Minnesota Session Laws - 1994, Regular Session

                            CHAPTER 627-H.F.No. 3179 
                  An act relating to wetlands; authorizing grants for 
                  flood control measures along a portion of the Red 
                  river; allowing alternative wetland regulation under 
                  county plans; expanding types of wetlands that may be 
                  used in the state wetland bank; modifying exemptions; 
                  clarifying the applicability of the wetland 
                  conservation act to the state; streamlining notice 
                  requirements for smaller wetland projects; adding an 
                  alternative compensation formula; expanding 
                  eligibility for the permanent wetlands preserve; 
                  amending Minnesota Statutes 1992, sections 103F.161, 
                  subdivision 1; 103F.516, subdivision 1; 103G.2242, 
                  subdivisions 1, 5, 6, 7, and 8; and 103G.237, 
                  subdivision 4; Minnesota Statutes 1993 Supplement, 
                  sections 103G.222; and 103G.2241. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1992, section 103F.161, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [GRANTS AUTHORIZED.] (a) The commissioner 
        may make grants to local governments to: 
           (1) conduct floodplain damage reduction studies to 
        determine the most feasible, practical, and effective methods 
        and programs for mitigating the damages due to flooding within 
        flood prone rural and urban areas and their watersheds; and 
           (2) plan and implement flood mitigation measures. 
           (b) The commissioner may cooperate with the North Dakota 
        state water commission, local governmental units, and local 
        water management organizations in this state and in North 
        Dakota, and the United States Army Corps of Engineers to develop 
        hydrologic models and conduct studies to evaluate the 
        practicality and feasibility of flood control measures along the 
        Red river from East Grand Forks to the Canadian border.  The 
        commissioner may make grants to local governmental units for 
        these purposes.  Flood control measures that may be investigated 
        include agricultural and urban levee systems, wetland 
        restoration, floodwater impoundments, farmstead ring-dikes, and 
        stream maintenance activities. 
           Sec. 2.  Minnesota Statutes 1992, section 103F.516, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [EASEMENTS.] Upon application by a 
        landowner, the board may acquire permanent easements on land 
        containing type 1, 2, or 3, or 6 wetlands, as defined in United 
        States Fish and Wildlife Service Circular No. 39 (1971 edition). 
           Sec. 3.  Minnesota Statutes 1993 Supplement, section 
        103G.222, is amended to read: 
           103G.222 [REPLACEMENT OF WETLANDS.] 
           (a) After the effective date of the rules adopted under 
        section 103B.3355 or 103G.2242, whichever is later, wetlands 
        must not be drained or filled, wholly or partially, unless 
        replaced by restoring or creating wetland areas of at least 
        equal public value under either a replacement plan approved as 
        provided in section 103G.2242, a replacement plan under a local 
        governmental unit's comprehensive wetland protection and 
        management plan approved by the board under section 103G.2242, 
        subdivision 1, paragraph (c), or, if a permit to mine is 
        required under section 93.481, under a mining reclamation plan 
        approved by the commissioner under the permit to mine.  Mining 
        reclamation plans shall apply the same principles and standards 
        for replacing wetlands by restoration or creation of wetland 
        areas that are applicable to mitigation plans approved as 
        provided in section 103G.2242. 
           (b) Replacement must be guided by the following principles 
        in descending order of priority: 
           (1) avoiding the direct or indirect impact of the activity 
        that may destroy or diminish the wetland; 
           (2) minimizing the impact by limiting the degree or 
        magnitude of the wetland activity and its implementation; 
           (3) rectifying the impact by repairing, rehabilitating, or 
        restoring the affected wetland environment; 
           (4) reducing or eliminating the impact over time by 
        preservation and maintenance operations during the life of the 
        activity; and 
           (5) compensating for the impact by replacing or providing 
        substitute wetland resources or environments. 
           (c) If a wetland is located in a cultivated field, then 
        replacement must be accomplished through restoration only 
        without regard to the priority order in paragraph (b), provided 
        that a deed restriction is placed on the altered wetland 
        prohibiting nonagricultural use for at least ten years.  
           (d) Restoration and replacement of wetlands must be 
        accomplished in accordance with the ecology of the landscape 
        area affected. 
