The Minnesota Riparian Protection and Water Quality Act

The Minnesota Riparian Protection and Water Quality Act Legitimacy, Intergovernmental Prerogatives and A Constitutional Review Prepared for: The Minnesota Natural Resources Coalition PO Box 25 Worthington, MN 56187 Complex Problems Solved Well Principal Authors: J.R. Carlson Norm Macleod Stillwater Technical Solutions May, 2017

EXECUTIVE SUMMARY The resilience of the American system of government lies in the separation of powers doctrine conferred to state and federal governments and the distinctive authorities granted to county governments over real property taxation, police powers, land use planning and boundaries. Prolific expansion of administrative agencies has confused and diluted the overall function of government, consolidating power away from local county governments. Propagation of federal and state policies based upon regional, environmental philosophies is creating substantive conflict with local and individual prerogatives, and the impact of imposed, higher governmental mandates can be observed at all levels of American culture. For this analysis, we examine the legitimacy of the Minnesota Riparian Protection and Water Quality Practices Act (RPS, buffer statute) in the context of fundamental local government functions, the constitution of the state of Minnesota, and historical supreme court case law. Employing deference for the RPS as existing state law, and with the understanding that its promulgation reflects strong values and environmental perspectives, this evaluation attempts to identify, analyze and report the funding, procedural, process, statutory, and constitutional problems with RPS in the context of local governmental functions and economies. Outside the scope of this effort, but glaringly operative, are significant data assumptions, technical issues, and other environmental assumptions used to derive and codify the buffer statute. For those interested in the technical problems, we have included a reference section with this report. The RPS is irreparably flawed, and it is difficult to understate the long-term diminution the statute will have on local government, county boundaries, agricultural interests, and individual land holders over time. While the immediate impact of RPS is significant in itself, perhaps the most onerous issue is the effect regional land use planning philosophies have over time by ceding power of local government away from the people. County government possesses vast, often underutilized, powers and authorities. These authorities, coupled with a sworn responsibility to uphold the Minnesota Constitution, may be judiciously employed to defend citizenry against encroachments, even those emanating from higher government. Concerned or like-minded counties should consider individual and collective resolutions, appeals, remonstrations, or even interposition to effect changes in the problematic RPS statute. Because counties already possess jurisdiction over land use planning, local governments should consider revising and implementing policies that address some concerns of the state but which safeguard geopolitical boundaries, local economies, and private properties. This could be achieved through appropriate application of technical investigation, local water quality monitoring and mapping, and cost-benefit assessments at the individual landholder level.

Table of Contents 1.0 PURPOSE AND OBJECTIVE...1 1.1 Constitutional Backdrop; Jurisdictional Conflicts... 1 2.0 BACKGROUND...2 2.1 Situation Appraisal; Summary... 2 3.0 RPS LEGITIMACY EVALUATION...3 3.1 Authorities; Taking of Private Property Defined... 3 3.2 Nexus; Responsibilities of Commissioner of Natural Resources... 5 3.3 Compensatory Programs as Unfunded Mandates... 6 3.4 Distribution of Powers; Conflicts... 8 3.5 Jurisdictional Conflicts; Inappropriate Delegation to BWSR... 10 3.6 Public Waters Inventory & Buffer Protection Maps; Errors; Redress... 12 3.7 Land Reclassification, Map Revision, & Public Notification Required... 13 4.0 CONCLUSIONS... 15 References and Maps... 16 ATTACHMENTS ATTACHMENT A: Comprehensive Watershed Planning Program 103.801 ATTACHMENT B: Constitution of the State of Minnesota ATTACHMENT C: Riparian Protection and Water Quality Practices - 103 F.48 ATTACHMENT D: Landholder's Bill of Rights - 84.0274 ATTACHMENT E: Board of Water and Soil Resources - 103B.101 ATTACHMENT F: MDNR Finding of Fact and Conclusions - 13 April 2017 ATTACHMENT G: Public Waters Inventory - 103G.201 ATTACHMENT H: Minnesota State Register i

