Roseau County Buffer Ordinance

NOTICE IS HEREBY GIVEN that the Board of Commissioners of Roseau County, Minnesota, will meet on Tuesday, November 14, 2017, at 9:15 a.m. at the Roseau County Courthouse, Board of Commissioners Meeting Room, No. 110, in Roseau, Minnesota, for the purpose of conducting a public hearing, pursuant to Minnesota Statutes 375.51, to obtain public input regarding Ordinance No. 40, which is entitled: “Roseau County Buffer Ordinance.” All persons interested may appear and be heard at the time and place set forth above, or may file written comments with the County Coordinator prior to the date of the hearing set forth above. A sample of the proposed Ordinance is on file in the Coordinator’s Office and is available on-line at http://co.roseau.mn.us, click on “Draft Buffer Ordinance.” Written comments may be sent via mail to the Roseau County Coordinator, 606 5th Ave SW, Room 131, Roseau, MN 56751; or e-mail to: pelowski@co.roseau.mn.us.
DATED: October 10, 2017

ROSEAU COUNTY

BUFFER ORDINANCE

 

 

1.0    STATUTORY AUTHORIZATION AND POLICY

1.1    Statutory authorization. This buffer ordinance is adopted pursuant to the authorization and policies contained in Minn. Stat. §103F.48, the Buffer Law, and the County planning and zoning enabling legislation in Minn. Stat. Chapter 394.

1.2    Purpose and intent. It is the purpose and intent of the County to:

(a) Provide for riparian vegetated buffers and water quality practices to achieve the following purposes:

 

(1) Protect State water resources from erosion and runoff pollution;

(2) Stabilize soils, shores and banks; and

(3) Protect or provide riparian corridors.

 

       (b) Coordinate the implementation and enforcement of the water resources riparian protection requirements of Minn. Stat. §103F.48 with the shoreland management rules and ordinances adopted under the authority of Minn. Stat. §103F.201 to 103F.227, and the management of public drainage systems established under Minn. Stat. Chapter 103E, where applicable; and

(c) Provide efficient and effective direction to landowners and protection of surface water quality and related land resources.

 

2.0    DEFINITIONS AND GENERAL PROVISIONS

2.1    Definitions.  Unless specifically defined below, words or phrases used in this ordinance shall be interpreted to give them the same meaning they have in common usage and to give this ordinance it’s most reasonable application. For the purpose of this ordinance, the words “must” and “shall” are mandatory and not permissive. All distances, unless otherwise specified, are measured horizontally.

 

2.1.1 “APO” means the administrative penalty order issued pursuant to Minn. Stat. §103F.48, subd.7, and Minn. Stat. §103B.101, subd.12a.

2.1.2 "Buffer" has the meaning provided in Minn. Stat. §103F.48, subd.1(c).

2.1.3 "Buffer protection map" has the meaning provided in Minn. Stat. §103F.48, subd.1(d), and which is available on the MN Department of Natural Resources website.

2.1.4 “BWSR" means the Board of Water and Soil Resources.

 

2.1.5 “Cultivation farming” means farming practices that disturb root or soil structure or that impair the viability of perennial vegetation due to cutting or harvesting near the soil surface. 

2.1.6 “Drainage authority” has the meaning provided in Minn. Stat. §103E.005, subd.9.

 

 

2.1.7 “Landowner” means the holder of the fee title, the holder’s agents or assignees, any lessee, licensee, or operator of the real property, and includes all land occupiers as defined by Minn. Stat. §103F.401, subd.7,or any other party conducting farming activities on or exercising control over the real property.

2.1.8 “Parcel” means a unit of real property that has been given a tax identification number maintained by the County.

2.1.9 “Public drainage system" has the meaning given to “drainage system” in Minn. Stat. §103E.005, subd.12.

 

2.1.10 "Local water management authority" has the meaning provided in Minn. Stat. §103F.48, subd.1(g).

 

2.1.11 "Normal water level" means the level evidenced by the long-term presence of surface water as indicated directly by hydrophylic plants, hydric soils, or indirectly determined via hydrological models or analysis.

