HF 5

Introduction - 79th Legislature, 1995 1st Special Session

Posted on 12/15/2009 12:00 a.m.

  1.1                          A bill for an act 
  1.2             relating to water; modifying provisions relating to 
  1.3             public waters and wetlands; amending Minnesota 
  1.4             Statutes 1994, sections 84.035, subdivisions 5 and 6; 
  1.5             103F.612, subdivisions 2, 3, 5, 6, and 7; 103G.005, by 
  1.6             adding subdivisions; 103G.127; 103G.222; 103G.2241; 
  1.7             103G.2242, subdivisions 1, 2, 4, 6, 7, 9, 12, and by 
  1.8             adding a subdivision; 103G.237, subdivision 4, and by 
  1.9             adding a subdivision; 103G.2372, subdivision 1; 
  1.10            103G.2373; 103G.245, subdivision 2; and 115.03, by 
  1.11            adding a subdivision; Laws 1994, chapter 643, section 
  1.12            26, subdivision 3; repealing Minnesota Statutes 1994, 
  1.13            sections 103G.2242, subdivision 13; and 103G.2372, 
  1.14            subdivisions 2 and 3. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 1994, section 84.035, 
  1.17  subdivision 5, is amended to read: 
  1.18     Subd. 5.  [ACTIVITIES IN PEATLAND SCIENTIFIC AND NATURAL 
  1.19  AREAS.] Areas designated in subdivision 4 as peatland scientific 
  1.20  and natural areas are subject to the following conditions: 
  1.21     (a) Except as provided in paragraph (b), all restrictions 
  1.22  otherwise applicable to scientific and natural areas designated 
  1.23  under section 86A.05, subdivision 5, apply to the surface use 
  1.24  and to any use of the mineral estate which would significantly 
  1.25  modify or alter the peatland water levels or flows, peatland 
  1.26  water chemistry, plant or animal species or communities, or 
  1.27  other natural features of the peatland scientific and natural 
  1.28  areas, including, but not limited to, the following prohibitions:
  1.29     (1) construction of any new public drainage systems after 
  1.30  the effective date of Laws 1991, chapter 354, or improvement or 
  2.1   repair to a public drainage system in existence on the effective 
  2.2   date of Laws 1991, chapter 354, under authority of chapter 103E, 
  2.3   or any other alteration of surface water or ground water levels 
  2.4   or flows unless specifically permitted under paragraph (b), 
  2.5   clause (5) or (6); 
  2.6      (2) removal of peat, sand, gravel, or other industrial 
  2.7   minerals; 
  2.8      (3) exploratory boring or other exploration or removal of 
  2.9   oil, natural gas, radioactive materials or metallic minerals 
  2.10  which would significantly modify or alter the peatland water 
  2.11  levels or flows, peatland water chemistry, plant or animal 
  2.12  species or communities, or natural features of the peatland 
  2.13  scientific and natural areas, except in the event of a national 
  2.14  emergency declared by Congress; 
  2.15     (4) commercial timber harvesting; 
  2.16     (5) construction of new corridors of disturbance, of the 
  2.17  kind defined in subdivision 3, after June 5, 1991; and 
  2.18     (6) ditching, draining, filling, or any other activities 
  2.19  which modify or alter the peatland water levels or flows, 
  2.20  peatland water chemistry, plant or animal species or 
  2.21  communities, or other natural features of the peatland 
  2.22  scientific and natural areas. 
  2.23     (b) The following activities are allowed: 
  2.24     (1) recreational activities, including hunting, fishing, 
  2.25  trapping, cross-country skiing, snowshoeing, nature observation, 
  2.26  or other recreational activities permitted in the management 
  2.27  plan approved by the commissioner; 
  2.28     (2) scientific and educational work and research; 
  2.29     (3) maintenance of corridors of disturbance, including 
  2.30  survey lines and preparation of winter roads, consistent with 
  2.31  protection of the peatland ecosystem; 
  2.32     (4) use of corridors of disturbance unless limited by a 
  2.33  management plan adopted by the commissioner under subdivision 6; 
  2.34     (5) improvements to a public drainage system in existence 
  2.35  on the effective date of Laws 1991, chapter 354, only when it is 
  2.36  for the protection and maintenance of the ecological integrity 
  3.1   of the peatland scientific and natural area and when included in 
  3.2   a management plan adopted by the commissioner under subdivision 
  3.3   6; 
  3.4      (6) repairs to a public drainage system in existence on the 
  3.5   effective date of Laws 1991, chapter 354, which crosses a 
  3.6   peatland scientific and natural area and is used for the 
  3.7   purposes of providing a drainage outlet for lands outside of the 
  3.8   peatland scientific and natural area, provided that there are no 
  3.9   other feasible and prudent alternative means of providing the 
  3.10  drainage outlet.  The commissioner shall cooperate with the 
  3.11  ditch authority in the determination of any feasible and prudent 
  3.12  alternatives.  No repairs which would significantly modify or 
  3.13  alter the peatland water levels or flows, peatland water 
  3.14  chemistry, plant or animal species or communities, or other 
  3.15  natural features of the peatland scientific and natural areas 
  3.16  shall be made unless approved by the commissioner; 
  3.17     (7) motorized uses that are engaged in, on corridors a 
  3.18  corridor of disturbance, if the corridor existed on or before 
  3.19  the effective date of Laws 1991, chapter 354, provided that 
  3.20  recreational motorized uses may occur only when the substrate is 
  3.21  frozen; 
  3.22     (8) control of forest insects, disease, and wildfires, as 
  3.23  described in a management plan adopted by the commissioner under 
  3.24  subdivision 6; and 
  3.25     (9) geological and geophysical surveys which would not 
  3.26  significantly modify or alter the peatland water levels or 
  3.27  flows, peatland water chemistry, plant or animal species or 
  3.28  communities, or other natural features of the peatland 
  3.29  scientific and natural areas. 
  3.30     Sec. 2.  Minnesota Statutes 1994, section 84.035, 
  3.31  subdivision 6, is amended to read: 
  3.32     Subd. 6.  [MANAGEMENT PLANS.] The commissioner shall 
  3.33  develop with the affected local government unit a management 
  3.34  plan for each peatland scientific and natural area designated 
  3.35  under section 84.036 in a manner prescribed by section 86A.09. 
  3.36     Sec. 3.  Minnesota Statutes 1994, section 103F.612, 
  4.1   subdivision 2, is amended to read: 
  4.2      Subd. 2.  [APPLICATION.] (a) A wetland owner may apply to 
  4.3   the county where a wetland is located for designation of a 
  4.4   wetland preservation area in a high priority wetland area 
  4.5   identified in a comprehensive local water plan, as defined in 
  4.6   section 103B.3363, subdivision 3, and located within a high 
  4.7   priority wetland region designated by the board of water and 
  4.8   soil resources if the county chooses to accept wetland 
  4.9   preservation area applications.  The application must be made on 
  4.10  forms provided by the board.  If a wetland is located in more 
  4.11  than one county, the application must be submitted to the county 
  4.12  where the majority of the wetland is located.  
  4.13     (b) The application must contain at least the following 
  4.14  information and other information the board of soil and water 
  4.15  resources requires:  
  4.16     (1) legal description of the area to be approved, which 
  4.17  must include an upland strip at least 16-1/2 feet in width 
  4.18  around the perimeter of wetlands within the area and may include 
  4.19  total upland area of up to four acres for each acre of wetland; 
  4.20     (2) parcel identification numbers where designated by the 
  4.21  county auditor; 
  4.22     (3) name and address of the owner; 
  4.23     (4) a witnessed signature of the owner covenanting that the 
  4.24  land will be preserved as a wetland and will only be used in 
  4.25  accordance with conditions prescribed by the board of water and 
  4.26  soil resources; and 
  4.27     (5) a statement that the restrictive covenant will be 
  4.28  binding on the owner and the owner's successors or assigns, and 
  4.29  will run with the land.  
  4.30     (c) The upland strip required in paragraph (b), clause (1), 
  4.31  must be planted with permanent vegetation other than a noxious 
  4.32  weed. 
  4.33     (d) For registered property, the owner shall submit the 
  4.34  owner's duplicate certificate of title with the application.  