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 1.0 PURPOSE AND OBJECTIVE 1.1 Constitutional Backdrop; Jurisdictional Conflicts - Statutes enacted by state legislatures are subordinate to the principles embodied in the state and national constitutions, and as such statutes are constrained and subject to higher law. Because legislative processes are susceptible to political or contemporary influence, the American system of government contains checks and balances to examine the legitimacy of enacted laws - actions which include judicial review, remonstrations of opposition, appeals, or resolutions by local government. Article I of the Minnesota Constitution states the object of government is to oversee the security, benefit and protection of the people. This mandate places the responsibility for scrutiny, or even reform, of higher government as close as possible to the people, in the hands of local government. Because county commissioners have sworn to uphold the Minnesota Constitution, they have a responsibility to assess the actions of higher government - and even interpose themselves between their electorate and initiatives that would affect taxation, inappropriately impact local police or other powers, confuse boundaries, or otherwise irreparably impact private property, health, safety or the economic interests of the citizens they serve. Minnesota Statute 103F.48, the Riparian Protection and Water Quality Practices Act of Minnesota (RPS) is a top-down act that imposes regional land use planning philosophies on public and private lands using natural-resource based planning processes. Specifically, the RPS imposes state-mandated construction and maintenance requirements on real property, primarily burdening the agricultural sector of Minnesota, through vague and transitional water quality and watershed policies. At its core, regional watershed planning places federal and state agencies in the position of directing local land use policy through evolving and arbitrarily applied technical standards derived from national planning philosophies and incomplete and incorrect data sets. The evolving science, coupled with promulgation of buffer protection maps produced from an errant Public Waters Inventory (PWI) process, is rendering compliance difficult as policies lack the uniformity, certainty and predictability that should be associated with legitimate legislative processes. For purposes of this analysis, we consider the legitimacy of the RPS in the context of the Minnesota Constitution, a historical understanding of county prerogatives, and relevant case law. Because the RPS is codified state law, we show deference by placing the funding deficiencies, notification oversights, property encroachments and other conflicts in the context of higher law, relevant statutes, and historically accepted civic principles. When faced with higher governmental encroachments, counties have parity and the responsibility to engage their state in land use planning. Because the regional, land use philosophy employed by the RPS denigrates county borders, encroaches on citizens rights, and materially affects boundaries and taxation, it is a proper exercise of local authority to declare the RPS illegitimate and in conflict with the constitutional principles county commissioners have sworn to uphold. 1

45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 2.0 BACKGROUND 2.1 Situation Appraisal; Summary - In 2015 and 2016 the Minnesota Legislature enacted and amended the Riparian Protection and Water Quality Practices Act (RPS), a statute requiring that vegetative buffer strips be constructed, maintained and remain accessible to third parties on discreet parcels of private agricultural lands. The RPS is a collaborative effort of federal and state agencies, the governor of Minnesota, nongovernmental organizations (NGOs), and the environmental activist community aimed at reducing silt, sediment, nitrogen, and phosphate loading to Minnesota waters. RPS establishes an elaborate, cumbersome, transitional, and bureaucratic administrative framework, codifying regional planning philosophies. The intent of the statute is to reduce nonpoint source pollutants thought to originate from agriculture and to contribute to a hypoxia zone in the Gulf of Mexico. 1,2 From an organizational perspective, the RPS injects the Minnesota Board of Water and Soil Resources (BWSR) between the Governor's office and watershed districts, counties and local governments, creating a new layer of executive government. This organizational change reverses the historically subordinate advisory relationship of BWSR to local governments, instead placing the agency in the policy and regulatory position of directing land use planning through the Comprehensive Watershed Management Planning Program. 3 (Attachment A) The Comprehensive Watershed Management Planning Program establishes a complex, cross-boundary riparian corridor system based upon water bodies, watersheds, or administratively-determined natural resource characteristics, creating jurisdictional conflicts between the geopolitically-based county boundary system and an arbitrary system derived from watershed characteristics. The statutory language of 103B.801 Subd. (6) even states watershed plans can serve as a substitute for local comprehensive plans. 4 This inappropriately places state or national land use planning on the same level as local land planning prerogatives, and it is foreseeable that over time regional land use planning could blur the distinction or purpose of county political boundaries altogether. In promulgating the RPS, the Minnesota Legislature abrogates county adjudicatory functions, police powers, regulatory oversight, and punitive powers to the executive branch of Minnesota state government. This consolidation confuses the distinct function, role and relationship between counties, watershed districts and the state, inappropriately diminishing the powers, authorities, roles and responsibilities of local government. 1 There is significant, ongoing technical disagreement as to the cause of hypoxia; some experts believe hypoxia is caused from nitrogen loading from agricultural lands; others conclude hypoxia is caused by non-point source phosphorus loading discharged from cities along the Mississippi River Watershed. 2 The Governor of Minnesota expects RPS to result in a water quality improvement of 6%. 3 103B.801 Comprehensive Watershed Management Planning Program. 4 103B.801 Subd. (6) 2

82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 As a check on the authority of the state and national governments, the framers of the American system of government specifically delegated to county governments powers over real property taxation, police powers vested in local sheriffs, and responsibility for geopolitical boundaries - the latter of which may not be altered except by majority vote of the citizens of that county with concurrence by the Minnesota legislature. 5 (Attachment B) Through this system, county governments are quasi-independent political subdivisions of the state, each having jurisdiction over its individual boundary units, police powers over citizenry, and final authority for taxation of private lands, which includes land use planning prerogatives. 6 3.0 RPS LEGITIMACY EVALUATION 3.1 Authorities; Taking of Private Property Defined - A. The Riparian Protection and Water Quality Practices Act (RPS) authorizes a regulatory taking of lands that changes the nature of how agricultural lands are accessed, utilized, and transacted; the RPS disproportionately affects counties, watershed districts and landholders across Minnesota through restraints on use, reduced economic output and uncompensated capital and maintenance costs: Definition of constitutional take: Black s Law Dictionary, Tenth Edition: taking, n. (14c) "The act of seizing an article, with or without removing it, but with an implicit transfer of possession or control." 2. "Constitutional law. The government's actual or effective acquisition of private property either by ousting the owner or destroying the property or severely impairing its utility. There is a taking of property when government action directly interferes with or substantially disturbs the owner's use and enjoyment of the property." B. Riparian Protection and Water Quality Practices. Subd. 3(a): 7 "Except as provided in paragraph (b), landowners owning property adjacent to a water body identified and mapped on a buffer protection map must maintain a buffer to protect the state's water resources as follows: (1) for all public waters, the more restrictive of: i) a 50 foot average width, 30 foot minimum width, continuous buffer of perennially rooted vegetation; or, ii) the state shoreland standards and criteria adopted by the commissioner under section 103F.211; 5 Constitution of the State of Minnesota. ARTICLE XII Sec. 3 Local Government; Legislation affecting. 6 The Federal Land Policy Management Act reflects a hierarchy of deference first to local land use plans, policies and planning. See 43 USC 1712(c)(9). (Pub. L. 94 579, Title II, 202, Oct. 21, 1976, 90 Stat. 2747 and 2749.) 7 Attachment C Riparian Protection and Water Quality Practices. 3

