D. Multi-Purpose Water Management D. Multi-Purpose Water Management

D. Multi-purpose Water Management

Before establishing a drainage project, the drainage authority must consider alternative measures, including measures identified in applicable state-approved and locally adopted water management plans to:

1. conserve, allocate, and use drainage waters for agriculture, stream flow augmentation, or other beneficial uses;
   
2. reduce downstream peak flows and flooding;
   
3. provide adequate drainage system capacity;
   
4. reduce erosion and sedimentation; and
   
5. protect or improve water quality.¹⁰⁷
   

1. State-Approved and Locally Adopted Water Management Plans

In considering alternative measures, the drainage authority is directed by language in Minn. Stat. 103E.015 to consider alternative measures identified in applicable state-approved and locally adopted water management plans. The primary state-approved, locally adopted water management plans are the County Comprehensive Local Water Management Plans¹⁰⁸ or the One Watershed One Plan.¹⁰⁹

As a general-purpose unit of government, counties, with their planning and land-use authorities, are uniquely positioned to link many land-use decisions with local goals for surface and groundwater protection and management. Through the Comprehensive Local Water Management Act (Act),¹¹⁰ counties are encouraged to make this link through the development and implementation of comprehensive local water management plans (county water plans).

According to the Act, these county water plans must:

• cover the entire area within a county;
  
• address water problems in the context of watershed units and groundwater systems;
  
• be based upon principles of sound hydrologic management of water, effective environmental protection, and efficient management; and
  
• be consistent with local water management plans prepared by counties and watershed management organizations wholly or partially within a single watershed unit or groundwater system.
  

County Commissioners also are responsible for appointing Watershed District Managers.

BWSR has a role in local planning. That role is to ensure that county water plans are prepared and coordinated with existing local, and state efforts; and that plans are implemented effectively. BWSR fulfills this role through Board review and approval of the plans while BWSR staff members provide overall program guidance, process affiliated grants, and provide plan review and comments.

All parts of Minnesota have state-approved and locally-adopted county water plans in place. However, water management in Minnesota recently began an evolution towards watershed-based, rather than jurisdictional based water plans.

One Watershed One Plan is the watershed-based evolution of the County Comprehensive Local Water Management Plans. Rooted in Minnesota’s long history of water management by local government, the Local Government Water Roundtable (Association of Minnesota Counties, Minnesota Association of Watershed Districts, and Minnesota Association of Soil and Water Conservation Districts) recommended in 2011 that the local governments charged with water management responsibility should organize and develop focused implementation plans on a watershed scale. One Watershed One Plan, authorized by the Minnesota Legislature in 2013, encourages local governments to transition local water management plans to a watershed approach. In 2014 and 2015, BWSR worked with 5 pilot watersheds. A statewide program based on the experience with the pilot watersheds will be operational in early 2016.¹¹¹

The pilot program resulted in recommendations that plans developed through One Watershed, One Plan build off existing local water management plans and priorities, existing and new studies and data, Watershed Restoration and Protection Strategies (WRAPS) and other related plans from state agencies. Some examples of these plans include: MN Department of Agriculture State Nitrogen Management Plan, MN Pollution Control Agency State Nutrient Reduction Strategy, MN Department of Natural Resources Prairie Conservation Plan, MN Department of Health Wellhead Protection Plans, and the Metropolitan Council 2030 Water Resources Management Policy Plan. Development of One Watershed One Plans will be locally-led; and will be watershed-based with prioritized, targeted, and measurable implementation actions.

BWSR recognizes that reorganization of the state’s watershed planning efforts will take time. A transition period of 10 years is anticipated for: completion of a comprehensive assessment of Minnesota watersheds and development of WRAPS by major watershed by the PCA. These strategies will be followed by BWSR-supported, locally-led collaborative development of watershed-based plans.

The goals for One Watershed, One Plan are:

• Acknowledge and build off of existing local government structure, water plan services, and capacity;
  
• Incorporate and make use of data and information including newly developed Watershed Restoration and Protection Strategies;
  
• Clearly identify the responsibilities and actions necessary to achieve the goals of the plan;
  
• Solicit input from and engages experts from agencies, citizens, and stakeholder groups;
  
• Consolidate the number of water plans from over 200 to le less than 100 ; and
  
• Focus on implementation actions that are prioritized, targeted, and measurable.
  

2. Consideration of Income Generating Alternatives

In addition, in the preliminary survey, the engineer must determine whether the proposed drainage project is necessary and feasible with reference to the environmental, land use, and multipurpose water management criteria listed in Minn. Stat. number 103E.015.¹¹² In the preliminary report, the Commissioner of the Department of Natural Resources evaluates the engineer’s preliminary survey and makes a determination of whether additional investigation and evaluation should be completed related to the multipurpose water management criteria.¹¹³

The impetus for drainage projects is to make land productive that is at times inundated or is at high risk of flooding. Due to a variety of reasons, however, a public drainage project may not be feasible or economically speaking, the best option. Several programs are available, as discussed in this section, to fund work that meets the multipurpose criteria under Minn. Stat. § 103E.015, subd. 1(2) and generate income for landowners.

Minn. Stat. § 103E.011, subd. 5 provides for the use of external sources of funding for drainage work as follows: “a drainage authority may accept and use funds from sources other than, or in addition to, those derived from assessments based on the benefits of the drainage system for the purposes of wetland preservation or restoration or creation of water quality improvements or flood control. The sources of funding authorized under this subdivision may also be used outside the benefited area but must be within the watershed of the drainage system.”

