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Minnesota GraphicWCA Stakeholder Advisory Committee

WCA Assessment Stakeholder Meeting Summary

9 a.m.. to noon
May 23, 2006

Kevin Paap, Mn Farm Bureau Federation
Tim Grant, Blue Earth County
Mollie Dean, Sierra Club
Chris Christianson, Mn Viewers Association
Kurt Deter, Rinke-Noonan Law Firm
Steve Commerford, Mn Soybean Growers Association
Mike Youngeberry, Mn Soybean Growers Association
Nikki Tyrrell, Mn Agri-Growth Council
Wayne Edgerton, DNR
Dan Greensweig, Mn Association of Townships
Thom Peterson, Mn Farmers Union
Roger Lake, Mn Association of Watershed District
Ken Powell, Rice Creek Watershed District
Jon Doelter, Mn Wild Rice
Laurie Fairchild, U.S. Fish and Wildlife Service
Bruce Gerbig, DNR-Waters
Chuck Holtman, Smith Partners
Janette Brimmer, Mn Center for Environmental Advocacy
Samantha Bohm, Mn Center for Environmental Advocacy
Doug Norris, DNR-Ecological Services
Lawrence Zdon, PCA
Dan Helwig, PCA
Rick Dahlman, DNR-Forestry
Chris Radatz, Mn Farm Bureau
Allyz Kramer, Wetland Professionals Association
Todd Manley, DNR-Enforcement
Brian Watson, Mn Association of Soil and Water Conservation Districts
Paul Flynn, Natural Resources Conservation Services
Laurie Moss, Farm Services Agency
Sid Cornelius, Natural Resources Conservation Service
Ralph Augustin, U.S. Army Corps of Engineers
Perry Bollum, DNR-Enforcement
Tom Warmka, Association of Mn Counties
Sandy Hooker, Mn Association of Townships
Sheila Vanney, Mn Association Soil and Water Conservation Districts
Paul Brutlag, BWSR Board Member
Sarma Straumanis, BWSR/MnDOT
Carol Lovro, Association of Mn Counties
Annalee Garletz, Association of Mn Counties
Brian Pasko, Sierra Club
Keith Carlson, Metropolitan Inter-County Association

Call to Order.
Dave Weirens called the meeting to order at 9:00 am followed by introductions. He asked that all participants sign in. Handouts were summarized and included: meeting plan, meeting summaries from past stakeholder meetings, the revised WCA assessment schedule, exemption discussion points and maps showing exemption use data and WCA funding provided to LGUs.

Weirens continued by discussing the June Stakeholder meeting agenda, which will focus on wrapping up the exemption recommendations. An additional July meeting will be scheduled.

Weirens reminded those in attendance that project applicants do not need to apply for an exemption. Exemption data portrayed on the maps only characterize exemption use.

Agricultural Activities Exemption.
Weirens introduced Greg Larson, Co-Director, BWSR Technical Services Section.

Larson opened by stating the exemptions or “waivers” were included to allow the state to waive regulatory authority to the U.S. Corps of Engineers (Corps) or U.S. Department of Agriculture (USDA). As a general provision property owners may use a wetland for crops or grazing if drainage is not improved. Exemptions do not apply to DNR identified calcareous fens, and restored or created mitigation sites.

Larson offered several definitions to clarify the exemption language, including agricultural land. He continued to inform the group that each exemption category was identified by how much it is used, with an H for high use, M for medium use and L for low use.

Exemption A – (M)
Exemption B – (L)
Exemption C – (L) This was a popular category in 1991 but has dropped off to nothing.
Exemption D – (M) Rarely used.
Exemption E – (L) Waiver to the Corps. This industry is currently not expanding.
Exemption F – (L) Waiver for wild rice.
Exemption G – (L) Used to control weeds
Exemption H – (H) Swampbuster Provision. Waiver with conditions where it doesn’t apply. Current rule language provides that state agencies are to develop a guidance document but this was never completed.

Drainage Exemption
Weirens introduced Dan Girolamo, BWSR WCA Coordinator.

Girolamo went through a Powerpoint presentation that outlined the drainage rule language.

Agricultural Exemption Issue Discussion
Laurie Moss summarized Swampbuster program coverage. Minnesota has 18 million acres of cropland and 98% of this is subject to Swampbuster. Farm Services Agency (FSA) does a 10% spot check each year to evaluate program compliance. FSA form 569 is used to process potential violations. Anonymous whistle blowers can request a 569 that triggers an NRCS field visit.

