Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1996, Regular Session
Key: (1) language to be deleted (2) new language
KEY: stricken = old language to be removed
underscored = new language to be added
CHAPTER 462-H.F.No. 787
An act relating to natural resources; water; modifying
wetland protection and management; authorizing
rulemaking; appropriating money; amending Minnesota
Statutes 1994, sections 84.035, subdivisions 5 and 6;
103B.3355; 103E.701, subdivision 6; 103F.612,
subdivisions 2, 3, 5, 6, and 7; 103G.005, subdivision
10a, and by adding subdivisions; 103G.127; 103G.222;
103G.2241; 103G.2242, subdivisions 1, 2, 4, 6, 7, 9,
and 12; 103G.237, subdivision 4, and by adding a
subdivision; 103G.2373; and 115.03, by adding a
subdivision; proposing coding for new law in Minnesota
Statutes, chapter 103G; repealing Minnesota Statutes
1994, section 103G.2242, subdivision 13.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1994, section 84.035,
subdivision 5, is amended to read:
Subd. 5. [ACTIVITIES IN PEATLAND SCIENTIFIC AND NATURAL
AREAS.] Areas designated in subdivision 4 as peatland scientific
and natural areas are subject to the following conditions:
(a) Except as provided in paragraph (b), all restrictions
otherwise applicable to scientific and natural areas designated
under section 86A.05, subdivision 5, apply to the surface use
and to any use of the mineral estate which would significantly
modify or alter the peatland water levels or flows, peatland
water chemistry, plant or animal species or communities, or
other natural features of the peatland scientific and natural
areas, including, but not limited to, the following prohibitions:
(1) construction of any new public drainage systems after
the effective date of Laws 1991, chapter 354, or improvement or
repair to a public drainage system in existence on the effective
date of Laws 1991, chapter 354, under authority of chapter 103E,
or any other alteration of surface water or ground water levels
or flows unless specifically permitted under paragraph (b),
clause (5) or (6);
(2) removal of peat, sand, gravel, or other industrial
minerals;
(3) exploratory boring or other exploration or removal of
oil, natural gas, radioactive materials or metallic minerals
which would significantly modify or alter the peatland water
levels or flows, peatland water chemistry, plant or animal
species or communities, or natural features of the peatland
scientific and natural areas, except in the event of a national
emergency declared by Congress;
(4) commercial timber harvesting;
(5) construction of new corridors of disturbance, of the
kind defined in subdivision 3, after June 5, 1991; and
(6) ditching, draining, filling, or any other activities
which modify or alter the peatland water levels or flows,
peatland water chemistry, plant or animal species or
communities, or other natural features of the peatland
scientific and natural areas.
(b) The following activities are allowed:
(1) recreational activities, including hunting, fishing,
trapping, cross-country skiing, snowshoeing, nature observation,
or other recreational activities permitted in the management
plan approved by the commissioner;
(2) scientific and educational work and research;
(3) maintenance of corridors of disturbance, including
survey lines and preparation of winter roads, consistent with
protection of the peatland ecosystem;
(4) use of corridors of disturbance unless limited by a
management plan adopted by the commissioner under subdivision 6;
(5) improvements to a public drainage system in existence
on the effective date of Laws 1991, chapter 354, only when it is
for the protection and maintenance of the ecological integrity
of the peatland scientific and natural area and when included in
a management plan adopted by the commissioner under subdivision
6;
(6) repairs to a public drainage system in existence on the
effective date of Laws 1991, chapter 354, which crosses a
peatland scientific and natural area and is used for the
purposes of providing a drainage outlet for lands outside of the
peatland scientific and natural area, provided that there are no
other feasible and prudent alternative means of providing the
drainage outlet. The commissioner shall cooperate with the
ditch authority in the determination of any feasible and prudent
alternatives. No repairs which would significantly modify or
alter the peatland water levels or flows, peatland water
chemistry, plant or animal species or communities, or other
natural features of the peatland scientific and natural areas
shall be made unless approved by the commissioner;
(7) motorized uses that are engaged in, on corridors a
corridor of disturbance, if the corridor existed on or before
the effective date of Laws 1991, chapter 354 January 1, 1992,
provided that recreational motorized users may occur only when
the substrate is frozen, or the corridor is snow packed, subject
to a management plan developed in accordance with subdivision 6;
and
(8) control of forest insects, disease, and wildfires, as
described in a management plan adopted by the commissioner under
subdivision 6; and
(9) geological and geophysical surveys which would not
significantly modify or alter the peatland water levels or
flows, peatland water chemistry, plant or animal species or
communities, or other natural features of the peatland
scientific and natural areas.
Sec. 2. Minnesota Statutes 1994, section 84.035,
subdivision 6, is amended to read:
Subd. 6. [MANAGEMENT PLANS.] The commissioner shall
develop in consultation with the affected local government unit
a management plan for each peatland scientific and natural area
designated under section 84.036 in a manner prescribed by
section 86A.09.
The management plan shall address recreational trails. In
those peatland scientific and natural areas where no corridor of
disturbance was used as a recreational trail on or before
January 1, 1992, the plan may permit only one corridor of
disturbance, in each peatland scientific and natural area, to be
used as a recreational motorized trail.
Sec. 3. Minnesota Statutes 1994, section 103B.3355, is
amended to read:
103B.3355 [PUBLIC VALUE CRITERIA FOR WETLANDS WETLAND
FUNCTIONS FOR DETERMINING PUBLIC VALUES.]
(a) The board of water and soil resources, in consultation
with the commissioner of natural resources, shall adopt rules
establishing criteria to determine The public value values of
wetlands. The rules must consider the public benefit and use of
the wetlands and include must be determined based upon the
functions of wetlands for:
(1) criteria to determine the benefits of wetlands for
water quality, including filtering of pollutants to surface and
groundwater, utilization of nutrients that would otherwise
pollute public waters, trapping of sediments, shoreline
protection, and utilization of the wetland as a recharge area
for groundwater;
(2) criteria to determine the benefits of wetlands for
floodwater and stormwater retention, including the potential for
flooding in the watershed, the value of property subject to
flooding, and the reduction in potential flooding by the
wetland;
(3) criteria to determine the benefits of wetlands for
public recreation and education, including wildlife habitat,
hunting and fishing areas, wildlife breeding areas, wildlife
viewing areas, aesthetically enhanced areas, and nature areas;
(4) criteria to determine the benefits of wetlands for
commercial uses, including wild rice and cranberry growing and
harvesting and aquaculture; and
(5) fish, wildlife, native plant habitats; and
(6) low-flow augmentation; and
(7) criteria to determine the benefits of wetlands for
other public uses.
