Rare wetland issue comes before board

Typically, wetland issues are resolved through the Goodhue County Soil and Water Conservation District.

Tuesday, however, county commissioners found themselves in unfamiliar territory. Land operator Byron “Barney” Nesseth asked the board to appeal a decision made by the SWCD about an area of land in Wanamingo Township he was tiling.

The problem? The SWCD considered the area a wetland. Nesseth did not.

“I’ve been on the board 14 years now and I’ve never had an issue like this in front of me,” Commissioner Jim Bryant said.

The matter came into question at the end of March when Beau Kennedy, wetland administrator for SWCD, received a complaint about tiling being done in what appeared to be a wetland — a practice that is prohibited under the Wetland Conservation Act. Tiling is an agricultural technique that removes excess water from soil subsurface.

Following an investigation of the site and review by a conservation officer, the county’s Technical Evaluation Panel reached a conclusion.

“Ultimately what it came down to is we couldn’t deny what we saw on that site,” Kennedy said. “Wetlands were present.”

A cease and desist order was presented in early April and Nesseth — who is running for county commissioner in District 3 — immediately halted tiling of the area. The same day, he applied for a Wetland Conservation Act exemption, stating the acres in question were incidental wetlands that occurred as a result of blocked culverts in the area and incoming water draining from a northern field.

“We did look at the wetland inventory map before we tiled, so in our opinion, we didn’t do anything illegally,” Nesseth argued.

The two separate wetlands totaling about three acres were not shown on the Department of Natural Resource’s wetland inventory, something that is apparently not uncommon.

“There’s just not the means available to delineate all of the wetlands in the county,” said Steve Lawler of the Minnesota Board of Water and Soil Resources.

Lawler compared the recognition of wetlands to the need for a building permit, arguing that the situation is something people should just generally know.

“Just because the wetland was not on a map, you still have a responsibility to classify the wetland,” he explained, suggesting that if people don’t know whether an area could be a wetland, they should contact SWCD officials prior to any tiling.

Ten days after receiving Nesseth’s request for exemption, the SWCD denied it. Kennedy said the decision was based on what the Technical Evaluation Panel had discovered while visiting the site. Through a routine wetland delineation procedure, the panel was able to identify the required soil, plant and hydrologic indicators of a wetland.

Under an order issued by the Minnesota DNR the same day, Nesseth is required to break the tile and mitigate the wetlands at a ratio of 2:1. The deadline to comply is June 12.

“There are no penalties until he fails to comply with the restoration order,” Minnesota DNR officer Julie Siems explained. The penalty would be a misdemeanor violation.

Nesseth’s appeal of the decision by the SWCD is what brought the issue to the County Board. But split opinions on the board did not turn out in his favor.

A motion by Bryant to support the SWCD’s decision — and thus deny the appeal — resulted in a 2-2 vote with commissioners Ted Seifert and Ron Allen opposing. Commissioner Dan Rechtzigel, who represents District 3 and is seeking re-election, was absent.

The tie vote failed for lack of a majority, meaning Nesseth will still be required to restore the wetlands.

“Because the board did not vote affirmatively to overrule the decision, then the decision stands,” Goodhue County Attorney Stephen Betcher said.

Although Nesseth could argue against the board’s vote and appeal further, he told commissioners on Tuesday he had no intention of doing so.

“Since it’s my dollars, I will stop here.”

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