SF 2363

1st Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to the environment; natural resources; 
  1.3             wetlands; wetland delineations; providing 
  1.4             specifications for review and waivers of 401 
  1.5             certification under the federal Clean Water Act; 
  1.6             modifying environmental review to take into account 
  1.7             relevant local plans; appropriating money; amending 
  1.8             Minnesota Statutes 2002, sections 103G.2242, 
  1.9             subdivision 2; 115.03, subdivision 4a; 116D.02, 
  1.10            subdivision 2; 116D.04, subdivision 5a, by adding a 
  1.11            subdivision. 
  1.12  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.13     Section 1.  Minnesota Statutes 2002, section 103G.2242, 
  1.14  subdivision 2, is amended to read: 
  1.15     Subd. 2.  [EVALUATION.] (a) Questions concerning the public 
  1.16  value, location, size, or type of a wetland shall be submitted 
  1.17  to and determined by a Technical Evaluation Panel after an 
  1.18  on-site inspection.  The Technical Evaluation Panel shall be 
  1.19  composed of a technical professional employee of the board, a 
  1.20  technical professional employee of the local soil and water 
  1.21  conservation district or districts, a technical professional 
  1.22  with expertise in water resources management appointed by the 
  1.23  local government unit, and a technical professional employee of 
  1.24  the Department of Natural Resources for projects affecting 
  1.25  public waters or wetlands adjacent to public waters.  The panel 
  1.26  shall use the "United States Army Corps of Engineers Wetland 
  1.27  Delineation Manual" (January 1987), including updates, 
  1.28  supplementary guidance, and replacements, if any, "Wetlands of 
  2.1   the United States" (United States Fish and Wildlife Service 
  2.2   Circular 39, 1971 edition), and "Classification of Wetlands and 
  2.3   Deepwater Habitats of the United States" (1979 edition).  The 
  2.4   panel shall provide the wetland determination and 
  2.5   recommendations on other technical matters to the local 
  2.6   government unit that must approve a replacement plan, wetland 
  2.7   banking plan, exemption determination, no-loss determination, or 
  2.8   wetland boundary or type determination and may recommend 
  2.9   approval or denial of the plan.  The authority must consider and 
  2.10  include the decision of the Technical Evaluation Panel in their 
  2.11  approval or denial of a plan or determination. 
  2.12     (b) Persons conducting wetland or public waters boundary 
  2.13  delineations or type determinations are exempt from the 
  2.14  requirements of chapter 326.  By January 15, 2001, the board, in 
  2.15  consultation with the Minnesota Association of Professional Soil 
  2.16  Scientists, the University of Minnesota, and the Wetland 
  2.17  Delineators' Association, shall submit a plan for a professional 
  2.18  wetland delineator certification program to the legislature. 
  2.19     (c) By January 15, 2005, the board shall implement a 
  2.20  voluntary professional wetland delineator certification 
  2.21  program.  By January 15, 2006, the board shall report to the 
  2.22  legislature on the implementation of the voluntary professional 
  2.23  wetland delineator certification program.  By January 15, 2007, 
  2.24  the board shall develop rules for implementing the professional 
  2.25  wetland delineator certification program.  The rules shall 
  2.26  establish specific standards for education, experience, testing, 
  2.27  ethics, and performance for persons conducting regulatory 
  2.28  delineations.  The board shall charge an annual fee of up to $75 
  2.29  for professional wetland delineator certification.  Money 
  2.30  collected under this subdivision shall be deposited in the 
  2.31  special revenue fund and is appropriated to the board for the 
  2.32  purpose of the wetland delineator certification program. 
  2.33     Sec. 2.  Minnesota Statutes 2002, section 115.03, 
  2.34  subdivision 4a, is amended to read: 
  2.35     Subd. 4a.  [SECTION 401 CERTIFICATIONS.] (a) The following 
  2.36  definitions apply to this subdivision: 
  3.1      (1) "section 401 certification" means a water quality 
  3.2   certification required under section 401 of the federal Clean 
  3.3   Water Act, United States Code, title 33, section 1341; and 
  3.4      (2) "nationwide permit" means a nationwide general permit 
  3.5   issued by the United States Army Corps of Engineers and listed 
  3.6   in Code of Federal Regulations, title 40, part 330, appendix A; 
  3.7   and 
  3.8      (3) "professional review" means review of 401 applications 
  3.9   by professional or technical staff experienced with 401 water 
  3.10  quality certification, who will: 
  3.11     (i) participate actively in the review process and consider 
  3.12  the comments of project applicants, affected local government 
  3.13  units, cities, counties, watershed districts, watershed 
  3.14  management organizations, soil and watershed conservation 
  3.15  districts, state and federal agencies, and the public before 
  3.16  making a decision on an application; 
  3.17     (ii) assess the potential impact of projects, and determine 
  3.18  whether the projects will comply with all applicable Minnesota 
  3.19  water quality standards; 
  3.20     (iii) make a decision whether to certify, deny, or waive 
  3.21  review of projects after assessing their potential impact upon 
  3.22  Minnesota water quality, and ensuring that they comply with all 
  3.23  applicable water quality standards; and 
  3.24     (iv) set conditions on certifications that avoid or 
  3.25  minimize any adverse impact upon state water quality. 
