1.1                          A bill for an act 
  1.2             relating to natural resources; wetlands; modifying 
  1.3             wetland replacement requirements for public 
  1.4             transportation projects; amending Minnesota Statutes 
  1.5             2002, sections 103G.222, subdivisions 1, 3; 103G.2241, 
  1.6             subdivision 9. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 2002, section 103G.222, 
  1.9   subdivision 1, is amended to read: 
  1.10     Subdivision 1.  [REQUIREMENTS.] (a) Wetlands must not be 
  1.11  drained or filled, wholly or partially, unless replaced by 
  1.12  restoring or creating wetland areas of at least equal public 
  1.13  value under a replacement plan approved as provided in section 
  1.14  103G.2242, a replacement plan under a local governmental unit's 
  1.15  comprehensive wetland protection and management plan approved by 
  1.16  the board under section 103G.2243, or, if a permit to mine is 
  1.17  required under section 93.481, under a mining reclamation plan 
  1.18  approved by the commissioner under the permit to mine.  Mining 
  1.19  reclamation plans shall apply the same principles and standards 
  1.20  for replacing wetlands by restoration or creation of wetland 
  1.21  areas that are applicable to mitigation plans approved as 
  1.22  provided in section 103G.2242.  Public value must be determined 
  1.23  in accordance with section 103B.3355 or a comprehensive wetland 
  1.24  protection and management plan established under section 
  1.25  103G.2243.  Sections 103G.221 to 103G.2372 also apply to 
  1.26  excavation in permanently and semipermanently flooded areas of 
  2.1   types 3, 4, and 5 wetlands. 
  2.2      (b) Replacement must be guided by the following principles 
  2.3   in descending order of priority: 
  2.4      (1) avoiding the direct or indirect impact of the activity 
  2.5   that may destroy or diminish the wetland; 
  2.6      (2) minimizing the impact by limiting the degree or 
  2.7   magnitude of the wetland activity and its implementation; 
  2.8      (3) rectifying the impact by repairing, rehabilitating, or 
  2.9   restoring the affected wetland environment; 
  2.10     (4) reducing or eliminating the impact over time by 
  2.11  preservation and maintenance operations during the life of the 
  2.12  activity; 
  2.13     (5) compensating for the impact by restoring a wetland; and 
  2.14     (6) compensating for the impact by replacing or providing 
  2.15  substitute wetland resources or environments. 
  2.16     For a project involving the draining or filling of wetlands 
  2.17  in an amount not exceeding 10,000 square feet more than the 
  2.18  applicable amount in section 103G.2241, subdivision 9, paragraph 
  2.19  (a), the local government unit may make an on-site sequencing 
  2.20  determination without a written alternatives analysis from the 
  2.21  applicant. 
  2.22     (c) If a wetland is located in a cultivated field, then 
  2.23  replacement must be accomplished through restoration only 
  2.24  without regard to the priority order in paragraph (b), provided 
  2.25  that a deed restriction is placed on the altered wetland 
  2.26  prohibiting nonagricultural use for at least ten years.  
  2.27     (d) Restoration and replacement of wetlands must be 
  2.28  accomplished in accordance with the ecology of the landscape 
  2.29  area affected. 
  2.30     (e) Except as provided in paragraph (f), for a wetland or 
  2.31  public waters wetland located on nonagricultural land, 
  2.32  replacement must be in the ratio of two acres of replaced 
  2.33  wetland for each acre of drained or filled wetland. 
  2.34     (f) For a wetland or public waters wetland located on 
  2.35  agricultural land or in a greater than 80 percent area, or for a 
  2.36  wetland or public waters wetland impacted by a public 
  3.1   transportation project, replacement must be in the ratio of one 
  3.2   acre of replaced wetland for each acre of drained or filled 
  3.3   wetland.  
  3.4      (g) Wetlands that are restored or created as a result of an 
  3.5   approved replacement plan are subject to the provisions of this 
  3.6   section for any subsequent drainage or filling. 