           (e) Replacement shall be within the same watershed or 
        county as the impacted wetlands, as based on the wetland 
        evaluation in section 103G.2242, subdivision 2, except that 
        counties or watersheds in which 80 percent or more of the 
        presettlement wetland acreage is intact may accomplish 
        replacement in counties or watersheds in which 50 percent or 
        more of the presettlement wetland acreage has been filled, 
        drained, or otherwise degraded.  Wetlands impacted by public 
        transportation projects may be replaced statewide, provided they 
        are approved by the commissioner under an established wetland 
        banking system, or under the rules for wetland banking as 
        provided for under section 103G.2242. 
           (f) Except as provided in paragraph (g), for a wetland 
        located on nonagricultural land, replacement must be in the 
        ratio of two acres of replaced wetland for each acre of drained 
        or filled wetland. 
           (g) For a wetland located on agricultural land or in 
        counties or watersheds in which 80 percent or more of the 
        presettlement wetland acreage exists, replacement must be in the 
        ratio of one acre of replaced wetland for each acre of drained 
        or filled wetland.  
           (h) Wetlands that are restored or created as a result of an 
        approved replacement plan are subject to the provisions of this 
        section for any subsequent drainage or filling. 
           (i) Except in counties or watersheds where 80 percent or 
        more of the presettlement wetlands are intact, only wetlands 
        that have been restored from previously drained or filled 
        wetlands, wetlands created by excavation in nonwetlands, 
        wetlands created by dikes or dams along public or private 
        drainage ditches, or wetlands created by dikes or dams 
        associated with the restoration of previously drained or filled 
        wetlands may be used in a statewide banking program established 
        in rules adopted under section 103G.2242, subdivision 1.  
        Modification or conversion of nondegraded naturally occurring 
        wetlands from one type to another are not eligible for 
        enrollment in a statewide wetlands bank. 
           (j) The technical evaluation panel established under 
        section 103G.2242, subdivision 2, shall ensure that sufficient 
        time has occurred for the wetland to develop wetland 
        characteristics of soils, vegetation, and hydrology before 
        recommending that the wetland be deposited in the statewide 
        wetland bank.  If the technical evaluation panel has reason to 
        believe that the wetland characteristics may change 
        substantially, the panel shall postpone its recommendation until 
        the wetland has stabilized. 
           (k) This section and sections 103G.223 to 103G.2242, 
        103G.2364, and 103G.2365 apply to the state and its departments 
        and agencies. 
           Sec. 4.  Minnesota Statutes 1993 Supplement, section 
        103G.2241, is amended to read: 
           103G.2241 [EXEMPTIONS.] 
           (a) Subject to the conditions in paragraph (b), a 
        replacement plan for wetlands is not required for:  
           (1) activities in a wetland that was planted with annually 
        seeded crops, was in a crop rotation seeding of pasture grasses 
        or legumes, or was required to be set aside to receive price 
        support or other payments under United States Code, title 7, 
        sections 1421 to 1469, in six of the last ten years prior to 
        January 1, 1991; 
           (2) activities in a wetland that is or has been enrolled in 
        the federal conservation reserve program under United States 
        Code, title 16, section 3831, that: 
           (i) was planted with annually seeded crops, was in a crop 
        rotation seeding, or was required to be set aside to receive 
        price support or payment under United States Code, title 7, 
        sections 1421 to 1469, in six of the last ten years prior to 
        being enrolled in the program; and 
           (ii) has not been restored with assistance from a public or 
        private wetland restoration program; 
           (3) activities necessary to repair and maintain existing 
        public or private drainage systems as long as wetlands that have 
        been in existence for more than 20 years are not drained; 
           (4) activities in a wetland that has received a commenced 
        drainage determination provided for by the federal Food Security 
        Act of 1985, that was made to the county agricultural 
        stabilization and conservation service office prior to September 
        19, 1988, and a ruling and any subsequent appeals or reviews 
        have determined that drainage of the wetland had been commenced 
        prior to December 23, 1985; 
           (5) activities exempted from federal regulation under 
        United States Code, title 33, section 1344(f); 
           (6) activities authorized under, and conducted in 
        accordance with, an applicable general permit issued by the 
        United States Army Corps of Engineers under section 404 of the 
        federal Clean Water Act, United States Code, title 33, section 
        1344, except the nationwide permit in Code of Federal 
        Regulations, title 33, section 330.5, paragraph (a), clause 
        (14), limited to when a new road crosses a wetland, and all of 
        clause (26); 
           (7) activities in a type 1 wetland on agricultural land, as 
        defined in United States Fish and Wildlife Circular No. 39 (1971 
        edition) except for bottomland hardwood type 1 wetlands; 
           (8) activities in a type 2 wetland that is two acres in 
        size or less located on agricultural land; 
           (9) activities in a wetland restored for conservation 
        purposes under a contract or easement providing the landowner 
        with the right to drain the restored wetland; 
