Minnesota urged to end tiling exemption

Nov 2, 2012

—Official points to ag as reason for wetlands loss.

Agriculture drainage tile would no longer be exempt as a pollution point-source in Minnesota if the state takes to heart a suggestion from a U.S. Fish and Wildlife Service (USFWS) official.

The federal Clean Water Act (CWA) currently does not consider agriculture drainage tile as a point source. The Wetlands Conservation Act in Minnesota contains the same exemption.

Farm interest groups for decades have fought to maintain the exemption for fear that producers would be subject to increased costs from CWA permitting and potential lawsuits.

In an Oct. 18 letter to John Jaschke, executive director of the Minnesota Board of Water and Soil Resources, Thomas O. Melius, regional director of the Fish and Wildlife Service based in Bloomington, MN, said a loss of more than 90 percent of historic wetland basins in the southeastern part of the state resulted “primarily from agricultural drainage activities.”

The letter was sent to Jaschke as part of an ongoing state review to find ways to meet an existing state goal of no net loss of wetland acreage in the state.

Melius said in the letter it was time for the state to remove the ag tiling exemption.

“Many of the wetland basins remaining in this landscape are significantly degraded because of the installation and interconnection of agricultural drainage facilities including surface ditches and sub-surface tile lines,” he said.

Melius was critical of the role ag drainage tiles play in moving sediment and nutrients to water. He said the systems reduce the biological productivity of waters and contribute to the spread of invasive species.

Melius said the state should change state law to recognize agricultural tile drainage outlets as point sources.

In the letter, he makes a number of recommendations to strengthen wetland conservation, including reevaluating and amending Minnesota drainage law.

There are several negative consequences of drainage tile projects, he said.

That includes the drainage of reestablished wetlands, degradation of downstream wetlands, potential effects to downstream water quality from sediment and nutrient deposits, and an expansion of historic watershed boundaries.

Melius said in the letter that “countless” wetlands are drained using subsurface tile lines that drain into waters of the state of Minnesota.

“Even with this breadth of information on the environmental impacts of tile discharges these facilities go unregulated,” he said.

“All exempted activities do not require replacement and/or a mitigation plan. To obtain a true ‘no-net-loss’ policy these exemptions need to be eliminated or wetland mitigation/replacement needs to be required.”

Stakeholder process

Minnesota Gov. Mark Dayton signed an executive order in May that requires numerous state agencies to look at ways of meeting the goal. There have been a number of stakeholder roundtables held across the state after the governor asked the state’s Board of Water and Soil Resources (BWSR) to assess state wetland policies.

Dayton’s press secretary, Katharine Tinucci, said Melius’ letter represents input from just one of many others.

“The letter from the U.S. Fish and Wildlife Service to BWSR is the recommendation from just one stakeholder,” she said. “I know that BWSR has done extensive outreach to other stakeholders, as well.”

John Kolb, an attorney for Rinke Noonan in St. Cloud, MN, who specializes in water law, said the idea of eliminating the exemption has been discussed in various circles.

“Some views in Minnesota are that the state is already over-regulated,” he said. “Minnesota drainage code already has a substantial section with drainage.”

Kolb said if agriculture loses the tiling exemption in Minnesota, there will be legal issues involving private property.

“With public drainage systems, these things are paid for by assessments to lands,” he said. “Once it is paid for, you have a property right. If a ditch is a drained wetland, you can go in and maintain the tiling system. When Minnesota wrote the act, they put in an exemption for maintenance of drainage.

“I could relocate a ditch through a wetland or outside and it is still considered a repair. If you have an investment in tiling it creates and expectation of use of property. This would take that expectation away.” Other opportunities A number of environmental groups sued the Fish and Wildlife Service in California in a case that challenges the tiling exemption. That case is working its way through the legal process.

Two other lawsuits have been filed in New York and Louisiana, attempting to force the Environmental Protection Agency to set more strict numeric standards in the Mississippi River basin to reduce nutrients runoff to the Gulf of Mexico.

USFWS has opportunities to offer incentives for private restoration of wetlands, Kolb said, instead of taking away tiling exemptions.

Prior to statehood, about 19 million acres of the state’s total of 54 million acres of land were wetlands, Kolb said. Today, there is only about 9 million acres of wetlands.

Mike Youngerberg, director of field services at the Minnesota Soybean Association, said eliminating the ag tiling exemption would add to an already “confusing” regulatory situation for farmers.

The federal CWA exempts agriculture tiling systems as pollution point sources. If the exemption is out in Minnesota, he said it would leave farmers guessing as to which law to follow—the CWA or the state’s Watershed Conservation Act.

“There are certain agencies that have differing viewpoints on how they look at issues,” Youngerberg said.

The state’s law mandating no net loss of wetlands has been in effect since 1985. Despite a belief in some circles that agriculture is to blame for draining wetlands in Minnesota, Youngerberg said that isn’t the case. Most loss of wetlands comes from development of roads and other infrastructure, he said.

“Some people believe tiling is getting rid of wetlands,” Youngerberg said. “A number of farmers are going to NRCS [Natural Resources Conservation Service] to avoid wetlands.”

Farmers have had difficulty working on tiling systems in Minnesota.

“We’ve had farmers receiving cease-and-desist orders,” Youngerberg said.

“They get very concerned. They get gun shy about who is going to show up next.”

He said farmers primarily drain crop land and not wetlands.

There have been changes to the Wetlands Conservation Act almost yearly, Youngerberg said.

“We try and hold consistency with the federal programs to keep it aligned so farmers are not in violation one way or another,” he said.

In recent decades, about 500,000 wetland acres have been added back into the system statewide, he said.

If the state exemption is eliminated, Kolb said it likely would result in an expanded use of wetland banking.

Wetland banking involves tracking wetland and upland buffer credits designed to replace future wetland losses. Such credits could come from a prior wetlands replacement project earmarked for banking. Such a system allows wetland acres to be purchased from an account holder.

“You’d see a lot of wetland banking occurring and tiling maintenance would go away,” Kolb said.

“I don’t believe it is a practical option. It constitutes a taking. The ag exemption comes up all the time. But this is the most credible entity I’ve seen raise this issue.” — Todd Neeley, DTN