HF 1935

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to waters; modifying provisions for wetland conservation; requiring
rulemaking; appropriating money; amending Minnesota Statutes 2006, sections
103G.222, subdivisions 1, 3; 103G.2241, subdivisions 1, 2, 3, 6, 9; 103G.2242,
subdivisions 2, 2a, 9, 12, 15; 103G.2243, subdivision 2; repealing Minnesota
Statutes 2006, section 103G.2241, subdivision 8.

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.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) new 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;
new text end

new text begin (5) for project specific replacement, new text end in an adjacent watershed deleted text begin or county deleted text end to the
affected wetland new text begin , 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 new text end ; and

deleted text begin (5) deleted text end new text begin (6) new text end statewide deleted text begin , only for wetlands affected in greater than 80 percent areas and deleted text end 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) new text begin 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; (2) replaced in an adjacent wetland bank service area
without an increase in the replacement ratio if wetland bank credits are not reasonably
available in the same wetland bank service area as the affected wetland, as determined by
the local government unit; and (3) statewide.
new text end

new text begin (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.
new text end

new text begin (d) new text end The exception in paragraph (a), clause deleted text begin (5) deleted text end new text begin (6) new text end , 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.

deleted text begin (c) deleted text end new text begin (e) new text end 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.

deleted text begin (d) deleted text end new text begin (f) new text end 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.

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

Sec. 3.

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;
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. 4.

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, 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.

Sec. 5.

Minnesota Statutes 2006, section 103G.2241, subdivision 3, is amended to read:

Subd. 3.

Federal approvals.

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

deleted text begin (1) activities exempted from federal regulation under United States Code, title 33,
section 1344(f), as in effect on January 1, 1991;
deleted text end

deleted text begin (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; or
deleted text end

deleted text begin (3) deleted text end activities authorized under the federal Clean Water Act, section 404, or the
Rivers and Harbors Act, section 10, regulations that meet minimum state standards
under this chapter and sections 103A.202 and 103B.3355 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.

Sec. 6.

Minnesota Statutes 2006, section 103G.2241, subdivision 6, is amended to read:

Subd. 6.

Utilities; public works.

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

deleted text begin (1) placement, maintenance, repair, enhancement, or replacement of utility or
utility-type service if:
deleted text end

deleted text begin (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
deleted text end

deleted text begin (ii) the proposed project significantly modifies or alters less than one-half acre of
wetlands;
deleted text end

deleted text begin (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;
deleted text end

deleted text begin (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;
deleted text end

deleted text begin (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;
deleted text end

deleted text begin (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
deleted text end

deleted text begin (6) repair and updating of existing individual sewage treatment systems as necessary
to comply with local, state, and federal regulations.
deleted text end

new text begin (1) new placement or maintenance, repair, enhancement, or replacement of existing
utility or utility-type service, including pipelines, if:
new text end

new text begin (i) the direct and indirect impacts of the proposed project have been avoided and
minimized to the extent possible; and
new text end

new text begin (ii) the proposed project significantly modifies or alters less than one-half acre of
wetlands;
new text end

new text begin (2) activities associated with operation, routine maintenance, or emergency repair of
existing utilities and public work structures, including pipelines, provided the activities
do not result in additional wetland intrusion or additional draining or filling of a wetland
either wholly or partially; or
new text end

new text begin (3) repair and updating of existing individual sewage treatment systems necessary to
comply with local, state, and federal regulations.
new text end

new text begin (b) For maintenance, repair, and replacement, the local government unit may issue
a seasonal or annual exemption certification or the utility may proceed without local
government unit certification if the utility is carrying out the work according to approved
best management practices. Work of an emergency nature may proceed as necessary
and any drain or fill activities shall be addressed with the local government unit after
the emergency work has been completed.
new text end

Sec. 7.

Minnesota Statutes 2006, section 103G.2241, subdivision 9, is amended to read:

Subd. 9.

De minimis.

(a) Except as provided in paragraphs (b) and (c), a
replacement plan for wetlands is not required for draining or filling the following amounts
of wetlands as part of a project:

(1) 10,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and
tamarack wetlands, outside of the shoreland wetland protection zone in a greater than
80 percent area;

(2) deleted text begin 5,000 deleted text end new text begin 2,500 new text end square feet of type 1, 2, 6, or 7 wetland, excluding white cedar
and tamarack wetlands, outside of the shoreland wetland protection zone in a 50 to 80
percent area;

(3) deleted text begin 2,000 deleted text end new text begin 1,000 new text end square feet of type 1, 2, or 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; deleted text begin or
deleted text end

(5) 400 square feet of deleted text begin type 1, 2, 3, 4, 5, 6, 7, or 8 deleted text end wetland, deleted text begin in deleted text end new text begin beyond new text end the new text begin building
setback zone, as defined in the local shoreland management ordinance, but within the new text end
shoreland wetland protection zone deleted text begin , except that deleted text end new text begin . new text end In a greater than 80 percent area, the
local government unit may increase the de minimis amount up to 1,000 square feet deleted text begin in the
shoreland protection zone in areas beyond the building setback deleted text end 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 new text begin ; or
new text end

new text begin (6) up to 40 square feet of wetland, regardless of type or location new text end .