(b) The board of water and soil resources, in consultation
with the commissioners of natural resources and agriculture and
local government units, shall adopt rules establishing:
(1) scientific methodologies for determining the functions
of wetlands; and
(2) criteria for determining the resulting public values of
wetlands.
(c) The methodologies and criteria established under this
section or other methodologies and criteria that include the
functions in paragraph (a) and are approved by the board, in
consultation with the commissioners of natural resources and
agriculture and local government units, must be used to
determine the functions and resulting public value values of
wetlands in the state. The functions listed in paragraph (a)
are not listed in order of priority.
(d) Public value criteria established or approved by the
board under this section do not apply in areas subject to local
comprehensive wetland protection and management plans
established under section 103G.2243.
(e) The board of water and soil resources, in consultation
with the commissioner commissioners of natural resources, shall
also use the criteria in identifying and agriculture and local
government units, may identify regions of the state where
preservation, enhancement, restoration, and establishment of
wetlands would have high public value. Before the criteria are
adopted, The board, in consultation with the commissioner
commissioners, may identify high priority wetland regions using
available information relating to the factors listed in
paragraph (a). The board shall notify local units of government
with water planning authority of these high priority regions.
Sec. 4. Minnesota Statutes 1994, section 103E.701,
subdivision 6, is amended to read:
Subd. 6. [WETLAND RESTORATION AND MITIGATION.] Repair of a
drainage system may include the preservation, restoration, or
enhancement of wetlands; wetland replacement under section
103G.222; and the realignment of a drainage system to prevent
drainage of a wetland.
Sec. 5. Minnesota Statutes 1994, section 103F.612,
subdivision 2, is amended to read:
Subd. 2. [APPLICATION.] (a) A wetland owner may apply to
the county where a wetland is located for designation of a
wetland preservation area in a high priority wetland area
identified in a comprehensive local water plan, as defined in
section 103B.3363, subdivision 3, and located within a high
priority wetland region designated by the board of water and
soil resources, if the county chooses to accept wetland
preservation area applications. The application must be made on
forms provided by the board. If a wetland is located in more
than one county, the application must be submitted to the county
where the majority of the wetland is located.
(b) The application must contain at least the following
information and other information the board of soil and water
resources requires:
(1) legal description of the area to be approved, which
must include an upland strip at least 16-1/2 feet in width
around the perimeter of wetlands within the area and may include
total upland area of up to four acres for each acre of wetland;
(2) parcel identification numbers where designated by the
county auditor;
(3) name and address of the owner;
(4) a witnessed signature of the owner covenanting that the
land will be preserved as a wetland and will only be used in
accordance with conditions prescribed by the board of water and
soil resources; and
(5) a statement that the restrictive covenant will be
binding on the owner and the owner's successors or assigns, and
will run with the land.
(c) The upland strip required in paragraph (b), clause (1),
must be planted with permanent vegetation other than a noxious
weed.
(d) For registered property, the owner shall submit the
owner's duplicate certificate of title with the application.
Sec. 6. Minnesota Statutes 1994, section 103F.612,
subdivision 3, is amended to read:
Subd. 3. [REVIEW AND NOTICE.] Upon receipt of an
application, the county shall determine if all material required
by subdivision 2 has been submitted and, if so, shall determine
that the application is complete. The term "date of application"
means the date the application is determined to be complete by
the county. The county shall send a copy of the application to
the county assessor, the regional development commission, where
applicable, the board of water and soil resources, and the soil
and water conservation district where the land is located. The
soil and water conservation district shall prepare an advisory
statement of existing and potential preservation problems or
conflicts and send the statement to the owner of record and to
the county. The county shall notify the landowner of the
acceptance or denial of the application within 60 days from the
date of the application.
Sec. 7. Minnesota Statutes 1994, section 103F.612,
subdivision 5, is amended to read:
Subd. 5. [COMMENCEMENT OF WETLAND PRESERVATION AREA.] The
wetland is a wetland preservation area commencing 30 days from
the date the county determines notifies the landowner of
acceptance of the application is complete under subdivision 3.
Sec. 8. Minnesota Statutes 1994, section 103F.612,
subdivision 6, is amended to read:
Subd. 6. [FEE.] The county may require an application fee,
not to exceed $50 to defray administrative costs of the program.
Sec. 9. Minnesota Statutes 1994, section 103F.612,
subdivision 7, is amended to read:
Subd. 7. [MAPS.] The board of water and soil resources
county shall maintain wetland preservation area maps
illustrating land covenanted as wetland preservation areas.
Sec. 10. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 2a. [AGRICULTURAL LAND.] "Agricultural land" means:
land used for horticultural, row, close grown, pasture, and
hayland crops; growing nursery stocks; animal feedlots; farm
yards; associated building sites; and public and private
drainage systems and field roads located on any of the foregoing.
Sec. 11. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 10a. [50 TO 80 PERCENT AREA.] "50 to 80 percent
area" means a county or watershed with at least 50 but less than
80 percent of the presettlement wetland acreage intact.
Sec. 12. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 10b. [GREATER THAN 80 PERCENT AREA.] "Greater than
80 percent area" means a county or watershed where 80 percent or
more of the presettlement wetland acreage is intact and:
(1) ten percent or more of the current total land area is
wetland; or
(2) 50 percent or more of the current total land area is
state or federal land.
Sec. 13. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 10c. [HAYLAND.] "Hayland" means an area that was
mechanically harvested or that was planted with annually seeded
crops in a crop rotation seeding of grasses or legumes in six of
the last ten years prior to January 1, 1991.
Sec. 14. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 10d. [LESS THAN 50 PERCENT AREA.] "Less than 50
percent area" means a county or watershed with less than 50
percent of the presettlement wetland acreage intact or any
county or watershed not defined as a "greater than 80 percent
area" or "50 to 80 percent area."
Sec. 15. Minnesota Statutes 1994, section 103G.005,
subdivision 10a, is amended to read:
Subd. 10a 10e. [LOCAL GOVERNMENT UNIT.] "Local government
unit" means:
(1) outside of the seven-county metropolitan area, a city
council or county board of commissioners or their delegate; and
(2) in the seven-county metropolitan area, a city council,
a town board under section 368.01, or a watershed management
organization under section 103B.211, or their delegate; and
(3) on state land, the agency with administrative
responsibility for the land.
Sec. 16. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 14a. [PASTURE.] "Pasture" means an area that was
grazed by domesticated livestock or that was planted with
annually seeded crops in a crop rotation seeding of grasses or
legumes of the last years prior to January 1, 1991.
