HF 3345

as introduced - 88th Legislature (2013 - 2014) Posted on 04/09/2014 12:00pm

A bill for an act
relating to natural resources; modifying Wetlands Conservation Act; amending
Minnesota Statutes 2012, sections 103G.005, subdivision 10e, by adding a
subdivision; 103G.222, subdivision 1; 103G.2241, subdivisions 2, 6, 9, 10, 11;
103G.2242, subdivision 1, by adding subdivisions; proposing coding for new
law in Minnesota Statutes, chapter 103G.

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

Section 1.

Minnesota Statutes 2012, section 103G.005, subdivision 10e, is amended to
read:

Subd. 10e.

Local government unit.

"Local government unit" means:

(1) outside of the seven-county metropolitan area, a city council, county board of
commissioners, or a soil and water conservation district or their delegate;

(2) in the seven-county metropolitan area, a city council, a town board under section
368.01, a watershed management organization under section 103B.211, or a soil and
water conservation district or their delegate;

(3) on state land, the agency with administrative responsibility for the land; and

(4) for wetland banking projects established solely for replacing wetland impacts
under a permit to mine under section 93.481, the deleted text begin commissioner of natural resources deleted text end new text begin board new text end .

Sec. 2.

Minnesota Statutes 2012, section 103G.005, is amended by adding a
subdivision to read:

new text begin Subd. 10g. new text end

new text begin In-lieu fee program. new text end

new text begin "In-lieu fee program" means a program involving
the restoration, establishment, enhancement, or preservation of aquatic resources through
funds paid to a governmental or nonprofit natural resources management entity to satisfy
wetland mitigation requirements.
new text end

Sec. 3.

Minnesota Statutes 2012, 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 deleted text begin mining reclamation plan approved by the
commissioner under the permit to mine deleted text end new text begin replacement plan approved by the board new text end . deleted text begin For
project-specific wetland replacement completed prior to wetland impacts authorized or
conducted under a permit to mine within the Great Lakes and Rainy River watershed
basins, those basins shall be considered a single watershed for purposes of determining
wetland replacement ratios. Mining reclamation plans shall apply the same principles
and standards for replacing wetlands by restoration or creation of wetland areas that
are applicable to mitigation plans approved as provided in section 103G.2242. deleted text end Public
value must be determined in accordance with section 103B.3355 or a comprehensive
wetland protection and management plan established under section 103G.2243. Sections
103G.221 to 103G.2372 also apply to excavation in permanently and semipermanently
flooded areas of types 3, 4, and 5 wetlands.

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

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

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

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

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

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

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

For a project involving the draining or filling of wetlands in an amount not exceeding
10,000 square feet more than the applicable amount in section 103G.2241, subdivision 9,
paragraph (a), the local government unit may make an on-site sequencing determination
without a written alternatives analysis from the applicant.

(c) If a wetland is located in a cultivated field, then replacement must be accomplished
through restoration only without regard to the priority order in paragraph (b), provided
that the altered wetland is not converted to a nonagricultural use for at least ten years.

(d) If a wetland is replaced under paragraph (c), or drained under section 103G.2241,
subdivision 2, paragraph (b) or (e), the local government unit may require a deed
restriction that prohibits nonagricultural use for at least ten years. The local government
unit may require the deed restriction if it determines the wetland area drained is at risk of
conversion to a nonagricultural use within ten years based on the zoning classification,
proximity to a municipality or full service road, or other criteria as determined by the
local government unit.

(e) Restoration and replacement of wetlands must be accomplished in accordance
with the ecology of the landscape area affected and ponds that are created primarily to
fulfill storm water management, and water quality treatment requirements may not be
used to satisfy replacement requirements under this chapter unless the design includes
pretreatment of runoff and the pond is functioning as a wetland.

(f) Except as provided in paragraph (g), for a wetland or public waters wetland
located on nonagricultural land, replacement must be in the ratio of two acres of replaced
wetland for each acre of drained or filled wetland.

(g) For a wetland or public waters wetland located on agricultural land 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.

(h) 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.

(i) 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.

(j) 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.

(k) This section and sections 103G.223 to 103G.2242, 103G.2364, and 103G.2365
apply to the state and its departments and agencies.

(l) For projects involving draining or filling of wetlands associated with a new public
transportation project, and for projects expanded solely for additional traffic capacity,
public transportation authorities may purchase credits from the board at the cost to the
board to establish credits. Proceeds from the sale of credits provided under this paragraph
are appropriated to the board for the purposes of this paragraph. For the purposes of this
paragraph, "transportation project" does not include an airport project.

(m) 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.

(n) 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.

(o) 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.

(p) 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 (o) or provide a reason why the petition is denied.

Sec. 4.

Minnesota Statutes 2012, 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 deleted text begin of type 1 wetlands, or up to
five acres of type 2 or 6 wetlands, deleted text end new text begin up to 10,000 square feet of type 1, 2, or 6 wetlands
new text end 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, except for
parcels subject to local zoning standards that allow for family members to establish an
additional residence on the same 40 acres.

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

(c) A replacement plan is not required for draining or filling of wetlands, except for
deleted text begin draining types 3, 4, and 5 deleted text end wetlands that have been in existence for more than deleted text begin 25 deleted text end new text begin 15 new text end years,
resulting from maintenance and repair of existing public drainage systems.

(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 15 new text end years, resulting from
maintenance and repair of existing drainage systems other than public drainage systems.

(e) A replacement plan is not required for draining agricultural land that: (1) was
planted with annually seeded crops before July 5, except for crops that are normally
planted after that date, in eight out of the ten most recent years prior to the impact; (2) was
in a crop rotation seeding of pasture grass, cover crop, or legumes, or was fallow for a
crop production purpose, in eight out of the ten most recent years prior to the impact; or
(3) was enrolled in a state or federal land conservation program and met the requirements
of clause (1) or (2) before enrollment.

(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. 5.

Minnesota Statutes 2012, section 103G.2241, subdivision 6, is amended to read:

Subd. 6.

Utilities; public works.

(a) A replacement plan for wetlands is not
required for:

(1) new placement or maintenance, repair, enhancement, or replacement of existing
utility or utility-type service, including pipelines, if:

(i) the direct and indirect impacts of the proposed project have been avoided and
minimized to the extent possible; and

(ii) the proposed project significantly modifies or alters less than deleted text begin one-half acre of
wetlands deleted text end new text begin 10,000 square feet in bank service area 1, 2, 5, or 6; 2,000 square feet in bank
service area 3, 4, 7, 8, 9, or 10; or 1,000 square feet in the 11-county metropolitan area as
defined in subdivision 9, paragraph (d). Replacement requirements for projects that cross
bank service areas are calculated on a service area by service area basis new text end ;

(2) activities associated with operation, routine maintenance, or emergency repair of
existing utilities and public work structures, including pipelines, provided the activities
do not result in additional wetland intrusion or additional draining or filling of a wetland
either wholly or partially; or

(3) repair and updating of existing subsurface sewage treatment systems necessary
to comply with local, state, and federal regulations.

(b) For maintenance, repair, and replacement, the local government unit may issue
a seasonal or annual exemption certification or the utility may proceed without local
government unit certification if the utility is carrying out the work according to approved
best management practices. Work of an emergency nature may proceed as necessary
and any drain or fill activities shall be addressed with the local government unit after
the emergency work has been completed.

Sec. 6.

Minnesota Statutes 2012, section 103G.2241, subdivision 9, is amended to read:

Subd. 9.

De minimis.

(a) Except as provided in paragraphs (d) deleted text begin , (e), (f), (g), (h), and
(i) deleted text end new text begin to (j) new text end , a replacement plan for wetlands is not required for draining or filling the following
amounts of wetlands as part of a project outside of the shoreland wetland protection zone:

(1) 10,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and
tamarack wetlands, in a greater than 80 percent area;

(2) 5,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack
wetlands, in a 50 to 80 percent area, except within the 11-county metropolitan area;

(3) 2,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack
wetlands, in a less than 50 percent area, except within the 11-county metropolitan area; or

(4) 100 square feet of type 3, 4, 5, or 8 wetland deleted text begin or white cedar and tamarack wetland deleted text end .

(b) Except as provided in paragraphs (e) deleted text begin , (f), (g), (h), and (i) deleted text end new text begin to (j) new text end , a replacement
plan for wetlands is not required for draining or filling the following amounts of wetlands
as part of a project within the shoreland wetland protection zone beyond the shoreland
building setback zone:

(1) 400 square feet of type 1, 2, 6, or 7 wetland; or

(2) 100 square feet of type 3, 4, 5, or 8 wetland deleted text begin or white cedar and tamarack wetland deleted text end .

In a greater than 80 percent area, the de minimis amount allowed under clause (1)
may be increased up to 1,000 square feet if the wetland is isolated and is determined
to have no direct surficial connection to the public water or if permanent water runoff
retention or infiltration measures are established in proximity as approved by the shoreland
management authority.

(c) Except as provided in paragraphs (e) deleted text begin , (f), (g), (h), and (i) deleted text end new text begin to (j) new text end , a replacement
plan for wetlands is not required for draining or filling up to 20 square feet of wetland
as part of a project within the shoreland building setback zone, as defined in the local
shoreland management ordinance. The amount in this paragraph may be increased to 100
square feet if permanent water runoff retention or infiltration measures are established in
proximity as approved by the shoreland management authority.

(d) Except as provided in paragraphs (b) deleted text begin , (c), (e), (f), (g), (h), and (i) deleted text end new text begin to (j) new text end , a
replacement plan is not required for draining or filling amounts of wetlands as part of
a project:

(1) 2,500 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and
tamarack wetlands, outside of the shoreland wetland protection zone in a 50 to 80 percent
area within the 11-county metropolitan area; or

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

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

(e) The amounts listed in paragraphs (a), (b), and (c) may not be combined on
a project.

(f) 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), (b), or (c), if the landowner owns
the entire wetland;

(2) five percent of the landowner's portion of the wetland; or

(3) 400 square feet.

(g) This exemption may not be combined with another exemption in this section on
a project.

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

(i) If a local ordinance or similar local control is more restrictive than this
subdivision, the local standard applies.

new text begin (j) There is no de minimis and a replacement plan is required for impacts to rare
wetland types such as rich fens, cedar and tamarack swamps, wetlands located within
state-designated areas of biodiversity significance, and other rare wetland communities as
designated by the local government unit.
new text end

Sec. 7.

Minnesota Statutes 2012, section 103G.2241, subdivision 10, is amended to
read:

Subd. 10.

Wildlife habitat.

A replacement plan for wetlands is not required for:

(1) deposition of spoil resulting from excavation within a wetland for a wildlife
habitat improvement project, if:

(i) the new text begin total new text end area of deposition new text begin and excavation within wetlands new text end does not exceed five
percent of the wetland area or one-half acre new text begin of wetlands new text end , whichever is less deleted text begin , and the spoil is
stabilized and permanently seeded to prevent erosion deleted text end new text begin . Ponds must be constructed with
irregular shorelines and shallow side slopes of eight feet horizontal to one foot vertical or
flatter and be dominated by water depths of four feet or less. All excess excavated material
must be placed at an upland location and no temporary stockpiling of excavated material
is allowed in wetlands outside the footprint of the pond site new text end ;

(ii) the project does not have an adverse impact on any species designated as
endangered or threatened under state or federal law; and

(iii) the project will provide wildlife habitat improvement as certified by the soil
and water conservation district; or

(2) duck blinds.

Sec. 8.

Minnesota Statutes 2012, 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 new text begin :
new text end

new text begin (1) must provide preconstruction written or electronic notice to the local government
unit or local government unit's designee at least ten days in advance of the activity,
describing the purpose of the proposed activity, the location of the activity, and the
quantity and extent of impacts to wetlands and explaining how the activity qualifies for
an exemption; and
new text end

new text begin (2) new text end are encouraged to contact the local government unit or the local government
unit's designee for advice on minimizing wetland impacts.

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

Sec. 9.

Minnesota Statutes 2012, section 103G.2242, subdivision 1, is amended to read:

Subdivision 1.

Rules.

(a) The board, in consultation with the commissioner,
shall adopt rules governing the approval of wetland value replacement plans under this
section and public waters work permits affecting public waters wetlands under section
103G.245. These rules must address the criteria, procedure, timing, and location of
acceptable replacement of wetland values deleted text begin ; deleted text end new text begin and new text end may address the state establishment and
administration of a wetland banking program for public and private projects, which
may include provisions allowing monetary payment to the wetland banking program
for alteration of wetlands on agricultural land; new text begin the establishment and administration of
an in-lieu fee program according to subdivision 16; new text end the administrative, monitoring, and
enforcement procedures to be used; and a procedure for the review and appeal of decisions
under this section. In the case of peatlands, the replacement plan rules must consider the
impact on carbon balance described in the report required by Laws 1990, chapter 587,
and include the planting of trees or shrubs.

(b) After the adoption of the rules, a replacement plan must be approved by a
resolution of the governing body of the local government unit, consistent with the
provisions of the rules or a comprehensive wetland protection and management plan
approved under section 103G.2243.

(c) If the local government unit fails to apply the rules, or fails to implement a
local comprehensive wetland protection and management plan established under section
103G.2243, the government unit is subject to penalty as determined by the board.

Sec. 10.

Minnesota Statutes 2012, section 103G.2242, is amended by adding a
subdivision to read:

new text begin Subd. 8a. new text end

new text begin Notice when permit to mine required. new text end

new text begin For projects requiring a permit to
mine, the board shall provide notice of a replacement plan application or an application to
amend a replacement plan to all affected cities, counties, and soil and water conservation
districts. The board shall give affected cities, counties, and soil and water conservation
districts 30 days to comment on the proposed replacement plan or amendment and the
opportunity to participate in the Technical Evaluation Panel. The board must respond to
any comments received under this subdivision.
new text end

Sec. 11.

Minnesota Statutes 2012, section 103G.2242, is amended by adding a
subdivision to read:

new text begin Subd. 16. new text end

new text begin In-lieu fee program. new text end

new text begin The board may adopt rules to establish and
administer an in-lieu fee program. The program must:
new text end

new text begin (1) meet the requirements of an in-lieu fee program as defined under Code of Federal
Regulations, title 33, section 332.2, and adopt, to the extent practicable, the review
procedures and requirements under Code of Federal Regulations, title 33, section 332.8;
new text end

new text begin (2) meet the wetlands replacement requirements of sections 103G.221 to 103G.2242,
including using a watershed approach, priorities, and sequencing;
new text end

new text begin (3) ensure and document that all funds collected will fully offset the public value of
the wetlands lost as a result of an impact;
new text end

new text begin (4) require that all in-lieu fee program project sites be constructed, seeded, and
planted within two growing seasons of the first collection of funds;
new text end

new text begin (5) require that funds collected fully cover the project site acquisition, construction,
labor, plants, seeds, management, and monitoring;
new text end

new text begin (6) require financial assurance to cover project construction, labor, planting and
seeding, monitoring, and long-term management of the site; and
new text end

new text begin (7) require permanent conservation easements.
new text end

Sec. 12.

new text begin [103G.2376] WETLAND REPLACEMENT TRACKING SYSTEM.
new text end

new text begin (a) The board and the commissioner of natural resources shall jointly develop an
online wetland replacement tracking system, to be in full operation by January 1, 2015.
Use of an existing state or federal online tracking system with an online viewer fulfills
this requirement.
new text end

new text begin (b) All approved wetland replacement sites, including private and local road
replacement wetland banks, must be consolidated and their geographic extent must be
displayed on the tracking system.
new text end

new text begin (c) Wetland replacement approved between 1991 and 2008 must be collected and
displayed on the tracking system no later than January 31, 2016. Wetland replacement
approved after 2008 must be collected and displayed no later than January 31, 2015.
new text end

new text begin (d) State-generated data showing known restorable wetlands or locations of possible
wetland replacement opportunities must be collected and displayed no later than January
31, 2015.
new text end

new text begin (e) Data on the tracking system must be updated every two months.
new text end

new text begin (f) The landowner, responsible party, types of wetlands restored, and status of a site's
approval must be displayed on the tracking system.
new text end

new text begin (g) Geographic data on the tracking system must be available for public use and
to download.
new text end

new text begin (h) Starting June 30, 2014, local government units must report to the board all
wetland replacement sites approved within the previous month. The report must contain
the information identified in paragraph (f). Reports must be sent to the board no later
than the last day of each month.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end