Chapter 103E.015 subd. 1a. requires the drainage authority to investigate potential use of external sources of funding and technical assistance as follows: “When planning a drainage project or a repair under section 103E.715, and prior to making an order on the engineer's preliminary survey report for a drainage project or the engineer's report for a repair, the drainage authority shall investigate the potential use of external sources of funding to facilitate the purposes indicated in section 103E.011, subdivision 5, and alternative measures in subdivision 1, clause (2). This investigation shall include early coordination with applicable soil and water conservation district and county and watershed district water planning authorities about potential external sources of funding and technical assistance for these purposes and alternative measures. The drainage authority may request additional information about potential funding or technical assistance for these purposes and alternative measures from the executive director of the Board of Water and Soil Resources.”

The following are some of the sources of funding and technical assistance that may be available to accomplished multi-purpose water management benefits.

(i) United States Department of Agriculture Conservation Reserve Program

The Conservation Reserve Program pays a yearly rental payment in exchange for landowners removing environmentally sensitive land from agricultural production and planting species that will improve the environmental quality.

To be eligible for Conservation Reserve Program enrollment, land must be either cropland that is planted to an agricultural commodity in 4 of the previous 6 crop years from 2008 to 2013, and which is physically and legally capable of being planted in a normal manner to an agricultural commodity or certain marginal pastureland that is suitable for use as a riparian buffer or for similar water quality purposes.

There is no obligation to continue keeping the lands out of production after the expiration of the ten-year contract. Land enrolled under wetland criteria will retain the original wetland designation when the contract expires.

For more information, the local Farm Service Agency office or local Natural Resources Conservation Service office should be contacted.

(ii) Board of Water and Soil Resources’ Wetland Reinvest in Minnesota Program

The Board of Water and Soil Resources administers several programs dealing with wetland restoration and preservation. The program most related to drainage projects is the Reinvest in Minnesota (RIM) Reserve program.

The Reinvest in Minnesota (RIM) Resources Act was adopted in 1986 to restore marginal and environmentally sensitive agricultural land in order to protect soil and water quality and support fish and wildlife habitat.¹¹⁴ It is implemented in cooperation with county SWCD’s. The RIM Reserve program compensates landowners for granting conservation easements and establishing native vegetation habitat on economically marginal, flood-prone, environmentally sensitive or highly erodible lands. The program focuses on permanent wetland restoration, adjacent native grassland wildlife habitat complexes, and permanent riparian buffers.

The intent is to restore wetlands by plugging ditches, blocking or altering subsurface drainage systems, or using other methods to re-establish the wetland areas. All restoration will be completed on private land after limited land rights have been acquired with a perpetual easement. The landowner will receive a one-time lump sum payment for conveying the easement to the state.

All construction costs are covered by the RIM Reserve program and other agencies or private organizations. The minimum wetland restoration size is one acre, along with up to six acres of cropped upland for each acre of wetland restored. The landowner is paid using a formula based approach indexed from the average township assessed values for cropland. The landowner input has a hand in restoring the wetland and determining the vegetative cover on the easement. The easement acquired prohibits alteration of wildlife habitat or other natural features agricultural crop production (unless specifically approved), grazing of livestock, spraying with chemicals, and, of course, drainage.¹¹⁵

The land remains in private ownership and the landowner retains responsibility for maintenance and paying applicable real estate taxes and assessments.

In 2013, the Minnesota legislature changed the way in which property burdened by RIM easements and other conservation easements are treated when valued for tax purposes. The change prohibits reducing the property value based on the conservation easement unless the easement falls into one of the following categories:

1. Easements covering riparian buffers along lakes, rivers, and streams that are used for water quantity or quality control;
   
2. Easements in a county that has adopted, by referendum, a program to protect farmland and natural areas since 1999 (only Dakota County has done this); and
   
3. Easements entered into prior to May 23, 2013.¹¹⁶
   

(iii) Wetland Banking

The purpose of wetland banking regulations is to provide standards for the establishment and administration of a state wetland banking system, including individual wetland bank sites, as authorized by Minn. Stat. § 103G.2242. The purpose of the state wetland banking system is to provide a market-based structure that allows for replacement of unavoidable impacts with pre-established replacement wetlands. The board or the board’s designee is responsible for management of the bank, including recording all bank transactions, maintaining bank records, and ensuring that the operation of the bank complies with parts 8420.0700-.0755.

One of the challenges associated with wetland banking is the interaction of restorations and long-term protection mechanisms with drainage law. They often conflict particularly when public drainage systems occur in sites targeted for wetland banking.

FOOTNOTES

^106. See In re Redetermination of Benefits of Nicollet Cnty. Ditch No. 86A, 488 N.W.2d 482, 487 (Minn. Ct. App. 1992).
^107. Minn. Stat. § 103E.015, subd. 1(2) (2015).
^108. Minn. Stat. § 103B.301 to 103B.355 (2015).
^109. Minn. Stat. § 103B.101 subd. 14 (2015).
^110. Minn. Stat. § 103B.301 to 103B.355 (2015).
^111. http://www.bwsr.state.mn.us/planning/1W1P/index.html
^112. Minn. Stat. § 103E.245, subds, 1, 2, & 4 (2015).
^113. Minn. Stat. § 103E.255
^114. See Minn. Stat. §§ 103F.501-103F.535.
^115. Minn. Stat. §§ 103F.501-601.
^116. Minn. Stat. § 273.117 (2015).