           (10) activities in a wetland created solely as a result of: 
           (i) beaver dam construction; 
           (ii) blockage of culverts through roadways maintained by a 
        public or private entity; 
           (iii) actions by public entities that were taken for a 
        purpose other than creating the wetland; or 
           (iv) any combination of (i) to (iii); 
           (11) placement, maintenance, repair, enhancement, or 
        replacement of utility or utility-type service, including the 
        transmission, distribution, or furnishing, at wholesale or 
        retail, of natural or manufactured gas, electricity, telephone, 
        or radio service or communications if: 
           (i) the impacts of the proposed project on the hydrologic 
        and biological characteristics of the wetland have been avoided 
        and minimized to the extent possible; and 
           (ii) the proposed project significantly modifies or alters 
        less than one-half acre of wetlands; 
           (12) activities associated with routine maintenance of 
        utility and pipeline rights-of-way, provided the activities do 
        not result in additional intrusion into the wetland; 
           (13) alteration of a wetland associated with the operation, 
        maintenance, or repair of an interstate pipeline; 
           (14) temporarily crossing or entering a wetland to perform 
        silvicultural activities, including timber harvest as part of a 
        forest management activity, so long as the activity limits the 
        impact on the hydrologic and biologic characteristics of the 
        wetland; the activities do not result in the construction of 
        dikes, drainage ditches, tile lines, or buildings; and the 
        timber harvesting and other silvicultural practices do not 
        result in the drainage of the wetland or public waters; 
           (15) permanent access for forest roads across wetlands so 
        long as the activity limits the impact on the hydrologic and 
        biologic characteristics of the wetland; the construction 
        activities do not result in the access becoming a dike, drainage 
        ditch or tile line; with filling avoided wherever possible; and 
        there is no drainage of the wetland or public waters; 
           (16) activities associated with routine maintenance or 
        repair of existing public highways, roads, streets, and bridges, 
        provided the activities do not result in additional intrusion 
        into the wetland outside of the existing right-of-way draining 
        or filling up to one-half acre of wetlands for the repair, 
        rehabilitation, or replacement of a previously authorized, 
        currently serviceable existing public road, provided that minor 
        deviations in the public road's configuration or filled area, 
        including those due to changes in materials, construction 
        techniques, or current construction codes or safety standards, 
        that are necessary to make repairs, rehabilitation, or 
        replacement are allowed if the wetland draining or filling 
        resulting from the repair, rehabilitation, or replacement is 
        minimized; 
           (17) emergency repair and normal maintenance and repair of 
        existing public works, provided the activity does not result in 
        additional intrusion of the public works into the wetland and do 
        not result in the draining or filling, wholly or partially, of a 
        wetland; 
           (18) normal maintenance and minor repair of structures 
        causing no additional intrusion of an existing structure into 
        the wetland, and maintenance and repair of private crossings 
        that do not result in the draining or filling, wholly or 
        partially, of a wetland; 
           (19) duck blinds; 
           (20) aquaculture activities, including pond excavation and 
        construction and maintenance of associated access roads and 
        dikes authorized under, and conducted in accordance with, a 
        permit issued by the United States Army Corps of Engineers under 
        section 404 of the federal Clean Water Act, United States Code, 
        title 33, section 1344, but not including construction or 
        expansion of buildings; 
           (21) wild rice production activities, including necessary 
        diking and other activities authorized under a permit issued by 
        the United State Army Corps of Engineers under section 404 of 
        the federal Clean Water Act, United States Code, title 33, 
        section 1344; 
           (22) normal agricultural practices to control pests or 
        weeds, defined by rule as either noxious or secondary weeds, in 
        accordance with applicable requirements under state and federal 
        law, including established best management practices; 
           (23) activities in a wetland that is on agricultural land 
        annually enrolled in the federal Food, Agricultural, 
        Conservation, and Trade Act of 1990, United States Code, title 
        16, section 3821, subsection (a), clauses (1) to (3), as 
        amended, and is subject to sections 1421 to 1424 of the federal 
        act in effect on January 1, 1991, except that land enrolled in a 
        federal farm program is eligible for easement participation for 
        those acres not already compensated under a federal program; 
           (24) development projects and ditch improvement projects in 
        the state that have received preliminary or final plat approval, 
        or infrastructure that has been installed, or having local site 
        plan approval, conditional use permits, or similar official 
        approval by a governing body or government agency, within five 
        years before July 1, 1991.  In the seven-county metropolitan 
        area and in cities of the first and second class, plat approval 
        must be preliminary as approved by the appropriate governing 
        body; and 
           (25) activities that result in the draining or filling of 
        less than 400 square feet of wetlands. 
           (b) For the purpose of paragraph (a), clause (16), 
        "currently serviceable" means useable as is or with some 
        maintenance, but not so degraded as to essentially require 
        reconstruction.  Paragraph (a), clause (16), authorizes the 
        repair, rehabilitation, or replacement of public roads destroyed 
        by storms, floods, fire, or other discrete events, provided the 
        repair, rehabilitation, or replacement is commenced or under 
        contract to commence within two years of the occurrence of the 
        destruction or damage. 
           (c) A person conducting an activity in a wetland under an 
        exemption in paragraph (a) shall ensure that: 
           (1) appropriate erosion control measures are taken to 
        prevent sedimentation of the water; 
           (2) the activity does not block fish passage in a 
        watercourse; and 
           (3) the activity is conducted in compliance with all other 
        applicable federal, state, and local requirements, including 
        best management practices and water resource protection 
        requirements established under chapter 103H. 
           Sec. 5.  Minnesota Statutes 1992, section 103G.2242, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [RULES.] (a) By July 1, 1993, the board, in 
        consultation with the commissioner, shall adopt rules governing 
        the approval of wetland value replacement plans under this 
        section.  These rules must address the criteria, procedure, 
        timing, and location of acceptable replacement of wetland 
        values; may address the state establishment and administration 
        of a wetland banking program for public and private projects, 
        which may include provisions allowing monetary payment to the 
        wetland banking program for alteration of wetlands on 
        agricultural land; the methodology to be used in identifying and 
        evaluating wetland functions; the administrative, monitoring, 
        and enforcement procedures to be used; and a procedure for the 
        review and appeal of decisions under this section.  In the case 
        of peatlands, the replacement plan rules must consider the 
        impact on carbon balance described in the report required by 
        Laws 1990, chapter 587, and include the planting of trees or 
        shrubs. 
           (b) After the adoption of the rules, a replacement plan 
        must be approved by a resolution of the governing body of the 
        local government unit, consistent with the provisions of the 
        rules. 
           (c) The board may approve as an alternative to the rules 
        adopted under this subdivision a comprehensive wetland 
        protection and management plan developed by a local government 
        unit, provided that the plan: 
           (1) incorporates sections 103A.201, subdivision 2, and 
        103G.222; 
           (2) is adopted as part of an approved local water plan 
        under sections 103B.231 and 103B.311; and 
           (3) is adopted as part of the local government's official 
        controls. 
           (d) If the local government unit fails to apply the rules, 
        or fails to implement a local program under paragraph (c), the 
        government unit is subject to penalty as determined by the board.
           Sec. 6.  Minnesota Statutes 1992, section 103G.2242, 
        subdivision 5, is amended to read: 
           Subd. 5.  [PROCESSING FEE.] The local government unit may 
        charge a processing fee of up to $75 fees in amounts not greater 
        than are necessary to cover the reasonable costs of implementing 
        the rules adopted under subdivision 1.  
           Sec. 7.  Minnesota Statutes 1992, section 103G.2242, 
        subdivision 6, is amended to read: 
           Subd. 6.  [NOTICE OF APPLICATION.] (a) Except as provided 
        in paragraph (b), within ten days of receiving an application 
        for approval of a replacement plan under this section, a copy of 
        the application must be submitted to the board for publication 
        in the Environmental Quality Board Monitor and separate copies 
        mailed to individual members of the public who request a copy, 
        the board of supervisors of the soil and water conservation 
        district, the managers of the watershed district, the board of 
        county commissioners, the commissioner of agriculture, and the 
        mayors of the cities within the area watershed.  At the same 
        time, the local government unit must give general notice to the 
        public in a general circulation newspaper within the area 
        affected. 
           (b) Within ten days of receiving an application for 
        approval of a replacement plan under this section for an 
        activity affecting less than 10,000 square feet of wetland, a 
        summary of the application must be submitted for publication in 
        the Environmental Quality Board Monitor and separate copies 
        mailed to the members of the technical evaluation panel, 
        individual members of the public who request a copy, and the 
        managers of the watershed district, if applicable.  At the same 
        time, the local government unit must give general notice to the 
        public in a general circulation newspaper within the area 
        affected. 
           Sec. 8.  Minnesota Statutes 1992, section 103G.2242, 
        subdivision 7, is amended to read: 
           Subd. 7.  [NOTICE OF DECISION.] (a) Except as provided in 
        paragraph (b), at least 30 days prior to the effective date of 
        the approval or denial of a replacement plan under this section, 
        a copy of the approval or denial must be submitted for 
        publication in the Environmental Quality Board Monitor and 
        separate copies mailed to the applicant, the board, individual 
        members of the public who request a copy, the board of 
        supervisors of the soil and water conservation district, the 
        managers of the watershed district, the board of county 
        commissioners, the commissioner of agriculture, and the mayors 
        of the cities within the area watershed. 
           (b) Within ten days of the decision approving or denying a 
        replacement plan under this section for an activity affecting 
        less than 10,000 square feet of wetland, a summary of the 
        approval or denial must be submitted for publication in the 
        Environmental Quality Board Monitor and separate copies mailed 
        to the applicant, individual members of the public who request a 
        copy, the members of the technical evaluation panel, and the 
        managers of the watershed district, if applicable.  At the same 
        time, the local government unit must give general notice to the 
        public in a general circulation newspaper within the area 
        affected. 
           Sec. 9.  Minnesota Statutes 1992, section 103G.2242, 
        subdivision 8, is amended to read: 
           Subd. 8.  [PUBLIC COMMENT PERIOD.] Except for activities 
        impacting less than 10,000 square feet of wetland, before 
        approval or denial of a replacement plan under this section, 
        comments may be made by the public to the local government unit 
        for a period of 30 days. 
           Sec. 10.  Minnesota Statutes 1992, section 103G.237, 
        subdivision 4, is amended to read: 
           Subd. 4.  [COMPENSATION.] (a) The board shall award 
        compensation in an amount equal to 50 percent of the value of 
        the wetland, calculated by multiplying the acreage of the 
        wetland by the greater of: 
           (1) the average equalized estimated market value of 
        agricultural property in the township as established by the 
        commissioner of revenue at the time application for compensation 
        is made; or 
           (2) the assessed value per acre of the parcel containing 
        the wetland, based on the assessed value of the parcel as stated 
        on the most recent tax statement. 
           (b) A person who receives compensation under paragraph (a) 
        shall convey to the board a permanent conservation easement as 
        described in section 103F.515, subdivision 4.  An easement 
        conveyed under this paragraph is subject to correction and 
        enforcement under section 103F.515, subdivisions 8 and 9. 
           Sec. 11.  [INTERGOVERNMENTAL AGREEMENTS.] 
           The legislature encourages the use of intergovernmental 
        agreements between federal, state, and local governmental 
        entities for the purpose of further coordinating and simplifying 
        implementation of regulatory programs relating to activities in 
        wetlands. 
           Sec. 12.  [PERMANENT WETLANDS PRESERVE; ELIGIBILITY OF 
        WATER BANK PARTICIPANTS.] 
           Notwithstanding Minnesota Statutes, section 103F.516, 
        subdivision 1, an owner of property that, as of July 1, 1991, 
        was subject to an easement agreement under Minnesota Statutes, 
        section 103F.601, is eligible for participation in the permanent 
        wetlands preserve program under Minnesota Statutes, section 
        103F.516. 
           Sec. 13.  [EFFECTIVE DATE.] 
           Section 10 is effective July 1, 1994, and applies to 
        applications for compensation received by the board of water and 
        soil resources on or after that date.  Section 9 is effective 
        the day following final enactment. 
           Presented to the governor May 6, 1994 
           Signed by the governor May 10, 1994, 3:54 p.m.