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Minnesota’s Buffer Law is Likely to Change — No Matter Who Wins the Governor’s Race

With Gov. Mark 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.

Minnesota’s Buffer Law is Likely to Change — No Matter Who Wins the Governor’s Race
Research says buffers help filter out pollutants such as phosphorus and nitrogen from rivers, lakes and other sources of water. (Photo by MPCA Photos/CC)

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.

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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.”

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