  4.35     Sec. 4.  Minnesota Statutes 1994, section 103F.612, 
  4.36  subdivision 3, is amended to read: 
  5.1      Subd. 3.  [REVIEW AND NOTICE.] Upon receipt of an 
  5.2   application, the county shall determine if all material required 
  5.3   by subdivision 2 has been submitted and, if so, shall determine 
  5.4   that the application is complete.  The term "date of application"
  5.5   means the date the application is determined to be complete by 
  5.6   the county.  The county shall send a copy of the application to 
  5.7   the county assessor, the regional development commission, where 
  5.8   applicable, the board of water and soil resources, and the soil 
  5.9   and water conservation district where the land is located.  The 
  5.10  soil and water conservation district shall prepare an advisory 
  5.11  statement of existing and potential preservation problems or 
  5.12  conflicts and send the statement to the owner of record and to 
  5.13  the county.  The county shall notify the landowner of the 
  5.14  acceptance or denial of the application within 60 days from the 
  5.15  date of the application. 
  5.16     Sec. 5.  Minnesota Statutes 1994, section 103F.612, 
  5.17  subdivision 5, is amended to read: 
  5.18     Subd. 5.  [COMMENCEMENT OF WETLAND PRESERVATION AREA.] The 
  5.19  wetland is a wetland preservation area commencing 30 days from 
  5.20  the date the county determines notifies the landowner of 
  5.21  acceptance of the application is complete under subdivision 3.  
  5.22     Sec. 6.  Minnesota Statutes 1994, section 103F.612, 
  5.23  subdivision 6, is amended to read: 
  5.24     Subd. 6.  [FEE.] The county may require an application fee, 
  5.25  not to exceed $50 to defray administrative costs of the program. 
  5.26     Sec. 7.  Minnesota Statutes 1994, section 103F.612, 
  5.27  subdivision 7, is amended to read: 
  5.28     Subd. 7.  [MAPS.] The board of water and soil resources 
  5.29  county shall maintain wetland preservation area maps 
  5.30  illustrating land covenanted as wetland preservation areas.  
  5.31     Sec. 8.  Minnesota Statutes 1994, section 103G.005, is 
  5.32  amended by adding a subdivision to read: 
  5.33     Subd. 2a.  [AGRICULTURAL LAND.] "Agricultural land" means: 
  5.34     (1) land used for horticultural, row, close grown, pasture, 
  5.35  and hayland crops; growing nursery stocks; and animal feedlots; 
  5.36  and 
  6.1      (2) contiguous land and buildings under the same ownership, 
  6.2   including farm yards, associated with activities under clause 
  6.3   (1). 
  6.4      Sec. 9.  Minnesota Statutes 1994, section 103G.005, is 
  6.5   amended by adding a subdivision to read: 
  6.6      Subd. 14b.  [PRESETTLEMENT WETLAND.] "Presettlement wetland"
  6.7   means a wetland or public waters wetland that existed in this 
  6.8   state prior to European settlement. 
  6.9      Sec. 10.  Minnesota Statutes 1994, section 103G.005, is 
  6.10  amended by adding a subdivision to read: 
  6.11     Subd. 18a.  [SHORELAND WETLAND PROTECTION ZONE.] "Shoreland 
  6.12  wetland protection zone" means: 
  6.13     (1) land subject to a shoreland protection ordinance 
  6.14  approved under sections 103F.201 to 103F.221, and: 
  6.15     (i) adjacent to a lake, pond, or flowage; or 
  6.16     (ii) within 300 feet from the ordinary high water level of 
  6.17  a river or stream identified on the public waters inventory, 
  6.18  under section 103G.201; or 
  6.19     (2) for jurisdictions that have not adopted a shoreland 
  6.20  protection ordinance, land that is: 
  6.21     (i) within 1,000 feet from the ordinary high water level of 
  6.22  a lake, pond, or flowage that is at least ten acres in size 
  6.23  within municipalities and at least 25 acres in size in 
  6.24  unincorporated areas; or 
  6.25     (ii) within 300 feet from the ordinary high water level of 
  6.26  a river or stream identified on the public waters inventory, 
  6.27  under section 103G.201. 
  6.28     Sec. 11.  Minnesota Statutes 1994, section 103G.127, is 
  6.29  amended to read: 
  6.30     103G.127 [PERMIT PROGRAM UNDER SECTION 404 OF THE FEDERAL 
  6.31  CLEAN WATER ACT.] 
  6.32     Notwithstanding any other law to the contrary, the 
  6.33  commissioner in consultation with the board of water and soil 
  6.34  resources may adopt rules establishing a permit program for 
  6.35  regulating the discharge of dredged and fill material into the 
  6.36  waters of the state as necessary to obtain approval from the 
  7.1   United States Environmental Protection Agency to administer the 
  7.2   permit program under section 404 of the federal Clean Water Act, 
  7.3   United States Code, title 33, section 1344.  The rules may not 
  7.4   be more restrictive than the program under section 404, or state 
  7.5   law, if it is more restrictive than the federal program. 
  7.6      Sec. 12.  Minnesota Statutes 1994, section 103G.222, is 
  7.7   amended to read: 
  7.8      103G.222 [REPLACEMENT OF WETLANDS.] 
  7.9      (a) After the effective date of the rules adopted under 
  7.10  section 103B.3355 or 103G.2242, whichever is later, wetlands 
  7.11  must not be drained or filled, wholly or partially, unless 
  7.12  replaced by restoring or creating wetland areas of at least 
  7.13  equal public value under a replacement plan approved as provided 
  7.14  in section 103G.2242, a replacement plan under a local 
  7.15  governmental unit's comprehensive wetland protection and 
  7.16  management plan approved by the board under section 103G.2242, 
  7.17  subdivision 1, paragraph (c) 1a, or, if a permit to mine is 
  7.18  required under section 93.481, under a mining reclamation plan 
  7.19  approved by the commissioner under the permit to mine.  Mining 
  7.20  reclamation plans shall apply the same principles and standards 
  7.21  for replacing wetlands by restoration or creation of wetland 
  7.22  areas that are applicable to mitigation plans approved as 
  7.23  provided in section 103G.2242. 
  7.24     (b) Replacement must be guided by the following principles 
  7.25  in descending order of priority: 
  7.26     (1) avoiding the direct or indirect impact of the activity 
  7.27  that may destroy or diminish the wetland; 
  7.28     (2) minimizing the impact by limiting the degree or 
  7.29  magnitude of the wetland activity and its implementation; 
  7.30     (3) rectifying the impact by repairing, rehabilitating, or 
  7.31  restoring the affected wetland environment; 
  7.32     (4) reducing or eliminating the impact over time by 
  7.33  preservation and maintenance operations during the life of the 
  7.34  activity; and 
  7.35     (5) compensating for the impact by replacing or providing 
  7.36  substitute wetland resources or environments. 
  8.1      For a project involving the draining or filling of wetlands 
  8.2   in an amount not exceeding 10,000 square feet more than the 
  8.3   applicable amount in section 103G.2241, paragraph (a), clause 
  8.4   (25), the local government unit may make a sequencing 
  8.5   determination without a written alternatives analysis from the 
  8.6   applicant. 
  8.7      (c) If a wetland is located in a cultivated field, then 
  8.8   replacement must be accomplished through restoration only 
  8.9   without regard to the priority order in paragraph (b), provided 
  8.10  that a deed restriction is placed on the altered wetland 
  8.11  prohibiting nonagricultural use for at least ten years.  
  8.12     (d) Restoration and replacement of wetlands must be 
  8.13  accomplished in accordance with the ecology of the landscape 
  8.14  area affected. 
  8.15     (e) Replacement shall be within the same watershed or 
  8.16  county as the impacted wetlands, as based on the wetland 
  8.17  evaluation in section 103G.2242, subdivision 2, except that 
  8.18  counties or watersheds in which 80 percent or more of the 
  8.19  presettlement wetland acreage is intact may accomplish 
  8.20  replacement in counties or watersheds in which 50 percent or 
  8.21  more of the presettlement wetland acreage has been filled, 
  8.22  drained, or otherwise degraded.  Wetlands impacted by public 
  8.23  transportation projects may be replaced statewide, provided they 
  8.24  are approved by the commissioner under an established wetland 
  8.25  banking system, or under the rules for wetland banking as 
  8.26  provided for under section 103G.2242. 
  8.27     (f) Except as provided in paragraph (g), for a wetland 
  8.28  located on nonagricultural land, replacement must be based on 
  8.29  the public value as provided in paragraph (a), determined using 
  8.30  the factors listed in section 103B.3355, or in the ratio of two 
  8.31  acres of replaced wetland for each acre of drained or filled 
  8.32  wetland. 
  8.33     (g) For a wetland located on agricultural land or in 
  8.34  counties or watersheds, affected by a public transportation 
  8.35  project, or located in a county or watershed in which 80 percent 
  8.36  or more of the presettlement wetland acreage exists, replacement 
  9.1   must be based on the public value as provided in paragraph (a), 
  9.2   determined using the factors listed in section 103B.3355, or in 
  9.3   the ratio of one acre of replaced wetland for each acre of 
  9.4   drained or filled wetland.  
  9.5      (h) Wetlands that are restored or created as a result of an 
  9.6   approved replacement plan are subject to the provisions of this 
  9.7   section for any subsequent drainage or filling. 
  9.8      (i) Except in counties or watersheds where 80 percent or 
  9.9   more of the presettlement wetlands are intact, only wetlands 
  9.10  that have been restored from previously drained or filled 
  9.11  wetlands, wetlands created by excavation in nonwetlands, 
  9.12  wetlands created by dikes or dams along public or private 
  9.13  drainage ditches, or wetlands created by dikes or dams 
  9.14  associated with the restoration of previously drained or filled 
  9.15  wetlands may be used in a statewide banking program established 
  9.16  in rules adopted under section 103G.2242, subdivision 1.  
  9.17  Modification or conversion of nondegraded naturally occurring 
  9.18  wetlands from one type to another are not eligible for 
  9.19  enrollment in a statewide wetlands bank. 
  9.20     (j) The technical evaluation panel established under 
  9.21  section 103G.2242, subdivision 2, shall ensure that sufficient 
  9.22  time has occurred for the wetland to develop wetland 
  9.23  characteristics of soils, vegetation, and hydrology before 
  9.24  recommending that the wetland be deposited in the statewide 
  9.25  wetland bank.  If the technical evaluation panel has reason to 
  9.26  believe that the wetland characteristics may change 
  9.27  substantially, the panel shall postpone its recommendation until 
  9.28  the wetland has stabilized. 
  9.29     (k) This section and sections 103G.223 to 103G.2242, 
  9.30  103G.2364, and 103G.2365 apply to the state and its departments 
  9.31  and agencies. 
  9.32     (l) A person may satisfy replacement requirements under 
  9.33  this section by paying an amount equal to the lesser of:  (1) 
  9.34  the cost of the replacement credits to the local government 
  9.35  unit; or (2) twice the average value of land in the immediate 
  9.36  vicinity of the project, as determined by the county assessor.  
 10.1   The payment must be made to the local government unit if it has 
 10.2   established a wetland bank that is approved by the board.  The 
 10.3   local government unit shall use any money received under this 
 10.4   paragraph for making withdrawals from the wetland bank 
 10.5   administered by the local government unit for the purpose of 
 10.6   replacing lost wetland values. 
 10.7      (m) For projects involving filling of wetlands associated 
 10.8   with a public transportation project, public transportation 
 10.9   authorities may purchase credits from the mitigation bank 
 10.10  established with proceeds from Laws 1994, chapter 643, 
 10.11  subdivision 3(c).  Wetland credits may be purchased at the 
 10.12  lesser of the following:  (1) the cost of the state to establish 
 10.13  the credits; or (2) twice the average value of land in the 
 10.14  immediate vicinity of the road project as determined by the 
 10.15  county assessor. 
 10.16     Sec. 13.  Minnesota Statutes 1994, section 103G.2241, is 
 10.17  amended to read: 
 10.18     103G.2241 [EXEMPTIONS.] 
 10.19     (a) Subject to the conditions in paragraph (b), a 
 10.20  replacement plan for wetlands is not required for:  
 10.21     (1) activities in a wetland that was planted with annually 
 10.22  seeded crops, was in a crop rotation seeding of pasture grasses 
 10.23  or legumes, or was required to be set aside to receive price 
 10.24  support or other payments under United States Code, title 7, 
 10.25  sections 1421 to 1469, in six of the last ten years prior to 
 10.26  January 1, 1991; 
 10.27     (2) activities in a wetland that is or has been enrolled in 
 10.28  the federal conservation reserve program under United States 
 10.29  Code, title 16, section 3831, that: 
 10.30     (i) was planted with annually seeded crops, was in a crop 
 10.31  rotation seeding, or was required to be set aside to receive 
 10.32  price support or payment under United States Code, title 7, 
 10.33  sections 1421 to 1469, in six of the last ten years prior to 
 10.34  being enrolled in the program; and 
 10.35     (ii) has not been restored with assistance from a public or 
 10.36  private wetland restoration program; 
 11.1      (3) activities necessary to repair and maintain existing 
 11.2   public or private drainage systems as long as wetlands that have 
 11.3   been in existence for more than 20 25 years are not drained; 
 11.4      (4) activities in a wetland that has received a commenced 
 11.5   drainage determination provided for by the federal Food Security 
 11.6   Act of 1985, that was made to the county agricultural 
 11.7   stabilization and conservation service office prior to September 
 11.8   19, 1988, and a ruling and any subsequent appeals or reviews 
 11.9   have determined that drainage of the wetland had been commenced 
 11.10  prior to December 23, 1985; 
 11.11     (5) activities exempted from federal regulation under 
 11.12  United States Code, title 33, section 1344(f); 
 11.13     (6) activities authorized under, and conducted in 
 11.14  accordance with, an applicable general permit issued by the 
 11.15  United States Army Corps of Engineers under section 404 of the 
 11.16  federal Clean Water Act, United States Code, title 33, section 
 11.17  1344, except the nationwide permit in Code of Federal 
 11.18  Regulations, title 33, section 330.5, paragraph (a), clause (14) 
 11.19  part 330, appendix A, nationwide permit number 3, as it applies 
 11.20  to roads, nationwide permit number 14, limited to when a new 
 11.21  road crosses a wetland, and all of clause (26) nationwide permit 
 11.22  number 26; 
 11.23     (7) activities in a type 1 wetland on agricultural land, as 
 11.24  defined in United States Fish and Wildlife Circular No. 39 (1971 
 11.25  edition), except for a bottomland hardwood type 1 wetlands 
 11.26  wetland, that is located on agricultural land; 
 11.27     (8) activities in a type 2 or 6 wetland that is two acres 
 11.28  in size or less located on agricultural land; 
 11.29     (9) activities in a wetland restored for conservation 
 11.30  purposes under a contract or easement providing the landowner 
 11.31  with the right to drain the restored wetland; 
 11.32     (10) activities in a wetland created solely as a result of: 
 11.33     (i) beaver dam construction; 
 11.34     (ii) blockage of culverts through roadways maintained by a 
 11.35  public or private entity; 
 11.36     (iii) actions by public entities that were taken for a 
 12.1   purpose other than creating the wetland; or 
 12.2      (iv) any combination of (i) to (iii); 
 12.3      (11) placement, maintenance, repair, enhancement, or 
 12.4   replacement of utility or utility-type service, including the 
 12.5   transmission, distribution, or furnishing, at wholesale or 
 12.6   retail, of natural or manufactured gas, electricity, telephone, 
 12.7   or radio service or communications if: 
 12.8      (i) the impacts of the proposed project on the hydrologic 
 12.9   and biological characteristics of the wetland have been avoided 
 12.10  and minimized to the extent possible; and 
 12.11     (ii) the proposed project significantly modifies or alters 
 12.12  less than one-half acre of wetlands; 
 12.13     (12) activities associated with routine maintenance of 
 12.14  utility and pipeline rights-of-way, provided the activities do 
 12.15  not result in additional intrusion into the wetland; 
 12.16     (13) alteration of a wetland associated with the operation, 
 12.17  maintenance, or repair of an interstate pipeline; 
 12.18     (14) temporarily crossing or entering a wetland to perform 
 12.19  silvicultural activities, including timber harvest as part of a 
 12.20  forest management activity, so long as the activity limits the 
 12.21  impact on the hydrologic and biologic characteristics of the 
 12.22  wetland; the activities do not result in the construction of 
 12.23  dikes, drainage ditches, tile lines, or buildings; and the 
 12.24  timber harvesting and other silvicultural practices do not 
 12.25  result in the drainage of the wetland or public waters; 
 12.26     (15) permanent access for forest roads across wetlands so 
 12.27  long as the activity limits the impact on the hydrologic and 
 12.28  biologic characteristics of the wetland; the construction 
 12.29  activities do not result in the access becoming a dike, drainage 
