HF 908

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 04/27/2011 04:42pm

A bill for an act
relating to natural resources; modifying Wetland Conservation Act; amending
Minnesota Statutes 2010, sections 103G.005, subdivision 10e, by adding a
subdivision; 103G.2212; 103G.222, subdivision 3; 103G.2242, subdivisions 2a,
6, 7, 9, 14, by adding subdivisions; 103G.2251; proposing coding for new law
in Minnesota Statutes, chapter 103G.

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

Section 1.

Minnesota Statutes 2010, section 103G.005, subdivision 10e, is amended to
read:

Subd. 10e.

Local government unit.

"Local government unit" means:

(1) outside of the seven-county metropolitan area, a city council, county board of
commissioners, or a soil and water conservation district or their delegate;

(2) in the seven-county metropolitan area, a city council, a town board under section
368.01, a watershed management organization under section 103B.211, or a soil and water
conservation district or their delegate; deleted text begin and deleted text end

(3) on state land, the agency with administrative responsibility for the land new text begin ; and
new text end

new text begin (4) for wetland banking projects included in a permit to mine under section 93.481,
the commissioner of natural resources new text end .

Sec. 2.

Minnesota Statutes 2010, section 103G.005, is amended by adding a
subdivision to read:

new text begin Subd. 10f. new text end

new text begin Electronic transmission. new text end

new text begin "Electronic transmission" means the transfer
of data or information through an electronic data interchange system consisting of, but not
limited to, computer modems and computer networks. Electronic transmission specifically
means electronic mail, unless other means of electronic transmission are mutually agreed
to by the sender and recipient.
new text end

Sec. 3.

Minnesota Statutes 2010, section 103G.2212, is amended to read:

103G.2212 CONTRACTOR'S RESPONSIBILITY WHEN WORK DRAINS
OR FILLS WETLANDS.

Subdivision 1.

Conditions for employees and agents to drain or fill wetlands.

An agent or employee of another may not drain or fill a wetland, wholly or partially,
unless the agent or employee has:

(1) obtained a signed statement from the property owner stating that the wetland
replacement plan required for the work has been obtained or that a replacement plan
is not required; and

(2) mailed new text begin or sent by electronic transmission new text end a copy of the statement to the local
government unit with jurisdiction over the wetland.

Subd. 2.

Violation is separate offense.

Violation of this section is a separate and
independent offense from other violations of sections 103G.2212 to 103G.237.

Subd. 3.

Form for compliance with this section.

The board shall develop a form
to be distributed to contractors' associations, local government units, and soil and water
conservation districts to comply with this section. The form must include:

(1) a listing of the activities for which a replacement plan is required;

(2) a description of the penalties for violating sections 103G.2212 to 103G.237;

(3) the telephone number to call for information on the responsible local government
unit;

(4) a statement that national wetland inventory maps are on file with the soil and
water conservation district office; and

(5) spaces for a description of the work and the names, mailing addresses new text begin or other
contact information new text end , and telephone numbers of the person authorizing the work and the
agent or employee proposing to undertake it.

Sec. 4.

Minnesota Statutes 2010, section 103G.222, subdivision 3, is amended to read:

Subd. 3.

Wetland replacement siting.

(a) deleted text begin Siting wetland replacement deleted text end new text begin Impacted
wetlands in a 50 to 80 percent area must be replaced in a 50 to 80 percent area or in a less
than 50 percent area. Impacted wetlands in a less than 50 percent area must be replaced in
a less than 50 percent area. All wetland replacement new text end must follow this priority order:

(1) on site or in the same minor watershed as the deleted text begin affected deleted text end new text begin impacted new text end wetland;

(2) in the same watershed as the deleted text begin affected deleted text end new text begin impacted new text end wetland;

(3) in the same county new text begin or wetland bank service area new text end as the deleted text begin affected deleted text end new text begin impacted new text end wetland;

