Water & the Law
- John Kolb of Rinkee Noonan
John Kolb from Rinkee Noonan sits down with Jamie and Kent to take a deep dive into the law as it relates to agricultural water management. The discussion takes a look at history, swamp busters, and how they all lead to the laws we see today.
Episode 10 | 1:02 min
After leaving active duty in the Army, John Kolb decided to attend law school. A mentor suggested that he pursue a legal practice that incorporated both his undergraduate education (biology and aquatic ecology) and his love of the outdoors – and with determination and dedication, a water resource practice was born.
This is the water table.
A chance to hear the agricultural side of these issues
A place for people to go find information and education
Matt Helmers 0:12
water management is just going to become even more critical into the future.
How missunderstood understood what we do is.
I would encourage people to open their minds and listen to this dialogue.
Welcome to the water table podcast. Today we have a great episode for you. We have John Kolb from Rinkee Noonan Law Firm. We’re going to talk about wetlands, we’re going to talk a little bit about environmental law and how the whole Swamp Busters Act came about in 1985. And what happened before that. There’s just gonna be a wealth of information here. So, excited to have John with us. Also of Kent Rodelius, as I, from Prinsco, as I mentioned. In our first episode early on in this series is Kent, I explained Kent as the godfather of drainage and we really feel that way around Prinsco. And so, Kent and John go a long ways back and we’re just going to have a discussion between the three of us today. So I hope that you find that informative and value to you as a listener. So John, welcome to the water table. Can you give us just a little background on who you are, and you know, where you grew up and what you’re doing today?
John Kolb 1:34
Sure. I’m gonna surprise everyone that’s listening that knows me by saying, first of all, I grew up as a city kid. And I think most people think that I grew up in the country. Really, over the last 25 years, 24 years of practicing law, I probably learned enough just through my work and through my relationships with different folks out in the AG world to be dangerous, and maybe to fake it a little bit. Although with that, at this point, I feel way more confident in what I’m talking about that I did when I first started. I grew up in the Twin Cities, just outside over the river from Minneapolis in Eagan. At a time when Eagan was 5,000 people in a township, I think now it’s 65,000 people and its own city. Things have changed quite a bit. Although the little farmhouse that I grew up in is still there. I went, I started here at Rinkee Noonan in 1998, after practicing in the Twin Cities for two years at a small firm doing water related or water resource related work for Metro watershed districts, and also dealing with some DNR issues down there, at the time. Never thought I would get into law when I graduated from college, actually went into the military serve on active duty for five years. That experience taught me a lot about understanding how regulatory frameworks work. If you can imagine the military is quite a structure and there was always a regulation, an army regulation, that dealt with whatever we were doing. Whether it was setting up a firing range for rifle marksmanship, or if it was doing transportation of equipment, there was a regulation for everything. And so that whet my appetite to dig in on those things, because I never liked being told no. And I found that if I knew the regs better than the people telling me “no”, I could easily get a yes out of them eventually. So that’s how I got into law. My drive into the environmental world or into water resources was twofold. One, I had an interest in it from the beginning, I had a biology undergraduate with some aquatic ecology aquatic ecology courses. A mentor, as I was in law school said would take what you like and turn it into your career and so I got into environmental or basically rural practice type work dealing with AG because that was an interest to me. And that’s, that’s how I got to where I am today. So I was hired here at Rinky Noonan, like I said in 1998 by Kurt Dieter. If Kent is the godfather of drainage, Kurt Dieter is one of the godfathers of drainage law in Minnesota, I think, the grandfather of it all his former now deceased attorney Arnald Wedland from Blue Earth, but there’s quite a history there. But that’s how I got to where I am today and how I ended up in this area of law.
That’s really interesting background. I appreciate that, John, and you and I have known each other for a lot of years and been at a lot of meetings together. And certainly I’ve enjoyed our time talking about the factors that impact environmental law. Today, we’re going to talk about some history first and I was a history major in college and don’t ever don’t usually get to, to use much of that. But it’s always interesting to know what happened in the past that got us to where we are now. And so let’s talk a little bit about the history of drainage law and how it has evolved. There’s a lot of a lot of stuff to unpack in that.