 12.30  ditch or tile line; with filling avoided wherever possible; and 
 12.31  there is no drainage of the wetland or public waters; 
 12.32     (16) draining or filling up to one-half acre of wetlands 
 12.33  per wetland basin, not to exceed two acres per project per year, 
 12.34  for the repair, rehabilitation, or replacement of a previously 
 12.35  authorized, currently serviceable existing public road, provided 
 12.36  that minor deviations in the public road's configuration or 
 13.1   filled area, including those due to changes in materials, 
 13.2   construction techniques, or current construction codes or safety 
 13.3   standards, that are necessary to make repairs, rehabilitation, 
 13.4   or replacement are allowed if the wetland draining or filling 
 13.5   resulting from the repair, rehabilitation, or replacement is 
 13.6   minimized; 
 13.7      (17) emergency repair and normal draining or filling of up 
 13.8   to one-half acre of wetlands for maintenance and repair of 
 13.9   existing public works, provided the activity does not result in 
 13.10  additional intrusion of the public works into the wetland and do 
 13.11  not result in the draining or filling, wholly or partially, of a 
 13.12  wetland or private infrastructure and updating of public or 
 13.13  private infrastructure as necessary to comply with requirements 
 13.14  under a law or ordinance; 
 13.15     (18) normal maintenance and minor repair of structures 
 13.16  causing no additional intrusion of an existing structure into 
 13.17  the wetland, and maintenance and repair of private crossings 
 13.18  that do not result in the draining or filling, wholly or 
 13.19  partially, of a wetland, including private crossings; 
 13.20     (19) duck blinds; 
 13.21     (20) aquaculture activities, including pond excavation and 
 13.22  construction and maintenance of associated access roads and 
 13.23  dikes authorized under, and conducted in accordance with, a 
 13.24  permit issued by the United States Army Corps of Engineers under 
 13.25  section 404 of the federal Clean Water Act, United States Code, 
 13.26  title 33, section 1344, but not including construction or 
 13.27  expansion of buildings; 
 13.28     (21) wild rice production activities, including necessary 
 13.29  diking and other activities authorized under a permit issued by 
 13.30  the United States Army Corps of Engineers under section 404 of 
 13.31  the federal Clean Water Act, United States Code, title 33, 
 13.32  section 1344; 
 13.33     (22) normal agricultural practices to control pests or 
 13.34  weeds, defined by rule as either noxious or secondary weeds, in 
 13.35  accordance with applicable requirements under state and federal 
 13.36  law, including established best management practices; 
 14.1      (23) activities in a wetland that is on agricultural land 
 14.2   annually enrolled in the federal Food, Agricultural, 
 14.3   Conservation, and Trade Act of 1990, United States Code, title 
 14.4   16, section 3821, subsection (a), clauses (1) to (3), as 
 14.5   amended, and is subject to sections 1421 to 1424 of the federal 
 14.6   act in effect on January 1, 1991, except that land enrolled in a 
 14.7   federal farm program is eligible for easement participation for 
 14.8   those acres not already compensated under a federal program; 
 14.9      (24) development projects and ditch improvement projects in 
 14.10  the state that have received preliminary or final plat approval, 
 14.11  or infrastructure that has been installed, or having local site 
 14.12  plan approval, conditional use permits, or similar official 
 14.13  approval by a governing body or government agency, within five 
 14.14  years before July 1, 1991.  In the seven-county metropolitan 
 14.15  area and in cities of the first and second class, plat approval 
 14.16  must be preliminary as approved by the appropriate governing 
 14.17  body; and 
 14.18     (25) activities that result in the draining or filling of 
 14.19  less than 400 square feet of wetlands. the following amounts of 
 14.20  wetlands as part of a project, regardless of the total amount of 
 14.21  wetlands drained or filled as part of the project: 
 14.22     (i) 400 square feet of wetlands, except that within a 
 14.23  shoreland wetland protection zone, a local government unit may 
 14.24  increase this amount to 1,000 square feet for types 1, 2, 6, and 
 14.25  7 wetlands outside the building setback that do not have a 
 14.26  permanent surface water connection to public waters; 
 14.27     (ii) 2,000 square feet of types 1, 2, 6, and 7 wetlands 
 14.28  outside shoreland wetland protection zones in counties or 
 14.29  watersheds with less than 50 percent of their presettlement 
 14.30  wetlands remaining; 
 14.31     (iii) 5,000 square feet of types 1, 2, 6, and 7 wetlands 
 14.32  outside shoreland wetland protection zones in counties or 
 14.33  watersheds with more than 50 percent and less than 80 percent of 
 14.34  their presettlement wetlands remaining; and 
 14.35     (iv) 10,000 square feet of types 1, 2, 6, and 7 wetlands 
 14.36  outside shoreland wetland protection zones in counties or 
 15.1   watersheds with greater than 80 percent of their presettlement 
 15.2   wetlands remaining; and 
 15.3      (26) a replacement plan for wetlands is not required for 
 15.4   deposition of spoil resulting from excavation within a wetland 
 15.5   for wildlife habitat improvement purposes, if: 
 15.6      (i) the area of deposition does not exceed five percent of 
 15.7   the wetland area or one-half acre, whichever is less and the 
 15.8   spoil is stabilized and permanently seeded to prevent erosion; 
 15.9      (ii) the project does not have an adverse impact on any 
 15.10  species designated as endangered or threatened under state or 
 15.11  federal law; and 
 15.12     (iii) the project is approved by the soil and water 
 15.13  conservation district. 
 15.14     (b) The exemption in paragraph (a), clause (3), allows 
 15.15  maintenance that results in filling of wetlands that have been 
 15.16  in existence for more than 25 years when the wetlands are 
 15.17  located within the right-of-way acreage of the ditch or within a 
 15.18  one-rod width on either side of the top of the ditch, whichever 
 15.19  is greater, the filling is limited to the side-casting of spoil 
 15.20  materials resulting from the maintenance, and the spoil 
 15.21  deposition area is permanently seeded into grass after 
 15.22  maintenance activities are completed. 
 15.23     (c) For the purpose of paragraph (a), clause (16), 
 15.24  "currently serviceable" means usable as is or with some 
 15.25  maintenance, but not so degraded as to essentially require 
 15.26  reconstruction.  Paragraph (a), clause (16), authorizes the 
 15.27  repair, rehabilitation, or replacement of public roads destroyed 
 15.28  by storms, floods, fire, or other discrete events, provided the 
 15.29  repair, rehabilitation, or replacement is commenced or under 
 15.30  contract to commence within two years of the occurrence of the 
 15.31  destruction or damage. 
 15.32     (c) (d) In applying the exemption in paragraph (a), clause 
 15.33  (25), the local government unit shall determine the scope of the 
 15.34  project and the wetlands to be replaced.  In making this 
 15.35  determination, the local government unit may request assistance 
 15.36  from the technical evaluation panel established under section 
 16.1   103G.2242, subdivision 2. 
 16.2      (e) A person conducting an activity in a wetland under an 
 16.3   exemption in paragraph (a) shall ensure that: 
 16.4      (1) appropriate erosion control measures are taken to 
 16.5   prevent sedimentation of the water; 
 16.6      (2) the activity does not block fish passage in a 
 16.7   watercourse; and 
 16.8      (3) the activity is conducted in compliance with all other 
 16.9   applicable federal, state, and local requirements, including 
 16.10  best management practices and water resource protection 
 16.11  requirements established under chapter 103H. 
 16.12     (f) A local government unit may expand the application of 
 16.13  paragraph (a), clauses (7) and (8), to additional acreage, 
 16.14  including types 1, 2, and 6 wetlands that are part of a larger 
 16.15  wetland system, when the additional acreage is part of a 
 16.16  conservation plan approved by the local soil and water 
 16.17  conservation district, the additional draining or filling is 
 16.18  necessary for efficient operation of the farm, and wetlands 
 16.19  other than types 1, 2, and 6 are not drained or filled. 
 16.20     (g) The exemption in paragraph (a), clause (25), no longer 
 16.21  applies to a wetland when the cumulative area drained or filled 
 16.22  since January 1, 1992, is the greater of: 
 16.23     (1) the applicable area listed in paragraph (a), clause 
 16.24  (25), items (i) to (iii); or 
 16.25     (2) five percent of the total area of the wetland. 
