HF 2105

as introduced - 87th Legislature (2011 - 2012) Posted on 03/13/2012 12:30pm

A bill for an act
relating to waters; modifying wetland replacement requirements; amending
Minnesota Statutes 2010, section 103G.2241, subdivisions 9, 11, by adding
a subdivision; Minnesota Statutes 2011 Supplement, section 103G.222,
subdivision 1.

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

Section 1.

Minnesota Statutes 2011 Supplement, 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. 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 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) 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.

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

new text begin (h) For wetland or public waters wetland in areas with 20 percent or less of the
presettlement wetland acreage intact, the board shall, by rule, establish a replacement ratio
sufficient to replace each acre of drained or filled wetland and to offset the losses of
wetland and public waters wetland resulting from the exemption under section 103G.2241,
subdivision 10a.
new text end

deleted text begin (h) deleted text end new text begin (i) 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 (j) 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 (j) deleted text end new text begin (k) 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 (l) 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 (m) 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 (n) 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 (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. 2.

Minnesota Statutes 2010, 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) deleted text begin 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;
deleted text end

deleted text begin (2) deleted text end 5,000 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 50 to 80 percent
area, except within the 11-county metropolitan area;

deleted text begin (3) deleted text end new text begin (2) new text end 2,000 square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland
protection zone in a less than 50 percent area, except within the 11-county metropolitan
area;

deleted text begin (4) deleted text end new text begin (3) new text end 100 square feet of wetland types not listed in clauses (1) deleted text begin to (3) deleted text end new text begin and (2) new text end outside
of the building setback zone of the shoreland wetland protection zones in all counties;

deleted text begin (5) deleted text end new text begin (4) new text end 400 square feet of wetland types listed in clauses (1) deleted text begin to (3) deleted text end new text begin and (2) new text end , beyond
the building setback zone, as defined in the local shoreland management ordinance, but
within the shoreland wetland protection zone. deleted text begin In a greater than 80 percent area, the local
government unit may increase the de minimis amount up to 1,000 square feet if the
wetland is isolated and is determined to have no direct surficial connection to the public
water. deleted text end To the extent that a local shoreland management ordinance is more restrictive than
this provision, the local shoreland ordinance applies;

deleted text begin (6) deleted text end new text begin (5) new text end up to 20 square feet of wetland, regardless of type or location;

deleted text begin (7) deleted text end new text begin (6) new text end 2,500 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 within the 11-county metropolitan area; or

deleted text begin (8) deleted text end new text begin (7) new text end 1,000 square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland
protection zone in a less than 50 percent area within the 11-county metropolitan area.

For purposes of this paragraph, the 11-county metropolitan area consists of the
counties of Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, Scott, Sherburne,
Washington, and Wright.

(b) The amounts listed in paragraph (a), clauses (1) to deleted text begin (8) deleted text end new text begin (7) 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.

(e) Property may not be divided to increase the amounts listed in paragraph (a).

Sec. 3.

Minnesota Statutes 2010, section 103G.2241, is amended by adding a
subdivision to read:

new text begin Subd. 10a. new text end

new text begin Greater than 80 percent areas. new text end

new text begin A replacement plan for wetlands is not
required in greater than 80 percent areas.
new text end

Sec. 4.

Minnesota Statutes 2010, section 103G.2241, subdivision 11, is amended to
read:

Subd. 11.

Exemption conditions.

(a) A person conducting an activity in a wetland
under an exemption in subdivisions 1 to deleted text begin 10 deleted text end new text begin 10a new text end shall ensure that:

(1) appropriate erosion control measures are taken to prevent sedimentation of
the water;

(2) the activity does not block fish passage in a watercourse; and

(3) the activity is conducted in compliance with all other applicable federal,
state, and local requirements, including best management practices and water resource
protection requirements established under chapter 103H.

(b) An activity is exempt if it qualifies for any one of the exemptions, even though it
may be indicated as not exempt under another exemption.

(c) Persons proposing to conduct an exempt activity are encouraged to contact the
local government unit or the local government unit's designee for advice on minimizing
wetland impacts.

(d) The board shall develop rules that address the application and implementation
of exemptions and that provide for estimates and reporting of exempt wetland impacts,
including those in section 103G.2241, subdivisions 2, 6, and 9.