126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 and, (2) for public drainage systems established under chapter 103E, a 16.5-foot minimum width continuous buffer as provided in section 103E.021 Subdivision 1. The buffer vegetation shall not impede future maintenance of the ditch." C. LANDOWNER'S BILL OF RIGHTS. Chapter 84 Subd. 5: 8 "When the state proposes to purchase in fee or any lesser interest in land which will be administered by the commissioner of natural resources, the landholder shall have the following rights: (b) the right to be paid a fair price for the property. The price shall include the fair market value of the land plus " D. Constitution of the State of Minnesota: ARTICLE I BILL OF RIGHTS Sec. 13: Private Property for Public Use. "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." and; ARTICLE XIII MISCELLANEOUS SUBJECTS Sec. 4: Lands taken for public way or use; compensation; common carriers. "Land may be taken for public way and for the purpose of granting to any corporation the franchise of way for public use. In all cases, however, a fair and equitable compensation shall be paid for land and for the damages arising from taking it." a. The RPS establishes a compensable "lesser interest" in private lands over which the legislature of Minnesota has established a program that constrains the Commissioner of the Department of Natural Resources. b. Landholders that have "public waters" bordering their lands will cede approximately 6.06 acres per stream or shoreline mile 9 of useable land to reduced or nonproductive use; those whose lands contain streams within their property boundaries will lose an average of 12.12 acres per stream mile for buffer construction and maintenance. c. The Minnesota Constitution and the Landholder's Bill of Rights establish procedural requirements to be undertaken by the Commissioner of the Department in Natural Resources prior to landholders relinquishing lesser interest in their properties to public use. 8 Attachment D Landowner's Bill of Rights. Chapter 84 Subd. 5. 9 50 ft x 5,280 ft = 264,000 ft 2 43,560 ft 2 /acre = 6.06 acres per/stream mile. 4

170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 d. The construction and maintenance mandates imposed by the RPS represent a partial, incomplete, and split-estate state interest in private land that has an ongoing tax liability associated with private property ownership. 3.2 Nexus; Responsibilities of Commissioner of Natural Resources - A. The RPS constitutes a state liability obligating the Commissioner to inventory affected lands, assess the impacts of takings, and render equitable compensation prior to construction, certification or maintenance of buffer strips: a. Nexus is established between the Commissioner of Natural Resources, counties, drainage authorities, and landholders through promulgation of buffer protection maps 10 and responsibilities of the Commissioner at 84.0274 Landholder's Bill of Rights: 11 Subd. 2. Policy - "It is the intent of this section to clarify the responsibilities of the state in the natural resources land acquisition process and to provide additional protections to landholders in their dealings with the state. and, Subd. 5. Owner's Rights - "When the state proposes to purchase in fee or any lesser interest in land which will be administered by the Commissioner of Natural Resources, the landowner shall have the following rights: b) the right to be paid a fair price for the property. The price shall include the fair market value of the land, plus b. The Minnesota Constitution and Landholder's Bill of Rights contain an implicit process to be carried out by the Commissioner of Natural Resources prior to private lands being damaged for public benefit. c. The RPS requires private landholders identified in the Public Waters Inventory (PWI) and on Buffer Protection Maps 12 to expend capital, remove working agricultural lands from productive use, and to construct and maintain state-regulated physical structures for a purported statewide benefit. d. Withdrawal of working lands is a non-trivial loss that reduces productive acreage, results in subdivided properties, subjects landholders to third party access, and imposes penalty and maintenance mandates. Implementation of the RPS foreseeably results in increased expenses, reduced economic output, and dilution of a landholder's reasonable expectation for full productive use and enjoyment of their land. 10 103F.48(d) 11 Landowner's Bill of Rights. 84.0274 Subd. 2; Subd. 5. 12 103F.48 5