  3.26     (b) The agency is responsible for providing section 401 
  3.27  certifications for nationwide permits all federal permits or 
  3.28  licenses that require certification before issuance of the 
  3.29  federal permit or license. 
  3.30     (c) Before making a final decision on a section 401 
  3.31  certification for regional conditions on a nationwide permit, 
  3.32  the agency shall hold at least one public meeting outside the 
  3.33  seven-county metropolitan area. 
  3.34     (d) In addition to other notice required by law, the agency 
  3.35  shall provide written notice of a meeting at which the agency 
  3.36  will be considering a section 401 certification for regional 
  4.1   conditions on a nationwide permit federal permit or license, at 
  4.2   least 21 days before the date of the meeting to the members of 
  4.3   the senate and house of representatives environment and natural 
  4.4   resources committees, the senate Agriculture and Rural 
  4.5   Development Committee, and the house of representatives 
  4.6   Agriculture Committee. 
  4.7      (e) All 401 certification applications shall undergo 
  4.8   professional review. 
  4.9      (f) The agency may waive a section 401 certification only 
  4.10  after conducting a professional review and determining that the 
  4.11  activity for which a federal permit or license is sought will 
  4.12  have minimal or no impact upon the quality of state waters.  A 
  4.13  waiver decision shall include a written explanation detailing 
  4.14  the significant factual, legal, methodological, and policy 
  4.15  questions considered, as well as a detailed explanation as to 
  4.16  how the decision to waive certification conforms with and 
  4.17  satisfies all applicable Minnesota water quality standards.  The 
  4.18  agency shall publish the waiver decision along with the written 
  4.19  explanation on the agency's Internet Web site, and may also 
  4.20  publish the decision and explanation in any other appropriate 
  4.21  public medium as determined by the agency, such as the State 
  4.22  Register, newspapers, or other applicable periodicals of general 
  4.23  circulation.  The agency shall publish its decision and 
  4.24  explanation even if the agency finds that a federal agency or 
  4.25  department has prepared and distributed or will prepare and 
  4.26  distribute public notice concerning a section 401 
  4.27  certification.  All public comments shall be attached to the 
  4.28  official public record waiver decision and maintained along with 
  4.29  the waiver decision and available for review upon request. 
  4.30     (g) The agency shall make a final determination on 401 
  4.31  certification applications within one year of the receipt of the 
  4.32  application.  If the agency fails or refuses to make a final 
  4.33  determination within one year, the agency shall provide an 
  4.34  explanation for the failure or refusal within 30 days of the 
  4.35  one-year expiration date.  A record of the failure or refusal, 
  4.36  along with the explanation, shall be maintained as a permanent 
  5.1   record and made available for review upon request. 
  5.2      Sec. 3.  Minnesota Statutes 2002, section 116D.02, 
  5.3   subdivision 2, is amended to read: 
  5.4      Subd. 2.  In order to carry out the policy set forth in 
  5.5   Laws 1973, chapter 412, it is the continuing responsibility of 
  5.6   the state government to use all practicable means, consistent 
  5.7   with other essential considerations of state policy, to improve 
  5.8   and coordinate state and local government plans, functions, 
  5.9   programs and resources to the end that the state may: 
  5.10     (1) fulfill the responsibilities of each generation as 
  5.11  trustee of the environment for succeeding generations; 
  5.12     (2) assure for all people of the state safe, healthful, 
  5.13  productive, and aesthetically and culturally pleasing 
  5.14  surroundings; 
  5.15     (3) discourage ecologically unsound aspects of population, 
  5.16  economic and technological growth, and develop and implement a 
  5.17  policy such that growth occurs only in an environmentally 
  5.18  acceptable manner; 
  5.19     (4) preserve important historic, cultural, and natural 
  5.20  aspects of our national heritage, and maintain, wherever 
  5.21  practicable, an environment that supports diversity, and variety 
  5.22  of individual choice; 
  5.23     (5) encourage, through education, a better understanding of 
  5.24  natural resources management principles that will develop 
  5.25  attitudes and styles of living that minimize environmental 
  5.26  degradation; 
  5.27     (6) develop and implement land use and environmental 
  5.28  policies, plans, and standards for the state as a whole and for 
  5.29  major local regions thereof through a coordinated program of 
  5.30  planning and land use control; 
  5.31     (7) define, designate, and protect environmentally 
  5.32  sensitive areas; 
  5.33     (8) establish and maintain statewide environmental 
  5.34  information systems sufficient to gauge environmental 
  5.35  conditions; 
  5.36     (9) practice thrift in the use of energy and maximize the 
  6.1   use of energy efficient systems for the utilization of energy, 
  6.2   and minimize the environmental impact from energy production and 
  6.3   use; 
  6.4      (10) preserve important existing natural habitats of rare 
  6.5   and endangered species of plants, wildlife, and fish, and 
  6.6   provide for the wise use of our remaining areas of natural 
  6.7   habitation, including necessary protective measures where 
  6.8   appropriate; 
  6.9      (11) reduce wasteful practices which generate solid wastes; 
  6.10     (12) minimize wasteful and unnecessary depletion of 
  6.11  nonrenewable resources; 
  6.12     (13) conserve natural resources and minimize environmental 
  6.13  impact by encouraging extension of product lifetime, by reducing 
  6.14  the number of unnecessary and wasteful materials practices, and 
  6.15  by recycling materials to conserve both materials and energy; 
  6.16     (14) improve management of renewable resources in a manner 
  6.17  compatible with environmental protection; 
  6.18     (15) provide for reclamation of mined lands and assure that 
  6.19  any mining is accomplished in a manner compatible with 
  6.20  environmental protection; 
  6.21     (16) reduce the deleterious impact on air and water quality 
  6.22  from all sources, including the deleterious environmental impact 
  6.23  due to operation of vehicles with internal combustion engines in 
  6.24  urbanized areas; 
  6.25     (17) minimize noise, particularly in urban areas; 
  6.26     (18) prohibit, where appropriate, flood plain development 
  6.27  in urban and rural areas; and 
  6.28     (19) encourage advanced waste treatment in abating water 
  6.29  pollution.  
