HomeMy WebLinkAboutBuffer Ordinance - 1-1-2018THE BUFFER ORDINANCE
OF
OTTER TAIL COUNTY, MINNESOTA
ORIGINAL EFFECTIVE DATE
JANUARY 1, 2018
LAND & RESOURCE MANAGEMENT
OTTER TAIL COUNTY GOVERNMENT SERVICES CENTER
540 WEST FIR
FERGUS FALLS, MN 56537
218-998-8095
www.co.ottertail.mn.us
THE BUFFER ORDINANCE OF OTTER TAIL COUNTY
EFFECTIVE JANUARY 1, 2018
TABLE OF CONTENTS
Page
I. STATUTORY AUTHORIZATION AND POLICY.............................................................................. 2
1. Statutory Authorization.......................:........................................ .............................. 2
2. Purpose and Intent................:...................................................................................... 2
II. DEFINITIONS..............................................................................................................................2
III. GENERAL PROVISIONS.............................................................................................................. 3
1. Severability................................................................................................................... 3
2. Data Sharing/Management.......................................................................................... 3
3. Administration:............................................................................................................. 3
IV. JURISDICTION............................................................................................................................3
1. Jurisdiction...........................................................:........................................................3
V. BUFFER REQUIREMENTS........................................................................................................... 3
1.
Buffer Width................................................................................................................. 3
2.
-Measurement............................................................................................................... 3
3.
Use of Buffer Area......................................................................................................... 3
4.
Exemptions................................................................................................................... 4
5.
Alternative Practices..................................................................................................... 4
6.
Grandfathering............................................................................................................. 4
VI. COMPLIANCE DETERMINATIONS.............................................................................................. 4
1. Compliance Determinations......................................................................................... 4
2. Investigation and Notification of Noncompliance........................................................ 4
3. Compliance Determination........................................................................................... 4
4. Corrective Action Notice............................................................................................... 4
VII. ENFORCEMENT.........................................................................................................................5
1. Failure to Comply with a Corrective Action Notice Issued Under Section VI ............... 5
2. Administrative Penalty Order (APO)............................................................................. 5
Vill. EFFECTIVE DATE........................................................................................................................ 8
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 2
The County Board of Otter Tail County, Minnesota Ordains:
I. STATUTORY AUTHORIZATION AND POLICY
1. Statutory Authorization. This Buffer Ordinance is adopted pursuant to the authorization and policies
contained in Minn. Stat. §103F.48, the Buffer Law, and the County planning and zoning enabling legislation
in Minn. Stat. chapter 394.
2. Purpose and Intent. It is the purpose and intent of the County to:
A. Provide for riparian vegetated buffers and water quality practices to achieve the following purposes:
1. Protect state water resources from erosion and runoff pollution;
2. Stabilize soils, shores and banks; and
3. Protector provide riparian corridors.
B. Coordinate the implementation and enforcement of the water resources riparian protection
requirements of Minn. Stat. §103F.48 with the shoreland management rules and ordinances adopted
under the authority of Minn. Stat. §103F.201 to 10317.227 and the management of public drainage
systems established under Minn. Stat. chapter 103E where applicable; and .
C. Provide efficient and effective direction to landowners and protection of surface water quality and
related land resources.
D. This Ordinance shall be known as the Otter Tail County Buffer Ordinance.
II. DEFINITIONS
Definitions. Unless specifically defined below, words or phrases used in this Ordinance shall be interpreted to give
them the same meaning they have in common usage and to give this Ordinance it's most reasonable application. For
the purpose of this Ordinance, the words "must" and "shall" are mandatory and not permissive. All distances, unless
otherwise specified, are measured horizontally.
1. APO means the administrative penalty order issued pursuant to Minn. Stat. §103F.48, subd. 7 and Minn.
Stat. §103B.101, subd. 12a.
