HF 1024

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

A bill for an act
relating to natural resources; modifying agency service requirements; modifying
drainage repair and abandonment requirements; modifying wetlands replacement
requirements and exemptions; providing for civil enforcement; appropriating
money; amending Minnesota Statutes 2006, sections 15.99, subdivision 2;
103E.005, by adding subdivisions; 103E.015, subdivision 1; 103E.705, by
adding a subdivision; 103E.715, subdivisions 1, 2; 103E.811, subdivision 5;
103G.222, subdivision 1; 103G.2241, subdivisions 1, 2, 3, 7, 9, 11; 103G.2243,
subdivision 2; 103G.2372, by adding a subdivision; repealing Minnesota Statutes
2006, sections 103E.701, subdivisions 1, 2; 103G.2241, subdivision 8.

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

Section 1.

Minnesota Statutes 2006, section 15.99, subdivision 2, is amended to read:

Subd. 2.

Deadline for response.

(a) Except as otherwise provided in this section,
section 462.358, subdivision 3b, or chapter 505, and notwithstanding any other law to
the contrary, an agency must approve or deny within 60 days a written request relating
to zoning, septic systems, watershed district review, soil and water conservation district
review, or expansion of the metropolitan urban service area for a permit, license, or other
governmental approval of an action. Failure of an agency to deny a request within 60 days
is approval of the request. If an agency denies the request, it must state in writing the
reasons for the denial at the time that it denies the request.

(b) new text begin The deadline under paragraph (a) does not apply for any zoning decision that
involves or may require a delineation or determination of wetlands, wetland mitigation or
replacement plan approval or certification, or determination of exemption from wetland
replacement under section 103G.2241.
new text end

new text begin (c) new text end When a vote on a resolution or properly made motion to approve a request fails
for any reason, the failure shall constitute a denial of the request provided that those voting
against the motion state on the record the reasons why they oppose the request. A denial
of a request because of a failure to approve a resolution or motion does not preclude an
immediate submission of a same or similar request.

deleted text begin (c) deleted text end new text begin (d) new text end Except as provided in paragraph deleted text begin (b) deleted text end new text begin (c) new text end , deleted text begin if deleted text end new text begin when new text end an agency, other than a
multimember governing body, new text begin grants or new text end denies the request, it must state in writing the
reasons deleted text begin for the denial deleted text end at the time that it new text begin grants or new text end denies the request. If a multimember
governing body denies a request, it must state the reasons deleted text begin for denial deleted text end on the record and
provide the applicant in writing a statement of the reasons for the denial new text begin if the applicant
was not present at the time the multimember governing body denies the request new text end . If the
written statement is not adopted at the same time as the denial, it must be adopted at the
next meeting following the denial of the request but before the expiration of the time
allowed for making a decision under this section. The written statement must be consistent
with the reasons stated in the record at the time of the denial. The written statement must
be provided to the applicant upon adoption.

Sec. 2.

Minnesota Statutes 2006, section 103E.005, is amended by adding a subdivision
to read:

new text begin Subd. 15a. new text end

new text begin Maintenance. new text end

new text begin "Maintenance" means minimal work in an established
drainage system, such as removal of downed trees; removal of brush or other woody
vegetation; removal of beaver dams or similar blockage; replacement of culverts of equal
or lesser size and capacity at the same elevation; emergency actions, such as to correct
slumping or other damage after flooding or snowmelt; or cleanout to original profile, but
only in noncontiguous segments of less than 50 feet in nonconsecutive years.
new text end

Sec. 3.

Minnesota Statutes 2006, section 103E.005, is amended by adding a subdivision
to read:

new text begin Subd. 27a. new text end

new text begin Repair. new text end

new text begin "Repair" means all activities or work in an established drainage
system that is not maintenance and that restores, but does not improve, all or part of a
drainage system as nearly as practicable to the same condition as originally constructed
and subsequently improved prior to the repair.
new text end

Sec. 4.

Minnesota Statutes 2006, section 103E.015, subdivision 1, is amended to read:

Subdivision 1.

Environmental and land use criteria.

Before establishing a
drainage project new text begin , or before repairing a drainage system that has not been repaired for 25
years or more, new text end the drainage authority must consider:

(1) private and public benefits and costs of the proposed drainage project;

(2) the present and anticipated agricultural land acreage availability and use in
the drainage project or system;

(3) the present and anticipated land use within the drainage project or system;

(4) flooding characteristics of property in the drainage project or system and
downstream for 5-, 10-, 25-, and 50-year flood events;

(5) the waters to be drained and alternative measures to conserve, allocate, and use
the waters including storage and retention of drainage waters;

(6) the effect on water quality of constructing the proposed drainage project;

(7) fish and wildlife resources affected by the proposed drainage project;

(8) shallow groundwater availability, distribution, and use in the drainage project
or system; and

(9) the overall environmental impact of all the above criteria.

Sec. 5.

Minnesota Statutes 2006, section 103E.705, is amended by adding a subdivision
to read:

new text begin Subd. 1a. new text end

new text begin Repairs affecting public waters. new text end

new text begin Before a repair is ordered, the drainage
authority must notify the commissioner and the public if the repair may affect public
waters. If the commissioner disagrees with the repair depth, the public shall be so
notified and the engineer, a representative appointed by the director, and a soil and water
conservation district technician must jointly determine the repair depth using soil borings,
field surveys, and other available data or appropriate methods. Costs for determining the
repair depth beyond the initial meeting must be shared equally by the drainage system and
the commissioner. The determined repair depth must be recommended to the drainage
authority. The drainage authority may accept the joint recommendation and proceed with
repair. Repair may proceed only in accordance with the joint recommendation.
new text end

Sec. 6.

Minnesota Statutes 2006, section 103E.715, subdivision 1, is amended to read:

Subdivision 1.

Repair petition.

An individual or an entity new text begin , including the drainage
authority, new text end interested in or affected by a drainage system deleted text begin may deleted text end new text begin must new text end file a petition to repair
the drainage system. The petition must state that the drainage system needs repair new text begin and
shall describe and analyze application of the Wetland Conservation Act of 1991, Laws
1991, chapter 354, or other applicable provisions of chapter 103G, including analysis of
any exemption from such provisions. The public must receive notice of the petition for
repair and must have at least 30 days to comment new text end . The auditor shall present the petition
to the board at its next meeting or, for a joint county drainage system, to the drainage
authority within ten days after the petition is filed.

Sec. 7.

Minnesota Statutes 2006, section 103E.715, subdivision 2, is amended to read:

Subd. 2.

Engineer's repair report.

If the drainage authority determines that the
drainage system needs repair, the drainage authority shall appoint an engineer to examine
the drainage system and make a repair report. The report must show the necessary repairs,
the estimated cost of the repairs, deleted text begin and deleted text end all details, plans, and specifications necessary to
prepare and award a contract for the repairs new text begin , and all wetlands or public waters potentially
affected by the repairs, including descriptions of size, type, and location of all such
wetlands or public waters new text end . The drainage authority may give notice and order a hearing on
the petition before appointing the engineer.

Sec. 8.

Minnesota Statutes 2006, section 103E.811, subdivision 5, is amended to read:

Subd. 5.

Abandonment hearing.

(a) At the hearing, the drainage authority or
court shall examine the petition and determine whether it is sufficient and shall hear
all interested parties.

(b) deleted text begin If a property owner assessed benefits for the drainage system appears and makes
a written objection to the abandonment of the drainage system deleted text end new text begin In any abandonment
proceeding, if 26 percent of the property owners assessed benefits for the drainage system,
or the owners of not less than 26 percent of the property assessed, appear and make a
written objection to the abandonment of the drainage system new text end , the drainage authority or
court shall appoint three disinterested persons as viewers to examine the property and
report to the drainage authority or court. The hearing must be adjourned to make the
examination and report and a date must be set to reconvene new text begin not more than 180 days
later new text end . The viewers, if appointed, shall proceed to examine the property of the objecting
new text begin owners or new text end owner and report as soon as possible to the drainage authority or court with
the description and situation of the property and whether the drainage system drains
or otherwise affects the property.

(c) When the hearing is reconvened, the drainage authority or court shall consider
the viewers' report and all evidence offered, and:

(1) if the drainage authority determines that the drainage system serves any useful
purpose to deleted text begin any property deleted text end new text begin at least 26 percent of the property owners assessed new text end or the general
public, the petition for abandonment must be denied; or

(2) if the drainage authority determines that the drainage system does not serve any
useful purpose to deleted text begin any affected property deleted text end new text begin at least 26 percent of the property owners assessed new text end
and is not of public benefit and utility, the drainage authority or court shall make findings
and shall, by order, abandon the drainage system.

Sec. 9.

Minnesota Statutes 2006, section 103G.222, subdivision 1, is amended to read:

Subdivision 1.

Requirements.

(a) Wetlands must not be drained or filled, wholly
or partially, unless replaced by restoring or creating wetland areas of at least equal
public value under a replacement plan approved as provided in section 103G.2242, a
replacement plan under a local governmental unit's comprehensive wetland protection
and management plan approved by the board under section 103G.2243, or, if a permit to
mine is required under section 93.481, under a mining reclamation plan approved by the
commissioner under the permit to mine. Mining reclamation plans shall apply the same
principles and standards for replacing wetlands by restoration or creation of wetland areas
that are applicable to mitigation plans approved as provided in section 103G.2242. Public
value must be determined in accordance with section 103B.3355 or a comprehensive
wetland protection and management plan established under section 103G.2243. Sections
103G.221 to 103G.2372 also apply to excavation in permanently and semipermanently
flooded areas of types 3, 4, and 5 wetlands.

(b) Replacement must be guided by the following principles in descending order
of priority:

(1) avoiding the direct or indirect impact of the activity that may destroy or diminish
the wetland;

(2) minimizing the impact by limiting the degree or magnitude of the wetland
activity and its implementation;

(3) rectifying the impact by repairing, rehabilitating, or restoring the affected
wetland environment;

(4) reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the activity;

(5) compensating for the impact by restoring a wetland; and

(6) compensating for the impact by replacing or providing substitute wetland
resources or environments.

For a project involving the draining or filling of wetlands in an amount not exceeding
deleted text begin 10,000 deleted text end new text begin 5,000 new text end 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) Restoration and replacement of wetlands must be accomplished in accordance
with the ecology of the landscape area affected.

(e) Except as provided in paragraph (f), 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.

(f) For a wetland or public waters wetland located on agricultural land or in a greater
than 80 percent area, replacement must be in the ratio of one acre of replaced wetland
for each acre of drained or filled wetland.

(g) 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.

(h) 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.

(i) new text begin Ponds that are created for stormwater management requirements may not be used
to satisfy replacement requirements under this chapter.
new text end

new text begin (j) new text end The Technical Evaluation Panel established under section 103G.2242, subdivision
2, shall ensure that sufficient time has occurred for the wetland to develop wetland
characteristics of soils, vegetation, and hydrology before recommending that the wetland
be deposited in the statewide wetland bank. If the Technical Evaluation Panel has reason
to believe that the wetland characteristics may change substantially, the panel shall
postpone its recommendation until the wetland has stabilized.

deleted text begin (j) deleted text end new text begin (k) new text end This section and sections 103G.223 to 103G.2242, 103G.2364, and
103G.2365 apply to the state and its departments and agencies.

deleted text begin (k) deleted text end new text begin (l) new text end For projects involving draining or filling of wetlands associated with a new
public transportation project, and for projects expanded solely for additional traffic
capacity, public transportation authorities may purchase credits from the board at the cost
to the board to establish credits. Proceeds from the sale of credits provided under this
paragraph are appropriated to the board for the purposes of this paragraph.

deleted text begin (l) deleted text end new text begin (m) new text end A replacement plan for wetlands is not required for individual projects that
result in the filling or draining of wetlands for the repair, rehabilitation, reconstruction,
or replacement of a currently serviceable existing state, city, county, or town public road
necessary, as determined by the public transportation authority, to meet state or federal
design or safety standards or requirements, excluding new roads or roads expanded solely
for additional traffic capacity lanes. This paragraph only applies to authorities for public
transportation projects that:

(1) minimize the amount of wetland filling or draining associated with the project
and consider mitigating important site-specific wetland functions on-site;

(2) except as provided in clause (3), submit project-specific reports to the board, the
Technical Evaluation Panel, the commissioner of natural resources, and members of the
public requesting a copy at least 30 days prior to construction that indicate the location,
amount, and type of wetlands to be filled or drained by the project or, alternatively,
convene an annual meeting of the parties required to receive notice to review projects to
be commenced during the upcoming year; and

(3) for minor and emergency maintenance work impacting less than 10,000 square
feet, submit project-specific reports, within 30 days of commencing the activity, to the
board that indicate the location, amount, and type of wetlands that have been filled
or drained.

Those required to receive notice of public transportation projects may appeal
minimization, delineation, and on-site mitigation decisions made by the public
transportation authority to the board according to the provisions of section 103G.2242,
subdivision 9. The Technical Evaluation Panel shall review minimization and delineation
decisions made by the public transportation authority and provide recommendations
regarding on-site mitigation if requested to do so by the local government unit, a
contiguous landowner, or a member of the Technical Evaluation Panel.

Except for state public transportation projects, for which the state Department of
Transportation is responsible, the board must replace the wetlands, and wetland areas of
public waters if authorized by the commissioner or a delegated authority, drained or filled
by public transportation projects on existing roads.

Public transportation authorities at their discretion may deviate from federal and
state design standards on existing road projects when practical and reasonable to avoid
wetland filling or draining, provided that public safety is not unreasonably compromised.
The local road authority and its officers and employees are exempt from liability for
any tort claim for injury to persons or property arising from travel on the highway and
related to the deviation from the design standards for construction or reconstruction under
this paragraph. This paragraph does not preclude an action for damages arising from
negligence in construction or maintenance on a highway.

deleted text begin (m) deleted text end new text begin (n) new text end If a landowner seeks approval of a replacement plan after the proposed
project has already affected the wetland, the local government unit may require the
landowner to replace the affected wetland at a ratio not to exceed twice the replacement
ratio otherwise required.

deleted text begin (n) deleted text end new text begin (o) new text end A local government unit may request the board to reclassify a county or
watershed on the basis of its percentage of presettlement wetlands remaining. After
receipt of satisfactory documentation from the local government, the board shall change
the classification of a county or watershed. If requested by the local government unit,
the board must assist in developing the documentation. Within 30 days of its action to
approve a change of wetland classifications, the board shall publish a notice of the change
in the Environmental Quality Board Monitor.

deleted text begin (o) deleted text end new text begin (p) new text end One hundred citizens who reside within the jurisdiction of the local
government unit may request the local government unit to reclassify a county or watershed
on the basis of its percentage of presettlement wetlands remaining. In support of their
petition, the citizens shall provide satisfactory documentation to the local government unit.
The local government unit shall consider the petition and forward the request to the board
under paragraph deleted text begin (n) deleted text end new text begin (o) new text end or provide a reason why the petition is denied.

Sec. 10.

Minnesota Statutes 2006, section 103G.2241, subdivision 1, is amended to
read:

Subdivision 1.

Agricultural activities.

deleted text begin (a) deleted text end A replacement plan for wetlands is
not required for deleted text begin : deleted text end new text begin normal farming activities in a type 1 or 2 wetland. "Normal farming
activities" means harvesting, haying, pasturing, grazing, control of noxious or secondary
weeds as defined by the commissioners of natural resources and agriculture, activities
allowed under a federal conservation program or on land enrolled in a federal or state
conservation program, and planting or normal tilling of annually seeded crops that does
not result in draining or filling the wetland or changes in wetland hydrology. Normal
farming activities does not include draining a wetland through ditching, tiling, or deep
ripping; filling a wetland; or perimeter tiling of a wetland that alters the hydrology of the
wetland in any way. This exemption may not be used to tile or drain a wetland.
new text end

deleted text begin (1) activities in a wetland that was planted with annually seeded crops, was in a crop
rotation seeding of pasture grass or legumes, or was required to be set aside to receive
price support or other payments under United States Code, title 7, sections 1421 to 1469,
in six of the last ten years prior to January 1, 1991;
deleted text end

deleted text begin (2) activities in a wetland that is or has been enrolled in the federal conservation
reserve program under United States Code, title 16, section 3831, that:
deleted text end

deleted text begin (i) was planted with annually seeded crops, was in a crop rotation seeding, or was
required to be set aside to receive price support or payment under United States Code,
title 7, sections 1421 to 1469, in six of the last ten years prior to being enrolled in the
program; and
deleted text end

deleted text begin (ii) has not been restored with assistance from a public or private wetland restoration
program;
deleted text end

deleted text begin (3) activities in a wetland that has received a commenced drainage determination
provided for by the federal Food Security Act of 1985, that was made to the county
Agricultural Stabilization and Conservation Service office prior to September 19, 1988,
and a ruling and any subsequent appeals or reviews have determined that drainage of the
wetland had been commenced prior to December 23, 1985;
deleted text end

deleted text begin (4) activities in a type 1 wetland on agricultural land, except for bottomland
hardwood type 1 wetlands, and activities in a type 2 or type 6 wetland that is less than two
acres in size and located on agricultural land;
deleted text end

deleted text begin (5) aquaculture activities including pond excavation and construction and
maintenance of associated access roads and dikes authorized under, and conducted in
accordance with, a permit issued by the United States Army Corps of Engineers under
section 404 of the federal Clean Water Act, United States Code, title 33, section 1344,
but not including construction or expansion of buildings;
deleted text end

deleted text begin (6) wild rice production activities, including necessary diking and other activities
authorized under a permit issued by the United States Army Corps of Engineers under
section 404 of the federal Clean Water Act, United States Code, title 33, section 1344;
deleted text end

deleted text begin (7) normal agricultural practices to control noxious or secondary weeds as defined
by rule of the commissioner of agriculture, in accordance with applicable requirements
under state and federal law, including established best management practices; and
deleted text end

deleted text begin (8) agricultural activities in a wetland that is on agricultural land:
deleted text end

deleted text begin (i) annually enrolled in the federal Agriculture Improvement and Reform Act of
1996 and is subject to United States Code, title 16, sections 3821 to 3823, in effect on
January 1, 2000; or
deleted text end

deleted text begin (ii) subject to subsequent federal farm program restrictions that meet minimum
state standards under this chapter and sections and and that have
been approved by the Board of Water and Soil Resources, the commissioners of natural
resources and agriculture, and the Pollution Control Agency.
deleted text end

deleted text begin (b) Land enrolled in a federal farm program under paragraph (a), clause (8), is
eligible for easement participation for those acres not already compensated under a federal
program.
deleted text end

deleted text begin (c) The exemption under paragraph (a), clause (4), may be expanded to additional
acreage, including types 1, 2, and 6 wetlands that are part of a larger wetland system, when
the additional acreage is part of a conservation plan approved by the local soil and water
conservation district, the additional draining or filling is necessary for efficient operation
of the farm, the hydrology of the larger wetland system is not adversely affected, and
wetlands other than types 1, 2, and 6 are not drained or filled.
deleted text end

Sec. 11.

Minnesota Statutes 2006, section 103G.2241, subdivision 2, is amended to
read:

Subd. 2.

Drainage.

(a) For the purposes of this subdivision, "public drainage
system" means a drainage system as defined in section 103E.005, subdivision 12, and any
ditch or tile lawfully connected to the drainage system.

(b) A replacement plan is not required for draining of type 1 wetlands, or up to five
acres of type 2 or 6 wetlands, in an unincorporated area on land that has been assessed
drainage benefits for a public drainage system, provided that:

(1) during the 20-year period that ended January 1, 1992:

(i) there was an expenditure made from the drainage system account for the public
drainage system;

(ii) the public drainage system was repaired or maintained as approved by the
drainage authority; or

(iii) no repair or maintenance of the public drainage system was required under
section 103E.705, subdivision 1, as determined by the public drainage authority; and

(2) the wetlands are not drained for conversion to:

(i) platted lots;

(ii) planned unit, commercial, or industrial developments; or

(iii) any development with more than one residential unit per 40 acres.

If wetlands drained under this paragraph are converted to uses prohibited under clause
(2) deleted text begin during the ten-year period following drainage deleted text end , the wetlands must be replaced under
section 103G.222.

(c) A replacement plan is not required for draining or filling of wetlands, except for
draining types 3, 4, deleted text begin and deleted text end 5 new text begin , 6, 7, and 8 new text end wetlands that have been in existence for more than
deleted text begin 25 deleted text end new text begin 20 new text end years, resulting from maintenance and repair of existing public drainage systems new text begin ,
but only if a repair petition is filed and approved according to section 103E.715 new text end .

(d) A replacement plan is not required for draining or filling of wetlands, except for
draining wetlands that have been in existence for more than deleted text begin 25 deleted text end new text begin 20 new text end years, resulting from
maintenance and repair of existing drainage systems other than public drainage systems.

(e) deleted text begin A replacement plan is not required for draining or filling of wetlands resulting
from activities conducted as part of a public drainage system improvement project that
received final approval from the drainage authority before July 1, 1991, and after July 1,
1986, if:
deleted text end

deleted text begin (1) the approval remains valid;
deleted text end

deleted text begin (2) the project remains active; and
deleted text end

deleted text begin (3) no additional drainage will occur beyond that originally approved. deleted text end new text begin The
exemptions under this subdivision may not be used for perimeter tiling of any wetland of
any type on or after July 1, 2007. Perimeter tiling means surrounding 20 percent or more
of a wetland with tiling or other drainage or surrounding any part of a wetland with tiling
if that tiling, regardless of percentage, alters the hydrology of the wetland.
new text end

(f) The public drainage authority may, as part of the repair, install control structures,
realign the ditch, construct dikes along the ditch, or make other modifications as necessary
to prevent drainage of the wetland.

(g) Wetlands of all types that would be drained as a part of a public drainage repair
project are eligible for the permanent wetlands preserve under section 103F.516. The
board shall give priority to acquisition of easements on types 3, 4, and 5 wetlands that have
been in existence for more than 25 years on public drainage systems and other wetlands
that have the greatest risk of drainage from a public drainage repair project.

Sec. 12.

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

Subd. 3.

Federal approvals.

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

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

deleted text begin (2) activities authorized under, and conducted in accordance with, an applicable
general permit issued by the United States Army Corps of Engineers under section 404
of the federal Clean Water Act, United States Code, title 33, section 1344, except the
nationwide permit in Code of Federal Regulations, title 33, section 330.5, paragraph (a),
clauses (14), limited to when a new road crosses a wetland, and (26), as in effect on
January 1, 1991; or
deleted text end

deleted text begin (3) activities authorized under the federal Clean Water Act, section 404, or the
Rivers and Harbors Act, section 10, regulations that meet minimum state standards
under this chapter and sections and and that have been approved
by the Board of Water and Soil Resources, the commissioners of natural resources and
agriculture, and the Pollution Control Agency. deleted text end new text begin required under this chapter may, at the
option of the local government unit, be deemed satisfied by any approved replacement
plan or activity individually permitted by the United States Army Corps of Engineers
under United States Code, title 33, section 1344, or section 10 of the federal Rivers and
Harbors Act, United States Code, title 33, section 401, et seq.
new text end

Sec. 13.

Minnesota Statutes 2006, section 103G.2241, subdivision 7, is amended to
read:

Subd. 7.

Forestry.

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

(1) temporarily crossing or entering a wetland to perform silvicultural activities,
including timber harvest as part of a forest management activity, so long as the activity
limits the impact on the hydrologic and biologic characteristics of the wetland; the
activities do not result in the construction of dikes, drainage ditches, tile lines, or buildings;
and the timber harvesting and other silvicultural practices do not result in the drainage of
the wetland or public waters; or

(2) permanent access for forest roads across wetlands so long as the activity limits
the impact on the hydrologic and biologic characteristics of the wetland; the construction
activities do not result in the access becoming a dike, drainage ditch, or tile line; filling is
avoided wherever possible; and there is no drainage of the wetland or public waters.

new text begin (b) A replacement plan is required for any impacts to wetlands exempt under
paragraph (a) if the crossing or forest road is used for any activity other than forestry
at any time after application of the exemption in paragraph (a). The replacement plan
required under this paragraph is required of the owner at the time of the changed use or
activity that is other than forestry.
new text end

new text begin (c) Users of an exemption under paragraph (a) shall file a deed declaration, on a form
developed by the Board of Water and Soil Resources, indicating use of the exemption and
the limitations imposed under paragraph (b).
new text end

Sec. 14.

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

Subd. 9.

De minimis.

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

(1) deleted text begin 10,000 deleted text end new text begin 5,000 new text end square feet of type 1, 2, 6, or 7 wetland, excluding white cedar
and tamarack wetlands, outside of the shoreland wetland protection zone in a greater
than 80 percent area;

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

(3) deleted text begin 2,000 deleted text end new text begin 250 new text end square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland
protection zone in a less than 50 percent area; new text begin or
new text end

(4) deleted text begin 400 deleted text end new text begin 100 new text end square feet of wetland types not listed in clauses (1) to (3) outside of
shoreland wetland protection zones in all counties deleted text begin ; or deleted text end new text begin .
new text end

deleted text begin (5) 400 square feet of type 1, 2, 3, 4, 5, 6, 7, or 8 wetland, in the shoreland wetland
protection zone, except that in a greater than 80 percent area, the local government unit
may increase the de minimis amount up to 1,000 square feet in the shoreland protection
zone in areas beyond the building setback if the wetland is isolated and is determined to
have no direct surficial connection to the public water. To the extent that a local shoreland
management ordinance is more restrictive than this provision, the local shoreland
ordinance applies.
deleted text end

(b) The amounts listed in paragraph (a), clauses (1) to (5), 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.

new text begin (e) Property may not be divided to increase amounts listed in paragraph (a). If a
wetland basin has been the subject of a de minimis exemption on or after January 1, 2006,
no additional de minimis exemptions may be exercised on that wetland basin. Thereafter,
the wetland basin is fully subject to the replacement requirements of this chapter.
new text end

new text begin (f) Beginning July 1, 2007, de minimis exemptions are capped at a total of two
percent of remaining type 1, 2, 6, or 7 wetland acres on a county basis.
new text end

Sec. 15.

Minnesota Statutes 2006, 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 10 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.

new text begin (d) Persons proposing to conduct an exempt activity must, prior to commencing the
work, complete and provide to their local government a notice, on a form approved and
supplied by the Board of Water and Soil Resources, that indicates, at a minimum, the
exemption claimed, the location of the claimed exemption, the date or dates of work
performed, identification of the individual giving notice, and an estimate of the wetland
type and amount of acreage affected. The local government unit may charge a nominal
fee for filing the notice, not to exceed $25. The notice requirement does not apply to the
exercise of the utilities and public works exemption. For persons claiming the farming
exemption, the notice shall be filed once at the commencement of the subject activity and
need not be filed again unless the activity or exemption claimed changes. For persons
claiming the forestry exemption, the notice requirement applies only to the extent that
reporting is not required elsewhere. Failure to file the required notice automatically
renders any claimed exemption voidable. The local government shall retain the exemption
notices for a minimum of ten years or such longer time as necessary to ensure compliance
with the exemptions conditions in this chapter.
new text end

Sec. 16.

Minnesota Statutes 2006, section 103G.2243, subdivision 2, is amended to
read:

Subd. 2.

Plan contents.

A comprehensive wetland protection and management
plan may:

(1) provide for classification of wetlands in the plan area based on:

(i) an inventory of wetlands in the plan area;

(ii) an assessment of the wetland functions listed in section 103B.3355, using a
methodology chosen by the Technical Evaluation Panel from one of the methodologies
established or approved by the board under that section; and

(iii) the resulting public values;

(2) vary application of the sequencing standards in section 103G.222, subdivision 1,
paragraph (b), for projects based on the classification and criteria set forth in the plan;

(3) vary the replacement standards of section 103G.222, subdivision 1, paragraphs
(e) and (f), based on the classification and criteria set forth in the plan, for specific wetland
impacts provided there is no net loss of public values within the area subject to the plan,
and so long as:

(i) in a 50 to 80 percent area, a minimum acreage requirement of one acre of replaced
wetland for each acre of drained or filled wetland requiring replacement is met within
the area subject to the plan; and

(ii) in a less than 50 percent area, a minimum acreage requirement of two acres of
replaced wetland for each acre of drained or filled wetland requiring replacement is met
within the area subject to the plan, except that replacement for the amount above a 1:1
ratio can be accomplished as described in section 103G.2242, subdivision 12;

(4) in a greater than 80 percent area, allow replacement credit, based on the
classification and criteria set forth in the plan, for any project that increases the public
value of wetlands, including activities on adjacent upland acres; and

(5) in a greater than 80 percent area, based on the classification and criteria set forth
in the plan, expand the application of the exemptions in section 103G.2241, subdivision
1, deleted text begin paragraph (a), clause (4), deleted text end to also include nonagricultural land, provided there is no
net loss of wetland values.

Sec. 17.

Minnesota Statutes 2006, section 103G.2372, is amended by adding a
subdivision to read:

new text begin Subd. 4. new text end

new text begin Citizen enforcement. new text end

new text begin (a) A citizen may commence a civil action in district
court on the citizen's behalf:
new text end

new text begin (1) against any person, including any governmental entity or agency, who is alleged
to be in violation of sections 103G.211 or 103G.221 to 103G.2243, or applicable orders
and rules thereunder; or
new text end

new text begin (2) against the state or responsible local governmental entity when there is alleged a
failure to perform any act or duty under sections 103G.211 or 103G.221 to 103G.2243, or
applicable orders and rules thereunder, that is not discretionary.
new text end

new text begin The district court may enforce this chapter, enforce an order regarding the provisions of
this chapter, or order the state or responsible local governmental entity to perform such act
or duty, as the case may be, and may apply any appropriate civil penalties or injunctive
relief.
new text end

new text begin (b) No action may be commenced under paragraph (a):
new text end

new text begin (1) prior to 60 days after the plaintiff has given notice of the alleged violation to
the responsible local governmental entity, to the state, and to any alleged violator, if
applicable; or
new text end

new text begin (2) if the responsible local governmental entity or the state has commenced and is
diligently prosecuting a civil or criminal action in district court to require compliance.
new text end

new text begin (c) In any action commenced under this subdivision, the state and the responsible
local governmental entity may intervene as of right.
new text end

new text begin (d) The court, in issuing a final order in an action brought under this subdivision,
may award costs of litigation, including reasonable attorney and expert witness fees, to a
prevailing or substantially prevailing party, whenever the court determines such award
is appropriate.
new text end

new text begin (e) Nothing in this subdivision restricts any right that a person or class of persons
may have under any statute or common law to seek enforcement of chapter 103G or
to seek any other relief.
new text end

Sec. 18. new text begin APPROPRIATION.
new text end

new text begin $....... is appropriated in fiscal year 2008 from the general fund to the commissioner
of natural resources for wetlands enforcement and monitoring.
new text end

Sec. 19. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, sections 103E.701, subdivisions 1 and 2; and 103G.2241,
subdivision 8, new text end new text begin are repealed.
new text end