217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 e. Promulgation of the RPS and inclusion of specific water courses on buffer protection maps establishes a regulatory lesser interest in affected lands, obligating the Commissioner of Natural Resources to pre-construction notification and compensatory procedural requirements. f. The statutory construction, purpose, and spirit of the "first paid or secured" clauses of ARTICLE I Sec. 13, in tandem with the "fair and equitable compensation" clause of ARTICLE XIII Sec. 4 and "right to fair price for the property" establish a logical process the Commissioner of Natural Resources must undertake to compensate landholders: i. Affected lands must first be inventoried in the PWI and buffer protection map databases; ii. The current and future damage to individual parcels must be assessed and calculated; iii. The Commissioner must facilitate a compensatory, cost impact valuation - including crop losses - and approach individual landholders; iv. Owners may choose to accept or decline the Commissioner s proposal; v. Buffer requirements are either implemented by the landholder or lands condemned for state benefit; vi. Buffers are maintained for the public benefit. 3.3 Compensatory Programs as Unfunded Mandates - A. The implementation and assistance mandates of 103F.48 Subd. 6(b) are insufficiently funded, out-of-time with the RPS compliance deadlines, and will result in drainage authorities, counties, and landholders inappropriately and disproportionately absorbing the cost of a statewide RPS Program: a. The RPS deadlines require construction of vegetative buffers on public-water steam segments before November 1, 2017 or November 1, 2018 for lands regulated as public drainage systems; b. The public record is silent as to how the Commissioner has documented economic impacts to lands, watershed authorities, counties, and landholders during promulgation of buffer protection maps 13 or the PWI; c. Compliance deadlines for buffer construction require landholders to expend resources and damage properties before receiving notification of how much - if any - reimbursement they may expect from the RPS mandates; 13 103F.48 (d) 6

265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 d. The RPS requires the Commissioner of Natural Resources and BWSR to "provide sufficient funding to soil and water conservation districts to implement this section." 14 i. The public record indicates that as of May, 2017 15 the Minnesota legislature has appropriated about $54M, with $30M proposed for 2017 to the RPS and related programs; ii. The $84M in state funding proposed for RPS implementation falls short of the $150M in match funding required to access a $350M grant anticipated from USDA under the federal Conservation Reserve Enhancement (CREP) and Reinvest in Minnesota (RIM) Programs; iii. The USDA funding is at risk as that agency has not completed an Environmental Impact Statement (EIS) required under federal law to assess the impact(s) to local human culture, customs, economies, and systems resulting from federal funding to the CREP and RIM Programs; iv. The proposed 2018 USDA budget contains significant reductions over previous years, lending uncertainty as to whether conservation-related programs will receive current or future funding; v. Federal funding creates a nexus that brings the RPS program under the NEPA requirements of federal law; this renders RPS as a major federal action, 16 subjecting the program to pre-funding NEPA requirements, including preparation of an Environmental Impact Statement. e. Lack of sufficient funding, coupled with a mandate that landholders and water management authorities construct buffers before compensatory processes may be completed, constitutes an unfunded mandate as landholders must expend resources prior to government notification of what to expect. f. The RPS, purportedly promulgated as having a statewide natural resource benefit, will disproportionately be apportioned to counties, watershed districts, and landholders in agrarian regions of Minnesota, resulting in an inequitable allocation of fiscal and regulatory impacts to counties and watershed authorities in those areas; 14 103F.48 Subd. 6(b) 15 S.F. 844. Minnesota Appropriations Bill, 90 th Session. 05/21/17. 16 40 CFR 1508.18; 40 CFR 1508.27 7

314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 g. The regulatory take by the RPS will foreseeably deprive a subset of agrarian Minnesotans and counties of their economic values, use, and a right of expectation to utilize their properties or participate in a consistent, uniform, predetermined, compensatory process across the state. 17 3.4 Distribution of Powers; Conflicts - A. The statutory language in 103B.101 Subd. (7) and 103E.011 Subd. (5) allowing the Board of Water and Soil Resources and Drainage Authorities to accept outside funding violates division of powers principles, consolidates administrative power in the Executive Branch of Government, and inappropriately subjects government to outside or international influences: 18 a. The American system of government and Minnesota Constitution delegate revenue-appropriating power to the House of Representatives 19 specifically so power will be decentralized and not consolidated within any one branch of government; b. The makeup of the BWSR board in 103B.101(c) gives the Governor of Minnesota the authority to appoint a majority (15) potentially like-minded officers, concentrating power over natural resource policy in the executive branch; c. The statutory construct of 103B.101 Subd. (7) and 103E.011 Subd. (5) inappropriately enables outside governmental or quasi-governmental organizations, NGOs, environmental, or civic groups to exert fiscal influence over government entities, thereby compromising the integrity of decision-making and ceding control of legislative processes; d. To maintain integrity, policy and fiscal accountability, and limit outside influence, the Minnesota legislature should appropriate resources received for implementing the RPS; e. The Minnesota legislature should revise 103B.101 Subd. (7) and 103E.011 Subd. (5) to remove the ability for outside funding to be directly injected into government; specifically, the legislature should revise the "grants, gifts, donations, or contributions in money, services, materials, or otherwise" language to route resource contributions into the constitutionallymandated, environment and natural resources fund established in ARTICLE XI Sec. 14 of the Minnesota Constitution. 17 Lucas v. South Carolina Costal Council. 505 U.S. 1003 (1992). 18 Attachment E 19 Minnesota Constitution. Article IV sec. 18. 8