2. Buffer has the meaning provided in Minn. Stat. §103F.48, subd. 1(c).
3. Buffer Protection Map has the meaning provided in Minn. Stat. §103F.48, subd. 1(d) and which are
available on the Department of Natural Resources website.
4. BWSR means the Board of Water and Soil Resources.
5. Cultivation Farming means farming practices that disturb root or soil structure or that impair the viability
of perennial vegetation due to cutting or harvesting near the soil surface.
6. Drainage Authority has the meaning provided in Minn. Stat. §103E.005, subd. 9.
7. Landowner means the holder of the fee title, the holder's agents or assigns, any lessee, licensee, or
operator of the real property and includes all land occupiers as defined by'Minn. Stat. §103F.401, subd. 7
or any other party conducting farming activities on or exercising control over the real property.
8. Parcel means a unit of real property that has been given a tax identification number maintained by the
County.
9. Public Drainage System has the meaning given to "drainage system",in Minn. Stat. §103E.005, subd. 12.
10. Local Water Management Authority has the meaning provided in Minn. Stat. §103F.48, Subd. 1(g).
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 3
11. Normal Water Level (NWL) means the level evidenced by the long-term presence of surface water as
indicated directly by hydrophytic plants or hydric soils or indirectly determined via hydrological models or
analysis.
12. SWCD means Soil and Water Conservation District(s).
III. GENERAL PROVISIONS
1. Severability. If any section, clause, provision, or portion of this Ordinance is adjudged unconstitutional or
invalid by a court of competent jurisdiction, the remainder of this Ordinance shall not be affected thereby.
2. Data Sharing/Management.
A. The County may enter into arrangements with a SWCD, a Watershed District if applicable, BWSR and
other parties with respect to the creation and maintenance of, and access to, data concerning buffers
and alternative practices under this Ordinance.
B. The County will manage all such data in accordance with the Minnesota Data Practices Act and any
other applicable laws.
Administration. This Ordinance will be administered by the Otter Tail County Land and Resource
Management Office. All employees of the Office, members of the County Board of Commissioners, and all
agents of the SWCD, in the performance of their duties, shall have free access on all land subject to this
Ordinance.
IV. JURISDICTION
Jurisdiction. The provisions of this Ordinance apply to all waters, including public drainage systems for
which the County is not the drainage authority under Minn. Stat. chapter 103E, shown on the Buffer
Protection Map.
V. BUFFER REQUIREMENTS
1. Buffer Width. Except as provided in Section VA. and V.5., a landowner owning property adjacent to a
water body identified on the Buffer Protection Map must establish and maintain a buffer area as follows:
A. For waters shown on the Buffer Protection Map requiring a fifty (50) foot width buffer, the buffer width
will be fifty (50) foot average and thirty (30) foot minimum width as provided in Minn. Stat. §103F.48,
subd. 3 and as measured according to Section V.2.; and
B. For waters shown on the Buffer Protection Map requiring a sixteen and a half (16.5) foot minimum
width buffer, the buffer width will be sixteen and a half (16.5) feet as provided in Minn. Stat. §103F.48,
subd. 3 and as measured according to Section V.2 (or a more restrictive width as determined locally).
2. Measurement.
A. The width of any required buffer on land adjacent to a water requiring a fifty (50) foot average width
and a thirty (30) foot minimum width buffer shall be measured from the top or crown of the bank.
Where there is no defined bank, measurement must be from the edge of the NWL as provided in Minn.
Stat. §103F.48, subd. 3(c).
B. The width of any required buffer on land adjacent to a water requiring a sixteen and a half (16.5) foot
minimum width buffer shall be measured in the same manner as for measuring the vegetated grass
strip under Minn. Stat. §103E.021, subd. 1 as provided in Minn. Stat. §103F.48, subd. 3(c).
3. Use of Buffer Area. Except as provided in Sections V.4. and V.5. a buffer as defined in this Ordinance may
not be put to any use, included but not limited to cultivation farming, which would remove or prevent the
permanent growth of perennial vegetation.