2.1.12 “SWCD” means Soil and Water Conservation District.

2.1.13 “County” means Roseau County and its employees, designees or representatives. 

2.1.14. “Validation of Compliance” means a notice issued by SWCD that validates that a site(s) is compliant and that said validation applies as long as all practices identified/documented continue to be in place and substantially in the condition identified at the time of issuance. Said notice shall be in recordable form. 

2.2    Severability. If any section, clause, provision, or portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby.

2.3  Data sharing/management.

2.3.1  The County may enter into arrangements with an SWCD, a watershed district if applicable, BWSR, and other parties with respect to the creation and maintenance of, and access to, data concerning buffers and alternative practices under this ordinance.

2.3.2  The County will manage all such data in accordance with the Minnesota Data Practices Act and any other applicable laws.

 

2.4    Delegation of Enforcement. Nothing herein shall prevent the County from entering into an agreement with any other entity authorized under Minn. Stat. 103F.48 to enforce buffer requirements within its jurisdiction according to this ordinance, or other properly adopted enforcement rule.

 

2.5    Drainage System Acquisition and Compensation for Buffer. Nothing in this ordinance shall prevent the acquisition and compensation of grass buffers on public drainage systems pursuant to Minnesota Statutes Chapter 103E.

 

2.6    Notice. Any notice or other communication to be provided herein shall be directed to the landowner whose name and address appears on the County’s Property Tax Records and is listed as the taxpayer. Notice provided to said landowner shall be considered sufficient notice to all those who may be considered a landowner as defined in Section 2.1.7.

 

 

 

3.0    JURISDICTION

3.1    Jurisdiction. The provisions of this ordinance apply to all waters shown on the buffer protection map, excluding public drainage systems for which the County is not the drainage authority under Minn. Stat. chapter 103E, where another enforcement authority has elected enforcement jurisdiction.

 

4.0    BUFFER REQUIREMENTS

4.1  Buffer width. Except as provided in subsection 4.4 and 4.5 of this ordinance, a landowner owning property adjacent to a water body identified on the buffer protection map must establish and maintain a buffer area as follows:

 

(a) For waters shown on the buffer protection map requiring a fifty (50) foot width buffer, the buffer width will be fifty (50) foot average and thirty (30) foot minimum width as provided in Minn. Stat. §103F.48, subd.3, as measured according to subsection 4.2; and

(b) For waters shown on the buffer protection map requiring a sixteen and a half (16.5) foot minimum width buffer, the buffer width will be sixteen and a half (16.5) feet as provided in Minn. Stat. §103F.48, subd.3, and as measured according to subsection 4.2. This subsection applies only if the County is the drainage authority.

4.2  Measurement.

(a) The width of any required buffer on land adjacent to a water requiring a fifty (50) foot average width and a thirty (30) foot minimum width buffer shall be measured  from the top or crown of the bank. Where there is no defined bank, measurement must be from the edge of the normal water level as provided in Minn. Stat. §103F.48, subd.3(c).

(b) The width of any required buffer on land adjacent to a water requiring a sixteen and a half (16.5) foot minimum width buffer shall be measured in the same manner as for measuring the vegetated grass strip under Minn. Stat. §103E.021, subd.1 as provided in Minn. Stat. §103F.48, subd.3(c).

4.3  Use of buffer area.  Except as provided in sections 4.4 and 4.5, a buffer as defined in this ordinance may not be put to any use, including but not limited to, cultivation farming, which would remove or prevent the permanent growth of perennial vegetation.

 

4.4  Exemptions.  The requirement of section 4.1 does not apply to land that is exempted from the water resources riparian protection requirements under Minn. Stat. §103F.48, subd.5.