John Kolb 5:03
Well, I would start by saying that prior to statehood, and even at the time of statehood, Minnesota was a wet and ugly place. And you can imagine that it was even more intimidating for the first settlers that came across the plains and ended up in this area and they encountered lots and lots of wet areas and mosquitoes, and probably many of their relations died of disease and those sorts of things. And so getting rid of that water, at that time was incredibly important not only to being able to eke out an existence, but just to your general health and survival. So even prior to statehood, there was a regulatory code in the territories is dealing with drainage. And in addition to that code, there was a lot of judge made law in this part of the country. It started out that water was considered the enemy and so you could get rid of it however you wanted to or however was you were able to. But then as populations increased, and friction between neighboring landowners increased, that common enemy rule, which is really a free for all for getting rid of water turned into what we call a Minnesota now reasonable use law, which really, it was a balancing test about what was your need for drainage versus the damage you are going to produce for your neighbor. Keeping in mind all along that water flows downhill. So we can’t quite change that. But we often try to accelerate or change the way in which the water got downhill. So between the earliest versions of drainage code, which had to do with group drainage, and how land owners could be coerced to get together to pay for something for their collective good, and the common law of drainage in Minnesota dealing with first as a common enemy rule, and then as a reasonable use rule, drainage was actually encouraged in the state for many decades, I would say all the way up to and through the 1970s. And before I get too far into that, we have to consider also that there are parts of the state where the state actually took an active role in draining those lands, in order to open up airable territories, and then sell those lands, those formerly wet areas, which were ceded to the state at the time of statehood. And but actually aired them out and allow them to be sold. And that’s how the state was financing, government activities, and all kinds of different things in the state was by actively draining wet areas, and then selling those lands in generating revenue. Now, a lot of those lands ended up in tax forfeiture, and we find them now up in the northwestern and north central part of the state as consolidated conservation lands. But there is a tremendous history there. And it all revolved around how do you make Minnesota a habitable and profitable place for human beings. So at that time, the more important consideration was an environment for humans than an environment for the natural world in the natural resources. And so there was a real push to drain the lands make it productive, we can carry that through to the war years where now it was important to, you know, to produce commodities to support the war effort. And then subsequent to that, as the cold war started, and Khrushchev promised that he would bury us in grain, it became important again, to produce and production, at least in this part of the country was dependent on the ability to manage that soil moisture, because without the ability to manage that soil moisture, you just couldn’t air the land out enough to grow anything. So that’s kind of my brief thumbnail history and we can talk about, you know, how many miles a tile and all those sorts of things are in but that’s, that’s my brief thumbnail. I think up and to and through some of the environmental laws that started being discussed in the mid 70s and then came to fruition for agriculture and applying to agricultural drainage, you know, in the in the early to late 80s. And then we’ve seen a consistent increase in the regulatory schemes, and the restrictions or regulatory restrictions placed on drainage since that time.
That’s great background, John. And it’s important to realize that this is a movement that came from the east coast and worked its way across to the Minnesotas and in the Dakotas. They started putting drainage in and a lot of that technology. And a lot of that practice came from the European area, so where the immigrants came from, and they knew what was possible to do but down in the south east corner of Minnesota, there’s a little town of Hollandale and there’s a there’s a contractor down there that has a lot of the old history of how they drained a lot of the big slews. A lot of big water water slews in southeast Minnesota. Actually floated big, big machines on barges and at times there were malaria scares because of how bad the mosquitoes were and it would be largely unrecognizable to what the landscape is today.
John Kolb 10:21
I don’t disagree with you, I’ve spent some time down there, there’s actually a watershed district, Turtle Creek watershed district, that has its meetings down in Hollandale. And for a number of years, if I’d ever have to cover for Kurt, I’d be down in Hollandale for a night meeting. And we would talk about their single ditch and all the truck farming that occurs down there that wouldn’t be made possible without the drainage that occurred.
And you know, you look at what you said earlier as in back before statehood. Minnesota was, you know, a wet and ugly place. And and that’s kind of what Ken’s referring to there too is how they did this early on in certain areas that had a lot of wetlands and a lot of water, which was a vast majority of Minnesota. And, and it’s part of I think the tension today. And part of what we wanted to talk about is just there still are groups that say, you know, we’ve lost 90% of our wetlands, to farm agriculture water management, slash subsurface drainage, and that’s true, but that isn’t true in the last 40 years. That’s true of what happened in making Minnesota what it is today. And the agriculture that you know our the seventh district here in Minnesota, which we sit in, a lot of times is in the top four of political districts in America and which grows, you know, turkeys, and soybeans and corn and sugar beets. So we have an economy here that we’ve built off the backs of farmers who built that off the land in which they did convert the land early on. But think we want to get into that. I just wanted to mention all that to our listeners. But I think we want to get into that a little bit more in this podcast around. Sure we did change the landscape, but it was encouraged to do. Malaria, just settlement of the land and how difficult that was. And that isn’t happening anymore due to how we have our regulation set up today.
One of the things that I’d like to pick your brain about a little bit and just talk about to John, is that during that period that you mentioned, or the 50s in the 60s in the 70s, that was a unique period in American Minnesota History too, because the NRCS and then it was the SCS, actually paid farmers to drain wetlands. They were incentivized to do that. And so we have that era where there was a great deal of drainage done in that time that was viewed as progress. Do you have any comments on that, John?