  6.30     Sec. 4.  Minnesota Statutes 2002, section 116D.04, 
  6.31  subdivision 5a, is amended to read: 
  6.32     Subd. 5a.  The board shall, by January 1, 1981, promulgate 
  6.33  adopt rules in conformity with this chapter and the provisions 
  6.34  of chapter 15 14, establishing:  
  6.35     (1) the governmental unit which shall be responsible for 
  6.36  environmental review of a proposed action; 
  7.1      (2) the form and content of environmental assessment 
  7.2   worksheets, including, by January 15, 2005, the consideration of 
  7.3   relevant plans approved by local governmental units; 
  7.4      (3) a scoping process in conformance with subdivision 2a, 
  7.5   clause (e); 
  7.6      (4) a procedure for identifying during the scoping process 
  7.7   the permits necessary for a proposed action and, by January 15, 
  7.8   2005, relevant plans approved by local governmental units, and a 
  7.9   process for coordinating review of appropriate permits with the 
  7.10  preparation of the environmental impact statement; 
  7.11     (5) a standard format for environmental impact statements; 
  7.12     (6) standards for determining the alternatives to be 
  7.13  discussed in an environmental impact statement; 
  7.14     (7) alternative forms of environmental review which are 
  7.15  acceptable pursuant to subdivision 4a; 
  7.16     (8) a model ordinance which may be adopted and implemented 
  7.17  by local governmental units in lieu of the environmental impact 
  7.18  statement process required by this section, providing for an 
  7.19  alternative form of environmental review where an action does 
  7.20  not require a state agency permit and is consistent with an 
  7.21  applicable comprehensive plan.  The model ordinance shall 
  7.22  provide for adequate consideration of appropriate alternatives, 
  7.23  and shall ensure that decisions are made in accordance with the 
  7.24  policies and purposes of Laws 1980, chapter 447; 
  7.25     (9) procedures to reduce paperwork and delay through 
  7.26  intergovernmental cooperation and the elimination of unnecessary 
  7.27  duplication of environmental reviews; 
  7.28     (10) procedures for expediting the selection of consultants 
  7.29  by the governmental unit responsible for the preparation of an 
  7.30  environmental impact statement; and 
  7.31     (11) any additional rules which are reasonably necessary to 
  7.32  carry out the requirements of this section.  
  7.33     Sec. 5.  Minnesota Statutes 2002, section 116D.04, is 
  7.34  amended by adding a subdivision to read: 
  7.35     Subd. 10a.  [GUIDANCE.] The board shall, by January 15, 
  7.36  2005, develop guidance for the governmental units that are 
  8.1   responsible for environmental review of proposed actions.  The 
  8.2   guidance must include explanations of the procedural 
  8.3   requirements for environmental review, such as deadlines set out 
  8.4   in statute and rules and public notice and comment requirements, 
  8.5   the respective roles of governmental units, project proposers 
  8.6   and consultants in environmental review, and sample lists of 
  8.7   mitigation measures that governmental units may consider for 
  8.8   various types of projects in order to minimize the significant 
  8.9   environmental effects of those projects.  The list of mitigation 
  8.10  measures shall provide examples of possible mitigation for 
  8.11  different types of projects as well as in different impact 
  8.12  areas, including, but not limited to, energy conservation 
  8.13  measures, stormwater, water quality, and air quality.  The board 
  8.14  shall report back to the legislature by January 15, 2006, 
  8.15  regarding the effectiveness of this guidance. 
  8.16     Sec. 6.  [APPROPRIATION.] 
  8.17     $........ is appropriated from the environmental fund to 
  8.18  the Pollution Control Agency for the purposes of 401 water 
  8.19  quality certification under section 2. 
  8.20     Sec. 7.  [EFFECTIVE DATE.] 
  8.21     This act is effective the day following final enactment.