Reporting of violations may not be consistent. During the time period between 1993 and 2004 196 Swamp and Sodbuster violations were reported. These violations resulted in net USDA program payment losses of approximately $800,000.

Paul Flynn, Natural Resources Conservation Agency (NRCS), commented that Swampbuster started in 1985 and attempts to protect wetlands that existed on that date. Swampbuster deals with only USDA participants. If they are in violation, benefits are lost.

Type 1 wetlands are exempt in WCA but Swampbuster does not have limits on size or type. Swampbuster issues tend to revolve around conversion for agricultural production and can include difficult calls with barns, silos and parking areas. Swampbuster does not prevent farming of wetlands that can be farmed without added drainage.

A participant declares drainage or maintenance on an annual report. The system is self-reporting. NRCS will comment on the plan and may require modifications. NRCS tracks 1200 tracts each year through this process. NRCS is not responsible to keep the farmer in compliance. It is the landowner’s responsibility. The process has evolved over 20 years. NRCS is on and off again in full cooperation with the Corps. Each agency makes independent determinations to comply with federal law.

Bruce Gerbig inquired about spot checks and whether they were based on tracts? What is the number? Flynn estimated 40,000 tracts are checked spanning over 18 million acres of cropland.

Ron Harnack commented on the differences in determinations between the Corps and NRCS. Flynn answered by saying the NRCS certified mapping process is used and FSA flies all cropland annually. They have photos from the late 1970s through 2005. NRCS uses a variety of offsite resources to make wetland determinations.

Doug Norris asked about the certification guidance versus rescinded guidance. Flynn responded the policy has been rescinded. The only issue is certified wetland determinations. Under previously issued guidance aerial slides were used by USDA staff to certify wetland determinations. The new process used other information besides the certified determinations.

Steve Commerford asked how NRCS characterizes changes from 1985? Flynn responded by stating that the science to identify what a wetland looked like in 1985 is not exact. We look at slides and precipitation data to evaluate a wetland.

Mark Ten Eyck asked about the statistics on payments that are lost, how much land is affected? Moss replied 196 people in 12 years. (1993-2005)

Tom Warmka asked how long before NRCS responds to a drainage issue. Flynn responded that service timing depends on the time of year. Generally, NRCS has a 30-day turn around time. Flynn continued to inform the group about NRCS workload issues. In 1985, NRCS and FSA had $5 million in conservation funds that are $55 million today with no additional staff.

Tom Mings, responding to the earlier comment about precipitation fluctuations and wetland calls, added that NRCS does average rainfalls and tweaks them to provide the best average possible. Generally, 30 years of data is used so farmers are not penalized during wet periods.

Harnack requested a discussion on “exemption” versus “waiver”. If the applicant is not in the federal farm program, type 1 wetlands and type 2’s, up to 2.0 acres, are exempt.

Flynn mentioned categorical minimal effects, which is a blanket exemption. Sid Cornelius explained there were four conditions but now only two. Those conditions include: grassed waterways, removal of isolated trees, wildlife restorations and wildlife habitat. Removal of trees from a wetland is regulated.

Proposed changes to the Agricultural Exemption (from Powerpoint Presentation)
10 sub exemptions adds complications
Update and simplify the language

No Change
Reduce exemption amount by project
Cap exemption amount by watershed
Reduce exemption amount by wetland types
Bring exemption up to date, e.g. use 6 of 10 years from current date rather that from January 1, 1991 and reference 2000 Farm Bill
Develop joint agency standards and conditions as provided by the 2000 legislature

Options will be forwarded to the BWSR Board.
State authority to determine Swampbuster compliance or existing appeal process
Data reporting and sharing
Reliance on offsite determinations
Reduce amounts
Clarify application of wetland types.
Audit process
Joint agency standard.

Janet Brimmer offered that the WCA exemption is a waiver but she has questions on its application. The state should retain its authority to use their exemption. Entitlement to the exemption must be retained by the state. Weirens responded that if a landowner does contact the LGU, the landowner must supply Swampbuster proof. Brimmer continued that she has questions about the state authority regardless of the federal call.

Kurt Deter commented that Swampbuster has been in place since 1985. Swampbuster is a well-run program that provides certainty on the landowner’s part with stiff penalties. NRCS is doing their job well. The FSA form 1026 does not bring finality. LGU overrides on NRCS will throw the whole deal back years.

Weirens redirected the discussion by asking the group to look at the questions from the exemption meeting plan document and consider workload. Brimmer commented that there should be no additional work. The state should retain authority over its exemption.

Deter replied that you are either in or out of the program. Agricultural purposes may need more definition but there is no way the LGU’s can cover cropland. Brimmer responded by referencing one of MCEA’s case studies. It was an enforcement issue involving state, local and federal staff. In this case a determination was made without looking at the case. Many local and state people are unhappy.

Norris asked if the LGU’s know what is going on with Swampbuster. Deter added that it’s tough to get a producer’s 1026. Flynn informed the group that wetland determinations are available via a Freedom of Information Act (FOIA) request. Norris asked if SWCD’s had to file a FOIA request? Can’t conservation partners have open access for non USDA purposes?

Harnack commented that he was not currently aware of any Swampbuster appeals with WCA. If people are concerned, we need to use what currently exists. Brimmer asked Harnack if he was aware that the referenced case is the subject of an Attorney General’s opinion.

Gerbig commented on access to data for LGU’s to make a call. He thought a better connection is needed. He also asked the Corps to comment on agriculture within the 404 program. Ralph Augustin commented that you can do exempt work on agricultural land until challenged. The landowner may need to defend their project.

Brian Watson added that the exemption should be changed. Better tracking and modest reporting is needed to show the use of the exemption. Watson continued to say that correspondence is getting difficult. Data is not readily available.

Deter commented that we are dancing around the issue. Do people think the NRCS is not doing their job? Weirens explained the data needs to be improved.

Rick Dahlman asked about the Swampbuster situation where benefits are denied. He asked does the activity apply under WCA? A disagreement between the LGU and NRCS does not disqualify the applicant? Do you quality for a WCA exemption even if the Swampbuster call is go? Harnack had two points to share. First, the rule process and the intent were to waive to the federal program. Second, type 1 and type 2 wetlands are exempt under WCA, if a landowner is not in the program.

Zdon asked about the average acres under this exemption. What are we losing? This should be one of the best documented exemptions.

Weirens replied the FSA should document the use but does not require the applicant to contact the LGU. Flynn responded that the number of acres allowed to be lost is zero. Deter added that an exemption is not needed if the project is covered by Swampbuster.

Norris inquired about the relationship with USDA. Are sites physically reviewed? There is uncertainty in not doing site reviews. DNR is concerned about the loss of temporary and seasonal wetlands.

Warmka highlighted simplicity. Farmers need the farm program. NRCS is best equipped to handle agricultural issues.

Watson referred back to slide #12. The type of wetland is an issue. Clarification is needed for wetland typing. Brimmer offered that we talked about this at other meetings. She asked about type 1 and 2 wetlands. How many 1’s and 2’s are still on the landscape? Anyone have a feel for that? Weirens referenced the Wetlands Report, appendix A-3. Type 1 and 2 wetlands comprise about 20% of all wetlands. Most will fall under Swampbuster in agricultural counties.

Zdon asked where is this exemption that allows activity to occur? NRCS is ok, type 1, 2 and 6 are not in the program and will result in drainage. Corps is not covering isolated basins. Are counties that developed a wetland plan reporting the acres allowed?

Weirens responded by saying that if the landowner is not in the Farm Bill, then types 1 and 2 are not protected because they are WCA exempt and there is no USDA involvement.

Fairchild asked if we are comparing apples and oranges? Waive it or exempt it does not make intuitive sense. Seems like we are trying to fit them together and it doesn’t work.

Weirens redirected by saying the issue is construction of exemptions. Exemptions D and H are linked. Are they double regulation? This is a policy discussion that is needed to weigh the damage to the resource versus cost.

Augustin commented that it is beneficial to have Swampbuster and the exemption too. It is important to use other’s authority to cover. Do not unconditionally tie ones program to another. The state must retain the ability to make a call.

Types 1 and 2 are the most frequently impacted and types 6 and 7 are hard to replace. It should be throttled down due to cumulative impacts and the effect on the resource.

Weirens responded that appeals are one way to approach these issues. Norris added that appeals need an LGU decision. These never get a decision. Gerbig commented that we have exemption and enforcement. Oversight is taking place plus we have LGU interaction.

Dan Helwig asked if a state group could audit a subset of USDA files? Do it for normalization to give the state some assurance. It could be a periodic thing.

Weirens shifted gears and moved the discussion toward other provisions, ideas and comments.

Norris said the dates need to be fixed in exemption A.

Ken Powell said drop the types and use plant communities. We need to be consistent with typing. Chris mentioned that Circular 39 uses plant community types (Cowardin).

Weirens asked what does NRCS use for wetland classifications? The hydrogeomorphic model that assesses functions and values? Norris asked are we distinguishing between how NRCS delineates wetlands vs the 1987 CORPS manual?

Cornelius responded that the 1987 manual is the NRCS foundation as well. Differences are in wetland condition in December 1985? Is there hydrology manipulation providing slight drainage? Norris asked if this creates situations where there is Farm Bill compliance but losses occur that would be covered under 404 or WCA?

Cornelius added that a prior converted (PC) determination as of 12/23/1985 might result in the Corps saying it’s a wetland under 404 but NRCS says its prior converted cropland. There is no abandonment language in the Farm Bill.

Watson asked if there were any thoughts on updating the maps? We are talking about watershed basin management and TMDLs and we are using 1985 language? Cornelius responded that a change would require legislation. Change might come in 2007.

Deter commented there may be unintended consequences. Good farmers have PC’s but let it sit because they think future change will allow further improvements.

Joe Martin commented that we are having this discussion and LGUs will be involved. Where do we place the resources to work WCA? He is disturbed that we have talked for two hours with no mention of the gains that are taking place.

Mings asked based on what data? Warmka replied there are 2000 acres in CREP in Faribault County and no losses. Weirens referenced the wetlands report.

Exemption B. No changes or issues were identified.

Exemption C. Repeal.

Exemption D. Reduce amounts plus add clarity to wetland typing.

Exemption E. Brimmer asked if this applies to bait raising? Norris responded no.

Exemption F. Brimmer asked if SWANCC effected this? Gerbig responded that SWANCC is not applicable. Deter added that a water source is usually needed. Norris continued that we might want to reconsider reliance on 404. WCA regulates excavation; Corps does too but would not issue a permit.

Exemption G. Fairchild asked for an example for this exemption. Why fill to get rid of weeds? Weirens responded that this exemption is not used much and it might be an issue of this being comfort language. Fairchild asked if this is an exemption that could be repealed.

Exemption H. Wayne Edgerton inquired about a guidance document. Should we look at this document to see if it’s still working? Weirens… yes, all agencies should get together to figure how to work agricultural wetlands into current policy. Establish standards in state law.

Drainage Exemption Issue Identification.
Weirens asked for comments on category #1. Brimmer asked about timing. A 10-year window is too short of a time period for land use change.

Gerbig asked a question about drainage improvements and how long payback is amortized? Deter replied usually15-20 years for large systems and maintenance annually.

Weirens moved to category #2.

Rick Dahlman asked what wetland types does the 25-year period reflect? Weirens responded the exemption does not cover types 3, 4 and 5. The rule language could be simplified and clarified.

Deter added it’s a maintenance issue, systems should be allowed to do maintenance. Weirens followed by saying that the time period is crucial as the drainage authority must get in once in 25 years to keep it active. Deter commented that ditches are variable, some need maintenance and some do not.

Brimmer offered that 103E and WCA are linked. We should reduce conflict with procedural cross-referencing. Who initiates repair petitions? We would have a better match up with tighter controls. Weirens added that in WCA that a ditch project is the same as any other project.

Category #3, Private ditch systems. Need definitions for repair and maintenance. Brimmer asked, what is the difference between maintenance and repair? Why do we need two words? Repair is defined but maintenance is not. Deter commented that repair generally equals maintenance. Major maintenance work requires a petition.

Zdon commented that the LGU survey data and map are hard to believe. Exemptions were not reported in heavy agricultural areas. .

A question was asked about both exemptions, public and private systems. When applying this exemption to private there may be no public record. Is this exemption applied more widely than it should be? Deter added that he hasn’t seen this in 20 years on a private system. It may be different in the urban areas.

Steve asked where the 25 years came from? The scope of projects is more long term. Many ditches get attention only once in a lifetime. Weirens answered this was a negotiated time period.

Category #4 – Weirens asked if this was repealed would anyone care? Gerbig asked Deter what he thought. Deter replied no, if it’s not built since 1991, it’s not going to happen.

Weirens asked for further comments.

Paul Brutlaug responded that the process is important. Is the restoration important in the prairie pothole region? Weirens replied that it is important; it’s a policy decision. Brimmer requested to have time for this topic at the June meeting.

Warmka questioned why CREP acres are not counted? Weirens responded that it may not be appropriate to mix CREP and WCA data. Warmka responded that the taxpayers don’t know the effect of these programs.

Weirens commented that the June agenda will include this topic.

Weirens asked for any last comments.

Meeting adjourned at 11:55.

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