HF 557

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/01/2021 03:20pm

A bill for an act
relating to natural resources; modifying wetland replacement ratios; amending
Minnesota Statutes 2020, sections 103G.222, subdivision 1; 103G.2242, subdivision
12; 103G.2243, subdivision 2.

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

Section 1.

Minnesota Statutes 2020, 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 actions that provide 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. Project-specific wetland-replacement plans submitted as part of a project for which
a permit to mine is required and approved by the commissioner on or after July 1, 1991,
may include surplus wetland credits to be allocated by the commissioner to offset future
mining-related wetland impacts under any permits to mine held by the permittee, the operator,
the permittee's or operator's parent, an affiliated subsidiary, or an assignee pursuant to an
assignment under section 93.481, subdivision 5. For project-specific wetland replacement
completed prior to wetland impacts authorized or conducted under a permit to mine within
the Great Lakes and Rainy River watershed basins, those basins shall be considered a single
watershed for purposes of determining wetland-replacement ratios. Mining reclamation
plans shall apply the same principles and standards for replacing wetlands that are applicable
to mitigation plans approved as provided in section 103G.2242. The commissioner must
provide notice of an application for wetland replacement under a permit to mine to the
county in which the impact is proposed and the county in which a mitigation site is proposed.
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
the altered wetland is not converted to a nonagricultural use for at least ten years.

(d) If a wetland is replaced under paragraph (c), or drained under section 103G.2241,
subdivision 2, paragraph (b) or (e), the local government unit may require a deed restriction
that prohibits nonagricultural use for at least ten years. 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.

(e) Restoration and replacement of wetlands must be accomplished in accordance with
the ecology of the landscape area affected and ponds that are created primarily to fulfill
storm water management, and water quality treatment requirements may not be used to
satisfy replacement requirements under this chapter unless the design includes pretreatment
of runoff and the pond is functioning as a wetland.

deleted text begin (f) Except as provided in paragraph (g), 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 end

deleted text begin (g) For a wetland or public waters wetland located on agricultural land or in a greater
than 80 percent area,
deleted text end

new text begin (f) new text end Replacement must be in the ratio of one acre of replaced wetland for each acre of
drained or filled wetland.

deleted text begin (h) deleted text end new text begin (g) 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 (i) deleted text end new text begin (h) 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 for wetland replacement according to 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 wetland replacement.

deleted text begin (j) deleted text end new text begin (i) 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 (k) deleted text end new text begin (j) 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 (l) deleted text end new text begin (k) 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. For the purposes of this
paragraph, "transportation project" does not include an airport project.

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

Sec. 2.

Minnesota Statutes 2020, 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.

(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 deleted text begin (i) deleted text end new text begin (h) new text end , the following
actions, and others established in rule, that are consistent with criteria in rules adopted by
the board in conjunction with the commissioners of natural resources and agriculture, are
eligible for replacement credit as determined by the local government unit or the board,
including enrollment in a statewide wetlands bank:

(1) reestablishment of permanent native, noninvasive vegetative cover on a wetland on
agricultural land that was planted with annually seeded crops, was in a crop rotation seeding
of pasture grasses or legumes, or was in a land retirement program during the past ten years;

(2) buffer areas of permanent native, noninvasive vegetative cover established or
preserved on upland adjacent to replacement wetlands;

(3) wetlands restored for conservation purposes under terminated easements or contracts;

(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 is based on the replacement of
wetland functions and on an approved storm water management plan for the local
government; and

(5) in a greater than 80 percent area, restoration and protection of streams and riparian
buffers that are important to the functions and sustainability of aquatic resources.

(d) Notwithstanding section 103G.222, subdivision 1, deleted text begin paragraphs deleted text end new text begin paragraph new text end (f) deleted text begin and (g) deleted text end ,
the board may establish by rule different replacement ratios for restoration projects with
exceptional natural resource value.

Sec. 3.

Minnesota Statutes 2020, section 103G.2243, subdivision 2, is amended to read:

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, deleted text begin paragraphs deleted text end new text begin
paragraph new text end (f) deleted text begin and (g) deleted text end , 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 deleted text begin so long as:
deleted text end

deleted text begin (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
deleted text end

deleted text begin (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 deleted text end a 1:1 ratio
can be accomplished deleted text begin as described in section 103G.2242, subdivision 12 deleted text end ; and

(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.