Podcast Episode 11

US Fish & Wildlife

With Guests:
  • Kale VanBruggen of Rinke Noonan
  • Levi Otis of Ellingson Companies

Jamie sits down with two experts to discuss the effects of US Fish and Wildlife easements on water management on the farm. He is joined by Levi Otis, Director of Government Relations at Ellingson Companies, and Kale Van Bruggen, Attorney at Rinkee Noonan law firm.

Episode 11 | 47:07 min

Guest Bios

Kale VanBruggen

Kale VanBruggen: Farm advocacy (we called it “agvocacy”) was an important part of my upbringing and shaped my choice to attend Drake University Law School, where I completed the Food and Agricultural Law Certificate program and graduated with highest honors. I bring my passion for farm “agvocacy” into my work representing farmers, landowners, and rural, local governments on litigation, regulatory and transactional matters primarily focused on water resources.

Levi Otis

Levi Otis: Director of Government Affairs at Ellingson Companies

Jamie 0:02
This is the water table.

Kent 0:05
The chance to hear the agricultural side of these issues

Jamie 0:09
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.

Jamie 0:17
How miss understood what we do is.

Kent 0:22
I would encourage people to open their minds and listen to this dialogue.

Jamie 0:31
Welcome to the water table podcast. Thanks for joining us today. We have a couple of guests with me here. I have Kale Van Bruggen from Rinky Noonan law firm and I have Levi Otis, Director of Governmental affairs for Ellingson Companies. So, Levi works for Ellingsons. They are a contractor in the water management and agricultural water management industry. They are the largest contractor I think in the world. And they have Levi on staff to help them through their government needs and making sure that things are going the way they need to go in the government. A lot of what Levi does is work in the state of North Dakota. Kale, we had one of his partners on with us earlier and John Kolb, and Kale is going to talk to us today. We’re going to start by just visiting about US Fish and Wildlife what’s happening with US Fish and Wildlife now and some of the dynamics that go on that Levi sees and can ask Kale awesome questions. So welcome, guys.

Levi Otis 1:33
Hey, Jamie, thank you.

Kale Van Bruggen 1:34
Hi Jamie.

Levi Otis 1:35
A nice studio you got here.

Jamie 1:36
Oh, it’s the it’s the global headquarters of the water table podcast. So thanks for joining us. Levi, you want to just introduce yourself a little bit?

Levi Otis 1:45
Yeah, so about six and a half years ago, I was approached by Ellingson, the Ellingson family, Derek and Roger and Jeremy Ellingson to kind of wear their shirts and go out and get the pulse of what’s going on in the government. Where were our regulations coming from? And the biggest, biggest thing was, in these in these emerging markets of tile, tile drainage or water management, really become an educator. Some people use the word lobbyist, but I prefer the word educator and teaching people what we are doing in the world of water management and how it improves soil health and how we can use it to enhance environmental quality and ways we can improve wildlife habitat as well as long as we can manage water and in my beliefs that you can’t do any of those things unless you can manage water. So that’s really what I’ve been focused on for the last almost seven years is really trying to educate or teach people and show them all the great and positive things we can do while acknowledging that, you know, we’ve got work to do in some other areas. But just trying to keep the ball moving forward.

Jamie 3:02
Yeah, thanks for that. And that’s really what we talked about here on the water table. We’re talking about water quality, sustainability, but all through the lens of educating people on what we do. So thank you for your service to the industry. What you’re doing isn’t just for the company you work for, but if you’re educating people, it helps the whole industry around what we do on the landscape. And you know, a lot of what you’re doing is specifically in the state of North Dakota, and we’re gonna probably get into that a little bit. But we’re gonna talk more on a higher national level and Kale you you work for Rinky Noonan, we’ve interviewed your, your partner on this podcast before more in generalities around Swamp Busters and some of the drainage loss stuff. What do you work on and kind of give us a day in the life of Kale at Rinky Noonan.