 

4.5  Alternative practices.  As provided in Minn. Stat. §103F.48, subd.3(b), an owner ofland that is used for cultivation farming may demonstrate compliance with subsection 4.1 by establishing and maintaining an alternative riparian water quality practice(s), or combination of structural, vegetative, and management practice(s) which provide water quality protection comparable to the water quality protection provided by a required buffer as defined in sections 4.1 to 4.3. The adequacy of any alternative practice allowed under this section shall be based on:

(a) the Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG);

 

(b) common alternative practices adopted and published by BWSR;

 

(c) practices based on local conditions approved by the SWCD that are consistent with the Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG);  or

 

(d) other practices adopted by BWSR.

 

4.6  Compliance with other statute, ordinance or regulation.  Where the provisions of any statute, ordinance, or regulation imposes greater restrictions than this ordinance, the provisions of such statute, ordinance or regulation shall be controlling. 

 

5.0    COMPLIANCE DETERMINATIONS

 

5.1  Compliance determinations.  Compliance with the buffer requirements set forth in section 4 will be determined by the SWCD on a parcel-by-parcel basis. The compliance status of each bank, or edge of a waterbody, on an individual parcel will be determined independently.

 

5.2  Investigation and notification of noncompliance.  When the SWCD identifies a potential noncompliance with the buffer requirements or receives a legitimate third party complaint from a private individual, entity, or from another public agency, it will consult with the County to determine the appropriate course of action to document compliance status.  This may include communication with the landowner, inspection, or other appropriate steps necessary to verify the compliance status of the parcel. On the basis of the evidence gathered in this process, the SWCD may issue a Notification of Noncompliance to the County. If the SWCD does not issue such a Notification, the County will not pursue a compliance or enforcement action under Minnesota Statutes §103F.48 and subsection 6.2 of this ordinance. If the SWCD does issue such a Notification, the SWCD must include, for consideration by the County, a list of corrective actions needed to come into compliance with the requirements of Minn. Stat. §103F.48; a recommended timeline for completing the corrective actions; and a standard by which the SWCD will judge compliance with the requirements of Minn. Stat. §103F.48 after the corrective actions are taken.

 

At any time during process set forth in 5.2 and 5.3, the landowner may provide documentation of compliance to the SWCD.

 

5.2.1  Compliance determination. The SWCD will evaluate the available documentation, and/or evaluate/inspect the buffer, and/or alternative practices to determine if the parcel is in compliance. Upon completion of the evaluation and/or inspection, the SWCD shall issue a written compliance determination to the landowner, the County and BWSR. The SWCD may also issue a Validation of Compliance if applicable and requested by the landowner.

 

5.3  Corrective Action Notice. On receipt of an SWCD Notification of Noncompliance, the County will issue the landowner a Corrective Action Notice that will:

 

(a) include a list of corrective actions needed to come into compliance with the requirements of Minn. Stat. §103F.48;

 

(b) provide a timeline for completing the corrective actions;

 

(c) provide the standard by which compliance will be evaluated after the corrective actions are taken; and

 

(d) include a statement that failure to complete corrective actions and achieve compliance within the timeline provided may result in civil or administrative enforcement actions and the assessment of administrative penalties.

 

The County may send the landowner a combined Corrective Action Notice and APO as provided in section 6.2 so long as the combined Notice/APO includes all the required elements of both.

The County shall transmit the corrective action notice by either personal service to the landowner or by depositing the same in the U.S. Mail (certified, return receipt mail). If service is made by mail, the document is deemed to have been received three business days after the notice was placed in the mail. Failure of actual receipt of a corrective action notice that has either been personally served, or served by depositing the same in the mail, shall not be deemed a defense in an enforcement proceeding under section 6.0 of this ordinance. The County shall also send a copy of the Notice to the SWCD and BWSR.

 

Counties may modify the corrective actions and timeline for compliance, in accordance with section 5.2, to extend the compliance timeline for a modification that imposes a substantial new action or significantly accelerates the completion date for an action.

 

5.3.1      At any time after receipt of a corrective action notice, the landowner may provide documentation of compliance to the County. In addition, the landowner may supply information to the County or the SWCD in support of a request to modify a corrective action or the timeline for compliance. On the basis of any such submittal or at its own discretion, the County may make a written modification to the Corrective Action Notice or timeline for compliance. The County, upon review and notification by the SWCD, should also make a written determination documenting whether the noncompliance has been fully corrected. Any such modification of a compliance determination will be served on the landowner in the manner provided for in section 5.3 of this ordinance. The County shall provide the SWCD and BWSR a written copy of any modification made pursuant to this provision.

 

5.3.2      The SWCD may, after an evaluation of the evidence documenting compliance submitted by the landowner, issue a written Validation of Compliance if requested by the landowner. Upon receipt by the County of a written compliance determination issued by the SWCD, the Corrective Action Notice will be deemed withdrawn for the purpose of section 6.0 of this ordinance, and the subject property will not be subject to enforcement under that section.

 

6.0    ENFORCEMENT

6.1  Administrative Penalty Order. (APO)

 

        The County may issue an APO, as provided for in Minn. Stat. 103F.48, subd.7(b) and (c), and 103B.101,   subd.12(a), to a landowner who has failed to take the corrective action as set forth in the corrective       action notice. The APO must be served on the landowner together with a copy of the corrective action

        notice; or, alternatively, the County may serve the landowner with a combined Corrective Action Notice

        and APO as long as the combined Notice/APO includes all the elements of both. Service is effective either

        by personal service or by depositing the documents set forth herein in the U.S. Mail. Any penalty            assessed in the APO shall continue to accrue until the violation is corrected as provided in the Corrective

        Action Notice and APO.

 

(a) Initial violation.  The penalty for a landowner on a single parcel that has not previously been issued a corrective action notice by the County shall be:

 

  1.                                  i.            $0 for 11 months after issuance of the Corrective Action Notice or during the schedule issued for taking correction actions, whichever is greater;
  2.                                ii.            Up to $200 per parcel per month for the first six (6) months (180 days) following the time period in i; and
  3.                               iii.            Up to $500 per parcel per month after six (6) months (180 days) following the time period in ii.

 

 

(b) Repeat violation.  The penalty for a landowner on a single parcel that has previously been issued a corrective action notice by the County shall be:

 

  1.                                  i.            Up to $200 per parcel per day for 180 days after issuance of the subsequent Corrective Action Notice; and
  2.                                ii.            Up to $500 per parcel per day for after 180 days following the time period in i.

 

(c) Ongoing penalty assessment. Any penalty assessed under this section shall continue until the corrective action notice has been satisfied.

 

6.1.1      Penalty Determination. For administrative penalties imposed by the County, the County shall determine the severity of the noncompliance, intentional nature of noncompliance, and frequency of noncompliance in determining the amount of violation. The amount of an APO will be based on considerations including the extent, gravity and willfulness of the noncompliance; its economic benefit to the responsible party; the extent of the responsible party’s diligence in addressing the violation; any noncompliance history; the public costs incurred to address the noncompliance; and other factors as applicable. Upon appropriate findings, the County shall use the following table to determine a penalty amount:

 

Nature of Violation

Severity of Violation

Minor

Moderate

Substantial

  • Initial noncompliance (initial term)

$50

$100

$150

  • Initial noncompliance (subsequent term)

$200

$300

$400

  • Subsequent initial noncompliance (new parcel, initial term)

$100

$150

$200

  • Subsequent initial noncompliance (new parcel, subsequent term)

$300

$400

$500

  • Repeat noncompliance (same parcel, initial term)

$100

$150

$200

  • Repeat noncompliance (same parcel, subsequent term)

$300

$400

$500

 

6.1.2      APO. To be valid the APO shall include, at a minimum:

 

  1.                                  i.            The facts constituting the violation of the riparian protection and water quality practices requirements set forth in this section 4.0 of this ordinance, or Minn. Stat. §103F.48;
  2.                                ii.            The specific statute and/or ordinance section(s) that has/have been violated;
  3.                               iii.            A written description of prior efforts to work with the landowner to resolve the violation;
  4.                              iv.            The amount of the penalty to be imposed;
  5.                                v.            The facts supporting the amount of the penalty;
  6.                              vi.            The date the penalty will begin to accrue;
  7.                             vii.            The date that payment of the penalty is due;
  8.                           viii.            The date by which all or part of the penalty may be forgiven if the landowner has/have complied with the Corrective Action Notice; and
  9.                              ix.            A statement of the landowner’s right to appeal the APO to BWSR.