359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 B. Delegation of authority to BWSR and watershed districts for rulemaking, policy, implementation, standards, planning and oversight is illegitimate and will result in procedural impacts, confusion of jurisdictional authorities and functions, and ongoing violations of landholders rights: a. The RPS contains no clear policymaking lines of authority that afford local governments, landholders, and the public uniformity of standards, certainty of protections, and consistency of policies sufficient to predict the outcome of decisions on a statewide basis; 20 b. The centralized administrative apparatus imposed by the RPS inappropriately blends legislative responsibilities for rulemaking, 21 judicial functions for issuing penalties and conducting appeals, 22,23 and illegitimately grants police powers to the watershed districts and others for making inspections 24,25,26,27 on private property; c. The fragmented policy approach mandated by the RPS continues to violate minimum delegation, notification and procedural 28,29 standards that protect county prerogatives and individual landholders: i. "Accordingly, proper notification that the subject watercourses were intended to be designated as public waters was not provided to counties or adjacent landholders such that they would have had sufficient notice to allow them to contest the inclusion of these watercourses in the PWI." (Attachment F) 30 C. Delegation of broad powers to BWSR and watershed districts for inspections and administration of penalties is a conflict of interest and represents an unlawful concentration of administrative and judicial powers in agencies that can promote self-interest: a. The statutory language and construct of 103.101 Subd. 12a incentivizes BWSR, watershed districts and consultants to find or exacerbate non-compliance issues, violating distribution of powers and community interests; 20 Butterfield v. Stranahan. 192 U.S. 470 (1904). 21 103F.48 Subd. 1(j) 22 Ibid. 23 103E.021 Subd. 5(a) 24 103F.48 Subd. 3(2)(d) 25 103F.48 Subd. 7 26 103F.48 Subd. 6(a) 27 103E.021 Subd. 4 28 Panama Refining Co. v. Ryan. 293 U.S. (388)(1935). 29 L. Jaffe. Judicial Control of Administrative Action. 62 (1965) 5 U.S.C.A 552(a)(1). 30 Finding of Fact and Conclusions. Luke Skinner, Director, Division of Ecological and Water Resources. State of Minnesota, Department of Natural Resources. 13 April 2017. Section D., Paragraph 18, pps 53. 9

398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 b. The regulatory hierarchy created by the Minnesota legislature through delegation to watershed districts, counties, BWSR, and DNR creates a broad, diverse, and unmanageable set of interests, setting up conflicts or opportunities for illicit collaboration between government, NGOs, watershed districts, or others potentially to the diminution of property owner or county interests. D. The Board of Water and Soil Resources has no organic statutory or Constitutional authority to determine jurisdiction: a. BWSR's historic statutory role is one of information coordination; a facilitator of communication; coordinator of interests; education; facilitation and reporting; 31 b. The mandate in 103F.48(j) giving BWSR authority to determine jurisdiction of counties or render determinations on county "rules, ordinances, or official controls" encroaches on county prerogatives and inappropriately violates county control over land use planning; c. Because counties already retain jurisdiction, the need for reporting or determinations by BWSR is redundant; d. The mandate giving BWSR authority to review watershed plans places BWSR in a position of deciding land use standards for local county governments who already have jurisdiction over land use planning, zoning, health, and safety. 3.5 Jurisdictional Encroachments; Inappropriate Delegation to BWSR A. The Comprehensive Watershed Management Program contemplated in 103B.801 creates irreconcilable and unconstitutional conflicts with jurisdictional prerogatives exclusive to Minnesota Counties: a. Minnesota counties are quasi-independent, geopolitical subdivisions possessing taxing authority over lands, police powers, authority for land use planning, and responsibilities for health and welfare of their citizens; b. County political boundaries cannot be altered, transferred, or merged without a majority vote of the citizens of that county, and approval by the state legislature; c. The boundary framework established by the Comprehensive Watershed Management Planning Program 32 imposes an elaborate administrative system of regulation, 33 adjudication, 34 and policing of local plans based upon physical, natural resource, or other watershed characteristics; 31 Comprehensive Watershed Planning Program. 103B.101 Subd. 9 (1) - (7). 32 103B.801 Subd. 2(1); Subd. 3; Subd. 4 33 103B.801 34 103B.101 Subd. 15 10