(4) deleted text begin for replacement by wetland banking, in the same wetland bank service area as
the impacted wetland, except that impacts in a 50 to 80 percent area must be replaced in
a 50 to 80 percent area and impacts in a less than 50 percent area must be replaced in a
less than 50 percent area;
deleted text end

deleted text begin (5) for project specific replacement, in an adjacent watershed to the affected wetland,
or for replacement by wetland banking, deleted text end in deleted text begin an adjacent deleted text end new text begin another new text end wetland bank service
area deleted text begin , except that impacts in a 50 to 80 percent area must be replaced in a 50 to 80 percent
area and impacts in a less than 50 percent area must be replaced in a less than 50 percent
area deleted text end ; and

deleted text begin (6) deleted text end new text begin (5) new text end statewide for public transportation projects, except that wetlands deleted text begin affected deleted text end new text begin
impacted new text end in less than 50 percent areas must be replaced in less than 50 percent areas, and
wetlands deleted text begin affected deleted text end new text begin impacted new text end in the seven-county metropolitan area must be replaced at a
ratio of two to one in: (i) the affected county or, (ii) in another of the seven metropolitan
counties, or (iii) in one of the major watersheds that are wholly or partially within the
seven-county metropolitan area, but at least one to one must be replaced within the
seven-county metropolitan area.

(b) deleted text begin Notwithstanding paragraph (a), deleted text end new text begin The board may approve alternatives to the
priority order for new text end siting wetland replacement deleted text begin in greater than 80 percent areas may follow
the priority order under this paragraph: (1) by wetland banking after evaluating on-site
replacement and replacement within the watershed; (2) replaced in an adjacent wetland
bank service area if wetland bank credits are not reasonably available in the same wetland
bank service area as the affected wetland, as determined by deleted text end new text begin as provided in paragraph (a).
Board-approved alternatives must be based on new text end a comprehensive inventory deleted text begin approved by
the board; and (3) statewide deleted text end new text begin of replacement opportunities or watershed conditions. Prior
to adopting any alternative, the board must:
new text end

new text begin (1) prepare an assessment of the basis for the proposed alternative and provide
opportunities for public input and comment; and
new text end

new text begin (2) provide notice to local governments and other interested parties prior to
publishing an alternative in the State Register.
new text end

new text begin An alternative approved under this paragraph takes effect 30 days after publication
in the State Register and shall be in effect for no longer than five years unless renewed
through the process provided in this paragraph new text end .

(c) Notwithstanding paragraph (a), siting wetland replacement in the seven-county
metropolitan area must follow the priority order under this paragraph: (1) in the affected
county; (2) in another of the seven metropolitan counties; or (3) in one of the major
watersheds that are wholly or partially within the seven-county metropolitan area, but at
least one to one must be replaced within the seven-county metropolitan area.

(d) The exception in paragraph (a), clause (6), 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.

(e) When reasonable, practicable, and environmentally beneficial replacement
opportunities are not available in siting priorities listed in paragraph (a), the applicant
may seek opportunities at the next level.

(f) For the purposes of this section, "reasonable, practicable, and environmentally
beneficial replacement opportunities" are defined as opportunities that:

(1) take advantage of naturally occurring hydrogeomorphological conditions and
require minimal landscape alteration;

(2) have a high likelihood of becoming a functional wetland that will continue
in perpetuity;

(3) do not adversely affect other habitat types or ecological communities that are
important in maintaining the overall biological diversity of the area; and

(4) are available and capable of being done after taking into consideration cost,
existing technology, and logistics consistent with overall project purposes.

(g) Regulatory agencies, local government units, and other entities involved in
wetland restoration shall collaborate to identify potential replacement opportunities within
their jurisdictional areas.

Sec. 5.

Minnesota Statutes 2010, section 103G.2242, subdivision 2a, is amended to
read:

Subd. 2a.

Wetland boundary or type determination.

(a) A landowner may apply
for a wetland boundary or type determination from the local government unit. The
landowner applying for the determination is responsible for submitting proof necessary
to make the determination, including, but not limited to, wetland delineation field data,
observation well data, topographic mapping, survey mapping, and information regarding
soils, vegetation, hydrology, and groundwater both within and outside of the proposed
wetland boundary.