 16.26     (h) As used in paragraph (a), clause (17), "infrastructure" 
 16.27  means stormwater and sanitary sewer piping, individual sewage 
 16.28  treatment systems, outfalls, inlets, culverts, bridges, and any 
 16.29  other work defined specifically by a local government unit as 
 16.30  constituting a capital improvement, but does not include roads 
 16.31  or drainage ditches. 
 16.32     Sec. 14.  Minnesota Statutes 1994, section 103G.2242, 
 16.33  subdivision 1, is amended to read: 
 16.34     Subdivision 1.  [RULES.] (a) By July 1, 1993, the board, in 
 16.35  consultation with the commissioner, shall adopt rules governing 
 16.36  the approval of wetland value replacement plans under this 
 17.1   section.  These rules must address the criteria, procedure, 
 17.2   timing, and location of acceptable replacement of wetland 
 17.3   values; may address the state establishment and administration 
 17.4   of a wetland banking program for public and private projects, 
 17.5   which may include provisions allowing monetary payment to the 
 17.6   wetland banking program for alteration of wetlands on 
 17.7   agricultural land; the methodology to be used in identifying and 
 17.8   evaluating wetland functions; the administrative, monitoring, 
 17.9   and enforcement procedures to be used; and a procedure for the 
 17.10  review and appeal of decisions under this section.  In the case 
 17.11  of peatlands, the replacement plan rules must consider the 
 17.12  impact on carbon balance described in the report required by 
 17.13  Laws 1990, chapter 587, and include the planting of trees or 
 17.14  shrubs. 
 17.15     (b) After the adoption of the rules, a replacement plan 
 17.16  must be approved by a resolution of the governing body of the 
 17.17  local government unit, consistent with the provisions of the 
 17.18  rules. 
 17.19     (c) The board may approve as an alternative to the rules 
 17.20  adopted under this subdivision a comprehensive wetland 
 17.21  protection and management plan developed by a local government 
 17.22  unit, provided that the plan: 
 17.23     (1) incorporates sections 103A.201, subdivision 2, and 
 17.24  103G.222; 
 17.25     (2) is adopted as part of an approved local water plan 
 17.26  under sections 103B.231 and 103B.311; and 
 17.27     (3) is adopted as part of the local government's official 
 17.28  controls. 
 17.29     (d) If the local government unit fails to apply the rules, 
 17.30  or fails to implement a local program comprehensive wetland 
 17.31  protection and management plan under paragraph (c) subdivision 
 17.32  1a, the government unit is subject to penalty as determined by 
 17.33  the board. 
 17.34     Sec. 15.  Minnesota Statutes 1994, section 103G.2242, is 
 17.35  amended by adding a subdivision to read: 
 17.36     Subd. 1a.  [COMPREHENSIVE WETLAND PROTECTION AND MANAGEMENT 
 18.1   PLANS.] (a) As an alternative to implementing the rules adopted 
 18.2   under this section, a local government unit may adopt and 
 18.3   implement a comprehensive wetland protection and management plan 
 18.4   that meets the requirements in this subdivision. 
 18.5      (b) A plan under this subdivision must be adopted by 
 18.6   ordinance in accordance with one of the following, at the option 
 18.7   of the local government unit: 
 18.8      (1) the applicable process for approval of a local water 
 18.9   plan under chapter 103B; or 
 18.10     (2) the process required for adoption of comprehensive 
 18.11  plans under chapter 394 and the following additional 
 18.12  requirements: 
 18.13     (i) before initiating the plan development process, the 
 18.14  local government unit shall publish in a legal newspaper of 
 18.15  general circulation in the proposed plan area and mail to the 
 18.16  board, the affected state and federal agencies, other affected 
 18.17  local government units, and others who have requested to be 
 18.18  included on the mailing list, a notice soliciting input and 
 18.19  participation in the plan development process; 
 18.20     (ii) not less than 60 days before the public hearing 
 18.21  required by section 375.51, subdivision 1, the local government 
 18.22  unit shall provide written notice of the hearing to the 
 18.23  executive director of the board and the affected local, state, 
 18.24  and federal agencies; 
 18.25     (iii) the local government unit shall prepare and make 
 18.26  available to the public a written report addressing the issues 
 18.27  raised in comments received on the proposed plan; 
 18.28     (iv) at the time publication is made of the adopted plan 
 18.29  under section 375.51, subdivision 3, a copy of the plan must 
 18.30  also be mailed to the executive director of the board and the 
 18.31  affected local, state, and federal agencies; and 
 18.32     (v) notice of the availability of the report required in 
 18.33  clause (iii) must be included in the publication under section 
 18.34  375.51, subdivision 3, and mailed with the plan under clause 
 18.35  (iv). 
 18.36     (c) A comprehensive wetland protection and management plan 
 19.1   may: 
 19.2      (1) provide for a public value-based classification of 
 19.3   wetlands in the plan area based on: 
 19.4      (i) an assessment of the wetland functions listed in 
 19.5   section 103B.3355 that is conducted using a scientific wetland 
 19.6   functional assessment methodology developed in consultation with 
 19.7   the board; and 
 19.8      (ii) the resulting public values, both positive and 
 19.9   negative, taking into account local conditions in the plan area, 
 19.10  including the amount of upland, wetlands, and other waters in 
 19.11  the area; 
 19.12     (2) modify the exemptions in section 103G.2241, paragraph 
 19.13  (a), clauses (7), (8), (16), and (25), and the replacement and 
 19.14  sequencing requirements in section 103G.222 and this section in 
 19.15  accordance with paragraph (d); 
 19.16     (3) allow replacement credit for any project that increases 
 19.17  the public value of wetlands, including activities on adjacent 
 19.18  upland areas, based on the classification; 
 19.19     (4) establish a local wetland bank that is not subject to 
 19.20  rules adopted by the board, based on the classification; and 
 19.21     (5) map or provide a procedure for mapping wetlands and 
 19.22  classifications of wetlands in the plan area. 
 19.23     (d) The local government unit may modify the exemptions in 
 19.24  section 103G.2241, paragraph (a), clauses (7), (8), (16), and 
 19.25  (25), and the replacement and sequencing requirements in section 
 19.26  103G.222 and this section, provided that under the plan as a 
 19.27  whole no net loss of public value of wetlands, as determined 
 19.28  under paragraph (c), clause (1), in the plan area. 
 19.29     (e) After approval of the plan by the board, the local 
 19.30  government unit shall make replacement decisions based on the 
 19.31  plan. 
 19.32     (f) Upon request, the board shall provide technical 
 19.33  assistance to local government units developing plans. 
 19.34     (g) A plan adopted under this subdivision is not effective 
 19.35  until it has been approved by the board.  The board shall review 
 19.36  the plan and make a decision on approval or disapproval within 
 20.1   90 days after submission of the plan to the board.  The board 
 20.2   shall give deference to the planning process under paragraph (b).
 20.3      (h) In determining the merit of a comment on the plan made 
 20.4   by a state agency, the board shall consider the extent of 
 20.5   involvement of the commenting agency in the development of the 
 20.6   plan. 
 20.7      (i) The board shall approve a plan adopted in accordance 
 20.8   with this subdivision unless the board can demonstrate that the 
 20.9   plan would allow for a net loss of wetland public values, as 
 20.10  determined under paragraph (c), clause (1).  A demonstration 
 20.11  under this paragraph must be based on relevant scientific 
 20.12  principles as applied to the specific conditions existing in the 
 20.13  plan area. 
 20.14     (j) The board may not disapprove a plan unless the reasons 
 20.15  for the disapproval were raised, if a reasonable opportunity 
 20.16  existed, during: 
 20.17     (1) the planning process required in paragraph (b); or 
 20.18     (2) if applicable under paragraph (c), the local review 
 20.19  process for local water plans under chapter 103B. 
 20.20     (k) The board shall forward any disapproval with the 
 20.21  specific reasons for disapproval to the local government unit.  
 20.22  Within 60 days after receipt of a plan disapproval, the local 
 20.23  government unit may submit a revised plan to the board.  After a 
 20.24  board decision to disapprove a plan becomes final, the local 
 20.25  government unit may request a hearing before the board.  The 
 20.26  board shall hold the hearing in the plan area within 60 days of 
 20.27  receiving the request.  Within 60 days after the hearing, the 
 20.28  board shall provide to the local government unit a report of 
 20.29  decision to approve or disapprove the plan.  If the board's 
 20.30  decision is to disapprove the plan, the local government unit 
 20.31  may, within 60 days after receipt of the report of decision, 
 20.32  appeal the board's decision to the district court with 
 20.33  jurisdiction over some or all of the plan area. 
 20.34     (l) In approving a plan, the board shall advise the local 
 20.35  government unit of those elements of the plan that are more 
 20.36  restrictive than state law and rules for purposes of section 
 21.1   103G.237, subdivision 5. 
 21.2      (m) After a plan is approved by the board, a state agency 
 21.3   conducting activities involving the draining or filling of 
 21.4   wetlands in the plan area shall: 
 21.5      (1) comply with local requirements implementing the plan; 
 21.6   or 
 21.7      (2) comply with applicable state requirements and submit 
 21.8   plans to, or consult with the local government unit regarding, 
 21.9   the activities and to the extent practicable incorporate the 
 21.10  recommendations of the local government unit relating to 
 21.11  compliance with local requirements under the plan. 
 21.12  The board shall enforce state agency compliance with state law 
 21.13  by a cease and desist order stating how the proposed or ongoing 
 21.14  activity must be changed to be in compliance with state 
 21.15  requirements. 
 21.16     (n) The board shall provide state cost-share funds to local 
 21.17  government units for activities related to adopting and 
 21.18  implementing a plan in the same manner as provided to local 
 21.19  government units for implementing sections 103G.222 to 103G.237 
 21.20  and rules adopted by the board.  A local government unit that 
 21.21  notifies the board of the intent to adopt a plan shall comply 
 21.22  with sections 103G.222 to 103G.237 and rules consistent with 
 21.23  these sections until the plan is adopted. 
 21.24     Sec. 16.  Minnesota Statutes 1994, section 103G.2242, 
 21.25  subdivision 2, is amended to read: 
 21.26     Subd. 2.  [EVALUATION.] Questions concerning the public 
 21.27  value, location, size, or type of a wetland shall be submitted 
 21.28  to and determined by a technical evaluation panel after an 
 21.29  on-site inspection.  The technical evaluation panel shall be 
 21.30  composed of a technical professional employee of the board, a 
 21.31  technical professional employee of the local soil and water 
 21.32  conservation district or districts, and a technical professional 
 21.33  with expertise in water resources management appointed by the 
 21.34  local government unit.  The panel shall use the "Federal Manual 
 21.35  for Identifying and Delineating Jurisdictional Wetlands" 
 21.36  (January 1989) "U.S. Army Corps of Engineers Wetland Delineation 
 22.1   Manual" (January 1987).  The panel shall provide the wetland 
 22.2   determination to the local government unit that must approve a 
 22.3   replacement plan under this section, and may recommend approval 
 22.4   or denial of the plan.  The authority must consider and include 
 22.5   the decision of the technical evaluation panel in their approval 
 22.6   or denial of a plan. 
 22.7      Sec. 17.  Minnesota Statutes 1994, section 103G.2242, 
 22.8   subdivision 4, is amended to read: 
 22.9      Subd. 4.  [DECISION.] Upon receiving and considering all 
 22.10  required data, the local government unit approving a replacement 
 22.11  plan must act on all applications for plan approval within 60 
 22.12  days.  A local government unit may extend the 60-day period for 
 22.13  an additional 30 days by notifying the applicant in writing of 
 22.14  the delay, the reasons for the delay, and the expected date of 
 22.15  final action on the application.  If the local government unit 
 22.16  fails to act on an application within the 60-day period or any 
 22.17  extension period, the replacement plan shall be deemed approved. 
 22.18     Sec. 18.  Minnesota Statutes 1994, section 103G.2242, 
 22.19  subdivision 6, is amended to read: 
 22.20     Subd. 6.  [NOTICE OF APPLICATION.] (a) Except as provided 
 22.21  in paragraph (b), within ten days of receiving an application 
 22.22  for approval of a replacement plan under this section, a copy 
 22.23  summary of the application must be submitted to the board for 
 22.24  publication in the Environmental Quality Board Monitor and 
 22.25  separate copies of the complete application mailed to the 
 22.26  members of the technical evaluation panel, individual members of 
 22.27  the public who request a copy, the board of supervisors of the 
 22.28  soil and water conservation district, the managers of the 
 22.29  watershed district if one exists, the board of county 
 22.30  commissioners, and the commissioner of agriculture, and the 
 22.31  mayors of the cities within the area watershed.  At the same 
 22.32  time, the local government unit must give general notice to the 
 22.33  public in a general circulation newspaper within the area 
 22.34  affected natural resources. 
 22.35     (b) Within ten days of receiving an application for 
 22.36  approval of a replacement plan under this section for an 
 23.1   activity affecting less than 10,000 square feet of wetland, a 
 23.2   summary of the application must be submitted for publication in 
 23.3   the Environmental Quality Board Monitor and separate copies 
 23.4   mailed to the members of the technical evaluation panel, 
 23.5   individual members of the public who request a copy, and the 
 23.6   managers of the watershed district, if applicable.  At the same 
 23.7   time, the local government unit must give general notice to the 
 23.8   public in a general circulation newspaper within the area 
 23.9   affected commissioner of natural resources. 
 23.10     (c) For the purpose of this subdivision, "application" 
 23.11  includes a revised application for replacement plan approval and 
 23.12  an application for a revision to an approved replacement plan if:
 23.13     (1) the wetland area to be drained or filled under the 
 23.14  revised replacement plan is at least ten percent larger than the 
 23.15  area to be drained or filled under the original replacement 
 23.16  plan; or 
 23.17     (2) the wetland area to be drained or filled under the 
 23.18  revised replacement is located more than 500 feet from the area 
 23.19  to be drained or filled under the original replacement plan. 
 23.20     Sec. 19.  Minnesota Statutes 1994, section 103G.2242, 
 23.21  subdivision 7, is amended to read: 
 23.22     Subd. 7.  [NOTICE OF DECISION.] (a) Except as provided in 
 23.23  paragraph (b), at least 30 Within ten days prior to the 
 23.24  effective date of the approval or denial of a replacement plan 
 23.25  under this section, a copy summary of the approval or denial 
 23.26  must be submitted for publication in the Environmental Quality 
 23.27  Board Monitor and separate copies mailed to members of the 
 23.28  technical evaluation panel, the applicant, the board, individual 
 23.29  members of the public who request a copy, the board of 
 23.30  supervisors of the soil and water conservation district, the 
 23.31  managers of the watershed district, the board of county 
 23.32  commissioners, if one exists, and the commissioner of 
 23.33  agriculture, and the mayors of the cities within the area 
 23.34  watershed natural resources.  Notice in the Environmental 
 23.35  Quality Board Monitor is not required for projects involving the 
 23.36  draining or filling of less than 10,000 square feet of wetlands. 
 24.1      (b) Within ten days of the decision approving or denying a 
 24.2   replacement plan under this section for an activity affecting 
 24.3   less than 10,000 square feet of wetland, a summary of the 
 24.4   approval or denial must be submitted for publication in the 
 24.5   Environmental Quality Board Monitor and separate copies mailed 
 24.6   to the applicant, individual members of the public who request a 
 24.7   copy, the members of the technical evaluation panel, and the 
 24.8   managers of the watershed district, if applicable.  At the same 
 24.9   time, the local government unit must give general notice to the 
 24.10  public in a general circulation newspaper within the area 
 24.11  affected. 
 24.12     Sec. 20.  Minnesota Statutes 1994, section 103G.2242, 
 24.13  subdivision 9, is amended to read: 
 24.14     Subd. 9.  [APPEAL.] Appeal of the a replacement plan, 
 24.15  exemption, or no-loss decision may be obtained by mailing 
 24.16  a notice of appeal petition and payment of a filing fee of $200 
 24.17  to the board within 30 15 days after the postmarked date of the 
 24.18  mailing specified in subdivision 7.  The local government unit 
 24.19  may require the petitioner to post a bond in an amount not to 
 24.20  exceed $500.  If appeal is not sought within 30 days, the 
 24.21  decision becomes final.  Appeal may be made by the wetland 
 24.22  owner, by any of those to whom notice is required to be mailed 
 24.23  under subdivision 7, or by 100 residents of the county in which 
 24.24  a majority of the wetland is located.  Within 30 days after 
 24.25  receiving a petition, the board shall decide whether to grant 
 24.26  the petition and hear the appeal.  The board shall grant the 
 24.27  petition unless the board finds that the appeal is meritless, 
 24.28  trivial, or brought solely for the purposes of delay; that the 
 24.29  petitioner has not exhausted all local administrative remedies; 
 24.30  or that the petitioner has not posted a bond if required by the 
 24.31  local government unit.  In determining whether to grant the 
 24.32  appeal, the board shall also consider the size of the wetland, 
 24.33  other factors in controversy, any patterns of similar acts by 
 24.34  the local government unit or petitioner, and the consequences of 
 24.35  the delay resulting from the appeal.  If the petition is 
 24.36  accepted, the filing fee will be retained by the board to defray 
 25.1   administrative costs.  If the appeal is denied, the filing fee 
 25.2   must be returned to the petitioner.  All appeals must be heard 
 25.3   by the committee for dispute resolution of the board, and a 
 25.4   decision made within 60 days of the appeal.  The decision must 
 25.5   be served by mail on the parties to the appeal, and is not 
 25.6   subject to the provisions of chapter 14.  The A decision whether 
 25.7   to grant a petition for appeal and a decision on the merits of 
 25.8   an appeal must be considered the decision of an agency in a 
 25.9   contested case for purposes of judicial review under sections 
 25.10  14.63 to 14.69. 
 25.11     Sec. 21.  Minnesota Statutes 1994, section 103G.2242, 
 25.12  subdivision 12, is amended to read: 
 25.13     Subd. 12.  [REPLACEMENT CREDITS.] (a) No public or private 
 25.14  wetland restoration, enhancement, or construction may be allowed 
 25.15  for replacement unless specifically designated for replacement 
 25.16  and paid for by the individual or organization performing the 
 25.17  wetland restoration, enhancement, or construction, and is 
 25.18  completed prior to any draining or filling of the wetland. 
 25.19     This subdivision Paragraph (a) does not apply to a wetland 
 25.20  whose owner has paid back with interest the individual or 
 25.21  organization restoring, enhancing, or constructing the wetland. 
 25.22     (b) Notwithstanding section 103G.222, paragraph (i), the 
 25.23  following actions are eligible for replacement credit as 
 25.24  determined by the local government unit, including enrollment in 
 25.25  a statewide wetlands bank: 
 25.26     (1) Reestablishment of permanent vegetative cover on a 
 25.27  wetland that was planted with annually seeded crops, was in a 
 25.28  crop rotation seeding of pasture grasses or legumes, or was 
 25.29  required to be set aside to receive price supports or other 
 25.30  payments under United States Code, title 7, sections 1421 to 
 25.31  1469, in six of the last ten years prior to January 1, 1991.  
 25.32  Replacement credit may not exceed 50 percent of the total 
 25.33  wetland area vegetatively restored. 
 25.34     (2) Buffer areas of permanent vegetative cover established 
 25.35  on upland adjacent to replacement wetlands.  The upland buffer 
 25.36  must be established at the time of wetland mitigation and 
 26.1   replacement credit for such buffers cannot exceed 75 percent of 
 26.2   the mitigated wetland area and can only be used for replacement 
 26.3   above a 1:1 ratio. 
 26.4      (3) Wetlands restored for conservation purposes under 
 26.5   terminated easements or contracts.  Up to 75 percent of the 
 26.6   restored wetland area is eligible for replacement credit.  
 26.7   Adjacent upland buffer areas reestablished to permanent 
 26.8   vegetative cover are eligible for replacement credit above a 1:1 
 26.9   ratio in an amount not to exceed 25 percent of the restored 
 26.10  wetland area. 
 26.11     (4) Water quality treatment ponds constructed to pretreat 
 26.12  storm water runoff prior to discharge to wetlands, public 
 26.13  waters, or other water bodies.  The water quality treatment 
 26.14  ponds must be associated with an ongoing or proposed project 
 26.15  that will impact a wetland.  Replacement credit for the 
 26.16  treatment ponds may not exceed 75 percent of the treatment pond 
 26.17  area and may only be used for replacement above a 1:1 ratio. 
 26.18     Sec. 22.  Minnesota Statutes 1994, section 103G.237, 
 26.19  subdivision 4, is amended to read: 
 26.20     Subd. 4.  [COMPENSATION.] (a) The board shall award 
 26.21  compensation in an amount equal to the greater of: 
 26.22     (1) 50 percent of the value of the wetland, calculated by 
 26.23  multiplying the acreage of the wetland by the greater of: 
 26.24     (1) (i) the average equalized estimated market value of 
 26.25  agricultural property in the township as established by the 
 26.26  commissioner of revenue at the time application for compensation 
 26.27  is made; or 
 26.28     (2) (ii) the assessed value per acre of the parcel 
 26.29  containing the wetland, based on the assessed value of the 
 26.30  parcel as stated on the most recent tax statement; or 
 26.31     (2) $200 per acre of wetland subject to the replacement 
 26.32  plan, increased or decreased by the percentage change of the 
 26.33  assessed valuation of land in the township where the wetland is 
 26.34  located from the 1995 valuation. 
 26.35     (b) A person who receives compensation under paragraph (a) 
 26.36  shall convey to the board a permanent conservation easement as 
 27.1   described in section 103F.515, subdivision 4.  An easement 
 27.2   conveyed under this paragraph is subject to correction and 
 27.3   enforcement under section 103F.515, subdivisions 8 and 9. 
 27.4      Sec. 23.  Minnesota Statutes 1994, section 103G.237, is 
 27.5   amended by adding a subdivision to read: 
 27.6      Subd. 5.  [CLAIMS AGAINST LOCAL GOVERNMENT UNITS.] (a) At 
 27.7   the request of a local government unit against which an action 
 27.8   is brought based at least in part on the local government unit's 
 27.9   application of section 103G.222, 103G.2241, 103G.2242, 103G.237, 
 27.10  or 103G.2372, or rules adopted by the board to implement these 
 27.11  sections, the state, through the attorney general, shall 
 27.12  intervene in the action on behalf of the local government unit 
 27.13  and shall thereafter be considered a defendant in the action.  A 
 27.14  local government unit making a request under this paragraph 
 27.15  shall provide the attorney general with a copy of the complaint 
 27.16  as soon as possible after being served.  If requested by the 
 27.17  attorney general, the court shall grant additional time to file 
 27.18  an answer equal to the time between service of the complaint on 
 27.19  the local government unit and receipt of the complaint by the 
 27.20  attorney general. 
 27.21     (b) The state is liable for costs, damages, fees, and 
 27.22  compensation awarded in the action based on the local 
 27.23  government's adoption or implementation of standards that are 
 27.24  required by state law, as determined by the court.  The local 
 27.25  government unit is liable for costs, damages, fees, and 
 27.26  compensation awarded in the action based on local standards that 
 27.27  are more restrictive than state law and rules, as determined by 
 27.28  the court. 
 27.29     Sec. 24.  Minnesota Statutes 1994, section 103G.2372, 
 27.30  subdivision 1, is amended to read: 
 27.31     Subdivision 1.  [COMMISSIONER OF NATURAL RESOURCES 
 27.32  ENFORCEMENT.] (a) Except as otherwise provided in this 
 27.33  subdivision, the commissioner of natural resources, conservation 
 27.34  officers, and peace officers shall enforce laws preserving and 
 27.35  protecting wetlands.  The commissioner of natural resources, a 
 27.36  conservation officer, or a peace officer may issue a cease and 
 28.1   desist order to stop any illegal activity adversely affecting 
 28.2   draining or filling of a wetland.  In the order, or by separate 
 28.3   order, the commissioner, conservation officer, or peace officer 
 28.4   may require restoration or replacement of the wetland, as 
 28.5   determined by the local soil and water conservation district or 
 28.6   as otherwise provided by a comprehensive wetland protection and 
 28.7   management plan.  The soil and water conservation district shall 
 28.8   make its determination within 45 days after the cease and desist 
 28.9   order or separate restoration order is issued. 
 28.10     (b) An order issued under this subdivision may be enforced 
 28.11  under section 103G.141, subdivision 2, except that the penalty 
 28.12  imposed may not exceed $1,000 for each violation. 
