Enforcement entities carry out compliance provisions through the Administrative Penalty Order (§103F.48), local proceedings (MN c. 394) authority, or other authorities in MN c. 103D.
Landowner Corrects Noncompliance: Step 6
Background:
The Local Government Unit agrees to carry out corrective actions on a parcel basis to ensure compliance with the buffer requirements, which may include an Administrative Penalty Order (APO) plan under the authority provided in Minnesota §103B.101, subd. 12a and §103F.48.
Where an APO is used for an initial noncompliance action, a landowner has 11 months following the issuance of a Corrective Action Notice (CAN) to come into compliance with the law without penalty.
Where other local controls are used for an initial noncompliance action, follow local enforcement plan.
For repeat noncompliance actions on a parcel, a CAN and local enforcement actions identified in official controls will be issued at the same time with no grace period.
What statute says:
Subd. 7.Corrective actions. (c) If the landowner does not comply with the list of actions and timeline provided, the county or watershed district may enforce this section under the authority granted in section 103B.101, subdivision 12a, or by rule of the watershed district or ordinance or other official control of the county. Before exercising administrative penalty authority, a county or watershed district must adopt a plan consistent with the plan adopted by the board containing procedures for the issuance of administrative penalty orders and may issue orders beginning November 1, 2017. If a county or watershed district with jurisdiction over the noncompliant site has not adopted a plan, rule, ordinance, or official control under this paragraph, the board must enforce this section under the authority granted in section 103B.101, subdivision 12a.
(d) If the county, watershed district, or board determines that sufficient steps have been taken to fully resolve noncompliance, all or part of the penalty may be forgiven.
(e) An order issued under paragraph (c) may be appealed to the board as provided under subdivision 9.
What to include in an enforcement action:
- The facts constituting a violation of the riparian protection and water quality practices requirements;
- The statute and/or the county ordinance or watershed district rule that has been violated;
- Prior efforts to work with the landowner to resolve the violation;
- The penalty to be imposed;
- The date by which all or part of the penalty may be forgiven if the landowner complies with the corrective action notice;
- The landowner or his/her agent or operators’ right to appeal the APO Items to be included in an APO; and
- CC: SWCD and BWSR
Helpful tips (APO related):
- Pursuant to MN §103F.48, subd. 7(d), all or part of the penalty accumulated as part of the APO may be forgiven if steps have been taken to resolve the noncompliance by the date specified in the APO by the landowner or his/her agents or operators. If part or all of the penalty is forgiven, the reasons and the amount of the penalty that has been forgiven will be documented in the enforcement file.
- An APO can be issued along with the CAN, or at a later date closer to the end of the 11-month grace period allowed to complete the actions outlined in the CAN
- Timelines prior to issuing or accrual of the APO may be extended based on the discretion of the enforcement entity. An APO may be delayed if weather or a reasonable effort to comply is made.
- A landowner or his/her agent or operator may appeal to BWSR, in writing, the terms and conditions of an APO issued by a county or watershed district within 30 days of receipt of the APO.
- Local discussion should take place on what will be required in order for a penalty to be forgiven.
Examples:
