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SF 2042

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/30/2012 05:52pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 1st Engrossment

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A bill for an act
relating to natural resources; modifying Wetland Conservation Act; amending
Minnesota Statutes 2010, sections 103G.2241, subdivision 9; 103G.2242,
subdivision 3; Minnesota Statutes 2011 Supplement, section 103G.222,
subdivision 1; 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 2011 Supplement, section 103G.222, subdivision 1,
is amended to read:


Subdivision 1.

Requirements.

(a) Wetlands must not be drained or filled, wholly or
partially, unless replaced by restoring or creating wetland areas of at least equal public
value under a replacement plan approved as provided in section 103G.2242, a replacement
plan under a local governmental unit's comprehensive wetland protection and management
plan approved by the board under section 103G.2243, or, if a permit to mine is required
under section 93.481, under a mining reclamation plan approved by the commissioner
under the permit to mine. 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. 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 deleted text begin a deed restriction is placed ondeleted text end the altered wetland deleted text begin prohibitingdeleted text end new text begin is not
converted to a
new text end nonagricultural use for at least ten years.

(d) If a wetland is new text begin replaced under paragraph (c), or new text end drained under section 103G.2241,
subdivision 2
, deleted text begin paragraphsdeleted text end new text begin paragraphnew text end (b) deleted text begin anddeleted text end new text begin ornew text end (e), the local government unit may require
a deed restriction that prohibits nonagricultural use for at least ten years deleted text begin unless the drained
wetland is replaced as provided under this section
deleted text end . 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. 2.

Minnesota Statutes 2010, section 103G.2241, subdivision 9, is amended to read:


Subd. 9.

De minimis.

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

(1) 10,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and
tamarack wetlands, deleted text begin outside of the shoreland wetland protection zonedeleted text end 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, deleted text begin outside of the shoreland wetland protection zonedeleted text end in a 50 to 80 percent
areadeleted text begin , except within the 11-county metropolitan areadeleted text end ;

(3) 2,000 square feet of type 1, 2, deleted text begin ordeleted text end 6new text begin , or 7new text end wetland, deleted text begin outside of the shoreland wetland
protection zone
deleted text end new text begin excluding white cedar and tamarack wetlands,new text end in a less than 50 percent
areadeleted text begin , except within the 11-county metropolitan areadeleted text end ;new text begin or
new text end

(4) deleted text begin 100deleted text end new text begin 200new text end square feet of new text begin type 3, 4, 5, or 8 wetland or white cedar and tamarack
new text end wetland deleted text begin types not listed in clauses (1) to (3) outside of the building setback zone of the
shoreland wetland protection zones in all counties;
deleted text end new text begin .
new text end

new text begin (b) Except as provided in paragraphs (d), (e), (f), (g), and (h), 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:
new text end

deleted text begin (5)deleted text end new text begin (1)new text end 400 square feet of new text begin type 1, 2, 6, or 7 new text end wetland deleted text begin types listed in clauses (1) to
(3), beyond the building setback zone, as defined in the local shoreland management
ordinance, but within the shoreland wetland protection zone.
deleted text end new text begin ; ornew text end

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

In a greater than 80 percent area, the local government unit may increase the de
minimis amount new text begin allowed under this paragraph new text end up to 1,000 square feet if the wetland is
isolated and is determined to have no direct surficial connection to the public water.

new text begin (c) Except as provided in paragraphs (d), (e), (f), (g), and (h), a replacement plan for
wetlands is not required for draining or filling up to 100 square feet of wetland as part
of a project within the shoreland building setback zone, as defined in the local shoreland
management ordinance.
new text end

deleted text begin To the extent that a local shoreland management ordinance is more restrictive than
this provision, the local shoreland ordinance applies;
deleted text end

deleted text begin (6) up to 20 square feet of wetland, regardless of type or location;
deleted text end

deleted text begin (7) 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
deleted text end

deleted text begin (8) 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.
deleted text end

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

deleted text begin (b)deleted text end new text begin (d)new text end The amounts listed in deleted text begin paragraphdeleted text end new text begin paragraphsnew text end (a), deleted text begin clauses (1) to (8),deleted text end new text begin (b), and (c)new text end
may not be combined on a project.

deleted text begin (c)deleted text end new text begin (e)new text end 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)new text begin , (b), or (c)new text end , if the landowner owns
the entire wetland;

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

(3) 400 square feet.

deleted text begin (d)deleted text end new text begin (f)new text end This exemption may not be combined with another exemption in this section
on a project.

deleted text begin (e)deleted text end new text begin (g)new text end Property may not be divided to increase the amounts listed in paragraph (a).

new text begin (h) If a local ordinance or similar local control is more restrictive than this
subdivision, the local standard applies.
new text end

Sec. 3.

Minnesota Statutes 2010, section 103G.2242, subdivision 3, is amended to read:


Subd. 3.

Replacement completion.

Replacement of wetland values must be
completed prior to or concurrent with the actual draining or filling of a wetland, deleted text begin ordeleted text end new text begin unlessnew text end
an irrevocable bank letter of credit or other security acceptable to the local government
unit deleted text begin must bedeleted text end new text begin or the board isnew text end given to the local government unit new text begin or the board new text end to guarantee
the successful completion of the replacement.new text begin The board may establish, sponsor, or
administer a wetland banking program, which may include provisions allowing monetary
payment to the wetland bank for impacts to wetlands on agricultural land, for impacts
that occur in greater than 80 percent areas, and for public road projects. The board shall
coordinate the establishment and operation of a wetland bank with the United States
Army Corps of Engineers, the Natural Resources Conservation Service of the United
States Department of Agriculture, and the commissioners of natural resources, agriculture,
and the Pollution Control Agency.
new text end

Sec. 4.

new text begin [103G.2375] ASSUMPTION OF SECTION 404 OF FEDERAL CLEAN
WATER ACT.
new text end

new text begin Notwithstanding any other law to the contrary, the Board of Water and Soil
Resources, in consultation with the commissioners of natural resources, agriculture,
and the Pollution Control Agency, may adopt or amend rules establishing a program
for regulating the discharge of dredged and fill material into the waters of the state as
necessary to obtain approval from the United States Environmental Protection Agency to
administer, in whole or part, the permitting and wetland banking programs under section
404 of the federal Clean Water Act, United States Code, title 33, section 1344. The rules
may not be more restrictive than the program under section 404 or state law.
new text end