(b) A local government unit that receives an application under paragraph (a) may
seek the advice of the Technical Evaluation Panel as described in subdivision 2, and,
if necessary, expand the Technical Evaluation Panel. The local government unit may
delegate the decision authority for wetland boundary or type determinations to designated
staff, or establish other procedures it considers appropriate.

(c) The local government unit decision must be made in compliance with section
15.99. Within ten calendar days of the decision, the local government unit decision must
be mailed new text begin or sent by electronic transmission new text end to the landowner, members of the Technical
Evaluation Panel, the watershed district or watershed management organization, if one
exists, and individual members of the public who request a copy.

(d) deleted text begin Appeals of decisions made by designated local government staff must be made
to the local government unit. Notwithstanding any law to the contrary, a ruling on an
appeal must be made by the local government unit within 30 days from the date of the
filing of the appeal.
deleted text end

deleted text begin (e) deleted text end The local government unit decision is valid for deleted text begin three deleted text end new text begin five new text end years unless the
Technical Evaluation Panel determines that natural or artificial changes to the hydrology,
vegetation, or soils of the area have been sufficient to alter the wetland boundary or type.

Sec. 6.

Minnesota Statutes 2010, section 103G.2242, subdivision 6, is amended to read:

Subd. 6.

Notice of application.

(a) deleted text begin Except as provided in paragraph (b), within ten
days of receiving an deleted text end Application for approval of a replacement plan under this section deleted text begin , deleted text end new text begin
must be reviewed by the local government according to section 15.99, subdivision 3,
paragraph (a). new text end Copies of the complete application must be mailed new text begin or sent by electronic
transmission new text end to the members of the Technical Evaluation Panel, the managers of the
watershed district if one exists, and the commissioner of 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) deleted text begin 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 mailed to the members of the Technical Evaluation
Panel, individual members of the public who request a copy, and the commissioner
of natural resources.
deleted text end

deleted text begin (c) deleted text end 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. 7.

Minnesota Statutes 2010, section 103G.2242, subdivision 7, is amended to read:

Subd. 7.

Notice of decision.

Within ten days of the approval or denial of a
replacement plan under this section, deleted text begin a summary of the approval or denial deleted text end new text begin notice of the
decision new text end must be mailed new text begin or sent by electronic transmission new text end to members of the Technical
Evaluation Panel, the applicant, individual members of the public who request a copy,
the managers of the watershed district, if one exists, and the commissioner of natural
resources.

Sec. 8.

Minnesota Statutes 2010, section 103G.2242, is amended by adding a
subdivision to read:

new text begin Subd. 8a. new text end

new text begin Local appeals. new text end

new text begin Appeals of decisions made by designated local
government staff must be made to the local government unit. If appeal is not sought
within 30 days, the decision becomes final. A decision on an appeal must be made by the
local government unit within 45 days from the date of receipt of the appeal. The time
for making a decision on the appeal may be extended by consent of the appellant, the
landowner if different than the appellant, and the local government unit. A decision on an
appeal by the local government unit consistent with this subdivision shall be considered to
be within the periods provided by section 15.99.
new text end

Sec. 9.

Minnesota Statutes 2010, section 103G.2242, subdivision 9, is amended to read:

Subd. 9.

deleted text begin Appeal deleted text end new text begin Appeals to the board new text end .

(a) Appeal of a replacement plan, new text begin
sequencing, new text end exemption, wetland banking, wetland boundary or type determination, new text begin or
new text end no-loss decision deleted text begin , or restoration order deleted text end may be obtained by mailing a petition and payment
of a filing fee, which shall be retained by the board to defray administrative costs, to
the board within 30 days after the postmarked date of the mailing new text begin or date of sending by
electronic transmission new text end specified in subdivision 7. If appeal is not sought within 30 days,
the decision becomes final. If the petition for hearing is accepted, the amount posted must
be returned to the petitioner. Appeal may be made by:

(1) the wetland owner;

(2) any of those to whom notice is required to be mailed new text begin or sent by electronic
transmission new text end under subdivision 7; or

(3) 100 residents of the county in which a majority of the wetland is located.