Sec. 17. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 14c. [PRESETTLEMENT WETLAND.] "Presettlement wetland"
means a wetland or public waters wetland that existed in this
state at the time of statehood in 1858.
Sec. 18. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 14d. [PROJECT.] "Project" means a specific plan,
contiguous activity, proposal, or design necessary to accomplish
a goal as defined by the local government unit. As used in this
chapter, a project may not be split into components or phases
for the sole purpose of gaining additional exemptions.
Sec. 19. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 15b. [SHORELAND WETLAND PROTECTION ZONE.] "Shoreland
wetland protection zone" means:
(1) for local government units that have a shoreland
management ordinance approved under sections 103F.201 to
103F.221, the shoreland wetland protection zone is:
(i) 1,000 feet from the ordinary high water level of a
waterbasin that is a public water identified in the shoreland
management ordinance or the shoreland area approved by the
commissioner as provided in the shoreland management rules
adopted under section 103F.211, whichever is less; or
(ii) 300 feet from the ordinary high water level of a
watercourse identified in the shoreland management ordinance or
the shoreland area approved by the commissioner as provided in
the shoreland management rules adopted under section 103F.211,
whichever is less; and
(2) for local government units that do not have a shoreland
management ordinance approved under sections 103F.201 to
103F.221, the shoreland wetland protection zone is:
(i) 1,000 feet from the ordinary high water level of a
waterbasin that is a public water that is at least ten acres in
size within municipalities and at least 25 acres in size in
unincorporated areas; or
(ii) 300 feet from the ordinary high water level of a
watercourse identified by the public waters inventory under
section 103G.201.
Sec. 20. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 15c. [SILVICULTURE.] "Silviculture" means the
management of forest trees.
Sec. 21. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 15d. [UTILITY.] "Utility" means a sanitary sewer,
storm sewer, potable water distribution, and transmission,
distribution, or furnishing, at wholesale or retail, of natural
or manufactured gas, electricity, telephone, or radio service or
communications.
Sec. 22. Minnesota Statutes 1994, section 103G.005, is
amended by adding a subdivision to read:
Subd. 17b. [WETLAND TYPE.] "Wetland type" means a wetland
type classified according to Wetlands of the United States, U.S.
Fish and Wildlife Service Circular 39 (1971 edition), as
summarized in this subdivision.
(1) "Type 1 wetlands" are seasonally flooded basins or
flats in which soil is covered with water or is waterlogged
during variable seasonal periods but usually is well-drained
during much of the growing season. Type 1 wetlands are located
in depressions and in overflow bottomlands along watercourses,
and in which vegetation varies greatly according to season and
duration of flooding and includes bottomland hardwoods as well
as herbaceous growths.
(2) "Type 2 wetlands" are inland fresh meadows in which
soil is usually without standing water during most of the
growing season but is waterlogged within at least a few inches
of surface. Vegetation includes grasses, sedges, rushes, and
various broad-leafed plants. Meadows may fill shallow basins,
sloughs, or farmland sags, or these meadows may border shallow
marshes on the landward side.
(3) "Type 3 wetlands" are inland shallow fresh marshes in
which soil is usually waterlogged early during a growing season
and often covered with as much as six inches or more of water.
Vegetation includes grasses, bulrushes, spikerushes, and various
other marsh plants such as cattails, arrowheads, pickerelweed,
and smartweeds. These marshes may nearly fill shallow lake
basins or sloughs, or may border deep marshes on the landward
side and are also common as seep areas on irrigated lands.
(4) "Type 4 wetlands" are inland deep fresh marshes in
which soil is usually covered with six inches to three feet or
more of water during the growing season. Vegetation includes
cattails, reeds, bulrushes, spikerushes, and wild rice. In open
areas, pondweeds, naiads, coontail, water milfoils, waterweeds,
duckweeds, waterlilies, or spatterdocks may occur. These deep
marshes may completely fill shallow lake basins, potholes,
limestone sinks, and sloughs, or they may border open water in
such depressions.
(5) "Type 5 wetlands" are inland open fresh water, shallow
ponds, and reservoirs in which water is usually less than ten
feet deep and is fringed by a border of emergent vegetation
similar to open areas of type 4 wetland.
(6) "Type 6 wetlands" are shrub swamps in which soil is
usually waterlogged during growing season and is often covered
with as much as six inches of water. Vegetation includes
alders, willows, buttonbush, dogwoods, and swamp-privet. This
type occurs mostly along sluggish streams and occasionally on
floodplains.
(7) "Type 7 wetlands" are wooded swamps in which soil is
waterlogged at least to within a few inches of the surface
during growing season and is often covered with as much as one
foot of water. This type occurs mostly along sluggish streams,
on floodplains, on flat uplands, and in shallow basins. Trees
include tamarack, arborvitae, black spruce, balsam, red maple,
and black ash. Northern evergreen swamps usually have a thick
ground cover of mosses. Deciduous swamps frequently support
beds of duckweeds and smartweeds.
(8) "Type 8 wetlands" are bogs in which soil is usually
waterlogged and supports a spongy covering of mosses. This type
occurs mostly in shallow basins, on flat uplands, and along
sluggish streams. Vegetation is woody or herbaceous or both.
Typical plants are heath shrubs, sphagnum moss, and sedges. In
the north, leatherleaf, Labrador-tea, cranberries, carex, and
cottongrass are often present. Scattered, often stunted, black
spruce and tamarack may occur.
Sec. 23. Minnesota Statutes 1994, section 103G.127, is
amended to read:
103G.127 [PERMIT PROGRAM UNDER SECTION 404 OF THE FEDERAL
CLEAN WATER ACT.]
Notwithstanding any other law to the contrary, the
commissioner, with the concurrence of the board of water and
soil resources and the commissioner of agriculture, may adopt
rules establishing a permit program for regulating the discharge
of dredged and fill material into the waters of the state as
necessary to obtain approval from the United States
Environmental Protection Agency to administer the permit program
under section 404 of the federal Clean Water Act, United States
Code, title 33, section 1344. The rules may not be more
restrictive than the program under section 404, or state law, if
it is more restrictive than the federal program.
Sec. 24. Minnesota Statutes 1994, section 103G.222, is
amended to read:
103G.222 [REPLACEMENT OF WETLANDS.]
Subdivision 1. [REQUIREMENTS.] (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 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) 103G.2243, 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. Public value
must be determined in accordance with section 103B.3355 or a
comprehensive wetland protection and management plan established
under section 103G.2243.
(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 restoring a wetland; and
(6) compensating for the impact by replacing or providing
substitute wetland resources or environments.