445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 d. The American system of government and the Minnesota Constitution are based upon established political boundaries for local government that are bright-line demarcations for taxation, land use, adjudication, and administration of county and Tenth Amendment reserved powers; e. The statutory construct of 103B.801 inappropriately delegates to BWSR authority to promulgate plans and policies - based upon watershed and natural-resource characteristics - that improperly redefine, diminish and confuse rightful county powers, roles and authorities; f. Watershed management plans and planning processes create arbitrary, transient, unenforceable and illegitimate boundaries based upon natural resource characteristics, creating jurisdictional conflicts between federal, state and local governments; 35 g. Watershed planning places the executive branch of state government in the role of influencing or determining regulatable boundaries already fixed by the legislature; h. Watershed regulation creates a new administrative framework within the existing geopolitical county boundary system, diminishing county control over lands, resources and citizenry. i. Because watershed districts derive funding from local taxation and their budgets are administered by county governments, Minnesota watershed districts are an extension of county government; j. The historical, organic statutory role of the BWSR is as a facilitator of education, a repository for technical information, an events coordinator, and a general servant to county governments; 36 k. Legislative delegation of judicial and police authorities to issue penalties, orders, 37 and adjudicate issues based upon watershed boundaries is an illegitimate perversion of local authority, eroding county prerogatives and blurring the distinction between governmental powers; l. Boundaries created by watershed management planning programs and employing physical characteristics or environmental qualities constitute regional land use planning; m. Regional land use planning, including water and watershed management, is subordinate to geopolitical boundary subdivisions of counties in the Minnesota Constitution and the American system of government; 38 35 103B.101 Subd. 14(a) 36 103B.101 Subd. 9 37 103B.101 Subd. 12 38 Constitution of the State of Minnesota. Article XII Sec. 3. Local Government; Legislation Affecting. 11

493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 n. Regional land use planning, as set forth in the watershed management planning program, is fundamentally at odds with the American system of government; o. The language in 103.801 Subd. 3 and 103B.101 Subd. 14 illegitimately reverses the requirement that state and federal governments attempt consistency and coordinate their activities with county land use plans and policies; 39 p. Implementation of watershed or land use planning programs in Minnesota rightfully belongs under the authority of local or county governments, not the state or its agencies. 3.6 Public Waters Inventory and Buffer Protection Maps; Errors and Redress - A. The buffer protection maps used to designate public waters and ditches are errant, incomplete, issued with inadequate notification, and have disenfranchised the regulated public: a. During preparation of the Public Waters Inventory List (PWI), the Commissioner of Natural Resources incorrectly designated 640 miles of altered natural water courses in 71 counties as public ditch systems, regulatable as "public waters;" 40 b. The "subject water courses" included in the PWI mapping process - but not identified on PWI lists - were also incorrectly identified by the Commissioner as "public ditches," inappropriately and for a long duration subjecting landowners to regulation by public drainage authorities; c. The procedural error by the Commissioner, propagated over 30 years across 640 miles of water courses in 71 Minnesota counties, has procedurally subjected landholders to regulation without notification, denying the opportunity for the public to comment upon, refute, or concur with the state's determination of public waters on private lands; d. The buffer protection maps, previously sent out for public comment, have propagated and expanded errors from the original PWI; e. Landholders who have constructed vegetative buffers based upon the errant buffer protection maps, or who have made improvements based upon inappropriate regulation by watershed districts, have been disenfranchised, having been denied proper notification or opportunities for redress. 39 The Federal Land Policy Management Act. 43 USC 1712(c)(9). 40 Finding of Fact and Conclusions. pps. 2, No. 11. 12

538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 3.7 Land Reclassification, Map Revision, & Public Notification Required - A. The proposal by the commissioner to simply remove the "subject water courses" from the PWI insufficiently addresses notification, regulatory and fiscal impacts to human systems; revision of the PWI list and buffer protection maps should be subject to the same notification and public meeting standards as those for wetlands reclassification; remedies should include compensatory and redress provisions for the impacted community: a. During [re]classification of wetlands under 103G.201(c), notification of counties and watershed districts is required to ensure public participation and opportunity for objections; b. To appropriately identify and address the substantive impact to counties, landholders and the public from PWI and buffer protection map errors, the Commissioner of Natural Resources should subject the watercourses errantly identified in the PWI and buffer protection maps to the same procedural reclassification processes as those for wetlands under 103G.201(c): "The commissioner must provide notice of the reclassification to the local government unit, the county board, the watershed district, if one exists for the area, and the soil and water conservation district. Within 60 days of receiving notice from the commissioner, a party required to receive the notice may provide a resolution stating objections to the reclassification. If the commissioner receives an objection from a party required to receive the notice, the reclassification is not effective. If the commissioner does not receive an objection from a party required to receive the notice, the reclassification of a wetland under paragraph (b) is effective 60 days after the notice is received by all of the parties." c. The errors, omissions and downstream effect on land valuations, assessor's records, local economies, and landholders should legitimately be quantified and reported as part of the 103G.201(c) public hearing process; d. To adequately inform counties, protect landholders, and notify the general public, once the PWI and buffer protection maps have been corrected and reissued the comment opportunities offered by the Commissioner on August 22, 2016 and December 19, 2016 should be repeated; e. The economic impact of the public ditch designation and regulation by watershed districts constitutes an "interest in land" in 84.0274 Landholder's Bill of Rights; 13

590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 f. The Commissioner's error in classifying ditches as only public waters constitutes a regulatory take for public use entitled to compensatory review under 84.0274, the Landholder's Bill of Rights, Subd. 5; g. Removal of the "subject water courses" without notification or opportunity for a public hearing violates the expectations of civic, environmental or other groups who believed the public ditches would be regulated as part of the buffer protection maps, under the auspice of watershed districts; h. Removal of the "subject water courses" from buffer protection maps could jeopardize compensatory opportunities for landholders along the 640 streammiles in 71 Minnesota counties who - in good faith - constructed buffers according to the errant maps and directives by the Commissioner; i. The Commissioner's error - and subsequent remedial processes - appropriately should include an inventory and compensation to landholders who have been improperly impacted by errors of the state. 14