  3.7      (h) Except in a greater than 80 percent area, only wetlands 
  3.8   that have been restored from previously drained or filled 
  3.9   wetlands, wetlands created by excavation in nonwetlands, 
  3.10  wetlands created by dikes or dams along public or private 
  3.11  drainage ditches, or wetlands created by dikes or dams 
  3.12  associated with the restoration of previously drained or filled 
  3.13  wetlands may be used in a statewide banking program established 
  3.14  in rules adopted under section 103G.2242, subdivision 1.  
  3.15  Modification or conversion of nondegraded naturally occurring 
  3.16  wetlands from one type to another are not eligible for 
  3.17  enrollment in a statewide wetlands bank. 
  3.18     (i) The technical evaluation panel established under 
  3.19  section 103G.2242, subdivision 2, shall ensure that sufficient 
  3.20  time has occurred for the wetland to develop wetland 
  3.21  characteristics of soils, vegetation, and hydrology before 
  3.22  recommending that the wetland be deposited in the statewide 
  3.23  wetland bank.  If the technical evaluation panel has reason to 
  3.24  believe that the wetland characteristics may change 
  3.25  substantially, the panel shall postpone its recommendation until 
  3.26  the wetland has stabilized. 
  3.27     (j) This section and sections 103G.223 to 103G.2242, 
  3.28  103G.2364, and 103G.2365 apply to the state and its departments 
  3.29  and agencies. 
  3.30     (k) For projects involving draining or filling of wetlands 
  3.31  associated with a new public transportation project in a greater 
  3.32  than 80 percent area, public transportation authorities, other 
  3.33  than the state department of transportation, may purchase 
  3.34  credits from the state wetland bank established with proceeds 
  3.35  from Laws 1994, chapter 643, section 26, subdivision 3, 
  3.36  paragraph (c).  Wetland banking credits may be purchased at the 
  4.1   least of the following, but in no case shall the purchase price 
  4.2   be less than $400 per acre:  (1) the cost to the state to 
  4.3   establish the credits; (2) the average estimated market value of 
  4.4   agricultural land in the township where the road project is 
  4.5   located, as determined by the commissioner of revenue; or (3) 
  4.6   the average value of the land in the immediate vicinity of the 
  4.7   road project as determined by the county assessor.  Public 
  4.8   transportation authorities in a less than 80 percent area may 
  4.9   purchase credits from the state at the cost to the state to 
  4.10  establish credits. 
  4.11     (l) A replacement plan for wetlands is not required for 
  4.12  individual projects that result in the filling or draining of 
  4.13  wetlands for the repair, rehabilitation, reconstruction, or 
  4.14  replacement of a currently serviceable existing state, city, 
  4.15  county, or town public road necessary, as determined by the 
  4.16  public transportation authority, to meet state or federal design 
  4.17  or safety standards or requirements, excluding new roads or 
  4.18  roads expanded solely for additional traffic capacity lanes.  
  4.19  This paragraph only applies to authorities for public 
  4.20  transportation projects that: 
  4.21     (1) minimize the amount of wetland filling or draining 
  4.22  associated with the project and consider mitigating important 
  4.23  site-specific wetland functions on-site; 
  4.24     (2) except as provided in clause (3), submit 
  4.25  project-specific reports to the board, the technical evaluation 
  4.26  panel, the commissioner of natural resources, and members of the 
  4.27  public requesting a copy at least 30 days prior to construction 
  4.28  that indicate the location, amount, and type of wetlands to be 
  4.29  filled or drained by the project or, alternatively, convene an 
  4.30  annual meeting of the parties required to receive notice to 
  4.31  review projects to be commenced during the upcoming year; and 
  4.32     (3) for minor and emergency maintenance work impacting less 
  4.33  than 10,000 square feet, submit project-specific reports, within 
  4.34  30 days of commencing the activity, to the board that indicate 
  4.35  the location, amount, and type of wetlands that have been filled 
  4.36  or drained. 
  5.1      Those required to receive notice of public transportation 
  5.2   projects may appeal minimization, delineation, and on-site 
  5.3   mitigation decisions made by the public transportation authority 
  5.4   to the board according to the provisions of section 103G.2242, 
  5.5   subdivision 9.  The technical evaluation panel shall review 
  5.6   minimization and delineation decisions made by the public 
  5.7   transportation authority and provide recommendations regarding 
  5.8   on-site mitigation if requested to do so by the local government 
  5.9   unit, a contiguous landowner, or a member of the technical 
  5.10  evaluation panel. 
  5.11     Except for state public transportation projects, for which 
  5.12  the state department of transportation is responsible, the board 
  5.13  must replace the wetlands, and wetland areas of public waters if 
  5.14  authorized by the commissioner or a delegated authority, drained 
  5.15  or filled by public transportation projects on existing roads. 
  5.16     Public transportation authorities at their discretion may 
  5.17  deviate from federal and state design standards on existing road 
  5.18  projects when practical and reasonable to avoid wetland filling 
  5.19  or draining, provided that public safety is not unreasonably 
  5.20  compromised.  The local road authority and its officers and 
  5.21  employees are exempt from liability for any tort claim for 
  5.22  injury to persons or property arising from travel on the highway 
  5.23  and related to the deviation from the design standards for 
  5.24  construction or reconstruction under this paragraph.  This 
  5.25  paragraph does not preclude an action for damages arising from 
  5.26  negligence in construction or maintenance on a highway. 
  5.27     (m) If a landowner seeks approval of a replacement plan 
  5.28  after the proposed project has already affected the wetland, the 
  5.29  local government unit may require the landowner to replace the 
  5.30  affected wetland at a ratio not to exceed twice the replacement 
  5.31  ratio otherwise required. 
  5.32     (n) A local government unit may request the board to 
  5.33  reclassify a county or watershed on the basis of its percentage 
  5.34  of presettlement wetlands remaining.  After receipt of 
  5.35  satisfactory documentation from the local government, the board 
  5.36  shall change the classification of a county or watershed.  If 
  6.1   requested by the local government unit, the board must assist in 
  6.2   developing the documentation.  Within 30 days of its action to 
  6.3   approve a change of wetland classifications, the board shall 
  6.4   publish a notice of the change in the Environmental Quality 
  6.5   Board Monitor. 
  6.6      (o) One hundred citizens who reside within the jurisdiction 
  6.7   of the local government unit may request the local government 
  6.8   unit to reclassify a county or watershed on the basis of its 
  6.9   percentage of presettlement wetlands remaining.  In support of 
  6.10  their petition, the citizens shall provide satisfactory 
  6.11  documentation to the local government unit.  The local 
  6.12  government unit shall consider the petition and forward the 
  6.13  request to the board under paragraph (n) or provide a reason why 
  6.14  the petition is denied. 
  6.15     Sec. 2.  Minnesota Statutes 2002, section 103G.222, 
  6.16  subdivision 3, is amended to read: 
  6.17     Subd. 3.  [WETLAND REPLACEMENT SITING.] (a) Siting wetland 
  6.18  replacement must follow this priority order: 
  6.19     (1) on site or in the same minor watershed as the affected 
  6.20  wetland; 
  6.21     (2) in the same watershed as the affected wetland; 
  6.22     (3) in the same county as the affected wetland; 
  6.23     (4) in an adjacent watershed or county to the affected 
  6.24  wetland; and 
  6.25     (5) statewide, only for wetlands affected in greater than 
  6.26  80 percent areas and for public transportation projects, except 
  6.27  that wetlands affected in less than 50 percent areas must be 
  6.28  replaced in less than 50 percent areas, and wetlands affected in 
  6.29  the seven-county metropolitan area must be replaced in the 
  6.30  affected county or, if no restoration opportunities exist in the 
  6.31  county, in another seven-county metropolitan area county. 
  6.32     (b) The exception in paragraph (a), clause (5), does not 
  6.33  apply to replacement completed using wetland banking credits 
  6.34  established by a person who submitted a complete wetland banking 
  6.35  application to a local government unit by April 1, 1996. 
  6.36     (c) When reasonable, practicable, and environmentally 
  7.1   beneficial replacement opportunities are not available in siting 
  7.2   priorities listed in paragraph (a), the applicant may seek 
  7.3   opportunities at the next level. 
  7.4      (d) For the purposes of this section, "reasonable, 
  7.5   practicable, and environmentally beneficial replacement 
  7.6   opportunities" are defined as opportunities that: 
  7.7      (1) take advantage of naturally occurring 
  7.8   hydrogeomorphological conditions and require minimal landscape 
  7.9   alteration; 
  7.10     (2) have a high likelihood of becoming a functional wetland 
  7.11  that will continue in perpetuity; 
  7.12     (3) do not adversely affect other habitat types or 
  7.13  ecological communities that are important in maintaining the 
  7.14  overall biological diversity of the area; and 
  7.15     (4) are available and capable of being done after taking 
  7.16  into consideration cost, existing technology, and logistics 
  7.17  consistent with overall project purposes. 
  7.18     (e) Regulatory agencies, local government units, and other 
  7.19  entities involved in wetland restoration shall collaborate to 
  7.20  identify potential replacement opportunities within their 
  7.21  jurisdictional areas. 
  7.22     Sec. 3.  Minnesota Statutes 2002, section 103G.2241, 
  7.23  subdivision 9, is amended to read: 
  7.24     Subd. 9.  [DE MINIMIS.] (a) Except as provided in 
  7.25  paragraphs (b) and (c), a replacement plan for wetlands is not 
  7.26  required for draining or filling the following amounts of 
  7.27  wetlands as part of a project: 
  7.28     (1) 10,000 square feet of type 1, 2, 6, or 7 wetland, 
  7.29  excluding white cedar and tamarack wetlands, outside of the 
  7.30  shoreland wetland protection zone in a greater than 80 percent 
  7.31  area; 
  7.32     (2) 5,000 square feet of type 1, 2, 6, or 7 wetland, 
  7.33  excluding white cedar and tamarack wetlands, outside of the 
  7.34  shoreland wetland protection zone in a 50 to 80 percent area; 
  7.35     (3) 2,000 square feet of type 1, 2, or 6 wetland, outside 
  7.36  of the shoreland wetland protection zone in a less than 50 
  8.1   percent area; 
  8.2      (4) 400 square feet of wetland types not listed in clauses 
  8.3   (1) to (3) outside of shoreland wetland protection zones in all 
  8.4   counties; or 
  8.5      (5) 400 square feet of type 1, 2, 3, 4, 5, 6, 7, or 8 
  8.6   wetland, in the shoreland wetland protection zone, except that 
  8.7   in a greater than 80 percent area, the local government unit may 
  8.8   increase the de minimis amount up to 1,000 square feet in the 
  8.9   shoreland protection zone in areas beyond the building setback 
  8.10  if the wetland is isolated and is determined to have no direct 
  8.11  surficial connection to the public water.  To the extent that a 
  8.12  local shoreland management ordinance is more restrictive than 
  8.13  this provision, the local shoreland ordinance applies; or 
  8.14     (6) one-third of an acre of all types of wetland, for all 
  8.15  public transportation projects in all areas of the state. 
  8.16     (b) The amounts listed in paragraph (a), clauses (1) to 
  8.17  (5), may not be combined on a project. 
  8.18     (c) This exemption no longer applies to a landowner's 
  8.19  portion of a wetland when the cumulative area drained or filled 
  8.20  of the landowner's portion since January 1, 1992, is the 
  8.21  greatest of: 
  8.22     (1) the applicable area listed in paragraph (a), if the 
  8.23  landowner owns the entire wetland; 
  8.24     (2) five percent of the landowner's portion of the wetland; 
  8.25  or 
  8.26     (3) 400 square feet. 
  8.27     (d) This exemption may not be combined with another 
  8.28  exemption in this section on a project. 
  8.29     Sec. 4.  [EFFECTIVE DATE.] 
  8.30     This act is effective the day following final enactment.