For a project involving the draining or filling of wetlands
in an amount not exceeding 10,000 square feet more than the
applicable amount in section 103G.2241, subdivision 9, paragraph
(a), the local government unit may make an on-site sequencing
determination without a written alternatives analysis from the
applicant.
(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 a greater than 80 percent or
more of the presettlement wetland acreage is intact area may
accomplish replacement in counties or watersheds in which less
than 50 percent or more of the presettlement wetland acreage has
been filled, drained, or otherwise degraded areas. Wetlands
impacted by public transportation projects may be replaced
statewide, provided they are approved by the commissioner under
an established wetland banking system, or except that wetlands
impacted in a less than 50 percent area must be replaced in a
less than 50 percent area, and wetlands impacted in the seven
county twin cities metropolitan area by public highways must be
replaced:
(1) in the affected county, or, if no restoration
opportunities exist in the county;
(2) in another seven county twin cities metropolitan area
county.
The board must maintain a public list of restoration
opportunities within the metropolitan area. Disputes about
restoration opportunities for wetland replacement in a watershed
or county may be appealed to the board's committee for dispute
resolution. Replacement of wetlands may be accomplished 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 a greater than 80 percent or
more of the presettlement wetland acreage exists area,
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 a greater than
80 percent or more of the presettlement wetlands are intact
area, 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.
(l) For projects involving draining or filling of wetlands
associated with a new public transportation project in a greater
than 80 percent area, public transportation authorities, other
than the state department of transportation, may purchase
credits from the state wetland bank established with proceeds
from Laws 1994, chapter 643, section 26, subdivision 3,
paragraph (c). Wetland banking credits may be purchased at the
least of the following, but in no case shall the purchase price
be less than $400 per acre: (1) the cost to the state to
establish the credits; (2) the average estimated market value of
agricultural land in the township where the road project is
located, as determined by the commissioner of revenue; or (3)
the average value of the land in the immediate vicinity of the
road project as determined by the county assessor. Public
transportation authorities in a less than 80 percent area may
purchase credits from the state at the cost to the state to
establish credits.
(m) A replacement plan for wetlands is not required for
individual projects that result in the filling or draining of
wetlands for the repair, rehabilitation, reconstruction, or
replacement of a currently serviceable existing state, city,
county, or town public road necessary, as determined by the
public transportation authority, to meet state or federal design
or safety standards or requirements, excluding new roads or
roads expanded solely for additional traffic capacity lanes.
This paragraph only applies to authorities for public
transportation projects that:
(1) minimize the amount of wetland filling or draining
associated with the project and consider mitigating important
site-specific wetland functions on-site; and
(2) submit annual reports by January 15 to the board and
members of the public requesting a copy that indicate the
location, amount, and type of wetlands that have been filled or
drained during the previous year and a projection of the
location, amount, and type of wetlands to be filled or drained
during the upcoming year.
The technical evaluation panel shall review minimization
and delineation decisions made by the public transportation
authority and provide recommendations regarding on-site
mitigation if requested to do so by the local government unit, a
contiguous landowner, or a member of the technical evaluation
panel.
Except for state public transportation projects, for which
the state department of transportation is responsible, the board
must replace the wetlands drained or filled by public
transportation projects on existing roads in critical rural and
urban watersheds.
Public transportation authorities at their discretion may
deviate from federal and state design standards on existing road
projects when practical and reasonable to avoid wetland filling
or draining, provided that public safety is not unreasonably
compromised. The local road authority and its officers and
employees are exempt from liability for any tort claim for
injury to persons or property arising from travel on the highway
and related to the deviation from the design standards for
construction or reconstruction under this paragraph. This
paragraph does not preclude an action for damages arising from
negligence in construction or maintenance on a highway.
(n) If a landowner seeks approval of a replacement plan
after the proposed project has already impacted the wetland, the
local government unit may require the landowner to replace the
impacted wetland at a ratio not to exceed twice the replacement
ratio otherwise required.
(o) A local government unit may request the board to
reclassify a county or watershed on the basis of its percentage
of presettlement wetlands remaining. After receipt of
satisfactory documentation from the local government, the board
shall change the classification of a county or watershed. If
requested by the local government unit, the board must assist in
developing the documentation. Within 30 days of its action to
approve a change of wetland classifications, the board shall
publish a notice of the change in the Environmental Quality
Board Monitor.
(p) One hundred citizens who reside within the jurisdiction
of the local government unit may request the local government
unit to reclassify a county or watershed on the basis of its
percentage of presettlement wetlands remaining. In support of
their petition, the citizens shall provide satisfactory
documentation to the local government unit. The local
government unit shall consider the petition and forward the
request to the board under paragraph (o) or provide a reason why
the petition is denied.
Subd. 2. [ROAD CREDIT FUNDING.] At least 50 percent of
money appropriated for road repair wetland replacement credit
under this section must be used for wetland restoration in the
seven county metropolitan area.
The board shall give priority to restoration projects that
will:
(1) intensify land use that leads to more compact
development or redevelopment;
(2) encourage public infrastructure investments which
connect urban neighborhoods and suburban communities, attract
private sector investment in commercial or residential
properties adjacent to the public improvement; or
(3) complement projects receiving funding under section
473.253.
Sec. 25. Minnesota Statutes 1994, 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) 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 States 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 usable 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.
Subdivision 1. [AGRICULTURAL ACTIVITIES.] (a) 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 grass 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 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;
(4) activities in a type 1 wetland on agricultural land,
except for bottomland hardwood type 1 wetlands, and activities
in a type 2 or type 6 wetland that is less than two acres in
size and located on agricultural land;
(5) 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;
(6) wild rice production activities, including necessary
diking and other activities authorized under 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;
(7) normal agricultural practices to control noxious or
secondary weeds as defined by rule of the commissioner of
agriculture, in accordance with applicable requirements under
state and federal law, including established best management
practices; and
(8) agricultural 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.
(b) The exemption under paragraph (a), clause (4), may be
expanded to additional acreage, including types 1, 2, and 6
wetlands that are part of a larger wetland system, when the
additional acreage is part of a conservation plan approved by
the local soil and water conservation district, the additional
draining or filling is necessary for efficient operation of the
farm, the hydrology of the larger wetland system is not
adversely affected, and wetlands other than types 1, 2, and 6
are not drained or filled.
Subd. 2. [DRAINAGE.] (a) For the purposes of this
subdivision, "public drainage system" means a drainage system as
defined in section 103E.005, subdivision 12, and any ditch or
tile lawfully connected to the drainage system.
(b) A replacement plan is not required for draining of type
1 wetlands, or up to five acres of type 2 or 6 wetlands, in an
unincorporated area on land that has been assessed drainage
benefits for a public drainage system, provided that:
(1) during the 20-year period that ended January 1, 1992:
(i) there was an expenditure made from the drainage system
account for the public drainage system;
(ii) the public drainage system was repaired or maintained
as approved by the drainage authority; or
(iii) no repair or maintenance of the public drainage
system was required under section 103E.705, subdivision 1, as
determined by the public drainage authority; and
(2) the wetlands are not drained for conversion to:
(i) platted lots;
(ii) planned unit, commercial, or industrial developments;
or
(iii) any development with more than one residential unit
per 40 acres.
If wetlands drained under this paragraph are converted to uses
prohibited under clause (2) during the ten-year period following
drainage, the wetlands must be replaced under section 103G.222.
(c) A replacement plan is not required for draining or
filling of wetlands, except for draining types 3, 4, and 5
wetlands that have been in existence for more than 25 years,
resulting from maintenance and repair of existing public
drainage systems.
(d) A replacement plan is not required for draining or
filling of wetlands, except for draining wetlands that have been
in existence for more than 25 years, resulting from maintenance
and repair of existing drainage systems other than public
drainage systems.
(e) A replacement plan is not required for draining or
filling of wetlands resulting from activities conducted as part
of a public drainage system improvement project that received
final approval from the drainage authority before July 1, 1991,
and after July 1, 1986, if:
(1) the approval remains valid;
(2) the project remains active; and
(3) no additional drainage will occur beyond that
originally approved.
(f) The public drainage authority may, as part of the
repair, install control structures, realign the ditch, construct
dikes along the ditch, or make other modifications as necessary
to prevent drainage of the wetland.
(g) Wetlands of all types that would be drained as a part
of a public drainage repair project are eligible for the
permanent wetlands preserve, under section 103F.516. The board
shall give priority to acquisition of easements on types 3, 4,
and 5 wetlands that have been in existence for more than 25
years on public drainage systems and other wetlands that have
the greatest risk of drainage from a public drainage repair
project.
Subd. 3. [FEDERAL APPROVALS.] A replacement plan for
wetlands is not required for:
(1) activities exempted from federal regulation under
United States Code, title 33, section 1344(f), as in effect on
January 1, 1991;
(2) 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), clauses
(14), limited to when a new road crosses a wetland, and (26), as
in effect on January 1, 1991.
Subd. 4. [WETLAND RESTORATION.] A replacement plan for
wetlands is not required for activities in a wetland restored
for conservation purposes under a contract or easement providing
the landowner with the right to drain the restored wetland.
Subd. 5. [INCIDENTAL WETLANDS.] A replacement plan for
wetlands is not required for activities in a wetland created
solely as a result of:
(1) beaver dam construction;
(2) blockage of culverts through roadways maintained by a
public or private entity;
(3) actions by public or private entities that were taken
for a purpose other than creating the wetland; or
(4) any combination of clauses (1) to (3).
Subd. 6. [UTILITIES; PUBLIC WORKS.] A replacement plan for
wetlands is not required for:
(1) placement, maintenance, repair, enhancement, or
replacement of utility or utility-type service 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;
(2) activities associated with routine maintenance of
utility and pipeline rights-of-way, provided the activities do
not result in additional intrusion into the wetland;
(3) alteration of a wetland associated with the operation,
maintenance, or repair of an interstate pipeline within all
existing or acquired interstate pipeline rights-of-way;
(4) 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
does not result in the draining or filling, wholly or partially,
of a wetland;
(5) 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; or
(6) repair and updating of existing individual sewage
treatment systems as necessary to comply with local, state, and
federal regulations.
Subd. 7. [FORESTRY.] A replacement plan for wetlands is
not required for:
(1) 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; or
(2) 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; filling is avoided wherever possible; and
there is no drainage of the wetland or public waters.
Subd. 8. [APPROVED DEVELOPMENT.] A replacement plan for
wetlands is not required for development projects and ditch
improvement projects in the state that have received preliminary
or final plat approval or have infrastructure that has been
installed or has 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. As
used in this subdivision, "infrastructure" means public water
facilities, storm water and sanitary sewer piping, outfalls,
inlets, culverts, bridges, and any other work defined
specifically by a local government unit as constituting a
capital improvement to a parcel within the context of an
approved development plan.
Subd. 9. [DE MINIMIS.] (a) Except as provided in
paragraphs (b), (c), and (d), a replacement plan for wetlands is
not required for draining or filling the following amounts of
wetlands as part of a project, regardless of the total amount of
wetlands filled as part of a project:
(1) 10,000 square feet of type 1, type 2, type 6, or type 7
wetland, excluding white cedar and tamarack wetlands, outside of
the shoreland wetland protection zone in a greater than 80
percent area;
(2) 5,000 square feet of type 1, type 2, type 6, or type 7
wetland, excluding white cedar and tamarack wetlands, outside of
the shoreland wetland protection zone in a 50 to 80 percent
area;
(3) 2,000 square feet of type 1, type 2, or type 6 wetland,
outside of the shoreland wetland protection zone in a less than
50 percent area;
(4) 400 square feet of wetland types not listed in clauses
(1) to (3) outside of shoreland wetland protection zones in all
counties; or
(5) 400 square feet of type 1, type 2, type 3, type 4, type
5, type 6, type 7, or type 8 wetland, in the shoreland wetland
protection zone, except that in a greater than 80 percent area,
the local government unit may increase the de minimis amount up
to 1,000 square feet in the shoreland protection zone in areas
beyond the building setback if the wetland is isolated and is
determined to have no direct surficial connection to the public
water. To the extent that a local shoreland management
ordinance is more restrictive than this provision, the local
shoreland ordinance applies.
(b) The amounts listed in paragraph (a), clauses (1) to
(5), may not be combined on a project.
(c) This exemption no longer applies to a landowner's
portion of a wetland when the cumulative area drained or filled
of the landowner's portion since January 1, 1992, is the
greatest of:
(1) the applicable area listed in paragraph (a), if the
landowner owns the entire wetland;
(2) five percent of the landowner's portion of the wetland;
or
(3) 400 square feet.
(d) Persons proposing to conduct an activity under this
subdivision shall contact the board at a toll-free number to be
provided for information on minimizing wetland impacts. Failure
to call by the person does not constitute a violation of this
subdivision.
(e) This exemption may not be combined with another
exemption in this section on a project.
Subd. 10. [WILDLIFE HABITAT.] A replacement plan for
wetlands is not required for:
(1) deposition of spoil resulting from excavation within a
wetland for a wildlife habitat improvement project, if:
(i) the area of deposition does not exceed five percent of
the wetland area or one-half acre, whichever is less, and the
spoil is stabilized and permanently seeded to prevent erosion;
(ii) the project does not have an adverse impact on any
species designated as endangered or threatened under state or
federal law; and
(iii) the project will provide wildlife habitat improvement
as certified by the soil and water conservation district; or
(2) duck blinds.
Subd. 11. [EXEMPTION CONDITIONS.] (a) A person conducting
an activity in a wetland under an exemption in subdivisions 1 to
10 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.
(b) An activity is exempt if it qualifies for any one of
the exemptions, even though it may be indicated as not exempt
under another exemption.
(c) Persons proposing to conduct an exempt activity are
encouraged to contact the local government unit or the local
government unit's designee for advice on minimizing wetland
impacts.
Sec. 26. Minnesota Statutes 1994, 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 or a comprehensive wetland protection and management plan
approved under section 103G.2243.
(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) comprehensive wetland protection and management plan
established under section 103G.2243, the government unit is
subject to penalty as determined by the board.
Sec. 27. Minnesota Statutes 1994, section 103G.2242,
subdivision 2, is amended to read:
Subd. 2. [EVALUATION.] Questions concerning the public
value, location, size, or type of a wetland shall be submitted
to and determined by a technical evaluation panel after an
on-site inspection. The technical evaluation panel shall be
composed of a technical professional employee of the board, a
technical professional employee of the local soil and water
conservation district or districts, and a technical professional
with expertise in water resources management appointed by the
local government unit. The panel shall use the "Federal Manual
for Identifying and Delineating Jurisdictional Wetlands"
(January 1989) "United States Army Corps of Engineers Wetland
Delineation Manual" (January 1987), "Wetlands of the United
States" (United States Fish and Wildlife Service Circular 39,
1971 edition), and "Classification of Wetlands and Deepwater
Habitats of the United States" (1979 edition). The panel shall
provide the wetland determination to the local government unit
that must approve a replacement plan under this section, and may
recommend approval or denial of the plan. The authority must
consider and include the decision of the technical evaluation
panel in their approval or denial of a plan.
Sec. 28. Minnesota Statutes 1994, section 103G.2242,
subdivision 4, is amended to read:
Subd. 4. [DECISION.] Upon receiving and considering all
required data, the local government unit approving a reviewing
replacement plan applications, banking plan applications, and
exemption or no-loss determination requests must act on all
replacement plan applications for plan approval within 60 days,
banking plan applications, and exemption or no-loss
determination requests in compliance with section 15.99.
Sec. 29. Minnesota Statutes 1994, 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
of the complete application must be mailed to individual members
of the public who request a copy, the board of supervisors of
the soil and water conservation district, the members of the
technical evaluation panel, the managers of the watershed
district if one exists, the board of county commissioners, and
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. natural
resources. Individual members of the public who request a copy
shall be provided information to identify the applicant and the
location and scope of the project.
(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 commissioner of natural resources.
(c) For the purpose of this subdivision, "application"
includes a revised application for replacement plan approval and
an application for a revision to an approved replacement plan if:
(1) the wetland area to be drained or filled under the
revised replacement plan is at least ten percent larger than the
area to be drained or filled under the original replacement
plan; or
(2) the wetland area to be drained or filled under the
revised replacement is located more than 500 feet from the area
to be drained or filled under the original replacement plan.
Sec. 30. Minnesota Statutes 1994, section 103G.2242,
subdivision 7, is amended to read:
Subd. 7. [NOTICE OF DECISION.] (a) Except as provided in
paragraph (b), at least 30 Within ten days prior to the
effective date of the approval or denial of a replacement plan
under this section, a copy summary of the approval or denial
must be submitted for publication in the Environmental Quality
Board Monitor and separate copies mailed to members of the
technical evaluation panel, 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, if one exists, and the commissioner of
agriculture, and the mayors of the cities within the area
watershed natural resources.
(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. 31. Minnesota Statutes 1994, section 103G.2242,
subdivision 9, is amended to read:
Subd. 9. [APPEAL.] Appeal of the a replacement plan,
exemption, or no-loss decision may be obtained by mailing a
notice of appeal petition and payment of a filing fee of $200,
which shall be retained by the board to defray administrative
costs, to the board within 30 15 days after the postmarked date
of the mailing specified in subdivision 7. If appeal is not
sought within 30 15 days, the decision becomes final. The local
government unit may require the petitioner to post a letter of
credit, cashier's check, or cash in an amount not to exceed
$500. If the petition for hearing is accepted, the amount
posted must be returned to the petitioner. Appeal may be made
by the wetland owner, by any of those to whom notice is required
to be mailed under subdivision 7, or by 100 residents of the
county in which a majority of the wetland is located. Within 30
days after receiving a petition, the board shall decide whether
to grant the petition and hear the appeal. The board shall
grant the petition unless the board finds that the appeal is
meritless, trivial, or brought solely for the purposes of delay;
that the petitioner has not exhausted all local administrative
remedies; or that the petitioner has not posted a letter of
credit, cashier's check, or cash if required by the local
government unit. In determining whether to grant the appeal,
the board shall also consider the size of the wetland, other
factors in controversy, any patterns of similar acts by the
local government unit or petitioner, and the consequences of the
delay resulting from the appeal. All appeals must be heard by
the committee for dispute resolution of the board, and a
decision made within 60 days of the appeal. The decision must
be served by mail on the parties to the appeal, and is not
subject to the provisions of chapter 14. The A decision whether
to grant a petition for appeal and a decision on the merits of
an appeal must be considered the decision of an agency in a
contested case for purposes of judicial review under sections
14.63 to 14.69.
Sec. 32. Minnesota Statutes 1994, section 103G.2242,
subdivision 12, is amended to read:
Subd. 12. [REPLACEMENT CREDITS.] (a) No public or private
wetland restoration, enhancement, or construction may be allowed
for replacement unless specifically designated for replacement
and paid for by the individual or organization performing the
wetland restoration, enhancement, or construction, and is
completed prior to any draining or filling of the wetland.
This subdivision (b) Paragraph (a) does not apply to a
wetland whose owner has paid back with interest the individual
or organization restoring, enhancing, or constructing the
wetland.
(c) Notwithstanding section 103G.222, subdivision 1,
paragraph (i), the following actions are eligible for
replacement credit as determined by the local government unit,
including enrollment in a statewide wetlands bank:
(1) Reestablishment of permanent vegetative cover on 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 supports 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.
