural Water Districts are having to develop new supplies and treatment plants while getting pressure to extend their service areas to provide alternative water sources to folks whose well water has been ruined. Meanwhile in the cities downstream, water treatment plants are faced with cleaning agricultural water pollution. Expensive improvements to these plants are required to address the pollution coming to them from upstream agriculture.
    The time has come for the ag industry to get with the times and adopt sensible environmental practices.

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