(b) The amounts listed in paragraph (a), clauses (1) to deleted text begin (5) deleted text end new text begin (6) new text end , 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) This exemption may not be combined with another exemption in this section on
a project.

Sec. 8.

Minnesota Statutes 2006, section 103G.2242, subdivision 2, is amended to read:

Subd. 2.

Evaluation.

(a) 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, a technical professional with
expertise in water resources management appointed by the local government unit, and
a technical professional employee of the Department of Natural Resources for projects
affecting public waters or wetlands adjacent to public waters. The panel shall use the
"United States Army Corps of Engineers Wetland Delineation Manual" (January 1987),
including updates, supplementary guidance, and replacements, if any, "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 and recommendations on
other technical matters to the local government unit that must approve a replacement
plan, wetland banking plan, exemption determination, no-loss determination, or wetland
boundary or type determination 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 or determination.

(b) Persons conducting wetland or public waters boundary delineations or type
determinations are exempt from the requirements of chapter 326. deleted text begin By January 15, 2001,
the board, in consultation with the Minnesota Association of Professional Soil Scientists,
the University of Minnesota, and the Wetland Delineators' Association, shall submit a plan
for a professional wetland delineator certification program to the legislature. deleted text end new text begin The board
may develop a professional wetland delineator certification program.
new text end

Sec. 9.

Minnesota Statutes 2006, 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 deleted text begin with the zoning
administrator deleted text end new text begin to designated staff new text end , 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 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) new 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.
new text end

new text begin (e) new text end The local government unit decision is valid for three 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. 10.

Minnesota Statutes 2006, section 103G.2242, subdivision 9, is amended to
read:

Subd. 9.

Appeal.

(a) Appeal of a replacement plan, exemption, wetland banking,
wetland boundary or type determination, deleted text begin or deleted text end no-loss decision new text begin , or restoration order new text end may
be obtained by mailing a petition and payment of a filing fee deleted text begin of $200 deleted text end , which shall be
retained by the board to defray administrative costs, to the board within 30 days after the
postmarked date of the mailing specified in subdivision 7. If appeal is not sought within
30 days, the decision becomes final. deleted text begin 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. deleted text end 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 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 meritless, 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 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) All appeals must be heard by the committee for dispute resolution of the board,
and a decision made within 60 days of filing the local government unit's record and the
written briefs submitted for 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. 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.

new text begin (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.
new text end

Sec. 11.

Minnesota Statutes 2006, 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.

(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 (h) deleted text end new text begin (i) 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,
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; 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 is based on the
replacement of wetland functions and on an approved stormwater management plan for
the local government.

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

Sec. 12.

Minnesota Statutes 2006, section 103G.2242, subdivision 15, is amended to
read:

Subd. 15.

Fees paid to board.

All fees established in deleted text begin subdivision deleted text end new text begin subdivisions 9
and new text end 14 must be paid to the Board of Water and Soil Resources deleted text begin and credited to the general
fund deleted text end to be used for the purpose of administration of the wetland bank new text begin and to process
appeals under section 103G.2242, subdivision 9 new text end .

Sec. 13.

Minnesota Statutes 2006, 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, paragraphs
deleted text begin (e) deleted text end new text begin (f) new text end and deleted text begin (f) deleted text end new text begin (g) new 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 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 section 103G.2242, subdivision 12; new text begin and
new text end

(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 deleted text begin ; and deleted text end new text begin .
new text end

deleted text begin (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. deleted text end

Sec. 14. new text begin RULEMAKING.
new text end

new text begin Within 90 days of the effective date of this section, the Board of Water and Soil
Resources shall adopt rules that amend Minnesota Rules, chapter 8420. 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 committees having jurisdiction over environment and natural
resources 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 in the State Register unless
they are superceded by permanent rules.
new text end

Sec. 15. new text begin APPROPRIATIONS.
new text end

new text begin (a) $1,060,000 in fiscal year 2008 and $1,060,000 in fiscal year 2009 are appropriated
from the general fund to the Board of Water and Soil Resources for the following purposes
to support implementation of the Wetland Conservation Act: $500,000 each year is to
make grants to local units of governments to improve response to major wetland violations;
$500,000 each year is for staffing to provide adequate state oversight and technical support
to local governments administering the Wetland Conservation Act; and $60,000 each year
is for staff to monitor and enforce wetland replacement and wetland bank sites.
new text end

new text begin (b) $60,000 in fiscal year 2008 is appropriated from the general fund to the Board of
Water and Soil Resources to develop a comprehensive state wetland restoration vision and
plan. This is a onetime appropriation. All of the money appropriated in this paragraph as
grants to local governments shall be administered through the Board of Water and Soil
Resources' local water resources protection and management program under Minnesota
Statutes, section 103B.3369.
new text end

Sec. 16. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 103G.2241, subdivision 8, new text end new text begin is repealed.
new text end

Sec. 17. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 16 are effective the day following final enactment.
new text end