John Kolb 12:52
I do. And I’ll follow up on the prior comments. I often will say that, you know, it’s absolutely true. We have lost a substantial amount of our pre-settlement wetlands to agricultural drainage. And I often will say, well, that drainage occurred for good reason, but not without consequence. And I think it’s the consequence that people didn’t understand, or weren’t, you know, as cognizant of, until you get to the 60s. And you have, you know, major environmental problems and water quality problems in some of the rivers that run out of Ag country and then into major cities. And so not only were those rivers subject or the discharge point for agricultural drainage, but they ended up also being the discharge point for a lot of industrial waste. And it was the realization that they didn’t just bounce back, it was not that the solution to pollution is dilution, which is what they used to say. But it’s a series of factors that combine to cause those problems and then from there the environmental considerations of human impact on the earth started turning in a different direction, just like the common enemy law changed to a reasonable use law as the as the country became more populated and you had this friction between landowners at the same friction began to occur between this need for progress and economic development in the ag sector, which was incredibly important to the country and to the seventh district and the state of Minnesota as a whole. But it started coming into conflict and friction with other important values that were being placed on the waters and the woods and the grasslands and the rest of it. So we talked about at Statehood, the concern was about having an environment for him. beings and for productivity. And that tide began to shift with the realization that these were cumulative impacts, that they weren’t easily undone, that they didn’t correct themselves naturally over time that they needed, you needed to create breathing room, and you needed to create ways to allow the natural system to rebalance itself. And that’s really, in my opinion, where that regulatory process began. And what its objective was to better balance the competing interests and to try to eliminate or reduce the amount of friction between interests in the environment, just for the environment sake, as opposed to interest in progress and economic development just for progress and economic development sake. And I think we’ve learned over time that the two can go together, and actually complement one another, so long as both are committed to balancing each other out.
Good point on that. And I agree, and I appreciate you sharing that piece, John. Because, you know, it’s such bookends from where we began a long, long time ago, at statehood, or before statehood, to where we were at in the early 80s, late 70s and now for someone that’s as close to this whole thing, and both sides of it, as you are to say, you know, we’ve accomplished some balances, I think encouraging and should be encouraging to anyone on whatever side of this argument you’re on. Do you agree with that, Kent?
Yeah, for sure. It’s, that’s great insight, John, I appreciate that. John, during that period of the 50s, and 60s, and in the 70s, it was kind of, if the farmer had an attitude he was doing the right thing he was he was clearing land, he was being able to farmland more productively because he could put some drainage on it. And like I mentioned before, he was incentivized to do that. I remember the infamous Earl Butz, who was the secretary of agriculture for Nixon, saying we have to farm fence row to fence row. So in a large scale, there was an awful lot of drainage done in that 60s and 70s period. And like I said prior that was funded by the NRCS. And what back then was the FCS. And then we came to the point of then 1985 Farm Bill, which introduced conservation compliance. Where if you were going to participate in the Farm Bill, you had to agree to certain limitations. And that’s where Swampbuster came in. And it’s it’s hard to capsulize the tension that that caused in the farm community,
John Kolb 17:42
No doubt. And again, it came on the heels of clean water act. It came on the heels of various executive orders that were recognized that were aimed at recognizing the value of wetlands and waters and the role that they played in quality of life for people in the country. And on top of it all the climate had changed. You know, we were nearing we’re nearing either a balance or a stability point in the Cold War. And it was probably on the decline in terms of the Soviet Union at that time. And so the concerns the national security concerns about food security, and economic security, they had changed as well. And so all of those things culminated to addressing in a very interesting way, the agricultural component of water quality and the wetlands and understand there’s two components here. One is the functions and values that wetlands provide in terms of water quality, aquifer recharge, I mean, all of these different things. In addition to habitat and everything else. And the sheer volume and rates of water that gets shut off the land, it’s maybe not the same, but it changes in character. And so, you know, those two things in addition to soil and water conservation practices, all those things kind of came to a head. And what the federal government said was, you know, we have these programs that provide economic incentives to producers of agricultural commodities. Is there a way to condition the availability or the eligibility to participate in those programs on the agricultural producer undertaking compliance with certain conservation provisions and so at the same time, Swampbuster came in, to protect wetlands that existed on the agricultural landscape as of December 23, 1985. You also had the Sodbuster provisions which protected highly erodible land from being opened up or manipulated in a way that created additional soil loss. And this after decades of legislation allowing for the establishment of soil and water conservation districts and so water conservation districts at the state level, being very active in trying to address soil loss coming off of the lessons learned during the dustbowl years in the 30s so they’re just all these pieces going along. But ultimately, all this law was attempted to be balanced. You know, it was it, the Swampbuster was really about, let’s keep the deficiencies that have been that have been established to date. But let’s stop or curtail more wetland conversion from occurring. That was one part of it. At the same time, we were addressing some exemptions that were put into the Clean Water Act, section 404, which deals with the discharge of dredger fill material, that exempted out agricultural activity and minor drainage and those issues as well. And of course, the Clean Water Act, there were nationwide debates and listening sessions and town hall meetings and there was a great compromise there to make sure again, that this law balanced out the need for economic development in the Ag sector, and economic opportunity and sustainment in the Ag sector, and the environmental objectives that were sought in terms of pollution reduction, by the Clean Water Act. So all of those things, I don’t think they can be considered in isolation, they all kind of came together and they culminated in various other laws that got adopted in sequence, Swampbuster being one of them.
I think one of the most difficult things for a lot of people on the farm was the the FCS then were the people that they would go to for help and assistance. And then as of 1985, when Swampbuster was enacted, at that point it came became much more contentious and then if you were going to want to do anything on any of your land, you had to go in, fill out a 1026 if you wanted to do any alteration of anything on your farm, and you had to open up your whole farm to be examined. And it just got to be from went from the NRCS be wearing the white hats to kind of feeling like they were wearing the black hats. And it was really an unfortunate turn of events I think.
John Kolb 22:36
I can’t disagree with you, when I started my first encounter with folks from the NRCS. You know, a lot of them were still around for the FCS days pre Swampbuster. And so they would they would lament that in many ways and still had a lot of sympathy for this change of position or change of orientation that the agency had undergone. Not that they weren’t doing their job effectively. But again, from the farmers perspective, it, I believe, felt like a betrayal and I’ve actually had some of my really early clients that were older farmers who have long since retired, they talked about that. They said, you know, I got paid to do something that I would be penalised for doing today. And that was difficult to understand as well. But I think I think too, nobody really explained how all the pieces fit together. And so from the Ag producer standpoint, you know, most of them, aside from being, you know, savant set marketing, they just wanted to get out and farm because that’s, that’s what they were in it for. And so they did feel a little bewildered by it, but mostly because it was never explained to them how all the pieces fit together.
Like you said earlier, John, water quality was really coming to the forefront, and in this time and era, and it became something that farmers had to educate themselves and learn about and deal with. And currently, there was a lot of stakeholders in the water quality business, particularly in the government, and it gets to be a bit cumbersome. Who would you say are some of the bigger players and, and what’s going on with regulation of water quality and wetlands, John?
John Kolb 24:24
in Minnesota, we’ve got the board of water and soil resources, which is responsible for overseeing the implementation of the wetland Conservation Act. Wetland Conservation Act came into existence in 1991 and it prevented the draining filling or excavation of certain wetlands without first having a plan to replace the function and value of those wetlands. And so that is a big player in In terms of the regulatory scheme, and again, the wetland Conservation Act is actually implemented at the local level at the county level. But it’s overseen and supervised by the board of water and soil resources, which is a state agency. We also see on the federal level, in addition to Swampbuster, which is a program implemented through the United States Department of Agriculture, and its subordinate office, the Natural Resources Conservation Service, we also have the Clean Water Act, which is implemented by the Corps of Engineers. And in Minnesota, it’s the St. Paul district of the Corps of Engineers. And what the Clean Water Act says is you can’t discharge dredged or fill material into waters of the United States, we could go on and on about waters United States. But I’m not going to do that right now, if you want to ask me about that later, we certainly can. But bottom line is this is is if you are digging a ditch through a wetland area, and you are discharging the spoils into that wetland area. That’s a discharge of dredger fill material, and it requires a permit under the Clean Water Act. Now, there were exemptions in the Clean Water Act for maintenance of existing drainage, there still an open question as to where they’re plowing tile in results in a discharge, the tile itself is not considered a discharge, but the when the when the plow goes through, and it disturbs and kind of fluffs the soil up. Sometimes that has been argued to constitute a discharge. So there’s still some unanswered questions out there but the Corps of Engineers is absolutely involved in implementing the Clean Water Act. That’s actually the Clean Water Act, the Big Daddy, in the Clean Water Act is the Environmental Protection Agency. They do all the enforcement really, and then it goes up up higher up the chain into government. But there’s concurrent regulations between the EPA and the Corps of Engineers for implementation of the Clean Water Act, the Department of Natural Resources has a say in it as to the effects on waters of the state or public waters. Public waters are actually inventoried. It’s it they are there, it’s a special thing. Not every water, not every lake and not every creek is a public water. Only those that met the criteria for inventorying in the late 70s and early 80s actually make the grade and the designation of public waters through the inventory process puts some regulatory control in the DNR over those waters and there’s there’s law and there’s regulation related to that. Basically, you cannot change the course current or cross section of a public water without having a DNR permit to do so. And what constitutes changing the course current or cross section is very recently become a point of contention. Because what has historically been thought of as changing the course current or cross section of public waters is now the agency, the DNR is taking a more expansive view of that. And so they would include increasing the hydraulic regime downstream of something that’s not a public water as changing the course current or cross section, and that has just not been the traditional view. But it is something that’s changing. The Pollution Control Agency in Minnesota also has a little bit in this and they are changing their regulations as we speak, to identify certain use classifications of all waters in the state of Minnesota. And they have taken some special care to address those waters that are in altered natural systems. And are now in the form of a drainage system or private ditch of some type.
So lots of hands in there. Not necessarily a negative comment with a lot of times when you have hands in something that’s negative, but it does create for complication, and at times intimidation, for those that are new or trying to do something and don’t have a lot of experience with this. And, you know, that’s kind of just a comment, but any anything you’d like to add to that, John, around how those agencies do or don’t work together and how compliant they are with each other.
John Kolb 29:31
Well, we could go on. They have tried in Minnesota especially among the various agencies in the state. They have tried to better coordinate their activities, I think in the last 5 to 10 years, especially. There’s interagency workgroups now that address, that try to address these issues. Often I think what’s missing from some of that discussion is the producer perspective or the industry perception. Because again, agency people are looking at their lane, maybe they’re stovepipe, snd they have one singular objective, which is, let’s just say in the case of a Pollution Control Agency, it has to do with water quality or attainable uses, and they don’t think about the corresponding impacts that that might have on either other regulatory schemes, or the fact that what they want to achieve might be in conflict with other regulatory schemes. And then that it causes other problems for the economic part of the equation. Because at the same time, you’re regulating a producer, that producer is at the mercy of the markets, that producer can’t say, because it costs me X amount of money to comply with all of the regulations, I’m now going to raise the price on my soybeans by $2. That they can’t do that the market is going to tell them what their soybeans are worth. And they’re at the mercy of that. So they end up having to internalize a lot of that costs. So there is a better coordination, I think, within the stakeholders at the agency level on the government side of the equation. I don’t know that that is always reconciled with reality of producers and of industry on the ground.
That’s a good way to state that, John. So it’s very clear to anyone listening to this, that the drainage of wetlands is heavily regulated, you cannot go out and do whatever you want to do. Swapbluster is applies to anyone who’s in the farm program. And that’s some of the reason that the Wetland Conservation Act was passed. Because if you’re out of the farm program, you still cannot drain a wetland. You cannot legally drain a wetland so a lot of good history there and a lot of takeaways, John. One of the things that’s been interesting to me to observe in the last few years, John, is the prominence of watersheds and how they play into this, this whole scheme of things, can you inform us a little bit about the role of watersheds. I think there’s 80 some watersheds in Minnesota.
John Kolb 32:06
In Minnesota we have a special law allowing for the creation of a special purpose unit of government called a watershed district. And watershed districts are based on a hydrologic boundary and not on any kind of political boundary like a county or a city or a township. And the thought was at the time that water doesn’t know any boundaries. So if we’re going to create an entity to try to coordinate activities that address water quality and water quantity concerns a special purpose unit of government might help that. Now, watershed districts are a unique in a different way in that the management the governing body of a watershed district is appointed and not elected. And the thought there was if you have appointed an appointed governing body, they are less likely to be influenced by political pressure and more likely to stay true to either the mission or the objectives of the watershed district. Which is which would be embodied in a watershed management plan based on the needs and the situation in that particular district. So watershed districts don’t cover all of Minnesota, they cover a fair portion of Minnesota, there’s a good part of Northwestern Minnesota that’s covered by various watershed districts. There are several in the central part of the state, there are several in the south eastern part of the state. There are several around the Twin Cities metro area, in fact, most of the metro areas covered by a watershed district at least around the fringes. And so they’re present, they are active, they have regulatory authority, so they can adopt rules and performance standards for various activities that might influence land and waters. Again, their primary concern should be water quantity and water quality. So in the northwestern part of the state, there’s a lot of flood control concern that the watershed districts undertake. And in the metro area, there’s a lot of water quality concerns that the watershed districts undertake. So they are they are a real player in this environment at the local level or in the state at the local level. It wouldn’t be fair to talk about watershed districts without also talking about water management organizations which are not quite watershed districts but they are also legal entities. Those are more found in and around the Twin Cities metro area. You have certain watershed projects or collectives, which are Joint Powers organizations that various counties have put together. And depending on the nature of the organization and the enabling legislation, they have more or less authority. Some are just coordinating bodies or research bodies others actually take on a more regulatory or authoritarian role in terms of implementing performance standards on the landscape.
Explain just a little bit, John, you know, I think I know, but I think our listeners would benefit our listeners to know how is a watershed district in Minnesota or that for that matter, and other states too, but how are they funded? And you know, just a few general typical things are they doing with that funding for projects that are handling water quality and water quantity?
John Kolb 35:36
Watershed districts, I’m going to talk about outside the metro area first because there are some special laws that apply to the watershed districts that are in the seven county metro area. Outside of the seven county metro area watershed district drives its authority from statutes chapter 103 D, as in dog. And that statute provides for a general operating levy authority, which is just property tax within the jurisdictional boundary of the watershed district. In some areas of the state, the watershed districts are capped at $250,000 for their general operating levee. In some districts have special legislation that has raised that to a different to a different level. They also can borrow money to be paid back from other revenues, which could be water management charges. So a watershed district could establish by plan, and by approval of the state agency, again the Board of water and soil resources in this case they could establish special sub districts within the watershed district within which they could impose a water management charge in order to fund certain activities or certain facilities. And the charge is based typically on the burden that a given property might place on that facility or the need created by that particular land use for that particular facility. Those charges are typically run off based, but they can they can be based on other factors as well. And then the watershed district can also establish projects sometimes by petition, sometimes on their own on their own accord. And they can, if they go about the right processes, they can identify a list of benefited lands and the value of those benefits. And then they can do what we call benefited lands assessment, which is like a special assessment. It’s a special tax placed on those specific parcels in order to fund a particular project or program that has been found to benefit that specific or those specific properties. So they have a combination of their ad valorem levy authority, a charge authority and a special assessment authority. If you’re in the metropolitan area, and you have a watershed district in the metropolitan area, they have additional authorities granted to them under Chapter 103 B, as in boy, and that gives them some additional ad valorem levy authority in there which gets them beyond that other cap that’s typically found in 103 D.
One other area I think, John, that’s sometimes confusing and hard for people to understand, is the role of county ditches. There were county ditches established in very much the southern half of Minnesota for sure there’s some up north as well, but you hear the word county ditch you think well that the county paid for the ditch or the county is doing all this extensive ditching the benefit of farmers. Can you tell us a little bit about how county ditches work?
John Kolb 38:53
Sure. Recall earlier in the conversation, we talked about a drainage code that actually existed prior art prior to statehood. And I talked about it as a way to coerce landowners to pay for something for their collective benefit. That’s really what a county ditch is. A county ditch is a collective drainage project. And it’s governed by a specific law currently in the state of Minnesota chapter 103 E, as an echo. And the county the reason why they call them county ditches, they might call them public drainage systems, they might call them judicial ditches, they might call them joint ditches, there were township ditches at one time, there were fire management ditches at one time and there were state ditches at one time. Right now they all come under the purview of either a watershed district or a county or joint county drainage authority. And so really what it all it is a project. A county ditch was nothing more than a project that was petitioned by law by a certain density of landowners fallen to promote the public well benefit, and then was constructed and the cost for the construction were charged back to that discrete number of benefited landowners and determined in the project. And so it really is just a collective drain, it’s a group drain. And the county in this case in your example here, serves as the administrator of that drainage system on behalf of the beneficiaries of the drainage system. So it’s not really public drainage, although that’s what we call it. But it is group drainage. And it is publicly supervised by a drainage authority, which in our conversation here would be a county board, for example. And that county board has an obligation to inspect and maintain the system so that it will function substantially as originally established. And that is actual property right that those assessed landowners have is in the maintenance according to the statutory provisions found in the drainage code.
Thank you, John. Sure, appreciate that background. Why don’t we move forward a little bit to where we’re at today. We’ve talked a lot of history and a lot of background and a lot of things. I imagine that you’ve seen your caseload change and evolve over the the encompassing of these laws, John, how is how is your caseload different today than it has been in the past?
John Kolb 41:28
Early on when I was a new lawyer, in dealing in this what I was typically encountering was landowner disputes, so they were reasonable use cases we used to run from them, we call them wet basement cases. Kurt didn’t like, Kurt Dieter, my colleague, didn’t like them, I didn’t like them. Because they reflected just an inability for neighbors to be neighborly. And to get along, there was always a solution. It was just that, you know, one or the other, weren’t getting along. And I attribute some of that, especially given the timeframe within which I started practicing law, I attribute some of that to 10 years of a neighbor looking over her shoulder at her neighboring property owner saying, boy, that person got all that stuff done before ’85. And I can’t do anything. So now every time they do something, I’m going to get in the way of it because it’s not fair. That’s that’s part of what I attribute it to. So that was early on. Then about the you know, just shortly into into my work, the number of USDA Swampbuster appeals, they were probably the bulk of my practice. And, you know, there were a lot of areas of the state that had not previously been determined. And so the NRCS was coming out every time somebody wanted to do something new on their property. And they would say, oh, there’s no determination here so we’re going to determine and then they would determine things that the landowner would disagree with, and we would be off to the races on appeal. More recently, what that’s evolved into is a relook at some of those prior determinations. And whether or not they are binding on the landowner or binding on the agency, whether and how they can be changed. Those sorts of things now have come into the fore with Swampbuster and USDA matters. We are also now are seeing more and more friction between landowners and the Fish and Wildlife Service with the Fish and Wildlife Service’s management of the Refuge System which includes waterfowl production easements that were acquired originally back in the late 50s and early 60s under the migratory waterfowl Stamp Act, they use that money to fund. And the goal there was to get as many acres protected as possible, but they needed consent of the states. And so each state, by counties, set certain acreage limitations. But what we’re finding now is that the Fish and Wildlife Service has not done a good job of identifying what were the wetlands that were actually protected when those easements were acquired. So we have easements from 1958 that say that it applies to the southwest quarter of section two but it doesn’t say how many wetlands were in the southwest corner of section two at the time the easement was acquired and they’d only protected the wet ones. So now you come today, and we have a different environment. We have a wetter environment. We have different regulatory schemes going on. And now the Fish and Wildlife Service might come out and say you can’t touch that wetland because it’s covered under this easement, but that wetland wasn’t there at the time of the easement. And what case law says is that, you know, it only covers the wetland that was there at the time of the easement. And so we have that friction point coming along in this year, or actually, last year, the Fish and Wildlife Service adopted a process for trying to update these maps and get them more accurate and given appeal process and everything else. We’re just kind of seeing those percolate through the system right now. And we think eventually, that’ll end up in some major federal litigation, to define the scope of the Fish and Wildlife Services Authority over those lands. And the Fish and Wildlife Service also has as taken a position that if I put a drain tile in adjacent to a wetland that’s covered by one of these easements that drain tile can have no effect whatsoever on that wetland. And so they’re creating these setbacks that are three times what the NRCS would consider it terms of scope and effect oftentimes, that it’s very interesting because the setback that they give is off the property, which means I can’t tile even the uplands that aren’t covered by my easement now, I can’t manage the moisture there. We’ve had things happen off site on lands not covered by easement that they try to regulate on, because they say it affects something within an easement. But again, you didn’t acquire anything on that other land. So how do you how do you extend that? So this is why we think this is probably heading toward some type of major federal litigation, that has become very active. And then I think that the the level of Wetland Conservation Act and Clean Water Act, matters that come up, has remained consistent since I started here at Rinke Noonan in ’98.
So appreciate that. And, you know, I probably we probably don’t have enough time for all the questions that could come out of just just your answer there. But, you know, you bring up easements and I know, that’s a contentious thing around, you know, permanent easements versus just easements that are for a certain number of years. And it kind of dovetails into my question, which is, you know. We’re hearing from environmental scoops about net loss of wetlands and where is that coming from? And, you know, how does that how does that play into what, when we think that we’re not draining wetlands. So just talk a little bit about that, I’m sure there’s more questions from both Kent and I on that.
John Kolb 47:32
I think a lot of it is perception. And we talk about functions and values of wetlands and, you know, when I look at when I look at a little sag in an egg field that’s being tilled every year, it’s being planted every year, it’s being hit with nutrient and fertilizer every year, even though it still qualifies as a wetland, because it’s got hydric soils, and it maybe has the amount of saturation within the ground surface for a long enough period. It’s not really having much effect scope much function and value. But I think that some people don’t see that because they don’t actually see how it’s being used and what’s happening to it, they just see it as a wetland. And they don’t understand how it might actually be better if we took that function and value and consolidated it somewhere else on the landscape and made it larger or did something else. The state has had a no net loss policy since the adoption of the wetland Conservation Act in December of 1990. So since 1991, essentially. And you know, the goal there was to let’s let’s recognize the value of wetlands, and then let’s not allow them any more of them to be to be lost. And it was the same objective that Swampbuster was trying to achieve. Let’s protect the wetlands that are on the ag landscape as of December 23, 1985. Now, it doesn’t mean you can’t drain a wetland, it just means you have to replace it. And based on the state’s process, it’s usually replaced at a ratio of greater than one to one. So there are there’s an argument to be made that we’ve actually potentially had a net gain of wetlands. But again, at the same time that we maybe have more wetland acres than we did prior to the enactment of Swampbuster and the wetland Conservation Act, the quality of those wetlands is still a concern. Because a wetland is just upland waiting to happen. You know, everything is nutrifying and degrading over time and you know, the landscape changes, it just does. And we tend to try to freeze things as human beings, we try to freeze things in time. And so the real trick here is let’s try not to do things that accelerate degradation. And let’s try to recognize where we can achieve the best function and value And where we can sacrifice function and value for the benefit of other interests. And that comes back to that balance issue.
Yeah. And you know, if, and I know one of the arguments is for voluntary wetlands that have been restored on a voluntary basis and one of the arguments to that is that, you know, they’re not permanent, they’re not a permanent wetland. But with what you just said, wouldn’t that be true that maybe we don’t want permanent wetlands, if the landscape is changing all the time?
John Kolb 50:32
I, again, I haven’t seen a wetland restoration that has not been encumbered by some kind of conservation easement. So essentially, it becomes permanent, in most cases. Because again, somebody is either going to restore a wetland voluntarily for wetland credits, because it’s an economic benefit to them, in which case it’s permanently restricted. Or they’re going to do it because of some other regulatory requirement, in which case, it’s going to be permanently restricted. You know, I think those areas are important. And I don’t want to make light of the fact that a wetland is just upland waiting to happen. I mean, that’s kind of a fact of geological time. But I, you know, I think that if you’re going to make a serious effort, you have to create sustainable areas, you have to keep them in some kind of permanent reserve, and then you have to take the other areas that are under production, and make them as productive as possible in as responsible away as possible. And in my experience with Ag producers is that that soil, that land is their livelihood, the last thing they want to do is ruin it. But they do want to make their farm operation as efficiently as possible, because everything they do is on the margin, and they’re at the mercy of the market with in terms of what they can earn and what they can make. And I don’t think they should be penalised for trying to feed the rest of us.
Yep, farming the best and buffering the rest.
I think, I think too, John, that there’s been over the history of a lot of pipes have been put in the ground, a lot of farmers have an area that just didn’t work very well, if for some reason, they tried to stretch it a little bit, and they got into some soils that don’t drain very well. And that’s a lot of the stuff that’s been restored. And that’s that’s a pretty high quality wetlands. But I’d encourage our listeners to go back in the Water Table podcast history, and we did a session with Jeremy Donnabouwer on wetland banking. And that’s a lot of what can be done now to mitigate wetlands. So there’s just an awful lot of moving parts and all of this. Well, one of the one of the issues that we face is that, you know, there’s probably only 2% of people nationwide that are involved in agriculture. And I don’t think people really understand water table management or drainage in what we do when they think that we’re just trying to take advantage of everything we can and get, you know, farm, every little scrap of land. But it’s really much more complex than that. What, do you think we could do, John, to engage, engage our critics, people that don’t understand, you know, everybody that drives out in the country thinks there’s no wetlands left anymore? You know, like I said, everything is being drained. And there’s a terrible net loss of wetlands, we would one of the purposes of this podcast is try to try to engage some of our city cousins and have them think a little bit more about what’s going on in our landscape. Do you have any thoughts on that?