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 4
4. Exemptions. The requirement of Section V.I. does not apply to land that is exempted from the water
resources riparian protection requirements under Minn. Stat. §103F.48, subd. 5.
5. Alternative Practices. As provided in Minn. Stat. §103F.48, subd. 3(b) an. owner of land that is used for
cultivation farming may demonstrate compliance with Section V.I. by establishing and maintaining an
alternative riparian water quality practice(s), or combination of structural, vegetative, and management
practice(s) which provide water quality protection comparable to the water quality protection provided by
a required buffer as defined in Sections V.I. to V.3. The adequacy of any alternative practice allowed under
this Section shall be based on:
A. The Natural Resources Conservation Service (MRCS) Field Office Technical Guide (FOTG);
B. Common alternative practices adopted and published by BWSR;
C. Practices based on local conditions approved by the SWCD that are consistent with the Natural
Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG); or
D. Other practices adopted by BWSR.
6. Grandfathering. Where the provisions of any statute, other ordinance or regulation imposes greater
restrictions than this Ordinance, the provisions of such statute; other ordinance or regulation shall be
controlling. Parcels grandfathered in for other preexisting land uses shall not be grandfathered in with
respect to these provisions and with respect to compliance with the Buffer Law, Minn. Stat. § 103F.48.
VI. COMPLIANCE DETERMINATIONS
1. Compliance Determinations. Compliance with the buffer requirements set forth in Section V. will be
determined by the SWCD on a parcel by parcel basis. The compliance status of each bank, or edge of a
waterbody on an individual parcel will be determined independently.
2. Investigation and Notification of Noncompliance. When the County identifies a potential noncompliance
with the buffer requirements or receives a third -party complaint from a private individual or entity, or from
another public agency, it will consult with the SWCD to determine the appropriate course of action to
document compliance status. This may include communication with the landowner, inspection or other
appropriate steps necessary to verify the compliance status of the parcel. On the basis of the evidence
gathered in this process, the SWCD may issue a Notification of Noncompliance to the County. If the SWCD
does not issue such a Notification, the County will not pursue a compliance or enforcement action under
Minnesota Statutes §103F.48 and Section VI1.2.
At any time during process set forth in Sections VI.2 and VIA., the landowner may provide documentation
of compliance to the SWCD.
3. Compliance Determination. The SWCD will evaluate the available documentation, and/or evaluate and/or
inspect the buffer and/or alternative practices to determine if the parcel is in compliance. Upon completion
of the evaluation and/or inspection the SWCD shall issue a written compliance determination to the
landowner, the County and BWSR. The SWCD may also issue a Validation of Compliance if applicable and
requested by the landowner.
4. Corrective Action Notice. On receipt of an SWCD Notification of Noncompliance, the County will issue the
landowner a Corrective Action Notice that will:
A. Include a list of corrective actions needed to come into compliance with the requirements of Minn.
Stat. §103F.48;
B. Provide a timeline for complying with the corrective action notice;
C. Provide a compliance standard against which the County will judge the corrective action; and
D. Include a statement that failure to respond to this Notice may result in the assessment of criminal, civil
or administrative penalties.
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 5
E. The County may send the landowner a combined Corrective Action Notice and APO as provided in
Section VI1.2. so long as the combined Notice/APO includes all the required elements of both.
F. The County shall transmit the Corrective Action Notice by either personal service to the landowner or
by depositing the same in the U.S. Mail. If service is made by U.S. mail, the document is deemed
received three business days after the notice was placed in the U.S. mail. Failure of actual receipt of a
Corrective Action Notice that has either been personally served or served by depositing the same in
the U.S. Mail shall not be deemed a defense in an enforcement proceeding under Section VII. The
County shall also send a copy of the Notice.to the SWCD and BWSR.
G. Counties may modify the corrective actions and timeline for compliance, in accordance with Section
VI.2., to extend the compliance timeline for a modification that imposes a substantial new action or
significantly accelerates the completion date for an action.
