HF 1828

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to wetlands; modifying provisions relating to 
  1.3             classification and replacement; creating a wetland 
  1.4             delineator certification program; authorizing 
  1.5             rulemaking; appropriating money; amending Minnesota 
  1.6             Statutes 2000, sections 103F.516, subdivisions 1, 2, 
  1.7             and 3; 103F.612, by adding a subdivision; 103G.127; 
  1.8             103G.201; 103G.223; 103G.2242, subdivisions 9, 12, and 
  1.9             by adding a subdivision; 103G.2372, subdivision 1; and 
  1.10            103G.245, subdivision 5. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 2000, section 103F.516, 
  1.13  subdivision 1, is amended to read: 
  1.14     Subdivision 1.  [EASEMENTS.] Upon application by a 
  1.15  landowner, the board may acquire permanent easements and may 
  1.16  fund related capital improvement projects to preserve or restore 
  1.17  wetlands on land containing type 1, 2, 3, 4, 5, or 6 wetlands, 
  1.18  as defined in United States Fish and Wildlife Service Circular 
  1.19  No. 39 (1971 edition), public waters wetlands, or public waters. 
  1.20     Sec. 2.  Minnesota Statutes 2000, section 103F.516, 
  1.21  subdivision 2, is amended to read: 
  1.22     Subd. 2.  [NATURE OF PROPERTY RIGHTS ACQUIRED.] (a) The 
  1.23  nature of property rights acquired in an easement under this 
  1.24  section must be consistent with the provisions of section 
  1.25  103F.515, subdivision 4. 
  1.26     (b) A permanent easement may include four adjacent upland 
  1.27  acres of land for each acre of wetland wetlands, public waters 
  1.28  wetlands, or public waters included.  
  2.1      (c) The easement must require that the landowner control 
  2.2   noxious weeds in accordance with sections 18.77 to 18.88.  
  2.3      (d) The permanent easement must be conveyed to the state in 
  2.4   recordable form free of any prior title, lien, or encumbrance 
  2.5   and must provide for a right of entry by the state for 
  2.6   inspection and correction of violations. 
  2.7      Sec. 3.  Minnesota Statutes 2000, section 103F.516, 
  2.8   subdivision 3, is amended to read: 
  2.9      Subd. 3.  [PAYMENT.] (a) Payment for the conservation 
  2.10  easement may be made in ten equal annual payments or, at the 
  2.11  option of the land owner landowner, in a lump sum at: 
  2.12     (1) 50 percent of the township average equalized estimated 
  2.13  market value of agricultural property as established by the 
  2.14  commissioner of revenue at the time of easement application for 
  2.15  wetlands, public waters wetlands, or public waters located 
  2.16  outside of the metropolitan counties, as defined in section 
  2.17  473.121, subdivision 4, and wetlands located on agricultural 
  2.18  lands within a metropolitan county; or 
  2.19     (2) for wetlands, public waters wetlands, or public waters 
  2.20  located on nonagricultural land within the metropolitan county, 
  2.21  20 percent of the township average equalized estimated market 
  2.22  value of agricultural property as established by the 
  2.23  commissioner of revenue at the time of easement application; or 
  2.24     (3) for wetlands, public waters wetlands, or public waters 
  2.25  connected to a public or private drainage system, an amount 
  2.26  determined by the board based on the fair market value of the 
  2.27  land if drainage infrastructure were restored. 
  2.28     (b) Payment for adjacent upland acreage of cropped and 
  2.29  noncropped land under subdivision 2, paragraph (b), must be made 
  2.30  at 90 percent and 60 percent, respectively, of the township 
  2.31  average equalized market value of agricultural land as 
  2.32  established by the commissioner of revenue at the time of 
  2.33  easement application. 
  2.34     Sec. 4.  Minnesota Statutes 2000, section 103F.612, is 
  2.35  amended by adding a subdivision to read: 
  2.36     Subd. 8.  [AUTHORITY OF WATERSHED MANAGEMENT ORGANIZATION.] 
  3.1   A watershed management organization with an approved watershed 
  3.2   management plan under section 103B.231 has the same authority as 
  3.3   a county to receive and act on applications under this chapter. 
  3.4      Sec. 5.  Minnesota Statutes 2000, section 103G.127, is 
  3.5   amended to read: 
  3.6      103G.127 [PERMIT PROGRAM UNDER SECTION 404 OF THE FEDERAL 
  3.7   CLEAN WATER ACT.] 
  3.8      Notwithstanding any other law to the contrary, the 
  3.9   commissioner, with the concurrence of or the board of water and 
  3.10  soil resources, with the other's concurrence, and the 
  3.11  commissioner of agriculture, may adopt rules establishing a 
  3.12  permit program for regulating the discharge of dredged and fill 
  3.13  material into the waters of the state as necessary to obtain 
  3.14  approval from the United States Environmental Protection Agency 
  3.15  to administer the permit program under section 404 of the 
  3.16  federal Clean Water Act, United States Code, title 33, section 
  3.17  1344.  The rules may not be more restrictive than the program 
  3.18  under section 404, or state law, if it is more restrictive than 
  3.19  the federal program.  The board and the commissioner shall 
  3.20  assess the requirements for assumption of the section 404 permit 
  3.21  program and administration of portions of the swampbuster 
  3.22  provisions of the federal farm program, United States Code, 
  3.23  title 16, sections 3821 to 3824, and evaluate other options to 
  3.24  reduce regulatory duplication and to more efficiently utilize 
  3.25  federal, state, and local expertise toward achieving goals 
  3.26  established in 103A.201, subdivision 2, paragraph (b).  The 
  3.27  assessment must be submitted to the policy committees of the 
  3.28  legislature with jurisdiction over natural resources and the 
  3.29  environment by February 1, 2002. 
  3.30     Sec. 6.  Minnesota Statutes 2000, section 103G.201, is 
  3.31  amended to read: 
  3.32     103G.201 [PUBLIC WATERS INVENTORY.] 
  3.33     (a) The commissioner shall prepare a public waters 
  3.34  inventory map of each county that shows the waters of this state 
  3.35  that are designated as public waters under the public waters 
  3.36  inventory and classification procedures prescribed under Laws 
  4.1   1979, chapter 199.  The public waters inventory map for each 
  4.2   county must be filed with the auditor of the county.  
  4.3      (b) The commissioner is authorized to revise the list of 
  4.4   public waters established under Laws 1979, chapter 199, to 
  4.5   reclassify those types 3, 4, and 5 wetlands previously 
  4.6   identified as public waters wetlands under Laws 1979, chapter 
  4.7   199, as public waters or as wetlands under section 103G.005, 
  4.8   subdivision 19.  The commissioner may only reclassify public 
  4.9   waters wetlands as public waters if: 
  4.10     (1) they are assigned a shoreland management classification 
  4.11  by the commissioner under sections 103F.201 to 103F.22; or 
  4.12     (2) they are classified as lacustrine wetlands or deepwater 
  4.13  habitats according to Classification of Wetlands and Deepwater 
  4.14  Habitats of the United States (Cowardin, et al., 1979 edition); 
  4.15  or 
  4.16     (3) the state or federal government has become titleholder 
  4.17  to any of the beds or shores of the public waters wetlands, 
  4.18  subsequent to the preparation of the public waters inventory map 
  4.19  filed with the auditor of the county, pursuant to paragraph (a), 
  4.20  and the responsible state or federal agency declares that the 
  4.21  water is not necessary for the purposes of the public ownership. 
  4.22     (c) The commissioner must provide notice of the 
  4.23  reclassification to the local government unit, the county board, 
  4.24  the watershed district, if one exists for the area, and the soil 
  4.25  and water conservation district.  Within 60 days of receiving 
  4.26  notice from the commissioner, a party required to receive the 
  4.27  notice may provide a resolution stating objections to the 
  4.28  reclassification.  If the commissioner receives an objection 
  4.29  from a party required to receive the notice, the 
  4.30  reclassification is not effective.  If the commissioner does not 
  4.31  receive an objection from a party required to receive the 
  4.32  notice, the reclassification of a wetland under paragraph (b) is 
  4.33  effective 60 days after the notice is received by all of the 
  4.34  parties. 
  4.35     (d) The commissioner shall give priority to the 
  4.36  reclassification of public waters wetlands that are or have the 
  5.1   potential to be affected by public works projects. 
  5.2      Sec. 7.  Minnesota Statutes 2000, section 103G.223, is 
  5.3   amended to read: 
  5.4      103G.223 [CALCAREOUS FENS.] 
  5.5      Calcareous fens, as identified by the commissioner, may not 
  5.6   be filled, drained, or otherwise degraded, wholly or partially, 
  5.7   by any activity, unless the commissioner, under an approved 
  5.8   management plan, decides approves some necessary alteration is 
  5.9   necessary.  The commissioner, in conjunction with the board, may 
  5.10  adopt rules related to the designation of calcareous fens and 
  5.11  the development and approval of calcareous fen management plans. 
  5.12  The commissioner may add calcareous fens to the public waters 
  5.13  inventory maps. 
  5.14     Sec. 8.  Minnesota Statutes 2000, section 103G.2242, is 
  5.15  amended by adding a subdivision to read: 
  5.16     Subd. 2b.  [WETLAND DELINEATOR CERTIFICATION.] The board 
  5.17  shall establish a professional wetland delineator certification 
  5.18  program by adopting rules by July 1, 2004, to establish 
  5.19  standards for education, experience, and performance for persons 
  5.20  completing wetland delineations.  Delineator certification must 
  5.21  become mandatory on July 1, 2004.  Wetlands may be delineated 
  5.22  without certification by an individual landowner for any project 
  5.23  on the landowner's property and for all nonregulatory projects. 
  5.24     Sec. 9.  Minnesota Statutes 2000, section 103G.2242, 
  5.25  subdivision 9, is amended to read: 
  5.26     Subd. 9.  [APPEAL.] (a) Appeal of a replacement plan, 
  5.27  exemption, wetland banking, wetland boundary or type 
  5.28  determination, or no-loss decision may be obtained by mailing a 
  5.29  petition and payment of a filing fee of $200, which shall be 
  5.30  retained by the board to defray administrative costs, to the 
  5.31  board within 15 30 days after the postmarked date of the mailing 
  5.32  specified in subdivision 7.  If appeal is not sought within 15 
  5.33  30 days, the decision becomes final.  The local government unit 
  5.34  may require the petitioner to post a letter of credit, cashier's 
  5.35  check, or cash in an amount not to exceed $500.  If the petition 
  5.36  for hearing is accepted, the amount posted must be returned to 
  6.1   the petitioner.  Appeal may be made by: 
  6.2      (1) the wetland owner; 
  6.3      (2) any of those to whom notice is required to be mailed 
  6.4   under subdivision 7; or 
  6.5      (3) 100 residents of the county in which a majority of the 
  6.6   wetland is located.  
  6.7      (b) Within 30 days after receiving a petition, the board 
  6.8   shall decide whether to grant the petition and hear the appeal.  
  6.9   The board shall grant the petition unless the board finds that: 
  6.10     (1) the appeal is meritless, trivial, or brought solely for 
  6.11  the purposes of delay; 
  6.12     (2) the petitioner has not exhausted all local 
  6.13  administrative remedies; 
  6.14     (3) expanded technical review is needed; 
  6.15     (4) the local government unit's record is not adequate; or 
  6.16     (5) the petitioner has not posted a letter of credit, 
  6.17  cashier's check, or cash if required by the local government 
  6.18  unit.  
  6.19     (c) In determining whether to grant the appeal, the board 
  6.20  shall also consider the size of the wetland, other factors in 
  6.21  controversy, any patterns of similar acts by the local 
  6.22  government unit or petitioner, and the consequences of the delay 
  6.23  resulting from the appeal.  
  6.24     (d) All appeals must be heard by the committee for dispute 
  6.25  resolution of the board, and a decision made within 60 days of 
  6.26  the filing the local government unit's record and the written 
  6.27  briefs submitted for the appeal.  The decision must be served by 
  6.28  mail on the parties to the appeal, and is not subject to the 
  6.29  provisions of chapter 14.  A decision whether to grant a 
  6.30  petition for appeal and a decision on the merits of an appeal 
  6.31  must be considered the decision of an agency in a contested case 
  6.32  for purposes of judicial review under sections 14.63 to 14.69. 
  6.33     Sec. 10.  Minnesota Statutes 2000, section 103G.2242, 
  6.34  subdivision 12, is amended to read: 
  6.35     Subd. 12.  [REPLACEMENT CREDITS.] (a) No public or private 
  6.36  wetland restoration, enhancement, or construction may be allowed 
  7.1   for replacement unless specifically designated for replacement 
  7.2   and paid for by the individual or organization performing the 
  7.3   wetland restoration, enhancement, or construction, and is 
  7.4   completed prior to any draining or filling of the wetland. 
  7.5      (b) Paragraph (a) does not apply to a wetland whose owner 
  7.6   has paid back with interest the individual or organization 
  7.7   restoring, enhancing, or constructing the wetland. 
  7.8      (c) Notwithstanding section 103G.222, subdivision 1, 
  7.9   paragraph (i), and based on rules adopted by the board in 
  7.10  conjunction with the commissioners of natural resources and 
  7.11  agriculture, the following actions, as well as others 
  7.12  established in rule, are eligible for replacement credit as 
  7.13  determined by the local government unit, including enrollment in 
  7.14  a statewide wetlands bank: 
  7.15     (1) reestablishment of permanent native, noninvasive 
  7.16  vegetative cover on a wetland on agricultural land that was 
  7.17  planted with annually seeded crops, was in a crop rotation 
  7.18  seeding of pasture grasses or legumes, or was required to be set 
  7.19  aside to receive price supports or other payments under United 
  7.20  States Code, title 7, sections 1421 to 1469, in six of the last 
  7.21  ten years prior to January 1, 1991.  Replacement credit may not 
  7.22  exceed 50 percent of the total wetland area vegetatively 
  7.23  restored in a land retirement program during the past ten years; 
  7.24     (2) buffer areas of permanent native, noninvasive 
  7.25  vegetative cover established or preserved on upland adjacent to 
  7.26  replacement wetlands, provided that the upland buffer must be 
  7.27  established at the time of wetland replacement and replacement 
  7.28  credit for the buffer may not exceed 75 percent of the 
  7.29  replacement wetland area and may only be used for replacement 
  7.30  above a 1:1 ratio; 
  7.31     (3) wetlands restored for conservation purposes under 
  7.32  terminated easements or contracts, provided that up to 75 
  7.33  percent of the restored wetland area is eligible for replacement 
  7.34  credit and adjacent upland buffer areas reestablished to 
  7.35  permanent vegetative cover are eligible for replacement credit 
  7.36  above a 1:1 ratio in an amount not to exceed 25 percent of the 
  8.1   restored wetland area; and 
  8.2      (4) water quality treatment ponds constructed to pretreat 
  8.3   storm water runoff prior to discharge to wetlands, public 
  8.4   waters, or other water bodies, provided that the water quality 
  8.5   treatment ponds must be associated with an ongoing or proposed 
  8.6   project that will impact a wetland and replacement credit for 
  8.7   the treatment ponds may not exceed 75 percent of the treatment 
  8.8   pond area and may only be used for replacement above a 1:1 ratio 
  8.9   is based on the replacement of wetland functions and on an 
  8.10  approved stormwater management plan for the local government; 
  8.11  and 
  8.12     (5) notwithstanding section 103G.222, subdivision 1, 
  8.13  paragraphs (e) and (f), restoration projects with exceptional 
  8.14  natural resource value may be eligible for replacement credit. 
  8.15     Sec. 11.  Minnesota Statutes 2000, section 103G.2372, 
  8.16  subdivision 1, is amended to read: 
  8.17     Subdivision 1.  [COMMISSIONER OF NATURAL RESOURCES.] The 
  8.18  commissioner of natural resources, conservation officers, and 
  8.19  peace officers shall enforce laws preserving and protecting 
  8.20  wetlands and public waters.  The commissioner of natural 
  8.21  resources, a conservation officer, or a peace officer may issue 
  8.22  a cease and desist order to stop any illegal activity adversely 
  8.23  affecting a wetland or public waters.  In the order, or by 
  8.24  separate order, the commissioner, conservation officer, or peace 
  8.25  officer may require restoration or replacement of the wetland or 
  8.26  public waters, as determined by the local soil and water 
  8.27  conservation district for wetlands and the commissioner of 
  8.28  natural resources for public waters.  Restoration or replacement 
  8.29  orders may be recorded or filed in the county real property 
  8.30  records by the commissioner of natural resources, conservation 
  8.31  officers, or peace officers as a deed restriction on the 
  8.32  property that runs with the land and is binding on the owners, 
  8.33  successors, and assigns until the conditions of the order are 
  8.34  met or the order is rescinded. 
  8.35     Sec. 12.  Minnesota Statutes 2000, section 103G.245, 
  8.36  subdivision 5, is amended to read: 
  9.1      Subd. 5.  [DELEGATION OF PERMIT AUTHORITY TO LOCAL UNITS OF 
  9.2   GOVERNMENT.] (a) The commissioner may delegate public waters 
  9.3   work permit authority to the appropriate county or municipality 
  9.4   or to watershed districts or watershed management organizations 
  9.5   that have elected to assert local authority over protected 
  9.6   waters.  The public waters work permit authority must be 
  9.7   delegated under guidelines of the commissioner and the 
  9.8   delegation must be done by agreement with the involved county, 
  9.9   municipality, watershed district, or water management 
  9.10  organization and in compliance with section 103G.315. 
  9.11     (b) For projects affecting public waters wetlands or 
  9.12  wetland areas of public waters as determined by the 
  9.13  commissioner, the commissioner may waive the requirement for a 
  9.14  public waters work permit if the local government unit makes a 
  9.15  replacement, no-loss, or exemption determination in compliance 
  9.16  with sections 103A.201, 103B.3355, and 103G.222 to 103G.2373, 
  9.17  and rules adopted pursuant to these same sections. 
  9.18     (c) For projects affecting both public waters and wetlands, 
  9.19  the local government unit may, by written agreement with the 
  9.20  commissioner, waive the requirement for a replacement plan, 
  9.21  no-loss, or exemption determination if a public waters work 
  9.22  permit is required and the commissioner includes the provisions 
  9.23  of sections 103A.201, 103B.3355, and 103G.222 to 103G.2373, and 
  9.24  rules adopted pursuant to these same sections in the public 
  9.25  waters work permit. 
  9.26     Sec. 13.  [APPROPRIATIONS.] 
  9.27     (a) An amount equal to 0.25 percent of the annual net 
  9.28  revenue in the highway user tax distribution fund, as provided 
  9.29  in the Minnesota Constitution, article XIV, is appropriated from 
  9.30  the general fund to the board of water and soil resources for 
  9.31  each year of the biennium to acquire wetland banking credits, 
  9.32  land, or services for the purpose of restoring or creating 
  9.33  wetlands to be used to replace wetlands drained or filled as a 
  9.34  result of the repair, maintenance, or rehabilitation of existing 
  9.35  public roads as required by Minnesota Statutes, section 
  9.36  103G.222, subdivision 1, paragraph (m).  
 10.1      (b) $400,000 for fiscal year 2002 and $400,000 for fiscal 
 10.2   year 2003 are appropriated from the general fund to the board of 
 10.3   water and soil resources for implementation costs.  These 
 10.4   appropriations are added to the agency's base and are available 
 10.5   until expended.  The purchase price paid for acquisition of 
 10.6   wetland banking credits, land in fee or perpetual easement, or 
 10.7   services must be the amount considered reasonable by the board.  
 10.8   The board may enter into agreements with the federal government, 
 10.9   other state agencies, political subdivisions, and nonprofit 
 10.10  organizations or fee owners to acquire land and restore and 
 10.11  create wetlands and to acquire existing wetland banking credits 
 10.12  with money provided by this appropriation.  Acquisition or 
 10.13  conveyance of land may be in the name of the political 
 10.14  subdivision.  The board may also replace wetlands impacted by 
 10.15  public road projects by designating eligible replacement credits 
 10.16  resulting from wetlands restored under Minnesota Statutes, 
 10.17  section 103F.515, provided the cost of the easement acquisition 
 10.18  and wetland restoration project is paid from these 
 10.19  appropriations. 
 10.20     (c) $500,000 is appropriated from the general fund to the 
 10.21  commissioner of natural resources to prepare a waters and 
 10.22  wetlands regulatory inventory in a digital format.  The funds 
 10.23  are available until expended. 
 10.24     (d) $500,000 is appropriated from the general fund to the 
 10.25  board of water and soil resources for the purposes of sections 
 10.26  1, 2, and 3.  This appropriation is added to the board's base 
 10.27  budget. 
 10.28     (e) $450,000 for fiscal year 2002 and $450,000 for fiscal 
 10.29  year 2003 are appropriated from the general fund for increases 
 10.30  to natural resources block grants to local governments for 
 10.31  implementation of Wetland Conservation Act responsibilities.  
 10.32  This appropriation is added to the board's base.  This increase 
 10.33  represents an inflationary adjustment based on the Consumer 
 10.34  Price Index increases since 1993 and shall be similarly adjusted 
 10.35  for each future biennium. 
 10.36     (f) $150,000 is appropriated from the general fund to the 
 11.1   board of water and soil resources for each year of the biennium 
 11.2   to be used for implementation of section 8.  This appropriation 
 11.3   is added to the board's base budget.  
 11.4      (g) Any unencumbered balances for paragraphs (b) to (f) do 
 11.5   not cancel at the end of the first year and are available for 
 11.6   the second year for the same program.  If the appropriation in 
 11.7   either year is insufficient, the appropriation for the other 
 11.8   year is available for it.