Kale Van Bruggen 3:52
Yeah, thanks, Jamie. And thanks for having me on the podcast. I don’t think I have a singular typical day that ever repeats itself. But I do feel fortunate that at least the bumpers of my career are entirely dealing with water and water management. I like that I get to focus on that there’s so much to know about this one area of law. And it’s constantly evolving and updating. And, you know, if I were to try to balance a practice in water law on top of doing a wide variety of other things, I think it would just be a challenge. So I really like the setup at Rinky Noonan where I can focus on on this and, and pass other stuff off to folks who who handle that. So probably about half of my clients are farmers or landowners who are directly regulated by different water conservation rules and permitting requirements. The other half our local units of government so in North Dakota, that’s water resource district boards. In Minnesota, that’s counties and watershed districts and water management organizations who are also part of the regulated community, but are establishing water management projects and sometimes are also the regulators. So it’s anything from neighbor to neighbor property disputes, to cooperative drainage agreements to public special assessment district drains to permitting with Army Corps, the EPA, dealing with the US Fish and Wildlife Service and largely the Natural Resources Conservation Service branch of the USDA.

Jamie 5:31
Good, thank you for that explanation. Let’s talk a little bit about what US Fish and Wildlife how they intersect with what we do. And you know what what we’re seeing on the landscape when it comes to US Fish and Wildlife right now. Levi, maybe you can you can start out by just scenario, General scenario of what you’re seeing, and we can we can link Kale to that discussion on how he’s interacted with them.

Levi Otis 6:01
Yeah, so I think you know, Kale and I’s relationship almost started from day one as I joined Ellingson in one of the big, big things that I think both of us and maybe I shouldn’t speak for him, but one of the early issues that people came to me with and I should disclose that I’m not an attorney, but one of the frustrations that many farmers in North Dakota and South Dakota shared with me in southern western Minnesota was that they had US Fish and Wildlife easements, the ground was souring around them, they’re not allowed to tile near them, the setbacks are huge, their grandpa was going to sell or sold a wetland to the Department of Interior US Fish and Wildlife for X amount of dollars and now that tile has found the Dakotas or the northern plains they feel that that was far overreaching that the argument is that the government paid for the slew not the setback. And yeah, there’s fine print in there and it’s a very contentious subject. But for our potential customers that have ground the some of the ground that needs the help most in the soil health category are those with with easements and then you have the high salt because the water table is so high and they just can’t do anything on that property to improve it. And you’re talking millions of acres in the northern plains that have really frustrated folks and in so Kale and I guess in our work have definitely crossed paths many many times over the years and and trying to share share that heartburn with you know former congressman Peterson and our delegation up in North Dakota, Senator Hoeven, Senator Kramer and Congressman Armstrong. Keeping them abreast of what’s going on and I will say within the last four or five years our relationships with Department of Interior or the people on the ground at US Fish and Wildlife have gotten much, much better in the communication, not that I’m seeing a lot of changes, but at least we’re being able to have conversations without feeling stressed out in those conversations.

Jamie 8:23
Yeah that’s really good to hear. Because it all starts with a conversation and starting to gain clarity and and where you can find common ground. So okay, Kale, what can you add to that?

Kale Van Bruggen 8:33
Yeah, that set up in that background is exactly what we deal with Jamie. So there’s really two issues that are being talked about when we have this conversation with our clients who are landowners that are interested in water management, and then with the agency when we approach them because of their status as an easement holder on the on the property. And those two conversations are number one, what is the resource that’s being protected by that easement? There’s been a lot of and still is ongoing disagreement about what acres of the property are actually protected by the easement. And then the second question, once we can figure out what’s protected is what actions impact and don’t impact that resource? And that conversation revolves around, how do we know let’s say, for example, a subsurface tile system, how do we know whether it’s going to impact that resource or not? And can we get to a point of some certainty over that question before a landowner invests in the in the project so that they don’t find themselves you know, at the other end of a federal Marshal serving them with either civil or criminal complaint saying you’ve now impacted and violated that easement recorded against the property.

Jamie 9:54
Yeah. And and so often, from what I’d like to create some dialogue around this to see if my understanding is correct. But when I hear about these things, I hear a lot of emotion. And that’s why I’m not sure its reality, or is it reality with emotion or just emotion? But, you know, it’s just around the clarity in what is protected and what isn’t it? You know, if if someone gave an easement back in the 1970s on their property, that person’s no longer with us, the kids are dealing with it. And, you know, the service as well, there’s an easement on your whole property, and that they maybe don’t know, the land owner maybe doesn’t know what was set up at the time, but they certainly don’t think that they think it’s maybe the, you know, the Northeast quarter of this quarter section, and, and yet, there isn’t really the clarity within whatever documents are in place from back then. And is that accurate? What I’m hearing? And if so, how do you deal with that?

Levi Otis 11:06
I think the reality is what has driven the emotion. Most of the scenarios or examples or experiences that I’ve had aren’t…you’re getting a letter saying, “hey, can we talk about what you’re doing on your farm?” It was law enforcement officers showing up with weapons at your house acting like, you know, you just robbed a bank and the guys are standing there, you know, farmers saying, I, you know, you bought the he bought the wetland, not the top of the hill, and what did I do wrong? And, you know, they then they follow up with the letters that they’re going to take half the farm and everything else. And you’re a lot of sleepless nights that have really driven the driven the emotion in going back to where I said, the relationships, or at least the conversations, I’ve gotten a lot better, because I don’t see that happening in the last couple years, like it did when I first started my career here.

Jamie 12:00
Yeah, and I, you know, before you go, Kale, I just want to jump in there because that’s, we have a lot of listeners that our general public listeners aren’t really involved in agriculture. And what Levi just said, you know, sounds so dramatic and almost like, that can’t be true. And you know, I have some firsthand experience going back. So it’s good, I’m really happy to hear that those communications have gotten better mind goes back about 12 years in which I had bought a piece of property that had a farm site on it, and then some agricultural tillable land and where the old farmhouse was the actual front yard of the farm had an area down toward the gravel road that would get wet every spring and and I got stuck in there with my garden tractor as I was trying to mow the lawn and so I brought in some black dirt. Literally, it was eight tandem loads so I know there’s 10 yards and so there’s maybe, you know, maybe 80 yards of black dirt to fill that in, so I wouldn’t get stuck again. And the next thing I know, a few weeks later, somebody filed a whistleblower complaint. And I didn’t have anybody show up, but I got a message on my voicemail at home. This is when I still had a home phone so it’s probably was 12 years ago. And the message was from the State Patrol, and I literally thought somebody died. You know, I mean, you don’t get a message from the State Patrol to call you, you know, as soon as you get this message. And you know, to find out Oh, it’s because I put a little black dirt in a spot that was that was wet. That had been literally been a family had raised all their children in this place, and had mowed that lawn for 50 years and it was just a low spot. They call it a wetland. I took care of it by taking that black dirt back out rather than fight them. But it was it was a contentious attitude at the time. And so I’m I just wanted to make sure as listeners listen, this this stuff is real. I mean, I experienced it personally. It’s really good. If it’s changing and there’s more, even if the if their policies don’t change but the attitude and the collaboration on talking it through.

Levi Otis 14:22
Well, I’ll give you I’ll just give you a quick firsthand experience for myself just for your listeners in town. We were hired by a family to come out and repair some old existing tile that had been in place. So our guys went out there and did it and they said you know the first you know text messages four or five years ago that there’s people up here watching us, which seems fine but they’ve got you know, bulbs on top of the cards are on top of a hill so said whatever no problem. So they completed and as they’re packing up, you know, Derek Ellingson got a phone call from the foreman said the police are here, if he said, well, what do they want? Apparently, are customers in violation of US Fish and Wildlife easement. He’s like, well, how many he said a lot? Well, as soon as we completed the project, they drove down to the bottom of the hill and said, you know, who’s the liar, they knew who the landowner was, but you guys are in violation of US Fish and Wildlife easement was nothing against the company. But they were there to send the message that this is an issue. And of course, our guys, can we get in trouble for this when we can’t. And so that was one. So we ended up meeting with them in, not only did we have to cut, take cut the pile out, we literally had to take an excavator and pull every single foot of tile out in this easement was signed up on the 16th. And actually, the tile that had been put in was the early 80s that we were repairing. So they missed they missed one. And and so when this family hired us had purchased it in the mid 90s. When they went back, you know, that was one of the questions. Well, we’re just repairing what was there in the 80s. They said call it a bonus. But you got to pull this out. Those years were a bonus. And that was it. That was a that was a pretty stressful day watching that one.

Kale Van Bruggen 16:14
Yeah, Jamie, that, you know, you asked if this is the reality, or just the perception, I think is how you how you posed it. And I’m sure we’re going to get into some of the ongoing mapping disputes about that first question I raised which is, what is the resource that is protected? But in doing that work, our office has studied in depth, a lot more of the current agency manual, that guides their employees on how to not only do the mapping and have these conversations that are getting better with landowners, but also how to have that interaction, and right from their current manual. So its current expectation of current US Fish and Wildlife Service employees is an expert says, when you’re interacting with a landowner who’s suspected of being in violation of their easement, quote, do not take the entire easement file into the actual contract, take only the information necessary to conduct the interview leaving the file itself in the vehicle. During the interview, do not show the individual the contents of the easement file. Sometimes it’s advisable to show the subject some of the evidence, photos, the contract and the field sketches. By doing this, the subject may be convinced that he’s unlikely to win in court, but closely control how much of the file the subject is allowed to see. And that goes on. But it just kind of highlights, you know, this ongoing culture that’s been in the agency for a long time, encouraging, you know, use of intimidation and force to get compliance with a document that’s in dispute, rather than, you know, be transparent, open and have that conversation and try to balance interests.

Jamie 17:59
Sure. And, you know, just listening to that, I would, you know, you get just a little bit agitated around. It just seems like in all of life, transparency and, you know, showing that file would bring transparency and some buy in and not when you won’t show something, there’s always the speculation, which is wrong for us to do, but it is human nature on the speculation that they’re hiding something and trying to get their way. So you know what, let’s keep talking about this. But I want to stop and say, hey, I hope that some people that are listening to this that don’t agree with us and that have have the right contacts that US Fish and Wildlife, you’re welcome to come on the water table podcast, we’d love to interview you. This is about education. If you got something to educate us on. Let’s talk about it. That’s what we’d love to do. And I’ll give you a nice water bottle too so.

Levi Otis 18:54
Well, I think it would be a that would really be some awesome dialogue to sit down and hash out the issues. And I guess it’ll be as close as we’re probably going to ge on a congressional hearing on the subject. But it is really unfortunate how the history of this has played out and has Kale has read, you know, their own playbook. And that’s why you have the angst and we just have more water in North Dakota and South Dakota than probably we’ve had how many 1000s of years and people love wildlife. I don’t know a farmer that doesn’t hunt. Right? And I don’t have any I don’t think I have any friends that haven’t hunted or don’t hunt or love ducks or everything else. It’s just producing more with less and they’re just not getting the fair shake on those easements. And I think since I’ve worked here, and maybe they were Kale’s clients, we have had… and I’ll give us success story we have we’ve been able to manage water now on two farms that have easements in them. The setbacks are much larger than maybe scientifically they need to be. I feel that they were politically but we have now had to two projects out of the millions of acres that we’re at least able to improve some of the ground. And there’s a guy out in Devil’s Lake, his name’s Matt Springer, when he started up in Devil’s Lake as US Fish and Wildlife. I don’t remember his exact title, but he started coming to Ag meetings and introducing himself very non confrontational, and said, these are the rules that I have to go by and with these rules, or working around these rules, I’m gonna do whatever I can help to help you guys achieve what you can under the easements that were signed on this property. And I think that was a huge, huge handshake or you know, a reach out and that’s where it really this has started for us in the in the northern plains.

Jamie 21:06
So let’s switch gears a little bit. And Kale you had talked about, just briefly there around some, you know, actual projects and you know, what I was thinking about when you’re talking about that is, is the blue dots. I think that is kind of gone away from our, how they do things. But if they are they still managing some of us are wetlands on the landscape with maps with blue dots.

Kale Van Bruggen 21:34
So when it comes to Fish and Wildlife Service easements, if the date your easement was negotiated and signed into contract and recorded is after the year 1976, you’re going to have a black and white map that was negotiated as part of that contract and recorded against your property’s title at the county recorders office. So if it’s after 1976, it’s really as simple as going to the County Recorder, getting a copy of that map. Although it’s not directly tied to a GIS data point, you can with those easements work with the agency to figure out, you know, where is that line on the property? And that map really sets the limits the answer that first question, what is the resource that’s protected? The current project and current dispute that’s ongoing right now is the maps that are older than 1976. or excuse me, the easements that are older than 1976, because they do not have these maps negotiated as part of that contract. And to understand why that is or why there’s a difference there, you know, you have to kind of understand some of the complicated background and history behind this program. So to keep it high level and and keep it simplified. Congress authorized the Fish and Wildlife Service to acquire these easements from the prairie pothole regions of the country after getting consent from the governor of those areas to acquire the easements. So when they started doing that, in the late 1950s, they came to Minnesota, South Dakota, parts of Iowa, North Dakota, they got the consent of the governor and the governor in North Dakota, for example, said you can acquire up to X number of acres per County, in each of the North Dakota counties. The easement contracts were drafted. And if you take a look at the contract, which is really, you know, unlike NRCS, unlike the Army Corps, unlike the EPA, it’s the language of the contract that governs the dispute here. But if you look at the contract, the contract is recorded against the entire property. So say it’s recorded against a whole quarter of land, for example. And they were written to say, you know, by signing this contract and accepting payment, you’re agreeing not to harm, as a summary word, any of the areas that show surface water that’s reoccurring or marsh vegetation. And so the history behind this is it didn’t matter what that map looked like, you can’t do any drainage on the property, the whole property is covered. And some disputes over that obviously arose, most of them surrounding damage to emergency roadways, farmyard infrastructure, that sort of thing that were being caused by the water growing on a property and the agency saying you can’t do anything about it. You can’t touch this property to save that roadway. Ultimately, some of that advice from the agency was ignored. And the agency took those landowners to court charged them criminally and that’s where we get some case law to help answer some of these questions about these easements and what their scope is. In short, through that case law, the one making it all the way to the United States Supreme Court and the rest mostly coming out of the Eighth Circuit Court of Appeals. We know that because the governor put some limits on how many acres could be acquired. If the law was that the easement covers all 160 acres in the quarter, the agency would just be way over their consent limits, they would have acquired more easements then allowed. So the agency took the position after these contracts were negotiated that were really only protecting the areas that were wet at the time of the easement. And that is reflected in a record in the government’s file called an easement summary acreage report, that’ll say how many wet acres were paid for. And we’re not restricting anything more than that. So the trade off for the courts was okay, then we’re going to hold you to that. So the resulting law is only those acres that were wet, that were reoccurring surface water and marsh vegetation, at the time of the easement are protected. For those easements that are older than 1976. Now that map is suddenly very important. Because if we can’t define the line on the property where that resource protection ends, then we can’t answer the second question, which is important to my clients and Ellingson’s clients, which is, you know, what actions can I do that won’t impact that protected resource. So this last administration, the Department of Interior Secretary, he started a process for directing his employees to map out all easements that are older than 1976. And to give landowners the right to have an internal to the agency appeals process, to ask the agency to amend that map and change it before it becomes final. And once you go through that appeals process, or once you no longer appeal, the agency is then going to use that map,as its guidance for how to enforce protection of these easements.

Jamie 27:15
That was a really good explanation. And I appreciate that, because this can get really convoluted. And I think I’m gonna, I’m gonna back way up a minute, because I just don’t know how many of our listeners know this. But these easements are permanent, correct?

Kale Van Bruggen 27:33
That’s correct.

Jamie 27:34
So back in, you know, let’s just pick a year 1956 a land owner gets a knock on the door from the US Fish and Wildlife and they want to buy, they own 160 acres of land, they have, you know, five acres of that as their homestead. And it’s in it can be in western Minnesota or North Dakota or South Dakota, it’s where we see a lot of these issues, but and, you know, they think okay, this is a good deal. What I mean, was that 50 bucks an acre at the time, is that the kind of 100 bucks an acre, what kind of back in those timeframes, dollar amount, are we talking about that they were getting paid?

Kale Van Bruggen 28:15
I think if you could find one pre 76 that exceeded $20 an acre, you’d be pretty lucky. Most of them were $200 or $300 for the whole quarter as payment.

Jamie 28:26
And then that’s permanent. And you can farm, just so our listeners know, you can farm that whatever is dry land on on that quarter, you can continue to farm it. But if you do anything that manipulates even the surface water to get the water to run to a certain area of the farmer off the farm, that would be in violation of how those are written.

Kale Van Bruggen 28:52
Yeah, if you look at the easement documents, they have just a sentence in there that lists out what’s not allowed. And it’s not allowed anything that will impact that protected resource by ditching or any other means by filling in with earth or any other material or leveling any part or portion of the above described tract. So again, you can see these documents were written originally to apply to the whole quarter and also prohibits some things like burning any covered areas with with marsh vegetation. You can go to the agency and get a permit in some limited circumstances but what you can’t do is go to the agency and get a permit for draining or for mitigating. Some of your listeners are probably familiar with wetland mitigation for NRCS purposes. But that’s just not allowed for US Fish and Wildlife Service easements.

Jamie 29:47
So give us from your perspective in in you working in in this industry. You know what would be a good reasons for land owner to look at selling an easement to, you know, the government not necessarily fish and wildlife. But if there’s if there’s other reasons for an easement, what what would that? What would be a good reason for that?

Kale Van Bruggen 30:10
Well, I think to answer that question fairly you need to recognize that the payment today is much different than the payment back in the 1950s and 60s. So if you’re asking, you know, what’s a good reason today? The payment is certainly much more attractive. And I think that kind of answers what the thought process might have been in the 50s and 60s and 70s. When we look at that payment, and go, who would ever sell a perpetual easement at that time for that little price? There was not an agreement or an understanding of what the easement restriction was at that time that there is today. And and if you ask my opinion, the agency through some creative arguments they had to make to the court has just definitely shifted how they handle this type of easement than what they were back in the 50s and 60s and 70s. So today, you know, someone has some marginal ground. I think this is more of a rare circumstance, and people acknowledge, but it just doesn’t have a good outlet. There’s not a great place to do water management and prevent those salinity issues, that sort of thing. If it’s attractive to the agency, and it’s just never going to be improved to be good farm ground, you can get a very attractive payment for putting that under easement. I think the problem in the 50s and 60s and 70s was the agents who were selling these easements, were telling people, well, we’re gonna give you some money here in a tough farming economy, to basically not do anything different, nothing in your life will change. Only those areas that are wet now that you’re never farming are going to be protected. And that’s coupled with you know, water management in the Dakotas wasn’t really happening at that time period yet either. You know, drainage is still relatively new to the Dakotas. So imagine you’re, you know, a farmer in the late 50s 60s 70s, you’re facing drought, you’re facing poor crop prices. Someone says we’ll give you $600 for this quarter, just don’t drain that big slew out there that you’re never farm seems like a pretty easy conversation and decision to make, right? They couldn’t predict then how these actions would be enforced today. And a big dispute between, I’d say the land owner burdened community by the easement and the agency is the extent to which areas that only became wet long after the easement was negotiated, are also protected by this easement. And in fact, I think that’s probably the number one dispute is is it truly just the areas that were wet when these landowners sold these? Or if an area became wet because the Dakotas went through a wet cycle in the 90s is that not protected as well

Levi Otis 33:11
To bring what he just said down to a personal level or, or for somebody to relate, is your grandpa who has farmed by that wetland or that slew his whole whole life. Right? And no, I’m never gonna drain it, you can drain it. I’ll sign it up under a under an easement. And and then fast forward to today. And now grandpa’s apologizing to his kids for ever signing it up because he thought he was just getting a few extra bucks for the wetland that’s always been wet and that’s not the case he’s been literally sold the farm. Yeah, you get to farm it but what today’s practices and what we’re able to do now they can do it. And I’ve heard more elderly people apologize to their kids in rooms or roundtables like this saying I’m sorry for ever say signing those up. Now today why you would sign one up. We have a lot of kids that have left the farm in the last 20, 30, 40, 50 years. And they live in different places. California, Texas, Colorado, where they still own the farm or they get a rent check. Right? I believe, Kale, that Barnes county just the Department of Interior US Fish wildlife just bought $2 million dollars worth of easements by Valley City, North Dakota and why question would you do that? Well, if you’re an absentee landowner in as Kale stated earlier that that acre amount, that cash amount, looks pretty good if you want to buy a lake home in Missouri and you’re living in Kansas City, right and so they don’t have to deal with it. They don’t have to deal with with the consequences of signing them up. They get the big check in I’m a personal property person, right? So you can do what with what you want, but it’s gonna make it less appealing to purchase in the future. And if you’re just looking for the check now. Yeah, but it’s gonna be less one when somebody wants to buy it.

Jamie 35:14
Right. And, you know, one of the reasons why I asked that question is, you know, time is always moving and things are changing. And, you know, right now, you’re off the subject a little bit. But right now, you know, the big buzzword in Washington around this stuff is, is carbon and carbon trading. And, you know, one of the better ways to do that is, is through CRP and grasses to store carbon deep in the ground. And another way that they’re, that they’re talking about, is using trees, we had congressman Peterson on our podcast in late 2020. And, you know, he talked about that how there’s a lot of buzz around, we should be planting trees on these quarter sections. And, and we can store carbon and you know, that it’s not an easement, but it’s the same thing where you are changing the landscape of that property for many many years, when you do something like that. It would change that farmland and make it much more difficult to farm and get it back to be a really good farm if you’ve had trees on it for 30 years, and having to get rid of that root system. So the same thing is true is we don’t know where our world is going, and what that land use might have to be in the future. So easements aren’t bad, but you are making a decision and limiting your future decisions when you’re doing that. And, you know, I just believe, as we have talked about a lot around, you know, we’re gonna have to farm on a lot smaller footprint than what we currently do. And we’re going to have to get the best and the most out of the best land and continue to buffer the rest, which might mean easements on some of that buffered land.

Levi Otis 37:00
I don’t think there would be such heartburn or conflict if you just let people improve the ground that they didn’t sell. You know, respect a buffer, you know, engineers and bio engineers, they understand what the setbacks need to be. Right? So to have a policy decision, or a rule written within an agency saying you need to stay 800 feet away from the wetland that’s not scientifically backed is very frustrating. And I think you can bury the hatchet on a lot of it if you just allow people to improve the ground that they’re farming, they’ll stay away from the wetland. And then we go on.

Kale Van Bruggen 37:38
Jamie, you brought up a point that I think also kind of parallel, something you and my partner John Kolb talked about, with your, you know, “farm what you can buffer the rest” comment. One of the things I’ve never understood about the inflexibility of this easement program, is just the opposition to developing a way to mitigate these wetland areas. You know, you pointed out that when conditions allow these easements don’t prevent you from farming these protected wet areas, which means that they are getting hit with tillage getting hit with inputs, you know, when they can. And with the agency shift in going after some of the more shallow, only minimally wet areas, that’s more true now than ever. But when you mitigate a wetland, the area that you’re restoring or enhancing or creating is protected by a new easement that says you can’t farm that area. And and I’d argue and say that the functions and values of that mitigated area are much better than the more limited restricted functions and values of the areas that someone wants to mitigate. So why can’t we look at and consider, you know, moving some of these easement, wetland areas that are problematic to, you know, addressing salinity problems and managing a farm to an area that just geographically makes more sense. I’m not saying you know, move them out to a corner of our least favorite state, but, you know, within reason, move them to somewhere in the same general watershed base, and that, that doesn’t cause the same development problems and brings a little bit more balance to that economic interest, but also has a huge benefit to the habitat and ecology component to

Jamie 39:34
Good point. Good point, and that’s a whole other you know, you’d really get into that around mitigation, moving wetlands, you know, best use. I don’t think we’re gonna go there today, but there’s a lot there. And we certainly will be talking as this podcast continues about those types of things. So thank you for that. So Levi, you know, one thing you mentioned earlier, you were talking about setbacks, and they’re pretty large, but you’d said that in a general statement and this can get kind of complicated. Kale, can you talk about, you know, on these fish and wildlife easements, why these setbacks are long ways away from these wetlands? And maybe you guys can have a dialogue about that?

Kale Van Bruggen 40:18
Sure. Prior to 2020, our experience in going to the agency with a proposal that says okay, we want to protect what’s protected by the easement, we figured that out, now we want to do some water management on the rest. We want to make sure our tile plan, for example, isn’t going to be in violation of this easement. Most farmers are familiar with the NRCS equation for a setback distance from a wetland boundary for tile. And that’s a distance that’s calculated on a equation. It’s called van shelf guard equation. But it works pretty well, you can go on the NRCS website, in most cases, you can put in the tile size, the tile depth and the soil type. And that’ll spit back for you at a distance of feet, that you should keep that perforated tile away from a wetland boundary. In order to avoid any impact of that wetland area. That’s probably the most basic way to put it. That does under NRCS laws allow for a minimal effect drawdown but it’s pretty small to arguably even inmeasurable in some cases. The agency’s historical stance on this for Fish and Wildlife Service was to point out that allowance for a minimal effect and NRCS law and say, look, our easement language doesn’t require us to grant that minimal effect allowance. And because we’re not certain where that line starts and stops, between an impact and no impact, we’re going to add a multiplier of 3, 4, 5, or more in some instances to that setback area. So if you imagine a field with a quarter with three or four wetland areas on it, and the NRCS setback distance is 100 feet. But the Fish and Wildlife says to you, but our setback distance is 600 feet. Effectively, you’re preventing any water management infrastructure on that quarter, depending on how spread out those protected wetland areas are at. Fortunately, in 2020, the director of the agency issued some guidance to our area, directing Fish and Wildlife Service employees to follow more closely that NRCS setback distance. It doesn’t follow it exactly, but the easiest way to explain it is if your drain tile is in the up gradient catchment area of a wetland, and the van shelf guard equation is lower than that that outer watershed boundary of the wetland area, you can follow the Van shilf equation. But if the van shilf guard equation is lower than the catchment area, then you follow the catchment area. So effectively, as long as you follow the NRCS setback, you will be covered and you’ll be protected as not violating the easement under this guidance, which, you know, for a number of reasons, it’s easy to understand. Farmers are already fairly used to this with NRCS, you can get to some certainty because contractors can pull that setback off the website. You know, guidance like this is just a much more common sense, practical approach. It’ll be interesting to monitor you know what, farmers who follow this on fish and wildlife ground What if any impacts are are seen depending on what the precipitation does.

Jamie 43:47
Good answer. Good answer. Thanks for that, Kale. You know, I think we’ve had a nice discussion here about US Fish and Wildlife. I hope we brought some clarity to the issue. You know, when we talk about the intimidation and kind of how things have gone in the past it brings back that that famous line from Ronald Reagan of I’m from the government and I’m here to help and I guess I would just say if you want to want to change the narrative on that line, we would love to see you help and we are open to a discussion on the water table podcasts if somebody from the US Fish and Wildlife wants to reach out. And we’ll get the gang back together and get somebody else from their side on and let’s have a dialogue and educate and figure out ways to move forward in the manners of which we currently seem to be moving toward. As there’s lots of opportunity for conservation, environmental sustainability and agriculture if we do it right. Kale, on the water table we we usually give our guests the last word. Levi is the type of guy that he always figures out a way to get a last word anyway. So I’m going to give that to you today.

Kale Van Bruggen 45:07
I bet he’ll still figure out a way somehow I agree with you on that one. My last word, one thing I want people just to take away from this conversation is two things. Number one, I hate to see someone approach some property they own with one of these easements and assume there’s nothing I can do. Because that’s not the right attitude, either. There is things that can be done. And we can certainly help you with that. So don’t assume that that’s the end that nothing can be done. But number two, you know, bring some understanding that what can’t be done is just eliminating this easement. It’s there. It was recorded, we cannot get rid of it. We have to understand where the agency is coming from and do what we can to ensure that their interests are reasonably protected as we evaluate what it is that we can do to help improve that property.

Jamie 46:06
Thank you. Thank you guys, for joining me today on the water table. I hope that our listeners find this educational and we’re going to continue to bring topics to them. Appreciate your involvement.

Levi Otis 46:18
Yeah, thanks for reaching out and inviting us and if anybody, here’s my final word, if anybody does need more, need help, just, you know, reach out to Mr. Duininck and he will put you in touch with with those of us that have a little more experience in doing this because we we just, like Kale said, there’s if there’s a will there’s a way.

Jamie 46:44
Thank you guys.

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