611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 4.0 CONCLUSIONS Statutes enacted by the Minnesota Legislature are not stand-alone law, and are constrained by the principles embodied in the higher law of the Minnesota Constitution. Similarly, newly enacted statutes, such as the Riparian Protection and Water Quality Practices Act (RPS) are subject to the in para materia canon of interpretation for like-kind statutes, such as the Minnesota Landholders' Bill of Rights at 84.0274. When subjected to legitimacy testing, the RPS is irreparably flawed, leading to diminution of county boundaries, regulatory takes of private property, increased tax assessments, and declines in productivity of working lands. Purported as having a statewide environmental benefit, the cost of the RPS will fall primarily and disproportionately upon agrarian counties, communities and landholders in west and southwest parts of the state. The response of the Commissioner of Natural Resources to longstanding errors in the PWI and buffer maps does not adequately address the public notification requirements, post-construction compensation claims or legitimate expectations of landholders and civic groups along the affected 640 miles of watercourses in 71 counties. Moreover, the responsibilities of the DNR Commissioner mandated in the Landholders' Bill of Rights requires affected lands to be identified and citizens afforded the opportunity for input and participation in land use decision-making. County government possesses vast, often underutilized, powers and authorities. These authorities, coupled with a sworn responsibility to uphold the Minnesota Constitution, may be judiciously employed to defend citizenry against encroachments, even those emanating from higher state government. Through invocation of local, land use planning prerogatives and collective bargaining techniques, likeminded counties can collaboratively apply resolutions, appeals, remonstrations, or even interposition to effect changes in the problematic RPS statute. Because counties already possess authority over land use planning, local governments can legitimately annex, retain and decide water quality programs for their own jurisdictions - returning to constitutional safeguards provided in the geopolitical boundary system. Implementation of reasonable policies at the county or landholder levels can be achieved through appropriate application of technical investigation, upstream and runoff water quality monitoring, local mapping, and implementing of cost-benefit assessments. When contemplating land use plans and water quality activities, it may be important for county commissioners to consider that an intact RPS will necessitate future expansion of the executive branch as government begets government. 15

650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 REFERENCES Twitty, Peter S. (USGPO., 1944). The Respective Powers of the Federal and Local Governments Within Lands Owned or Occupied by the United States. Report of the Interdepartmental Committee For the Study Of Jurisdiction Over Federal Areas Within the States. (USGPO., June, 1957). Jurisdiction Over Federal Areas Within the States. Fleming, Ron., et.,al. (Ridgetown College., September, 2001). The Impact of Waterfowl on Water Quality - Literature Review. Drustrup, Bob. Nutrients in Iowa s Waters. Jim Lundy. (September, 2010) Volunteer Nitrate Monitoring Network: Southeastern Minnesota: A Preliminary Data Assessment. US EPA Region 4. (January, 2004). Review of Issues Related to Gulf of Mexico Hypoxia. Flaten, Don. (January 20, 2016). Soluble Phosphorus Losses in Spring Snowmelt, Northern Great Plains. Mark Dorenkamp. (Brownfield Ag News., February 9, 2017). Dayton Says Buffer Rule Handled Wrong. The Federal Land Policy Management Act. (1976). 43 USC 1712(c)(9). (Pub. L. 94 579, Title II, 202, Oct. 21, 1976, 90 Stat. 2747 and 2749.) S.F. 844. Minnesota Appropriations Bill, 90 th Session. 05/21/17. Lucas v. South Carolina Costal Council. 505 U.S. 1003 (1992). Butterfield v. Stranahan. 192 U.S. 470 (1904). Panama Refining Co. v. Ryan. 293 U.S. (388)(1935). L. Jaffe. Judicial Control of Administrative Action. 62 (1965) 5 U.S.C.A 552(a)(1). Finding of Fact and Conclusions. Luke Skinner, Director, Division of Ecological and Water Resources. State of Minnesota, Department of Natural Resources. 13 April 2017. Carter v. Carter Coal Co., 298 U.S. 238 (1936). 16

MAPS Minnesota County Map CREP Program Map

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Minnesota Conservation Reserve Enhancement Program (CREP) Project Area Clay Becker Wilkin Otter Tail Todd ± 25 Miles Grant Douglas Traverse Stevens Pope Stearns Big Stone Swift Kandiyohi Wright Meeker Lac Qui Parle Chippewa Hennepin McLeod Carver Yellow Medicine Renville Scott Dakota Sibley Lincoln Lyon Redwood Goodhue Nicollet Le Sueur Rice Brown Pipestone Rock Murray Nobles Cottonwood Jackson Watonwan Martin Blue Earth Faribault Waseca Steele Freeborn Dodge Mower Wabasha Olmsted Fillmore Winona Houston MN CREP Project Area County Boundary Major Watersheds Nit. & Phos.: High Priority, MN Nutrient Reduction Strategy Prairie Corridor, MN Prairie Conservation Plan MN Agricultural Water Quality Certification Pilot Watersheds Bonanza Valley Groundwater Management Area High or Very High Vulnerability, Drinking Water Supply Mgt. Areas

