Fryberger, Buchanan, Smith & Frederick, P.A.

Do you own a lake cabin?  Is your property located next to a stream or public drainage system?  If you are a Minnesotan landowner owning property adjacent to a public lake, river, stream, ditch, or other wetland, you need to be aware of Minnesota’s new buffer strip law being implemented in 2016.  This law imposes buffer requirements on certain landowners across the state, and will carry consequences for those who fail to bring their property up to code.

Who will be impacted?

Buffer requirements apply to landowners owning property adjacent to certain public waters or drainage systems.  Those owning property adjacent to most water sources or drainage systems in the greater Duluth area will likely be subject to these requirements.  The Minnesota Department of Natural Resources (DNR) is in the process of establishing buffer maps for each county.  These maps will identify exactly which public waters and drainage systems are subject to the buffer requirements.  A public comment period is currently open, allowing landowners to voice their concerns as to which public waters and drainage systems should require buffers.  This July, after the county maps are finalized, the DNR will deliver the maps to the Board of Water and Soil Resources (BWSR), the SWCDs, and the county governments for implementation.  The final maps will help landowners determine whether their property is subject to the buffer requirements, and if so, how wide of a buffer they must create and/or maintain.

What constitutes a buffer and what does the law require?

A “buffer” is essentially an area consisting of perennial vegetation, excluding invasive plants and noxious weeds, that protect the water resources of the state from runoff pollution and stabilizes soils, shores, and banks while protecting or providing riparian corridors.  Areas containing perennial vegetation (e.g., lawns, forests, and hayed land) satisfy the buffer requirements, while cleared areas do not.  For example, lake property owners who like to maintain a cleared beach area on their shoreline will be out of luck.  The new law does not allow such a clearing and the landowner will be required to implement a buffer.

The size or width of the required buffer will depend on the type of water source.   First, sources designated and mapped as public waterways (e.g., lakes, ponds, rivers, streams) must have a 50-foot average buffer with a 30-foot minimum width, or the landowners must follow current state shore land standards, whichever is more restrictive.  The current shore land standards have required buffers for some lakes and streams for a number of years, but these standards have been infrequently applied, enforced, or prosecuted.  The new law will expand buffer requirements to many more waterways across the state and will be enforced much more closely.  Buffers on public waterways must be implemented in compliance with the new law by November 1, 2017.

On the other hand, sources designated and mapped as ditches or public drainage systems must have a 16.5-foot buffer.  Buffers on ditches and public drainage systems must be implemented by November 1, 2018, which gives these landowners an extra year to comply.

What are the penalties for noncompliance?

If a landowner does not meet the buffer requirements, the county or SWCD will provide notice of the noncompliance and work with the landowner in making necessary corrections.  It is important to note that there may be federal, state, and local funding to assist landowners in finding and implementing the best buffer solution for their property.

The landowner will have 11 months to come into compliance after notice of the noncompliance is issued.  If the landowner fails to come into compliance within 11 months, counties and SWCDs, along with the BWSR, may issue an order requiring that violations be corrected and may also assess fines up to $500.  Repeated violations may lead to repeated fines being issued, which means landowners cannot simply pay the original fine to avoid having a buffer.

In summary, Minnesota landowners should keep an eye out for the DNR buffer maps as they become available later this summer.  These maps will identify which waterways and drainage systems require buffers.  If you own land adjacent to an identified water source or drainage system, you will want to ensure that you implement a compliant buffer within the designated timeframe.

*** DISCLAIMER: This article should not be deemed legal advice. You should always consult with an attorney about your specific circumstances and legal rights and obligations. ***

Aaron Kolquist is an associate attorney with Fryberger, Buchanan, Smith & Frederick, P.A.  He is a J.D. and M.B.A. graduate from the University of North Dakota.