(b) 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:

(1) the appeal is deleted text begin meritless deleted text end new text begin without significant merit new text end , trivial, or brought solely for the
purposes of delay;

(2) the petitioner has not exhausted all local administrative remedies;

(3) expanded technical review is needed;

(4) the local government unit's record is not adequate; or

(5) the petitioner has not posted a letter of credit, cashier's check, or cash if required
by the local government unit.

(c) In determining whether to grant the appeal, the board new text begin , executive director, or
dispute resolution committee new text end 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.

(d) deleted text begin All appeals deleted text end new text begin If an appeal is granted, the appeal new text end must be heard by the committee
for dispute resolution of the board, and a decision new text begin must be new text end made new text begin by the board new text end within 60
days of filing the local government unit's record and the written briefs submitted for
the appeal new text begin and the hearing new text end . The decision must be served by mail deleted text begin on deleted text end new text begin or by electronic
transmission to new text end the parties to the appeal, and is not subject to the provisions of chapter
14. 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.

(e) Notwithstanding section 16A.1283, the board shall establish a fee schedule to
defray the administrative costs of appeals made to the board under this subdivision. Fees
established under this authority shall not exceed $1,000. Establishment of the fee is not
subject to the rulemaking process of chapter 14 and section 14.386 does not apply.

Sec. 10.

Minnesota Statutes 2010, section 103G.2242, is amended by adding a
subdivision to read:

new text begin Subd. 9a. new text end

new text begin Appeals of restoration or replacement orders. new text end

new text begin A landowner or other
responsible party may appeal the terms and conditions of a restoration or replacement
order within 30 days of receipt of written notice of the order. The time frame for the appeal
may be extended beyond 30 days by mutual agreement, in writing, between the landowner
or responsible party, the local government unit, and the enforcement authority. If the
written request is not submitted within 30 days, the order is final. The board's executive
director must review the request and supporting evidence and render a decision within 60
days of receipt of a petition. A decision on 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.
new text end

Sec. 11.

Minnesota Statutes 2010, section 103G.2242, subdivision 14, is amended to
read:

Subd. 14.

Fees established.

new text begin (a) new text end Fees must be assessed for managing wetland bank
accounts and transactions as follows:

(1) account maintenance annual fee: one percent of the value of credits not to
exceed $500;

(2) account establishment, deposit, or transfer: 6.5 percent of the value of credits not
to exceed $1,000 per establishment, deposit, or transfer; and

(3) withdrawal fee: 6.5 percent of the value of credits withdrawn.

new text begin (b) The board may establish fees at or below the amounts in paragraph (a) for
single-user or other dedicated wetland banking accounts.
new text end

new text begin (c) Fees for single-user or other dedicated wetland banking accounts established
pursuant to section 103G.005, subdivision 10e, clause (4), are limited to establishment
of a wetland banking account and are assessed at the rate of 6.5 percent of the value of
the credits not to exceed $1,000.
new text end

Sec. 12.

Minnesota Statutes 2010, section 103G.2251, is amended to read:

103G.2251 STATE CONSERVATION EASEMENTS; WETLAND BANK
CREDIT.

In greater than 80 percent areas, preservation of wetlands deleted text begin owned by the state or a
local unit of government, deleted text end protected by a permanent conservation easement as defined
under section 84C.01 and held by the board, may be eligible for wetland replacement
or mitigation credits, according to rules adopted by the board. To be eligible for credit
under this section, a conservation easement must be established after May 24, 2008, and
approved by the board.

Sec. 13.

new text begin [103G.2374] ELECTRONIC TRANSMISSION.
new text end

new text begin For purposes of sections 103G.2212 to 103G.2372, notices and other documents
may be sent by electronic transmission unless the recipient has provided a mailing address
and specified that mailing is preferred.
new text end