Replacement credit may not exceed 50 percent of the total
wetland area vegetatively restored;
(2) Buffer areas of permanent vegetative cover established
on upland adjacent to replacement wetlands, provided that the
upland buffer must be established at the time of wetland
replacement and replacement credit for the buffer may not exceed
75 percent of the replacement wetland area and may only be used
for replacement above a 1:1 ratio;
(3) Wetlands restored for conservation purposes under
terminated easements or contracts, provided that up to 75
percent of the restored wetland area is eligible for replacement
credit and adjacent upland buffer areas reestablished to
permanent vegetative cover are eligible for replacement credit
above a 1:1 ratio in an amount not to exceed 25 percent of the
restored wetland area; and
(4) Water quality treatment ponds constructed to pretreat
storm water runoff prior to discharge to wetlands, public
waters, or other water bodies, provided that the water quality
treatment ponds must be associated with an ongoing or proposed
project that will impact a wetland and replacement credit for
the treatment ponds may not exceed 75 percent of the treatment
pond area and may only be used for replacement above a 1:1 ratio.
Sec. 33. [103G.2243] [LOCAL COMPREHENSIVE WETLAND
PROTECTION AND MANAGEMENT PLANS.]
Subdivision 1. [GENERAL REQUIREMENTS; NOTICE AND
PARTICIPATION.] (a) As an alternative to the rules adopted under
section 103G.2242, subdivision 1, and the public value criteria
established or approved under section 103B.3355, a comprehensive
wetland protection and management plan may be developed by a
local government unit, or one or more local government units
operating under a joint powers agreement, provided that:
(1) a notice is made at the beginning of the planning
process to the board, the commissioner of natural resources, the
pollution control agency, local government units, and local
citizens to actively participate in the development of the plan;
and
(2) the plan is implemented by ordinance as part of the
local government's official controls under chapter 394, for a
county; chapter 462, for a city; chapter 366, for a town; and by
rules adopted under chapter 103D, for a watershed district; and
chapter 103B, for a watershed management organization.
(b) An organization that is invited to participate in the
development of the local plan, but declines to do so and fails
to participate or to provide written comments during the local
review process, waives the right during board review to submit
comments, except comments concerning consistency of the plan
with laws and rules administered by that agency. In determining
the merit of an agency comment, the board shall consider the
involvement of the agency in the development of the local plan.
Subd. 2. [PLAN CONTENTS.] A comprehensive wetland
protection and management plan may:
(1) provide for classification of wetlands in the plan area
based on:
(i) an inventory of wetlands in the plan area;
(ii) an assessment of the wetland functions listed in
section 103B.3355, using a methodology chosen by the technical
evaluation panel from one of the methodologies established or
approved by the board under that section; and
(iii) the resulting public values;
(2) vary application of the sequencing standards in section
103G.222, subdivision 1, paragraph (b), for projects based on
the classification and criteria set forth in the plan;
(3) vary the replacement standards of section 103G.222,
subdivision 1, paragraphs (f) and (g), based on the
classification and criteria set forth in the plan, for specific
wetland impacts provided there is no net loss of public values
within the area subject to the plan, and so long as:
(i) in a 50 to 80 percent area, a minimum acreage
requirement of one acre of replaced wetland for each acre of
drained or filled wetland requiring replacement is met within
the area subject to the plan; and
(ii) in a less than 50 percent area, a minimum acreage
requirement of two acres of replaced wetland for each acre of
drained or filled wetland requiring replacement is met within
the area subject to the plan, except that replacement for the
amount above a 1:1 ratio can be accomplished as described in
subdivision 12;
(4) in a greater than 80 percent area, allow replacement
credit, based on the classification and criteria set forth in
the plan, for any project that increases the public value of
wetlands, including activities on adjacent upland acres; and
(5) in a greater than 80 percent area, based on the
classification and criteria set forth in the plan, expand the
application of the exemptions in section 103G.2241, subdivision
1, paragraph (a), clause (4), to also include nonagricultural
land, provided there is no net loss of wetland values.
Subd. 3. [BOARD REVIEW AND APPROVAL; MEDIATION; JUDICIAL
REVIEW.] (a) The plan is deemed approved 60 days after the local
government submits the final plan to the board, unless the board
disagrees with the plan as provided in paragraph (d).
(b) The board may not disapprove a plan if the board
determines the plan meets the requirements of this section.
(c) In its review of a plan, the board shall advise the
local government unit of those elements of the plan that are
more restrictive than state law and rules for purposes of
section 103G.237, subdivision 5.
(d) If the board disagrees with the plan or any elements of
the plan, the board shall, in writing, notify the local
government of the plan deficiencies and suggested changes. The
board shall include in the response to the local government the
scientific justification, if applicable, for the board's
concerns with the plan. Upon receipt of the board's concerns
with the plan, the local government has 60 days to revise the
plan and resubmit the plan to the board for reconsideration, or
the local government may request a hearing before the board.
The board shall hold a hearing within the boundaries of the
jurisdiction of the local government within 60 days of the
request for hearing. After the hearing, the board shall, within
60 days, prepare a report of its decision and inform the local
government.
(e) If, after the hearing, the board and local government
disagree on the plan, the board shall, within 60 days, initiate
mediation through a neutral party. If the board and local
government unit agree in writing not to use mediation or the
mediation does not result in a resolution of the differences
between the parties, then the board may commence a declaratory
judgment action in the district court of the county where the
local government unit is located. If the board does not
commence a declaratory judgment action within the applicable
60-day period, the plan is deemed approved.
(f) The declaratory judgment action must be commenced
within 60 days after the date of the written agreement not to
use mediation or 60 days after conclusion of the mediation. If
the board commences a declaratory judgment action, the district
court shall review the board's record of decision and the record
of decision of the local government unit. The district court
shall affirm the plan if it meets the requirements of this
subdivision.
Subd. 4. [EFFECTIVE DATE; REPLACEMENT DECISIONS.] (a) The
plan becomes effective as provided in subdivision 3, paragraphs
(d) to (f), and after adoption of the plan into the official
controls of the local government.
(b) After the effective date of a plan, a local government
unit shall make replacement decisions consistent with the plan.
Subd. 5. [PLAN AMENDMENTS.] Amendments to the plan become
effective upon completion of the same process required for the
original plan.
Subd. 6. [WATER PLANNING PROCESSES APPLY.] Except as
otherwise provided for in this section, all other requirements
relating to development of the plan must be consistent with the
water plan processes under sections 103B.231 and 103B.311.
Sec. 34. [103G.2244] [WETLAND CREATION OR RESTORATION
WITHIN PIPELINE EASEMENT.]
A person proposing to create or restore a wetland within
the easement of a pipeline as defined in section 299J.02,
subdivision 11, shall first notify the easement holder and the
director of the office of pipeline safety in writing. The
person may not create or restore the wetland if, within 90 days
after receiving the required notice, the easement holder or the
director of the office of pipeline safety provides to the person
a written notice of objection that includes the reasons for the
objection.