1. At any time after receipt of a Corrective Action Notice, the landowner may provide documentation
of compliance to the County. In addition, the landowner may supply information to the County or
the SWCD in support of a request to modify a corrective action or the timeline for compliance. On
the basis of any such submittal or at its own discretion, the County may make a written
modification to the Corrective Action Notice or timeline for compliance. The County should also
make a written determination documenting whether the noncompliance has been fully corrected.
Any such modification of a compliance determination will be served on the landowner in the
manner provided for in Section VI.4. The County shall provide the SWCD and BWSR a written copy
of any modification made pursuant to this provision.
The SWCD may, after an evaluation of the evidence documenting compliance submitted by the
landowner, issue a written Validation of Compliance if requested by the landowner. Upon receipt
by the County of a written compliance determination issued by the SWCD, the Corrective Action
Notice will be deemed withdrawn for the purpose of Section VII., and the subject property will not
be subject to enforcement under that Section.
VII. ENFORCEMENT
1. Failure to Comply with a Corrective Action Notice Issued Under Section VI. The County may, at its own
discretion, elect to pursue the failure to comply with a Corrective Action Notice either criminally or through
an APO as set forth herein.
A. Failure to comply with a Corrective Action Notice issued under Section VI. constitutes a misdemeanor
and shall be punishable as defined by law.
B. The County may issue an APO as provided for in Minn. Stat. §§103F.48, subd. 7(b) and (c) and 1036.101,
subdivision 12a to a landowner who has failed to take the corrective action set forth in the Corrective
Action Notice. For the APO to be effective it must be served on the landowner together with -a copy of
the Corrective Action Notice or alternatively the County may serve the landowner with a combined
Corrective Action Notice and APO so long as the combined Notice/APO includes all the elements of
both. Service is effective either by personal service or by depositing the documents set forth herein in
the U.S. Mail. Any penalty assessed in the APO shall continue to accrue until the violation is corrected
as provided in the Corrective Action Notice and APO.
2. Administrative Penalty Order (APO).
A. Initial Violation. The penalty for a landowner on a single parcel that has not previously been the
subject of an APO issued by the County shall be:
1. $0 for 11 months after issuance of the Corrective Action Notice,
2. $100 per parcel per month for the first six (6) months (180 days) following the time period in
Section V11.2.A.1.; and
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 6
3. $400 per parcel per month after six (6) months (180 days) following the time period in Section
VI1.2.A.2.
B. Repeat Violation. The penalty for a landowner on a single parcel that has previously been the subject
of an APO issued by the County shall be:
1. $100 per parcel per day for 180 days after issuance of the Corrective Action Notice; and
2. $400 per parcel per day for after 180 days following the time period in V11.2.A.1.
C. Ongoing Penalty Assessment. Any penalty assessed under this Section shall continue until the
Corrective Action Notice has been satisfied.
D. APO. To be valid the APO shall include, at a minimum:
1. The facts constituting the violation of the riparian protection and water quality practices
requirements set forth in this Section V. of this Ordinance or Minn. Stat. §103F.48;
2. The specific Statute and/or Ordinance section(s) that has/have been violated;
3. A written description of prior efforts to work with the landowner to resolve the violation;
4. The amount of the penalty to be imposed;
5. The date the penalty will begin to accrue;
6. The date that payment of the_ penalty is due;
7. The date by which all or part of the penalty may be forgiven if the landowner has/have complied
with the Corrective Action Notice; and
8. A statement of the landowner's right to appeal the APO.
E. All or part of the penalty may be forgiven based on the correction of the noncompliance by the date
specified in the APO by the landowner as provided in Minn. Stat. §103F.48, subd. 7(d)..