ATTACHMENT A: Minnesota Comprehensive Watershed Planning Program - 103.801

1 MINNESOTA STATUTES 2016 103B.801 103B.801 COMPREHENSIVE WATERSHED MANAGEMENT PLANNING PROGRAM. Subdivision 1. Definitions. The definitions under section 103B.3363, subdivisions 2 to 4, apply to this section. Subd. 2. Program purposes. The purposes of the comprehensive watershed management plan program under section 103B.101, subdivision 14, paragraph (a), are to: (1) align local water planning purposes and procedures under this chapter and chapters 103C and 103D on watershed boundaries to create a systematic, watershed-wide, science-based approach to watershed management; (2) acknowledge and build off existing local government structure, water plan services, and local capacity; (3) incorporate and make use of data and information, including watershed restoration and protection strategies under section 114D.26; (4) solicit input and engage experts from agencies, citizens, and stakeholder groups; (5) focus on implementation of prioritized and targeted actions capable of achieving measurable progress; and (6) serve as a substitute for a comprehensive plan, local water management plan, or watershed management plan developed or amended, approved, and adopted, according to this chapter or chapter 103C or 103D. Subd. 3. Coordination. The board shall develop policies for coordination and development of comprehensive watershed management plans. To ensure effectiveness and accountability in meeting the purposes of subdivision 2, these policies must address, at a minimum: (1) a boundary framework consistent with section 103B.101, subdivision 14, paragraph (a), and procedures, requirements, and criteria for establishing or modifying the framework consistent with the goals of section 103A.212. The metropolitan area, as defined under section 473.121, subdivision 2, may be considered for inclusion in the boundary framework. If included, the metropolitan area is not excluded from the water management programs under sections 103B.201 to 103B.255; (2) requirements for coordination, participation, and commitment between local government units in the development, approval, adoption, and implementation of comprehensive watershed management plans within planning boundaries identified according to this subdivision; (3) requirements for consistency with state agency-adopted water and natural resources-related plans and documents required by this chapter and chapters 103A, 103C, 103D, 103E, 103F, 103G, and 114D; and (4) procedures for plan development, review, and approval consistent with the intent of sections 103B.201, 103B.255, 103B.311, 103B.321, 103D.401, and 103D.405. If the procedures in these sections are contradictory as applied to a specific proceeding, the board must establish a forum where the public interest conflicts involved can be presented and, by consideration of the whole body of water law, the controlling policy can be determined and apparent inconsistencies resolved. Subd. 4. Plan content. The board shall develop policies for required comprehensive watershed management plan content consistent with comprehensive local water management planning. To ensure effectiveness and accountability in meeting the purposes of subdivision 2, plan content must include, at a minimum: Copyright 2016 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.

103B.801 MINNESOTA STATUTES 2016 2 (1) an analysis and prioritization of issues and resource concerns; (2) measurable goals to address the issues and concerns, including but not limited to: (i) restoration, protection, and preservation of natural surface water and groundwater storage and retention systems; (ii) minimization of public capital expenditures needed to correct flooding and water quality problems; (iii) restoration, protection, and improvement of surface water and groundwater quality; (iv) establishment of more uniform local policies and official controls for surface water and groundwater management; (v) identification of priority areas for wetland enhancement, restoration, and establishment; (vi) identification of priority areas for riparian zone management and buffers; (vii) prevention of erosion and soil transport into surface water systems; (viii) promotion of groundwater recharge; (ix) protection and enhancement of fish and wildlife habitat and water recreational facilities; and (x) securing other benefits associated with the proper management of surface water and groundwater; (3) a targeted implementation schedule describing at a minimum the actions, locations, timeline, estimated costs, method of measurement, and identification of roles and responsible government units; (4) a description of implementation programs, including how the implementation schedule will be achieved and how the plan will be administered and coordinated between local water management responsibilities; and (5) a land and water resource inventory. Subd. 5. Timelines; administration. (a) The board shall develop and adopt, by June 30, 2016, a transition plan for development, approval, adoption, and coordination of plans consistent with section 103A.212. The transition plan must include a goal of completing statewide transition to comprehensive watershed management plans by 2025. The metropolitan area may be considered for inclusion in the transition plan. (b) The board may use the authority under section 103B.3369, subdivision 9, to support development or implementation of a comprehensive watershed management plan under this section. Subd. 6. Authority. Notwithstanding any laws to the contrary, the authorities granted to local government through this chapter and chapters 103C and 103D are retained when a comprehensive watershed management plan is adopted as a substitute for a watershed management plan required under section 103B.231, a county groundwater plan authorized under section 103B.255, a county water plan authorized under section 103B.311, a comprehensive plan authorized under section 103C.331, or a watershed management plan required under section 103D.401 or 103D.405. History: 1Sp2015 c 2 art 2 s 12 Copyright 2016 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.