Sec. 35. Minnesota Statutes 1994, section 103G.237,
subdivision 4, is amended to read:
Subd. 4. [COMPENSATION.] (a) The board shall award
compensation in an amount equal to the greater of:
(1) 50 percent of the value of the wetland, calculated by
multiplying the acreage of the wetland by the greater of:
(1) (i) 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) (ii) 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; or
(2) $200 per acre of wetland subject to the replacement
plan, increased or decreased by the percentage change of the
assessed valuation of land in the township where the wetland is
located from the 1995 valuation.
(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. 36. Minnesota Statutes 1994, section 103G.237, is
amended by adding a subdivision to read:
Subd. 5. [COMPENSATION CLAIMS AGAINST LOCAL GOVERNMENT
UNITS.] (a) At the request of a local government unit against
which a compensation action is brought based at least in part on
the local government unit's application of section 103G.222,
103G.2241, 103G.2242, 103G.2243, 103G.237, or 103G.2372, or
rules adopted by the board to implement these sections, the
state, through the attorney general, shall intervene in the
action on behalf of the local government unit and shall
thereafter be considered a defendant in the action. A local
government unit making a request under this paragraph shall
provide the attorney general with a copy of the complaint as
soon as possible after being served. If requested by the
attorney general, the court shall grant additional time to file
an answer equal to the time between service of the complaint on
the local government unit and receipt of the complaint by the
attorney general.
(b) The state is liable for costs, damages, fees, and
compensation awarded in the action based on the local government
unit's adoption or implementation of standards that are required
by state law, as determined by the court. The local government
unit is liable for costs, damages, fees, and compensation
awarded in the action based on local standards that are more
restrictive than state law and rules.
(c) For the purposes of this subdivision, "compensation
action" means an action in which the plaintiff seeks
compensation for a taking of private property under the state or
federal constitution.
Sec. 37. Minnesota Statutes 1994, section 103G.2373, is
amended to read:
103G.2373 [ANNUAL WETLANDS REPORT.]
By January March 1 of each year, the commissioner of
natural resources and the board of water and soil resources
shall jointly report to the committees of the legislature with
jurisdiction over matters relating to agriculture, the
environment, and natural resources on:
(1) the status of implementation of state laws and programs
relating to wetlands;
(2) the quantity, quality, acreage, types, and public value
of wetlands in the state; and
(3) changes in the items in clause (2).
Sec. 38. Minnesota Statutes 1994, section 115.03, is
amended by adding a subdivision to read:
Subd. 4a. [SECTION 401 CERTIFICATIONS.] (a) The following
definitions apply to this subdivision:
(1) "section 401 certification" means a water quality
certification required under section 401 of the federal Clean
Water Act, United States Code, title 33, section 1341; and
(2) "nationwide permit" means a nationwide general permit
issued by the United States Army Corps of Engineers and listed
in Code of Federal Regulations, title 40, part 330, appendix A.
(b) The agency is responsible for providing section 401
certifications for nationwide permits.
(c) Before making a final decision on a section 401
certification for regional conditions on a nationwide permit,
the agency shall hold at least one public meeting outside the
seven-county metropolitan area.
(d) In addition to other notice required by law, the agency
shall provide written notice of a meeting at which the agency
will be considering a section 401 certification for regional
conditions on a nationwide permit at least 21 days before the
date of the meeting to the members of the senate and house of
representatives environment and natural resources committees,
the senate agriculture and rural development committee, and the
house of representatives agriculture committee.
Sec. 39. [RULES.]
Within 60 days of the effective date of this section, the
board, in consultation with the commissioners of natural
resources and agriculture, shall adopt rules that amend the
rules previously adopted under Minnesota Statutes, sections
103G.2242, subdivision 1, and 103B.3355. These rules are exempt
from the rulemaking provisions of Minnesota Statutes, chapter
14, except that Minnesota Statutes, section 14.386, applies and
the proposed rules must be submitted to the senate and house
environment and natural resource committees at least 30 days
prior to being published in the State Register. The amended
rules are effective for two years from the date of publication
of the rules in the State Register unless they are superseded by
permanent rules.
Sec. 40. [WETLAND BANKING STUDY; REPORT.]
The commissioner of natural resources, in consultation with
the board of water and soil resources and the commissioner of
agriculture, shall ensure that the wetlands conservation
planning process currently under way includes a study of
alternative procedures and policies for improving the current
wetland banking system in the state. The study and any
resulting recommendations must be reported to the appropriate
policy committees of the legislature by June 30, 1997, or upon
completion of the wetlands conservation planning final report,
whichever is later.
Sec. 41. [LINCOLN-PIPESTONE CALCAREOUS FEN.]
The fen management plan prepared pursuant to Minnesota
Statutes, section 103G.223 for sections 5, 6, 8, and 17 of
T114N, R46W, and the Burr Well Field must be jointly developed
by the commissioner of natural resources and the
Lincoln-Pipestone rural water district. A fen management plan
is not required to appropriate within the existing permitted
pumping rate of 750 gallons per minute or permitted volume of up
to 400,000,000 gallons per year.
Sec. 42. [APPROPRIATION.]
(a) $130,000 is appropriated from the general fund to the
board of water and soil resources for providing assistance to
local governmental units in developing and implementing
comprehensive wetland protection and management plans under
Minnesota Statutes, section 103G.2243.
(b) $120,000 is appropriated from the general fund to the
board of water and soil resources for grants to local
governmental units for developing and implementing comprehensive
wetland protection and management plans under Minnesota
Statutes, section 103G.2243.
(c) $100,000 is appropriated from the general fund to the
board of water and soil resources for grants to local government
units to develop public ditch inventories, including maps and
histories of public ditch systems.
(d) $50,000 is appropriated from the general fund to the
board of water and soil resources for a grant to the association
of Minnesota counties to conduct workshops for public drainage
authorities.
Sec. 43. [INSTRUCTION TO REVISOR.]
The revisor of statutes shall renumber Minnesota Statutes,
section 103G.005, subdivision 18, as section 103G.005,
subdivision 15a.
Sec. 44. [REPEALER.]
Minnesota Statutes 1994, section 103G.2242, subdivision 13,
is repealed.
Sec. 45. [EFFECTIVE DATE.]
This act is effective the day following final enactment,
except that section 24, subdivision 1, paragraph (e), does not
apply to replacement completed using wetland banking credits
established by a person who submitted a complete wetland banking
application to a local government unit by April 1, 1996.
Presented to the governor April 4, 1996
Signed by the governor April 11, 1996, 11:44 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes