Farmers' trench digging raises concerns about wetlands protection in Minnesota

MARSHALL, Minn. — A pair of farmers had permission to clean out some ditches in a few fields. Instead, they dug a trench nearly three-quarters of a mile long in the fields and through a cattail marsh in southwest Minnesota, work authorities say violated wetlands protection laws.

The ditching episode has triggered consternation in this pocket of Lyon County. Two downstream farmers took time from spring planting to speak out, saying they feel it's such an egregious violation, they don't understand how the work received approval. And they don't think authorities are doing enough to hold the violators accountable.

They fear that given the 8-foot slope down to their land, one heavy rain will send water roaring south and flood them, with one of their properties emptying into the Redwood River, a tributary of the Minnesota River.

"This is so wrong," said farmer Bob Viaene. "We do not mess with cattails because that is Mother Nature filtering the water system. There's umpteen farmers who have come to us and asked 'How did they get away with that?'"

It all started last November when Jance Vandelanotte and his uncle Mark Vandelanotte hired a contractor with a backhoe to improve drainage, including from the fields the Vandelanottes had just tiled. Both declined repeated interview requests for this article.

A few surrounding farmers had a verbal arrangement with the Vandelanottes to help foot the bill for some cleaning, according to Viaene and neighbor farmer Terry Lange.

Jance Vandelanotte had approval from the Lyon County Soil and Water Conservation District, the local authority administering the state's Wetland Conservation Act. The 1991 law protects what remains of Minnesota's precious swamps and bogs, half of which have been lost since European settlers arrived. The wetlands act holds that landowners can't fill or drain a wetland without creating or restoring wetlands of equal public value.

The approval was for a private ditch cleanout of accumulated sediment and plants to the bottom for parts dug prior to 1991, and down a maximum of 18 inches for parts that weren't, records show.

That's not what happened.

The dredge ditch is about 10 feet wide across the bottom, 3½ feet deep and runs about 3,650 feet, according to Luke Olson, conservation technician with the Lyon County Soil and Water Conservation District. Viaene said the top is about 19 feet wide and it's more like 4 feet deep.

A portion runs through old ditches. It also plows through an unnamed cattail marsh on the Vandelanottes' land and on Lange's land too — most of which never had a ditch.

Lange said he'd agreed to the cleanup deal with the Vandelanottes for a portion on his land. The work was done while he was out of state last November, he said. He couldn't believe the mess when he got home.

The marsh where he grew up hunting deer and pheasants had a giant gash through it. Willows were uprooted; cattails strewn. The ditch cut over to Roggeman Marsh and went north.

"They bulldozed trees out," Lange said. "I still can't believe they did it."

Lange said he is not paying the bill that the Vandelanottes sent him for the work.

He immediately notified the Lyon County Soil and Water Conservation District office, which was surprised to learn a ditch had been dug, he said.

The state's locally based process for enforcing wetland protections cranked into gear. There was a meeting of the required technical evaluation panel, which includes a state wetlands specialist and other authorities, including Olson.

The Vandelanottes agreed to rectify the situation, Olson said.

"The landowners… know that they're in violation and they've been cooperative voluntarily on this," Olson said. He said he thinks it was a mixup with the contractor.

The panel is still figuring out how extensive the restoration should be, Olson said. Plug parts or all of the ditch with clay? Put all the soil they dug out back in? One option is for the Vandelanottes to buy wetland mitigation credits to offset the lost marshland. The high cost of that makes it unlikely, Olson said.

"I don't anticipate that we're going to fine them," Olson said, explaining citations aren't used unless a violator resists fixing the problem. None of his office's cases has ever resulted in a citation, he said.

Kyle Jarcho, a Minnesota Department of Natural Resources area hydrologist in Marshall on the technical evaluation panel, described the violation as a misunderstanding with the contractor. It "definitely was not intentional," he said.

"We don't want to be heavy-handed," Jarcho said. "That's not the approach people like."

Ken Powell, Wetland Conservation Act operations supervisor at the state Board of Water and Soil Resources, agreed. The board, the main enforcer of the act, prefers voluntary compliance. His agency has the authority to fine up to $10,000 in an administrative penalty order, but it would probably cost more than that to use it, he said: "We've never used it."

Olson approved a limited ditch cleanout in December 2021, according to a copy of the decision. An attached map spells out that a 1991 photo shows a "flow path" in the marsh area "but no clear excavated channel" except for a few portions.

Lyon County doesn't have many old aerial photos to pinpoint pre-existing ditches, he said. He based the decision on the 1991 shot showing a "slight channel through the cattails"; an indication by the Vandelanottes that a ditch was there at some time in the past; and the existence of an old culvert, indicating drainage, installed under a field crossing.

The Wetland Conservation Act exempts maintenance of ditches that existed before the law, but farmers cannot create a deeper or larger ditch during cleaning, he noted.

Given that the cattail slough is right next to Roggeman Marsh, a public water, the project may have also violated laws against damaging that resource. The DNR is looking into that matter, which involves measuring the water levels.

The panel will issue instructions for the fix shortly, Olson said. He said he expects the work to be done this summer and that Viaene and Lange will be satisfied.

Standing next to the trench through the cattail marsh, pheasants flapping nearby, Viaene and Lange shook their heads. They've lived there their whole lives, they said, and there was no ditch through most of that bit of wild.

They described the Vandelanottes as experienced farmers who must have known what they were doing. Viaene said he saw them out working with the contractor when the ditch was dug, hauling dirt away. If there aren't some substantial penalties for destroying wetlands, farmers aren't deterred, they said.

"I personally feel they should get penalized for what they did, even after filling it in," Viaene said. "You'll never get that back to its original condition."