2nd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to natural resources; modifying provisions 1.3 relating to wetlands; amending Minnesota Statutes 1.4 1994, sections 103G.005, by adding subdivisions; 1.5 103G.221, subdivision 1; 103G.222; 103G.2241; 1.6 103G.2242, subdivisions 1, 2, 4, 6, 7, 9, 12, and by 1.7 adding a subdivision; 103G.237, subdivision 4, and by 1.8 adding a subdivision; 103G.2372, subdivision 1; and 1.9 103G.245, subdivision 2; repealing Minnesota Statutes 1.10 1994, sections 103G.2242, subdivision 13; and 1.11 103G.2372, subdivisions 2 and 3. 1.12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.13 Section 1. Minnesota Statutes 1994, section 103G.005, is 1.14 amended by adding a subdivision to read: 1.15 Subd. 2a. [AGRICULTURAL LAND.] "Agricultural land" has the 1.16 meaning given in section 17.81, subdivision 3. 1.17 Sec. 2. Minnesota Statutes 1994, section 103G.005, is 1.18 amended by adding a subdivision to read: 1.19 Subd. 2b. [AGRICULTURAL USE.] "Agricultural use" has the 1.20 meaning given in section 40A.02, subdivision 3. 1.21 Sec. 3. Minnesota Statutes 1994, section 103G.221, 1.22 subdivision 1, is amended to read: 1.23 Subdivision 1. [DRAINAGE OF PUBLIC WATERS WETLANDS 1.24 GENERALLY PROHIBITED WITHOUT REPLACEMENT.] Except as provided in 1.25 this subdivision and in subdivisions 2 and 3, public waters 1.26 wetlands may not be drained, and a permit authorizing drainage 1.27 of public waters wetlands may not be issued, unless the public 1.28 waters wetlands to be drained are replaced by wetlands that will 2.1 have equal or greater public value. Road authorities may repair 2.2 and maintain roads within the road right-of-way, including 2.3 replacement of culverts, which result in drainage of public 2.4 waters wetlands without replacement of wetlands, provided the 2.5 public waters wetlands are not drained to a greater extent than 2.6 when the road was constructed or when the culvert was working. 2.7 Sec. 4. Minnesota Statutes 1994, section 103G.222, is 2.8 amended to read: 2.9 103G.222 [REPLACEMENT OF WETLANDS.] 2.10 (a) After the effective date of the rules adopted under 2.11 section 103B.3355 or 103G.2242, whichever is later, wetlands 2.12 must not be drained or filled, wholly or partially, unless 2.13 replaced by restoring or creating wetland areas of at least 2.14 equal public value under a replacement plan approved as provided 2.15 in section 103G.2242, a replacement plan under a local 2.16 governmental unit's comprehensive wetland protection and 2.17 management plan
approved by the boardadopted under section 2.18 103G.2242, subdivision 1, paragraph (c)1a, or, if a permit to 2.19 mine is required under section 93.481, under a mining 2.20 reclamation plan approved by the commissioner under the permit 2.21 to mine. Mining reclamation plans shall apply the same 2.22 principles and standards for replacing wetlands by restoration 2.23 or creation of wetland areas that are applicable to mitigation 2.24 plans approved as provided in section 103G.2242. 2.25 (b) Except as provided in paragraph (l), replacement must 2.26 be guided by the following principles in descending order of 2.27 priority: 2.28 (1) avoiding the direct or indirect impact of the activity 2.29 that may destroy or diminish the wetland; 2.30 (2) minimizing the impact by limiting the degree or 2.31 magnitude of the wetland activity and its implementation; 2.32 (3) rectifying the impact by repairing, rehabilitating, or 2.33 restoring the affected wetland environment; 2.34 (4) reducing or eliminating the impact over time by 2.35 preservation and maintenance operations during the life of the 2.36 activity; and 3.1 (5) compensating for the impact by replacing or providing 3.2 substitute wetland resources or environments. 3.3 (c) If a wetland is located in a cultivated field, then 3.4 replacement must be accomplished through restoration only 3.5 without regard to the priority order in paragraph (b), provided 3.6 that a deed restriction is placed on the altered wetland 3.7 prohibiting nonagricultural use for at least ten years. 3.8 (d) Restoration and replacement of wetlands must be 3.9 accomplished in accordance with the ecology of the landscape 3.10 area affected. 3.11 (e) Replacement shall be within the same watershed or 3.12 county as the impacted wetlands, as based on the wetland 3.13 evaluation in section 103G.2242, subdivision 2, except that 3.14 counties or watersheds in which 80 percent or more of the 3.15 presettlement wetland acreage is intact may accomplish 3.16 replacement in counties or watersheds in which 50 percent or 3.17 more of the presettlement wetland acreage has been filled, 3.18 drained, or otherwise degraded. Wetlands impacted by public 3.19 transportation projects may be replaced statewide, provided they 3.20 are approved by the commissioner under an established wetland 3.21 banking system, or under the rules for wetland banking as 3.22 provided for under section 103G.2242. 3.23 (f) Except as provided in paragraph (g), for a wetland 3.24 located on nonagricultural land, replacement must be based on 3.25 the public value or in the ratio of two acres of replaced 3.26 wetland for each acre of drained or filled wetland. 3.27 (g) For a wetland located on agricultural land or in 3.28 counties or watersheds in which 80 percent or more of the 3.29 presettlement wetland acreage exists, replacement must be based 3.30 on the public value or in the ratio of one acre of replaced 3.31 wetland for each acre of drained or filled wetland. 3.32 (h) Wetlands that are restored or created as a result of an 3.33 approved replacement plan are subject to the provisions of this 3.34 section for any subsequent drainage or filling. 3.35 (i) Except in counties or watersheds where 80 percent or 3.36 more of the presettlement wetlands are intact, only wetlands 4.1 that have been restored from previously drained or filled 4.2 wetlands, wetlands created by excavation in nonwetlands, 4.3 wetlands created by dikes or dams along public or private 4.4 drainage ditches, or wetlands created by dikes or dams 4.5 associated with the restoration of previously drained or filled 4.6 wetlands may be used in a statewide banking program established 4.7 in rules adopted under section 103G.2242, subdivision 1. 4.8 Modification or conversion of nondegraded naturally occurring 4.9 wetlands from one type to another are not eligible for 4.10 enrollment in a statewide wetlands bank. 4.11 (j) The technical evaluation panel established under 4.12 section 103G.2242, subdivision 2, shall ensure that sufficient 4.13 time has occurred for the wetland to develop wetland 4.14 characteristics of soils, vegetation, and hydrology before 4.15 recommending that the wetland be deposited in the statewide 4.16 wetland bank. If the technical evaluation panel has reason to 4.17 believe that the wetland characteristics may change 4.18 substantially, the panel shall postpone its recommendation until 4.19 the wetland has stabilized. 4.20 (k) This section and sections 103G.223 to 103G.2242, 4.21 103G.2364, and 103G.2365 apply to the state and its departments 4.22 and agencies. 4.23 (l) A local government unit may make a sequencing 4.24 determination and, after consideration, deviate from the 4.25 provisions of paragraph (b), without a written alternatives 4.26 analysis from the applicant, for projects involving the draining 4.27 or filling of less than: 4.28 (1) 2,000 square feet of wetlands in the building setback 4.29 of shoreland areas in all counties; 4.30 (2) 10,000 square feet of wetlands in counties with 80 4.31 percent or less of their presettlement wetlands remaining; and 4.32 (3) 20,000 square feet of wetlands in counties with more 4.33 than 80 percent of their presettlement wetlands remaining. 4.34 (m) For projects involving draining or filling of wetlands 4.35 outside of the building setback of shoreland areas, a person may 4.36 satisfy replacement requirements under this section by paying an 5.1 amount equal to the fair market value of the upland created by 5.2 the draining or filling activity, as determined by the county 5.3 assessor. The payment must be made to the local government unit 5.4 if it has established a wetland bank that is approved by the 5.5 board. The local government unit shall use any money received 5.6 under this paragraph for making withdrawals from the wetland 5.7 bank administered by the local government unit for the purpose 5.8 of replacing lost wetland values. 5.9 Sec. 5. Minnesota Statutes 1994, section 103G.2241, is 5.10 amended to read: 5.11 103G.2241 [EXEMPTIONS.] 5.12 (a) Subject to the conditions in paragraph (b)(c), a 5.13 replacement plan for wetlands is not required for: 5.14 (1) activities in a wetland that was planted with annually 5.15 seeded crops, was in a crop rotation seeding of pasture grasses 5.16 or legumes, or was required to be set aside to receive price 5.17 support or other payments under United States Code, title 7, 5.18 sections 1421 to 1469, in six of the last ten years prior to 5.19 January 1, 1991; 5.20 (2) activities in a wetland that is or has been enrolled in 5.21 the federal conservation reserve program under United States 5.22 Code, title 16, section 3831, that: 5.23 (i) was planted with annually seeded crops, was in a crop 5.24 rotation seeding, or was required to be set aside to receive 5.25 price support or payment under United States Code, title 7, 5.26 sections 1421 to 1469, in six of the last ten years prior to 5.27 being enrolled in the program; and 5.28 (ii) has not been restored with assistance from a public or 5.29 private wetland restoration program; 5.30 (3) activities necessary to repair and maintain existing 5.31 public or private drainage systems as long as wetlands that have5.32 been in existence for more than 20 years are not drained; 5.33 (4) activities in a wetland that has received a commenced 5.34 drainage determination provided for by the federal Food Security 5.35 Act of 1985, that was made to the county agricultural 5.36 stabilization and conservation service office prior to September 6.1 19, 1988, and a ruling and any subsequent appeals or reviews 6.2 have determined that drainage of the wetland had been commenced 6.3 prior to December 23, 1985; 6.4 (5) activities exempted from federal regulation under 6.5 United States Code, title 33, section 1344(f); 6.6 (6) activities authorized under, and conducted in 6.7 accordance with, an applicableindividual or general permit 6.8 issued by the United States Army Corps of Engineers under 6.9 section 404 of the federal Clean Water Act, United States Code, 6.10 title 33, section 1344, except the nationwide permit in Code of 6.11 Federal Regulations, title 33, section 330.5, paragraph (a), 6.12 clause (14), limited to when a new road crosses a wetland, and6.13 all ofclause (26); 6.14 (7) activities in a type 1 wetland on agricultural land, as 6.15 defined in United States Fish and Wildlife Circular No. 39 (1971 6.16 edition) except for bottomland hardwood type 1 wetlands, 6.17 regardless of whether or not the wetland is part of a larger 6.18 wetland that includes other types; 6.19 (8) activities in athe draining or filling of up to two 6.20 acres of a type 2 wetland that is two acres in size or less6.21 located on agricultural land, regardless of whether or not the 6.22 wetland is part of a larger wetland that includes other types; 6.23 (9) activities in a wetland restored for conservation 6.24 purposes under a contract or easement providing the landowner 6.25 with the right to drain the restored wetland; 6.26 (10) activities in a wetland created solely as a result of: 6.27 (i) beaver dam construction; 6.28 (ii) blockage of culverts through roadways maintained by a 6.29 public or private entity; 6.30 (iii) actions by public entitiesthat were taken for a 6.31 purpose other than creating the wetland; or 6.32 (iv) any combination of (i) to (iii); 6.33 (11) placement, maintenance, repair, enhancement, or 6.34 replacement of utility or utility-type service, including the 6.35 transmission, distribution, or furnishing, at wholesale or 6.36 retail, of natural or manufactured gas, electricity, telephone, 7.1 or radio service or communications if: 7.2 (i) the impacts of the proposed project on the hydrologic 7.3 and biological characteristics of the wetland have been avoided 7.4 and minimized to the extent possible; and 7.5 (ii) the proposed project significantly modifies or alters 7.6 less than one-half acre of wetlands; 7.7 (12) activities associated with routine maintenance of 7.8 utility and pipeline rights-of-way, provided the activities do 7.9 not result in additional intrusion into the wetland; 7.10 (13) alteration of a wetland associated with the operation, 7.11 maintenance, or repair of an interstate pipeline; 7.12 (14) temporarily crossing or entering a wetland to perform 7.13 silvicultural activities, including timber harvest and slash 7.14 deposition on frozen soil conducted as part of a forest 7.15 management activity, so long as the activity limits the impact 7.16 on the hydrologic and biologic characteristics of the wetland; 7.17 the activities do not result in the construction of dikes, 7.18 drainage ditches, tile lines, or buildings; and the timber 7.19 harvesting and other silvicultural practices do not result in 7.20 the drainage of the wetland or public waters; 7.21 (15) permanent access for forest roads across wetlands so 7.22 long as the activity limits the impact on the hydrologic and 7.23 biologic characteristics of the wetland; the construction 7.24 activities do not result in the access becoming a dike, drainage 7.25 ditch or tile line; with filling avoided wherever possible; and 7.26 there is no drainage of the wetland or public waters; 7.27 (16) draining or filling up to one-half acre of wetlands 7.28 for the repair, rehabilitation, or replacement of a previously 7.29 authorized, currently serviceable existing public road, provided 7.30 that minor deviations in the public road's configuration or 7.31 filled area, including those due to changes in materials, 7.32 construction techniques, or current construction codes or safety 7.33 standards, that are necessary to make repairs, rehabilitation, 7.34 or replacement are allowed if the wetland draining or filling 7.35 resulting from the repair, rehabilitation, or replacement is 7.36 minimized; 8.1 (17) emergency repair and normalmaintenance and repair of 8.2 existing public works, provided the activity does not result in8.3 additional intrusion of the public works into the wetland and do8.4 not result in the draining or filling, wholly or partially, of a8.5 wetlandor private infrastructure, and updating of public or 8.6 private infrastructure as necessary to comply with requirements 8.7 under state or federal law; 8.8 (18) normal maintenance and minor repair of structures 8.9 causing no additional intrusion of an existing structure into8.10 the wetland, and maintenance and repair of private crossings8.11 that do not result in the draining or filling, wholly or8.12 partially, of a wetland, including private crossings; 8.13 (19) duck blinds; 8.14 (20) aquaculture activities, including pond excavation and 8.15 construction and maintenance of associated access roads and 8.16 dikes authorized under, and conducted in accordance with, a 8.17 permit issued by the United States Army Corps of Engineers under 8.18 section 404 of the federal Clean Water Act, United States Code, 8.19 title 33, section 1344, but not including construction or 8.20 expansion of buildings; 8.21 (21) wild rice production activities, including necessary 8.22 diking and other activities authorized under a permit issued by 8.23 the United States Army Corps of Engineers under section 404 of 8.24 the federal Clean Water Act, United States Code, title 33, 8.25 section 1344; 8.26 (22) normal agricultural practices to control pests or 8.27 weeds, defined by rule as either noxious or secondary weeds, in 8.28 accordance with applicable requirements under state and federal 8.29 law, including established best management practices; 8.30 (23) activities in a wetland that is on agricultural land 8.31 annually enrolled in the federal Food, Agricultural, 8.32 Conservation, and Trade Act of 1990, United States Code, title 8.33 16, section 3821, subsection (a), clauses (1) to (3), as 8.34 amended, and is subject to sections 1421 to 1424 of the federal 8.35 act in effect on January 1, 1991, except that land enrolled in a 8.36 federal farm program is eligible for easement participation for 9.1 those acres not already compensated under a federal program; 9.2 (24) development projects and ditch improvement projects in 9.3 the state that have received preliminary or final plat approval, 9.4 or infrastructure that has been installed, or having local site 9.5 plan approval, conditional use permits, or similar official 9.6 approval by a governing body or government agency, within five 9.7 years before July 1, 1991. In the seven-county metropolitan 9.8 area and in cities of the first and second class, plat approval 9.9 must be preliminary as approved by the appropriate governing 9.10 body; and9.11 (25) activities that result in thedraining or filling 9.12 of less than 400the following amounts of wetlands as part of a 9.13 project, regardless of the total amount of wetlands drained or 9.14 filled as part of the project: 9.15 (i) 1,000 square feet of wetlands in the building setback 9.16 of shoreland areas in all counties; 9.17 (ii) 5,000 square feet of wetlands in counties with 80 9.18 percent of their presettlement wetlands remaining; and 9.19 (iii) 10,000 square feet of wetlands in counties with 9.20 greater than 80 percent of their presettlement wetlands 9.21 remaining; 9.22 (26) deposition of spoil resulting from excavation within a 9.23 wetland for wildlife habitat purposes, if: 9.24 (i) the area of deposition does not exceed five percent of 9.25 the wetland area; and 9.26 (ii) the project does not have an adverse impact on any 9.27 species designated as threatened or endangered under state or 9.28 federal law; 9.29 (27) activities by a landowner on land that has been owned 9.30 continuously by the landowner since July 1, 1991; and 9.31 (28) activities by a landowner to gain access to uplands 9.32 through wetland portions of the landowner's property. 9.33 (b) For the purpose of paragraph (a), clause (16), 9.34 "currently serviceable" means usable as is or with some 9.35 maintenance, but not so degraded as to essentially require 9.36 reconstruction. Paragraph (a), clause (16), authorizes the 10.1 repair, rehabilitation, or replacement of public roads destroyed 10.2 by storms, floods, fire, or other discrete events, provided the 10.3 repair, rehabilitation, or replacement is commenced or under 10.4 contract to commence within two years of the occurrence of the 10.5 destruction or damage. 10.6 (c) In applying the exemption in paragraph (a), clause 10.7 (25), the local government unit shall determine the scope of the 10.8 project and the wetlands to be replaced. In making this 10.9 determination, the local government unit may request assistance 10.10 from the technical evaluation panel established under section 10.11 103G.2242, subdivision 2. 10.12 (d) A person conducting an activity in a wetland under an 10.13 exemption in paragraph (a) shall ensure that: 10.14 (1) appropriate erosion control measures are taken to 10.15 prevent sedimentation of the water; 10.16 (2) the activity does not block fish passage in a 10.17 watercourse; and 10.18 (3) the activity is conducted in compliance with all other 10.19 applicable federal, state, and local requirements, including 10.20 best management practices and water resource protection 10.21 requirements established under chapter 103H. 10.22 (e) A local government unit may expand the application of 10.23 paragraph (a), clause (8), to additional acreage when the 10.24 additional acreage is part of a conservation plan prepared by 10.25 the local soil and water conservation district and the 10.26 additional drainage is necessary for efficient operation of the 10.27 farm. 10.28 Sec. 6. Minnesota Statutes 1994, section 103G.2242, 10.29 subdivision 1, is amended to read: 10.30 Subdivision 1. [RULES.] (a) By July 1, 1993, the board, in 10.31 consultation with the commissioner, shall adopt rules governing 10.32 the approval of wetland value replacement plans under this 10.33 section. These rules must address the criteria, procedure, 10.34 timing, and location of acceptable replacement of wetland 10.35 values; may address the state establishment and administration 10.36 of a wetland banking program for public and private projects, 11.1 which may include provisions allowing monetary payment to the 11.2 wetland banking program for alteration of wetlands on 11.3 agricultural land; the methodology to be used in identifying and 11.4 evaluating wetland functions; the administrative, monitoring, 11.5 and enforcement procedures to be used; and a procedure for the 11.6 review and appeal of decisions under this section. In the case 11.7 of peatlands, the replacement plan rules must consider the 11.8 impact on carbon balance described in the report required by 11.9 Laws 1990, chapter 587, and include the planting of trees or 11.10 shrubs. 11.11 (b) After the adoption of the rules, a replacement plan 11.12 must be approved by a resolution of the governing body of the 11.13 local government unit, consistent with the provisions of the 11.14 rules. 11.15 (c) The board may approveAs an alternative to the rules 11.16 adopted under this subdivision, a local government unit may 11.17 develop and implement a comprehensive wetland protection and 11.18 management plan developed by a local government unit, provided11.19 that the plan:11.20 (1) incorporates sections 103A.201, subdivision 2, and11.21 103G.222;11.22 (2) is adopted as part of an approved local water plan11.23 under sections 103B.231 and 103B.311; and11.24 (3) is adopted as part of the local government's official11.25 controlsin accordance with subdivision 1a. 11.26 (d) If the local government unit fails to apply the rules, 11.27 or fails to implement a local programcomprehensive wetland 11.28 protection and management plan under paragraph (c)subdivision 11.29 1a, the government unit is subject to penalty as determined by 11.30 the board. 11.31 Sec. 7. Minnesota Statutes 1994, section 103G.2242, is 11.32 amended by adding a subdivision to read: 11.33 Subd. 1a. [COMPREHENSIVE WETLAND PROTECTION AND MANAGEMENT 11.34 PLANS.] (a) As an alternative to the rules adopted under this 11.35 section a local government unit may adopt a comprehensive 11.36 wetland protection and management plan developed by a local 12.1 government unit, provided that the plan: 12.2 (1) incorporates section 103A.201, subdivision 2, and, 12.3 except as provided in this subdivision, section 103G.222; and 12.4 (2) is adopted as part of the local government's official 12.5 controls. 12.6 (b) A comprehensive wetland protection and management plan 12.7 may: 12.8 (1) according to a procedure developed in consultation with 12.9 the board, classify wetlands based on an assessment of: 12.10 (i) wetland functions, including floodwater retention, 12.11 nutrient assimilation, sediment entrapment, groundwater 12.12 recharge, low flow augmentation, aesthetics and recreation, 12.13 commercial uses, wildlife and fisheries habitat, and education; 12.14 and 12.15 (ii) the resulting public values; 12.16 (2) allow replacement credit for any project that increases 12.17 the public value of wetlands, including activities on adjacent 12.18 upland areas, based on the classification; 12.19 (3) establish a local wetland bank that is not subject to 12.20 rules adopted by the board, provided the bank is administered so 12.21 as to ensure no net loss of wetland values, based on the 12.22 classification; 12.23 (4) expand the application of the exemptions in section 12.24 103G.2241, paragraph (a), clauses (7) and (8), to also include 12.25 nonagricultural land; 12.26 (5) vary application of the sequencing standards of section 12.27 103G.222, paragraph (b), based on the classification; and 12.28 (6) vary the replacement standards of section 103G.222, 12.29 paragraphs (f) and (g), provided there is no net loss of public 12.30 values and biological diversity within the area subject to the 12.31 plan. 12.32 (c) The local government unit shall make replacement 12.33 decisions based on the plan. 12.34 Sec. 8. Minnesota Statutes 1994, section 103G.2242, 12.35 subdivision 2, is amended to read: 12.36 Subd. 2. [EVALUATION; MAP.] (a) Questions concerning the 13.1 public value, location, size, or type of a wetland shall be 13.2 submitted to and determined by a technical evaluation panel 13.3 after an on-site inspection. The technical evaluation panel 13.4 shall be composed of a technical professional employee of the 13.5 board, a technical professional employee of the local soil and 13.6 water conservation district or districts, and a technical 13.7 professional with expertise in water resources management 13.8 appointed by the local government unit. The panel shall use 13.9 the "Federal Manual for Identifying and Delineating13.10 Jurisdictional Wetlands" (January 1989)"U.S. Army Corps of 13.11 Engineers Wetland Delineation Manual" (January 1987). The panel 13.12 shall provide the wetland determination to the local government 13.13 unit that must approve a replacement plan under this section, 13.14 and may recommend approval or denial of the plan. The authority 13.15 must consider and include the decision of the technical 13.16 evaluation panel in their approval or denial of a plan. 13.17 (b) Upon request of an applicant, the local government unit 13.18 shall provide a detailed wetlands map of the applicant's 13.19 property which delineates the wetlands on the property. If the 13.20 applicant disagrees with the delineation, the applicant may 13.21 appeal to the technical evaluation panel. 13.22 Sec. 9. Minnesota Statutes 1994, section 103G.2242, 13.23 subdivision 4, is amended to read: 13.24 Subd. 4. [DECISION.] Upon receiving and considering all 13.25 required data, the local government unit approving a replacement 13.26 plan must act on all applications for plan approval within 60 13.27 days. A local government unit may extend the 60-day period for 13.28 an additional 30 days by notifying the applicant in writing of 13.29 the delay, the reasons for the delay, and the expected date of 13.30 final action on the application. If the local government unit 13.31 fails to act on an application within the 60-day period or any 13.32 extension period, the replacement plan shall be deemed approved. 13.33 Sec. 10. Minnesota Statutes 1994, section 103G.2242, 13.34 subdivision 6, is amended to read: 13.35 Subd. 6. [NOTICE OF APPLICATION.] (a) Except as provided 13.36 in paragraph (b), within ten days of receiving an application 14.1 for approval of a replacement plan under this section, a copy14.2 summary of the application must be submitted to the boardfor 14.3 publication in the Environmental Quality Board Monitor and 14.4 separate copies of the complete application mailed to the 14.5 members of the technical evaluation panel, individual members of 14.6 the public who request a copy, the board of supervisors of the14.7 soil and water conservation district,the managers of the 14.8 watershed district if one exists, the board of county14.9 commissioners,and the commissioner of agriculture, and the14.10 mayors of the cities within the area watershed. At the same14.11 time, the local government unit must give general notice to the14.12 public in a general circulation newspaper within the area14.13 affectednatural resources. 14.14 (b) Within ten days of receiving an application for 14.15 approval of a replacement plan under this section for an 14.16 activity affecting less than 10,000 square feet of wetland, a 14.17 summary of the application must be submitted for publication in14.18 the Environmental Quality Board Monitor and separate copies14.19 mailed to the members of the technical evaluation panel, 14.20 individual members of the public who request a copy, and the 14.21 managers of the watershed district, if applicable. At the same14.22 time, the local government unit must give general notice to the14.23 public in a general circulation newspaper within the area14.24 affectedcommissioner of natural resources. 14.25 (c) For the purpose of this subdivision, "application" 14.26 includes a revised application for replacement plan approval and 14.27 an application for a revision to an approved replacement plan if: 14.28 (1) the wetland area to be drained or filled under the 14.29 revised replacement plan is at least ten percent larger than the 14.30 area to be drained or filled under the original replacement 14.31 plan; or 14.32 (2) the wetland area to be drained or filled under the 14.33 revised replacement is located more than 500 feet from the area 14.34 to be drained or filled under the original replacement plan. 14.35 Sec. 11. Minnesota Statutes 1994, section 103G.2242, 14.36 subdivision 7, is amended to read: 15.1 Subd. 7. [NOTICE OF DECISION.] (a) Except as provided in15.2 paragraph (b), at least 30 days prior toBy the effective date 15.3 of the approval or denial of a replacement plan under this 15.4 section, a copysummary of the approval or denial must be 15.5 submitted for publication in the Environmental Quality Board 15.6 Monitor and separate copies mailed to the applicant, the board15.7 members of the technical evaluation panel, individual members of 15.8 the public who request a copy, the board of supervisors of the15.9 soil and water conservation district,the managers of the 15.10 watershed district if one exists, the board of county15.11 commissioners,and the commissioner of agriculture, and the15.12 mayors of the cities within the area watershednatural 15.13 resources. Notice in the Environmental Quality Board Monitor is 15.14 not required for projects involving the draining or filling of 15.15 less than 10,000 square feet of wetlands. 15.16 (b) Within ten days of the decision approving or denying a15.17 replacement plan under this section for an activity affecting15.18 less than 10,000 square feet of wetland, a summary of the15.19 approval or denial must be submitted for publication in the15.20 Environmental Quality Board Monitor and separate copies mailed15.21 to the applicant, individual members of the public who request a15.22 copy, the members of the technical evaluation panel, and the15.23 managers of the watershed district, if applicable. At the same15.24 time, the local government unit must give general notice to the15.25 public in a general circulation newspaper within the area15.26 affected.15.27 Sec. 12. Minnesota Statutes 1994, section 103G.2242, 15.28 subdivision 9, is amended to read: 15.29 Subd. 9. [APPEAL.] Appeal of thea replacement plan, 15.30 exemption, or no-loss decision may be obtained by mailing 15.31 a notice of appealpetition to the board within 3015 days after 15.32 the postmarked date of the mailing specified in subdivision 15.33 7. The local government unit may require the petitioner to post 15.34 a bond in an amount not to exceed $500. If appeal is not sought 15.35 within 30 days, the decision becomes final. Appeal may be made 15.36 by the wetland owner, by any of those to whom notice is required 16.1 to be mailed under subdivision 7, or by 100 residents of the 16.2 county in which a majority of the wetland is located. Within 30 16.3 days after receiving a petition, the board shall decide whether 16.4 to grant the petition and hear the appeal. The board shall 16.5 grant the petition unless the board finds that the appeal is 16.6 meritless, trivial, or brought solely for the purposes of delay; 16.7 that the petitioner has not exhausted all local administrative 16.8 remedies; or that the petitioner has not posted a bond if 16.9 required by the local government unit. In determining whether 16.10 to grant the appeal, the board shall also consider the size of 16.11 the wetland, other factors in controversy, any patterns of 16.12 similar acts by the local government unit or petitioner, and the 16.13 consequences of the delay resulting from the appeal. All 16.14 appeals must be heard by the committee for dispute resolution of 16.15 the board, and a decision made within 60 days of the appeal. 16.16 The decision must be served by mail on the parties to the 16.17 appeal, and is not subject to the provisions of chapter 14. The16.18 A decision whether to grant a petition for appeal and a decision 16.19 on the merits of an appeal must be considered the decision of an 16.20 agency in a contested case for purposes of judicial review under 16.21 sections 14.63 to 14.69. 16.22 Sec. 13. Minnesota Statutes 1994, section 103G.2242, 16.23 subdivision 12, is amended to read: 16.24 Subd. 12. [REPLACEMENT CREDITS.] (a) Except as provided in 16.25 paragraphs (b) and (c) or in a comprehensive wetland protection 16.26 and management plan adopted under section 103G.2242, subdivision 16.27 1a, no public or private wetland restoration, enhancement, or 16.28 construction may be allowed for replacement unless specifically 16.29 designated for replacement and paid for by the individual or 16.30 organization performing the wetland restoration, enhancement, or 16.31 construction, and is completed prior to any draining or filling 16.32 of the wetland. 16.33 This subdivision(b) Paragraph (a) does not apply to a 16.34 wetland whose owner has paid back with interest the individual 16.35 or organization restoring, enhancing, or constructing the 16.36 wetland. 17.1 (c) A wetland covered by section 103G.2241, paragraph (a), 17.2 clause (9), may be used for replacement statewide. 17.3 (d) Notwithstanding section 103G.222, paragraph (i), the 17.4 following areas are eligible for replacement credit as 17.5 determined by the local government unit, including enrollment in 17.6 a statewide wetlands bank: 17.7 (1) an area of permanent vegetative cover reestablished on 17.8 a wetland that was planted with annually seeded crops, was in a 17.9 crop rotation seeding of pasture grasses or legumes, or was 17.10 required to be set aside to receive price supports or other 17.11 payments under United States Code, title 7, sections 1421 to 17.12 1469, in six of the last ten years prior to January 1, 1991; 17.13 (2) a buffer area of permanent vegetative cover established 17.14 on upland adjacent to a wetland, if the upland buffer area was 17.15 established at the time of wetland replacement; and 17.16 (3) a water quality treatment pond constructed to pretreat 17.17 stormwater runoff prior to discharge to a wetland, if the water 17.18 quality treatment pond was constructed at the time of wetland 17.19 replacement. 17.20 Replacement credit under clause (1) may not exceed 50 percent of 17.21 the total area of reestablished vegetative cover. Replacement 17.22 credits under clauses (2) and (3) may be used only for 17.23 replacement above a one-to-one ratio. 17.24 Sec. 14. Minnesota Statutes 1994, section 103G.237, 17.25 subdivision 4, is amended to read: 17.26 Subd. 4. [COMPENSATION.] (a) The board shall award 17.27 compensation in an amount equal to the greater of: 17.28 (1) 50 percent of the value of the wetland, calculated by 17.29 multiplying the acreage of the wetland by the greater of: 17.30 (1)(i) the average equalized estimated market value of 17.31 agricultural property in the township as established by the 17.32 commissioner of revenue at the time application for compensation 17.33 is made; or 17.34 (2)(ii) the assessed value per acre of the parcel 17.35 containing the wetland, based on the assessed value of the 17.36 parcel as stated on the most recent tax statement; or 18.1 (2) $200 per acre of wetland subject to the replacement 18.2 plan, increased or decreased by the percentage change of the 18.3 assessed valuation of land in the township where the wetland is 18.4 located from the 1995 valuation. 18.5 (b) A person who receives compensation under paragraph (a) 18.6 shall convey to the board a permanent conservation easement as 18.7 described in section 103F.515, subdivision 4. An easement 18.8 conveyed under this paragraph is subject to correction and 18.9 enforcement under section 103F.515, subdivisions 8 and 9. 18.10 Sec. 15. Minnesota Statutes 1994, section 103G.237, is 18.11 amended by adding a subdivision to read: 18.12 Subd. 5. [COMPENSATION CLAIMS AGAINST LOCAL GOVERNMENT 18.13 UNITS.] (a) At the request of a local government unit against 18.14 which a compensation action is brought based at least in part on 18.15 the local government unit's application of section 103G.222, 18.16 103G.2241, 103G.2242, 103G.237, or 103G.2372, or rules adopted 18.17 by the board to implement these sections, the state, through the 18.18 attorney general, shall intervene in the action on behalf of the 18.19 local government unit and shall thereafter be considered a 18.20 defendant in the action. A local government unit making a 18.21 request under this paragraph shall provide the attorney general 18.22 with a copy of the complaint as soon as possible after being 18.23 served. If requested by the attorney general, the court shall 18.24 grant additional time to file an answer equal to the time 18.25 between service of the complaint on the local government unit 18.26 and receipt of the complaint by the attorney general. 18.27 (b) The state is liable for costs, damages, fees, and 18.28 compensation awarded in the action based on the local 18.29 government's adoption or implementation of requirements that are 18.30 required by state law. 18.31 (c) For the purposes of this subdivision, "compensation 18.32 action" means an action in which the plaintiff seeks 18.33 compensation for a taking of private property under the state or 18.34 federal constitution or a similar action under a state or 18.35 federal statute. 18.36 Sec. 16. Minnesota Statutes 1994, section 103G.2372, 19.1 subdivision 1, is amended to read: 19.2 Subdivision 1. [ COMMISSIONER OF NATURAL RESOURCES19.3 ENFORCEMENT.] (a) Except as otherwise provided in this 19.4 subdivision, the commissioner of natural resources, conservation 19.5 officers, and peace officers shall enforce laws preserving and 19.6 protecting wetlands. Sheriffs and peace officers of local law 19.7 enforcement agencies shall enforce ordinances implementing 19.8 comprehensive wetland protection and management plans adopted 19.9 under section 103G.2242, subdivision 1a. The commissioner of 19.10 natural resources, a conservation officer, ora peace officer, 19.11 or for an ordinance violation the sheriff or local law 19.12 enforcement agency peace officers, may issue a cease and desist 19.13 order to stop any illegal activity adversely affectingdraining 19.14 or filling of a wetland. In the order, or by separate order, 19.15 the commissioner, conservation officer, or peace officer may 19.16 require restoration or replacement of the wetland, as determined 19.17 by the local soil and water conservation district or as 19.18 otherwise provided by a comprehensive wetland protection and 19.19 management plan. The soil and water conservation district shall 19.20 make its determination within 30 days after the cease and desist 19.21 order or separate restoration order is issued. 19.22 (b) An order issued under this subdivision may be enforced 19.23 under section 103G.141, subdivision 2. 19.24 (c) A county may, by written notice to the board, elect to 19.25 assume the enforcement powers and duties granted to the 19.26 commissioner of natural resources and conservation officers 19.27 under paragraph (a) and enforce wetland protection laws under 19.28 section 394.37. After receipt of the notice by the 19.29 commissioner, the commissioner and conservation officers may not 19.30 take an enforcement action under this section in the county 19.31 unless requested by the county. 19.32 Sec. 17. Minnesota Statutes 1994, section 103G.245, 19.33 subdivision 2, is amended to read: 19.34 Subd. 2. [EXCEPTIONS.] A public waters work permit is not 19.35 required for: 19.36 (1) work in altered natural watercourses that are part of 20.1 drainage systems established under chapter 103D or 103E if the 20.2 work in the waters is undertaken according to chapter 103D or 20.3 103E; or20.4 (2) a drainage project for a drainage system established 20.5 under chapter 103E that does not substantially affect public 20.6 waters or involve routine maintenance of the drainage system; or 20.7 (3) work affecting a public waters wetland if the work is 20.8 maintenance or repair of a road within the road right-of-way, 20.9 including replacement of culverts, by a road authority provided 20.10 the public waters are not drained to a greater extent than when 20.11 the road was constructed or when the culvert was working. 20.12 Sec. 18. [USE OF BLOCK GRANTS FOR WETLAND PLANS.] 20.13 Natural resource block grants made under Laws 1993, chapter 20.14 172, section 6, may be used for development and implementation 20.15 of comprehensive wetland protection and management plans under 20.16 Minnesota Statutes, section 103G.2242, subdivision 1a. 20.17 Sec. 19. [STUDY OF WETLAND BANKING ALTERNATIVES; REPORT.] 20.18 The wetland heritage committee, under the auspices of the 20.19 state comprehensive wetlands planning project, investigates 20.20 alternative procedures and policies for improving the current 20.21 wetland banking system in the state. The study must address 20.22 ecological, hydrological, and economic aspects of wetland 20.23 banking. The study and any recommendations must be reported to 20.24 the appropriate policy committees of the legislature by January 20.25 1, 1997. 20.26 Sec. 20. [401 CERTIFICATION FOR FEDERAL NATIONWIDE 20.27 PERMITS.] 20.28 Subdivision 1. [DEFINITIONS.] (a) The definitions in this 20.29 subdivision apply to this section. 20.30 (b) "Section 401 certification" or "certification" means a 20.31 water quality certification required to be issued under section 20.32 401 of the federal Clean Water Act, United States Code, title 20.33 33, section 1341. 20.34 (c) "Nationwide permit" or "permit" means a nationwide 20.35 general permit issued by the United States Army Corps of 20.36 Engineers and listed in Code of Federal Regulations, title 40, 21.1 part 330, appendix A. 21.2 Subd. 2. [WAIVER OF CERTIFICATION FOR CERTAIN 21.3 PERMITS.] If, as of the effective date of this section, the 21.4 pollution control agency has not issued a section 401 21.5 certification for a nationwide permit, the certification is 21.6 waived for that nationwide permit. As soon as possible after 21.7 the effective date of this section, the commissioner of the 21.8 pollution control agency shall give notice of this waiver to the 21.9 district engineer of the St. Paul District of the United States 21.10 Army Corps of Engineers. 21.11 Subd. 3. [REMOVAL OF CONDITIONS ON CERTAIN NATIONWIDE 21.12 PERMITS.] As soon as possible after the effective date of this 21.13 section, the pollution control agency shall modify the existing 21.14 water quality certifications for the nationwide permits to 21.15 remove any conditions that are more restrictive than the 21.16 conditions listed in Code of Federal Regulations, title 33, part 21.17 330, appendix A. 21.18 Sec. 21. [CALCAREOUS FENS; EXEMPTION.] 21.19 Minnesota Statutes, section 103G.223, does not apply to the 21.20 construction, operation, maintenance, or repair of the 21.21 Lincoln-Pipestone rural water district established pursuant to 21.22 Minnesota Statutes, chapter 116A. 21.23 Sec. 22. [REPEALER.] 21.24 Minnesota Statutes 1994, sections 103G.2242, subdivision 21.25 13; and 103G.2372, subdivisions 2 and 3, are repealed.