SF 1704

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to waters; modifying provisions for wetland conservation; amending
Minnesota Statutes 2006, sections 103G.222, subdivision 1; 103G.2241,
subdivisions 1, 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 103G.222, subdivision 1, is amended to
read:

Subdivision 1.

Requirements.

(a) 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.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. Sections
103G.221 to 103G.2372 also apply to excavation in permanently and semipermanently
flooded areas of types 3, 4, and 5 wetlands.

(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;

(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) new text begin If a wetland is drained under section 103G.2241, subdivision 2, the local
government unit may require a deed restriction that prohibits nonagricultural use for at
least ten years unless the drained wetland is replaced as provided under this section. The
local government unit may require the deed restriction if it determines the wetland area
drained is at risk of conversion to a nonagricultural use within ten years based on the
zoning classification, proximity to a municipality or full service road, or other criteria as
determined by the local government unit.
new text end

new text begin (e) new text end Restoration and replacement of wetlands must be accomplished in accordance
with the ecology of the landscape area affected.

deleted text begin (e) deleted text end new text begin (f) new text end Except as provided in paragraph deleted text begin (f) deleted text end new text begin (g) new text end , for a wetland or public waters 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.

deleted text begin (f) deleted text end new text begin (g) new text end For a wetland or public waters wetland located on agricultural land or in a
greater than 80 percent area, replacement must be in the ratio of one acre of replaced
wetland for each acre of drained or filled wetland.

deleted text begin (g) deleted text end new text begin (h) new text end 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.

deleted text begin (h) deleted text end new text begin (i) new text end Except in a greater than 80 percent 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.

deleted text begin (i) deleted text end new text begin (j) new text end 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.

deleted text begin (j) deleted text end new text begin (k) new text end This section and sections 103G.223 to 103G.2242, 103G.2364, and
103G.2365 apply to the state and its departments and agencies.

deleted text begin (k) deleted text end new text begin (l) new text end For projects involving draining or filling of wetlands associated with a new
public transportation project, and for projects expanded solely for additional traffic
capacity, public transportation authorities may purchase credits from the board at the cost
to the board to establish credits. Proceeds from the sale of credits provided under this
paragraph are appropriated to the board for the purposes of this paragraph.

deleted text begin (l) deleted text end new text begin (m) new text end 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;

(2) except as provided in clause (3), submit project-specific reports to the board, the
Technical Evaluation Panel, the commissioner of natural resources, and members of the
public requesting a copy at least 30 days prior to construction that indicate the location,
amount, and type of wetlands to be filled or drained by the project or, alternatively,
convene an annual meeting of the parties required to receive notice to review projects to
be commenced during the upcoming year; and

(3) for minor and emergency maintenance work impacting less than 10,000 square
feet, submit project-specific reports, within 30 days of commencing the activity, to the
board that indicate the location, amount, and type of wetlands that have been filled
or drained.

Those required to receive notice of public transportation projects may appeal
minimization, delineation, and on-site mitigation decisions made by the public
transportation authority to the board according to the provisions of section 103G.2242,
subdivision 9. 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, and wetland areas of
public waters if authorized by the commissioner or a delegated authority, drained or filled
by public transportation projects on existing roads.

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.

deleted text begin (m) deleted text end new text begin (n) new text end If a landowner seeks approval of a replacement plan after the proposed
project has already affected the wetland, the local government unit may require the
landowner to replace the affected wetland at a ratio not to exceed twice the replacement
ratio otherwise required.

deleted text begin (n) deleted text end new text begin (o) new text end 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.

deleted text begin (o) deleted text end new text begin (p) new text end 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 deleted text begin (n) deleted text end new text begin (o) new text end or provide a reason why the petition is denied.

Sec. 2.

Minnesota Statutes 2006, section 103G.2241, subdivision 1, is amended to read:

Subdivision 1.

Agricultural activities.

deleted text begin (a) deleted text end A replacement plan for wetlands is
not required for:

deleted text begin (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;
deleted text end

deleted text begin (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:
deleted text end

deleted text begin (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
deleted text end

deleted text begin (ii) has not been restored with assistance from a public or private wetland restoration
program;
deleted text end

deleted text begin (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;
deleted text end

deleted text begin (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;
deleted text end

new text begin (1) activities in a wetland conducted as part of normal farming practices. For
purposes of this clause, "normal farming practices" means farming, silvicultural, grazing,
and ranching activities such as plowing, seeding, cultivating, and harvesting for the
production of feed, food, fiber, and forest products, but does not include activities that
result in the draining or filling of wetlands in whole or in part;
new text end

new text begin (2) soil and water conservation practices approved by the soil and water conservation
district, after review by the Technical Evaluation Panel;
new text end

deleted text begin (5) deleted text end new text begin (3) new text end 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; new text begin or
new text end

deleted text begin (6) deleted text end new text begin (4) new text end 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 deleted text begin ; deleted text end new text begin .
new text end

deleted text begin (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
deleted text end

deleted text begin (8) agricultural activities in a wetland that is on agricultural land:
deleted text end

deleted text begin (i) annually enrolled in the federal Agriculture Improvement and Reform Act of
1996 and is subject to United States Code, title 16, sections 3821 to 3823, in effect on
January 1, 2000; or
deleted text end

deleted text begin (ii) subject to subsequent federal farm program restrictions that meet minimum
state standards under this chapter and sections and and that have
been approved by the Board of Water and Soil Resources, the commissioners of natural
resources and agriculture, and the Pollution Control Agency.
deleted text end

deleted text begin (b) Land enrolled in a federal farm program under paragraph (a), clause (8), is
eligible for easement participation for those acres not already compensated under a federal
program.
deleted text end

deleted text begin (c) 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.
deleted text end

Sec. 3.

Minnesota Statutes 2006, section 103G.2241, subdivision 2, is amended to read:

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. new text begin If wetlands drained under this
subdivision are converted to uses prohibited under paragraph (b), clause (2), during the
ten-year period following drainage, the wetlands must be replaced according to section
103G.222.
new text end

(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.

deleted text begin 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 .
deleted text end

(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.

deleted text begin (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:
deleted text end

deleted text begin (1) the approval remains valid;
deleted text end

deleted text begin (2) the project remains active; and
deleted text end

deleted text begin (3) no additional drainage will occur beyond that originally approved.
deleted text end

new text begin (e) A replacement plan is not required for draining agricultural land that: (1) was
planted with annually seeded crops before June 10 and subsequently harvested, except for
crops that are normally planted after that date, in eight out of the ten most recent years
prior to the impact; (2) was in a crop rotation seeding of pasture grass or legumes in eight
out of the ten most recent years prior to the impact; or (3) was enrolled in a state or federal
land conservation program and met the requirements of clause (1) or (2) before enrollment.
new text end

(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.