 28.13     (c) A local government unit implementing a comprehensive 
 28.14  wetland protection and management plan under section 103G.2242, 
 28.15  subdivision 1a, may, by written notice to the board and the 
 28.16  commissioner, elect to assume the enforcement powers and duties 
 28.17  granted to the commissioner of natural resources and 
 28.18  conservation officers under paragraph (a) and enforce wetland 
 28.19  protection laws under section 394.37.  After receipt of the 
 28.20  notice by the commissioner, the commissioner and conservation 
 28.21  officers may not take an enforcement action under this section 
 28.22  in the local government unit unless requested by the local 
 28.23  government unit or authorized by the board under paragraph (d). 
 28.24     (d) If the board determines that there are reasonable 
 28.25  grounds to believe that a local government unit is not uniformly 
 28.26  exercising enforcement powers and duties assumed under paragraph 
 28.27  (c), the board shall authorize the commissioner to resume 
 28.28  enforcement under paragraph (a). 
 28.29     Sec. 25.  Minnesota Statutes 1994, section 103G.2373, is 
 28.30  amended to read: 
 28.31     103G.2373 [ANNUAL WETLANDS REPORT.] 
 28.32     By January March 1 of each year, the commissioner of 
 28.33  natural resources and the board of water and soil resources 
 28.34  shall jointly report to the committees of the legislature with 
 28.35  jurisdiction over matters relating to agriculture, the 
 28.36  environment, and natural resources on: 
 29.1      (1) the status of implementation of state laws and programs 
 29.2   relating to wetlands; 
 29.3      (2) the quantity, quality, acreage, types, and public value 
 29.4   of wetlands in the state; and 
 29.5      (3) changes in the items in clause (2). 
 29.6      Sec. 26.  Minnesota Statutes 1994, section 103G.245, 
 29.7   subdivision 2, is amended to read: 
 29.8      Subd. 2.  [EXCEPTIONS.] A public waters work permit is not 
 29.9   required for: 
 29.10     (1) work in altered natural watercourses that are part of 
 29.11  drainage systems established under chapter 103D or 103E if the 
 29.12  work in the waters is undertaken according to chapter 103D or 
 29.13  103E; or 
 29.14     (2) a drainage project for a drainage system established 
 29.15  under chapter 103E that does not substantially affect public 
 29.16  waters; or 
 29.17     (3) removal of sediment accumulated in public waters 
 29.18  resulting from a public drainage system, provided that: 
 29.19     (i) the depth and extent of the accumulated sediment is 
 29.20  documented by the ditch authority before removal; 
 29.21     (ii) the original course, current, or cross-section of the 
 29.22  public waters is not altered; and 
 29.23     (iii) the length of excavation is limited to the minimum 
 29.24  needed to restore the original hydraulic capacity. 
 29.25     Sec. 27.  Minnesota Statutes 1994, section 115.03, is 
 29.26  amended by adding a subdivision to read: 
 29.27     Subd. 4a.  [SECTION 401 CERTIFICATIONS.] (a) The following 
 29.28  definitions apply to this subdivision: 
 29.29     (1) "section 401 certification" means a water quality 
 29.30  certification required under section 401 of the federal Clean 
 29.31  Water Act, United States Code, title 33, section 1341; and 
 29.32     (2) "nationwide permit" means a nationwide general permit 
 29.33  issued by the United States Army Corps of Engineers and listed 
 29.34  in Code of Federal Regulations, title 33, part 330, appendix A, 
 29.35  but does not include nationwide permits for which the agency 
 29.36  requires project-specific certification. 
 30.1      (b) The agency is responsible for providing section 401 
 30.2   certifications for nationwide permits. 
 30.3      (c) Before making a final decision on a section 401 
 30.4   certification for a nationwide permit, the agency shall hold at 
 30.5   least one public meeting outside the seven-county metropolitan 
 30.6   area. 
 30.7      (d) In addition to other notice required by law, the agency 
 30.8   shall provide written notice of a meeting at which the agency 
 30.9   will be considering a section 401 certification for a nationwide 
 30.10  permit at least 21 days before the date of the meeting to the 
 30.11  members of the senate and house of representatives environment 
 30.12  and natural resources committees, the senate agriculture and 
 30.13  rural development committee, and the house of representatives 
 30.14  agriculture committee. 
 30.15     Sec. 28.  Laws 1994, chapter 643, section 26, subdivision 
 30.16  3, is amended to read: 
 30.17  Subd. 3.  RIM Conservation Easement 
 30.18  Acquisition                                           9,000,000
 30.19  This appropriation is for the purposes 
 30.20  specified in paragraphs (a) to (c). 
 30.21  (a) To acquire conservation easements 
 30.22  from landowners on marginal lands to 
 30.23  protect soil and water quality and to 
 30.24  support fish and wildlife habitat as 
 30.25  provided in Minnesota Statutes, section 
 30.26  103F.515. 
 30.27  (b) To acquire perpetual conservation 
 30.28  easements on existing type 1, 2, and 3 
 30.29  wetlands, adjacent lands, and for the 
 30.30  establishment of permanent cover on 
 30.31  adjacent lands, in accordance with 
 30.32  Minnesota Statutes, section 103F.516.  
 30.33  (c) Up to $300,000 of this 
 30.34  appropriation may be used to establish 
 30.35  and restore wetlands to provide credits 
 30.36  for deposit in the state wetland bank 
 30.37  established under Minnesota Statutes, 
 30.38  section 103G.2242, subdivision 1.  The 
 30.39  board may enter into agreements with 
 30.40  local government units and the 
 30.41  commissioner of transportation for this 
 30.42  purpose.  An agreement with the 
 30.43  commissioner of transportation may 
 30.44  provide for borrowing or acquiring 
 30.45  existing wetland credits from the 
 30.46  wetland bank established by the 
 30.47  commissioner.  Proceeds from the sale 
 30.48  of credits provided under this 
 30.49  paragraph are appropriated to the board 
 30.50  for the purposes of paragraph 
 30.51  (b).  Sales of credits provided under 
 31.1   this paragraph to public entities are 
 31.2   not subject to Minnesota Statutes, 
 31.3   section 16A.695. 
 31.4      Sec. 29.  [STUDY OF WETLAND BANKING ALTERNATIVES; REPORT.] 
 31.5      The wetland heritage advisory committee, under the auspices 
 31.6   of the state comprehensive wetlands planning project, shall 
 31.7   investigate alternative procedures and policies for improving 
 31.8   the current wetland banking system in the state.  The study must 
 31.9   address ecological, hydrological, and economic aspects of 
 31.10  wetland banking.  The study and any recommendations must be 
 31.11  reported to the appropriate policy committees of the legislature 
 31.12  by January 1, 1997. 
 31.13     Sec. 30.  [LINCOLN-PIPESTONE CALCAREOUS FEN.] 
 31.14     The fen management plan required by Minnesota Statutes, 
 31.15  section 103G.223 for sections 5, 6, 8, and 17 of T114N, R46W, 
 31.16  and the Burr Well Field must be jointly developed by the 
 31.17  commissioner of natural resources and the Lincoln-Pipestone 
 31.18  rural water district and must provide that water will be 
 31.19  supplied to the existing customers for domestic use.  Existing 
 31.20  livestock capacity, and planned capacity that is under 
 31.21  construction before August 1, 1995, must be included as domestic 
 31.22  use. 
 31.23     Sec. 31.  [RESTORATION PLAN.] 
 31.24     (a) In cooperation with the board of water and soil 
 31.25  resources and affected local government units, the commissioner 
 31.26  of natural resources shall: 
 31.27     (1) inventory nonfederal public lands and identify, by 
 31.28  watershed, areas that are previously drained wetlands; and 
 31.29     (2) inventory private lands and identify within the 
 31.30  Minnesota river basin areas that are previously drained wetlands.
 31.31     (b) A restoration plan must be submitted to the legislative 
 31.32  committees on environment and natural resources policy and 
 31.33  finance by February 1, 1996, with recommendations on which areas 
 31.34  under paragraph (a) are biologically suitable for restoration 
 31.35  and the approximate cost of restoration statewide and by 
 31.36  watershed. 
 31.37     Sec. 32.  [REPEALER.] 
 32.1      Minnesota Statutes 1994, sections 103G.2242, subdivision 
 32.2   13; and 103G.2372, subdivisions 2 and 3, are repealed. 
 32.3      Sec. 33.  [EFFECTIVE DATE.] 
 32.4      This act is effective July 1, 1995, except that sections 14 
 32.5   and 15 are effective the day following final enactment.