F. A copy of the APO must be sent to the SWCD and BWSR.
G. An APO issued under this Section may be appealed to the BWSR within 30 days of receipt by the
landowner in accordance with the requirements set for the in Minn. Stat. §103F.48, subd. 9. Any APO
that is not appealed within the 30 day period shall be deemed final.
H. Administrative Penalty Order Procedures
1. Statute of Limitations. Any criminal enforcement action undertaken pursuant to Section VI1.1. of
this Ordinance must be undertaken within three (3) years after the alleged violation was
discovered or reasonably should have been discovered by the County. Any administrative
enforcement proceeding including the issuance of an APO should be undertaken within two (2)
years after the alleged violations was discovered or reasonably should have been discovered by
the County. According to Minn. Stat. §541.07, the County has two years in which to commence an
APO action after the date the violation is discovered. The goal is to complete the action as soon as
reasonably practical, recognizing that. situations for which data must be gathered, field
investigations must be completed and/or modeling must be performed will require adequate time
to complete the work and communicate with the landowner involved.
2. Compliance Verification. Once a landowner has submitted written evidence of correction of the
violation set forth in the notice of compliance, compliance must be verified. The County will:
a. Review and evaluate all information related to the APO to determine if the violation has been
corrected;
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 7
b. Verify compliance by site visit, re -inspection, examination of documentation, or other means
as may be reasonable under the facts of the case; and
c. Document compliance verification.
The County may consult with the SWCD when conducting a compliance verification.
3. Right to Appeal. Within 30 days after receipt of the APO, a landowner may appeal the terms and
conditions of an APO issued by a County to BWSR as provided in Minn. Stat. §103F.48, subd. 9. The
appeal must be in writing and must include a copy of the APO that is being appealed, the basis for
the appeal and any supporting evidence. The appeal may be submitted personally, by U.S. mail, or
electronically, to the Executive Director of BWSR.
4. Penalty Due. Unless the landowner appeals the APO as provided in Section VI1.2.H.3. the penalty
specified in the APO becomes immediately due and payable to the County as set forth in the APO.
If, however, the landowner submits written documentation that the violation .has been corrected
prior to the time the penalty becomes due and payable the County shall verify compliance and
adjust the penalty to an amount the landowner would have owed had the penalty been paid on
the date the landowner submitted written documentation of compliance. Written documentation
of compliance may include a written validation of compliance issued by the SWCD.
However, if the County determines the violation was not fully corrected, the County shall notify
the landowner by issuing a written letter of determination and depositing it in the U.S. Mail. Any
determination sent by U.S. Mail shall be deemed received three business days after the letter of
determination has been deposited in the U.S. Mail. The landowner shall have an additional 20 days
after receipt of the letter of determination to pay the penalty or the time period specified in the
APO as issued, whichever is later. The penalty will continue to accrue until the violation is corrected
as provided.in the Corrective Action Notice and APO.
5. Referral. for Collection of Penalty. All penalties and interest assessed under an APO must be paid
by the landowner within the time specified in this Section. All payments shall be made payable to
the County. Any penalty or interest not received in the specified time may be collected by the
County using any lawful means.
6. Reporting and Documentation. The County shall maintain the following records for any potential
violation of the riparian protection and water quality practices requirements. Said records shall
include but are not limited to the following:
a. The cause of the violation;
b. The magnitude and duration of the violation;
c. Documentation showing whether the violation presents an actual or imminent risk to public
health and safety;
d. Documentation showing whether the violation has the potential to harm to the natural
resources of the state;
e. A record of past violations;
Efforts by the SWCD, County, Watershed District or BWSR to assist the responsible party or
parties to become compliant, including written and oral communications with the responsible
party or parties; and
g. Past and present corrective action efforts by the responsible party or parties.
Otter Tail County Buffer Ordinance
Effective January 1, 2018; Page 8
VIII. Effective Date: January 1, 2018
Chair, Otter Ta�unpf B,6ard of Commissioners, Wayne Johnson
Attest; rl+er Tail County Board of Commissioners, John Dinsmore