HF 1610

as introduced - 87th Legislature (2011 - 2012) Posted on 04/28/2011 09:59am

A bill for an act
relating to natural resources; modifying wetlands provisions; amending
Minnesota Statutes 2010, sections 103G.005, by adding a subdivision; 103G.222,
subdivisions 1, 3.

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

Section 1.

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

new text begin Subd. 17c. new text end

new text begin Wetland bank service area. new text end

new text begin "Wetland bank service area" means the
geographic area established by rule in which permitted impacts may be replaced by
wetland restoration or purchase of wetland bank credits.
new text end

Sec. 2.

Minnesota Statutes 2010, 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) If a wetland is drained under section 103G.2241, subdivision 2, paragraphs
(b) and (e), 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.

(e) new text begin Except as provided in paragraph (n), new text end 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. new text begin For actions occurring under paragraph (n), replacement of wetlands must not be
inconsistent with any established management plan for the publicly owned lands.
new text end

(f) Except as provided in deleted text begin paragraph deleted text end new text begin paragraphs new text end (g) new text begin and (n) 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.

(g) new text begin Except as provided in paragraph (n), 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.

(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 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.

(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, 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.

(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;

(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.

new text begin (n) For actions taken by a unit of government as part of public water resource
projects, which actions are implemented as part of a watershed or local water resource
management plan under chapter 103B or 103D or within an area covered by a
comprehensive wetland protection and management plan and result in wetland or public
waters wetland losses, the wetland losses may be replaced by restoration, creation, or
enhancement of wetlands on publicly owned lands. The state and its agencies shall
cooperate with units of government to allow for the replacement on publicly owned lands
and shall not charge units of government for the privilege of replacing wetland impacts
on publicly owned lands. In addition to the replacement actions recognized in section
103G.2242, subdivision 12, replacement occurring under this paragraph includes the
reestablishment of permanent native, noninvasive vegetative cover on a wetland degraded
by invasive vegetation. Replacement occurring under this paragraph shall be made in the
ratio of one acre of replaced wetland for each acre of drained or filled wetland.
new text end

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

Sec. 3.

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

Subd. 3.

Wetland replacement siting.

(a) Siting wetland replacement must follow
this priority order:

(1) on site or in the same minor watershed as the affected wetland;

(2) in the same watershed as the affected wetland;

(3) in the same county as the affected wetland;

(4) 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;

(5) for project specific replacement, in an adjacent watershed to the affected wetland,
or for replacement by wetland banking, in an adjacent wetland bank service area, 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 begin and
deleted text end

new text begin (6) for replacement occurring under subdivision 1, paragraph (n), in: (i) areas
identified as priority locations for wetland restoration in a plan, report, or mapping
system of a nongovernmental organization, conservation group, or state agency; or (ii)
the watershed of the impact unless reasonable, practical, and environmentally beneficial
replacement opportunities do not exist on publicly owned lands in the watershed of the
impact. If reasonable, practical, and environmentally beneficial replacement opportunities
do not exist on publicly owned lands in the watershed of the impact, then replacement
shall occur, in order of priority, in the wetland bank service area where the impact occurs
or in an adjacent wetland bank service area. The siting requirements of paragraph (c) do
not apply to replacements occurring under subdivision 1, paragraph (n); and
new text end

deleted text begin (6) deleted text end new text begin (7) new text end statewide for public transportation projects, except that wetlands affected in
less than 50 percent areas must be replaced in less than 50 percent areas, and wetlands
affected 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) Notwithstanding paragraph (a), siting wetland replacement 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
a comprehensive inventory approved by the board; and (3) statewide.

(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.