John Kolb 53:34
Well, I always start by saying your cornflakes don’t really come from the grocery store. Your cornflakes started out, as in some farmers bin somewhere, or in their field somewhere. And so again, I don’t think we should be taking a position that we want to penalize the people that are trying to feed us. And the fact that only 2% of the population is engaged in agriculture is only because one person can, you know, farm 1000s of acres these days with the equipment and the efficiencies and the rest of it. Back when everyone was scratching out on 40 acres, there were a lot more farmers, there was a lot different level of political clout that went behind Ag. So, you know, my I’ve argued a long time that ag has done a terrible job telling its story. I would challenge somebody and I’m sure it’s it’s the ad is out there somewhere, the untold millions of private dollars that agriculture has put into Soil and Water Conservation and water quality practices, whether that be clean water diversions for animal ag producers, or whether that be voluntary buffering, or wetland preservations and compliance with the regulation. There’s just been a lot of investment that Ag has made without any assistance from the public in order to make their operations responsible. Now we’ve hit something, I think a critical point. And the critical point is this is that the population in agriculture is so small and the population in the urban areas is so big, that the political cloud is out of whack. And in order to in order to address that, you really have to look at how do we create this sustainable environment, not only for natural resources, but also for human beings? I mean, there’s no question we all have to feed. We all have to eat something right? There’s no question that everyone should be given the opportunity to have some level of economic opportunity. And there’s no program that should curtail, you know, unreasonably curtail those pursuits. And in fact, we would be a completely different country, had we not had people really working hard and toiling hard to make land productive, not only for an export industry, but also for domestic production and consumption. And whether that be for fuel or for food, none of that would have been possible without a lot of hard work of our ancestors. And I don’t want to, I don’t want to disrespect that hard work by pointing a finger or pointing blame. We basically have learned some things and in the process of learning from some things, we now need to extend, I think, an economic incentive or provide the funds necessary to be even more responsible out on the rural landscape. We have a situation in Minnesota right now, where a lot of the public drainage infrastructure is over 100 years old. And to fix it doesn’t fix anything, because it’s so undersized for what it’s trying to accomplish today, that instead of running the water through the tile, we’re now running all the water overland. And with that, we’re taking sediment and nutrient and everything else and depositing in our waters. Well, if we want to improve conveyance, we’re going to have to store some water. But the programs available to buy storage and pay for storage, are really cumbersome. And they don’t, they don’t come in the same timeline, as drainage work comes. And so we need to figure out a way to better marry that up and to make those programs more responsive to the needs of the landscape when these projects do come along. So again, there’s a, we’re, I think, at a critical point where there’s a high demand for water quality and environmental sustainability. But there’s an unwillingness to do much other than point at one segment of our community and say, it’s all your fault, fix it, and fix it on your dime. And that all while those same people are trying to feed us. So I think there’s there’s something that’s out of balance right now we got to figure out how to get it in balance, and it’s going to require sacrifice across the board.
Ss well said, John, and we could talk and several more sessions about a lot of this stuff. But as we move toward wrapping this session up, John, what do you see as the coming environmental changes? What do you see about water quality that’s going to be coming at us down the road quickly here?
John Kolb 58:40
In Minnesota, the biggest issue is the Minnesota River and the changed hydrologic regime that it’s experiencing and the amount of sediment that it’s delivering downstream. And with that sediment comes in nutrients. So I would anticipate in our most heavily agricultural area, the state all drains to the Minnesota River. And because of the emphasis on the Minnesota River, I think we’re going to see a lot of challenges in replumbing, let’s call it, the system that supports agriculture in that sub watershed. That’s where I think the biggest the biggest fights are going to be are going to be in the Minnesota River Basin. And then, you know, my advice to landowners is just, you know, really take care to look at your best ground versus your marginal ground. And like you said, Kent, you know, plow the best and buffer the rest. And I think if we did that, we would go at least a little ways toward resolving some of the issue. If we had a couple more minutes, I could say a couple more things. But I think we’re getting toward the end here and I’m happy to come back anytime you invite me.
Well, thanks a lot, John. Yeah, we want to try to keep these to about an hour for our listeners and and before we go though we have something here at the water table we call the water table takeaway, and it’s kind of your parting thoughts, what you want to make sure you leave with our listeners.
John Kolb 1:00:14
I’m going to make it short, I’m just going to tell every Ag producer out there, be careful. If you’re going to put a shovel in the ground, be careful. We talked about it today, there are about 10, at least 10, if not more folks that are looking at you under a microscope. And you cannot replace the value of asking in advance, making sure you understand what you’re able to do or not able to do in advance, it is much more expensive if you have to address it after the fact than before the fact.
Yeah, and thanks for saying that, john, because that’s part of what we wanted to share on this podcast for kind of the general public that thinks we do whatever we want to do out here in rural America, and it’s the wild wild west, and it certainly is not. We have regulations., we have a lot of people looking at what’s happening here, and we follow the rules pretty much. I appreciate the time, Kent appreciates the time. Thank you very much for joining us. And yeah, we’re gonna start a series here on this around water quality and regulation, and you and others from your firm are going to be involved. So we really appreciate it. And we’ll see you again.
John Kolb 1:01:28
Thank you very much. It’s been a pleasure.
Thank you, John.
John Kolb 1:01:31
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