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
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
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
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
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
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
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
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.
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
10 sub exemptions adds complications
Update and simplify the language
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
Options will be forwarded to the BWSR Board.
State authority to determine Swampbuster compliance or existing
Data reporting and sharing
Reliance on offsite determinations
Clarify application of wetland types.
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
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
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
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
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
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
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
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
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
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
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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