 

6.1.3  All or part of the penalty may be forgiven based on the correction of the noncompliance by the date specified in the APO by the landowner as provided in Minn. Stat. §103F.48, subd.7(d).

 

6.1.4  A copy of the APO must be sent to the SWCD and BWSR.

 

 

 

6.1.5  An APO issued under this section may be appealed to BWSR within 30 days of receipt by the landowner in accordance with the requirements set forth in Minn. Stat. §103F.48, subd.9. Any APO that is not appealed within the 30 day period shall be deemed final.

6.2  Administrative Penalty Order Procedures.

 

6.2.1  Compliance verification.  Once a landowner has been provided notice and submitted written

           evidence of correction of the violation set forth in the notice of compliance, compliance must be

           verified. The County will refer the landowner’s evidence and notice to the SWCD. The SWCD shall:

 

  1.                                              i.            Review and evaluate all information related to the corrective action notice or APO to determine if the violation has been corrected;
  2.                                            ii.            Verify compliance by site visit, re-inspection, examination of documentation, or other means as may be reasonable under the facts of the case; and
  3.                                           iii.            Document compliance verification.

            The SWCD may consult with the County when conducting a compliance verification.

 

6.2.2  Right to appeal.  Within 30 days after receipt of the APO, a landowner may appeal the terms and

           conditions of an APO to BWSR as provided in Minn. Stat. §103F.48, subd.9. The appeal must be in

           writing, must include a copy of the APO that is being appealed, the basis for the appeal, and any

           other supporting documentation. The appeal may be submitted personally, by U.S. mail, or

           electronically, to the Executive Director of BWSR.


6.2.3  Penalty due.  Unless the landowner appeals the APO as provided in section 6.2.3, the penalty

           specified in the APO becomes immediately due and payable to the County as set forth in the APO.

           If, however, the landowner submits written documentation that the violations have been corrected

           prior to the time the penalty becomes due and payable, the SWCD shall verify compliance, and the

           County shall adjust the penalty to an amount the landowner would have owed had the penalty

           been paid on the date the landowner submitted written documentation of compliance. Written

           documentation of compliance may include a written validation of compliance issued by the SWCD.

 

           However, if the SWCD determines the violation was not fully corrected, the County shall notify the

           landowner by issuing a written letter of determination and depositing it in the U.S. Mail. Any

           determination sent by mail shall be deemed received three business days after the letter of

           determination has been deposited in the mail. The landowner shall have an additional 20 days

           after receipt of the letter of determination to pay the penalty, or the time period specified in the

           APO as issued, whichever is later. The penalty will continue to accrue until the violation is corrected

           as provided in the Corrective Action Notice and APO.

6.2.4  Referral for collection of penalty.  All penalties and interest assessed under an APO must be paid by

           the landowner within the time specified in this section. All payments shall be made payable to the

           County. Any penalty or interest not received in the specified time may be collected by the County

           using any lawful means, including recovery by including the payment due to the applicable property

           tax statement.

 

6.2.5  Reporting and documentation. The SWCD shall maintain records concerning any potential

           violation of the riparian protection and water quality practices requirements. The records shall

           include, but are not limited to, the following:

 

 

           i.     The cause of the violation;

           ii.    The magnitude and duration of the violation;

           iii.   Documentation showing whether the violation presents an actual or imminent risk to public

    health and safety;

    iv.   Documentation showing whether the violation has the potential to harm the natural

            resources of the State;

            v.    A record of past violations;

           vi    Efforts by the SWCD, County, Watershed District or BWSR to assist the responsible party or

    parties to become compliant, including written and oral communications with the

    responsible party or parties ; and

    vii.  Past and present corrective action efforts by the responsible party or parties.