1st Unofficial Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to natural resources; simplifying and 1.3 consolidating wetland regulation; amending Minnesota 1.4 Statutes 1998, sections 103G.005, subdivisions 15 and 1.5 19; 103G.201; 103G.222; 103G.2241, subdivisions 1, 3, 1.6 and 9; 103G.2242, subdivisions 1, 2, 5, 9, 11, and by 1.7 adding a subdivision; 103G.2372; 103G.2373; 103G.245, 1.8 subdivision 5; and 645.44, by adding a subdivision; 1.9 proposing coding for new law in Minnesota Statutes, 1.10 chapter 103G. 1.11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.12 Section 1. Minnesota Statutes 1998, section 103G.005, 1.13 subdivision 15, is amended to read: 1.14 Subd. 15. [PUBLIC WATERS.] (a) "Public waters" means: 1.15 (1) waterbasins assigned a shoreland management 1.16 classification by the commissioner under sections 103F.201 to 1.17 103F.221
, except wetlands less than 80 acres in size that are1.18 classified as natural environment lakes; 1.19 (2) waters of the state that have been finally determined 1.20 to be public waters or navigable waters by a court of competent 1.21 jurisdiction; 1.22 (3) meandered lakes, excluding lakes that have been legally 1.23 drained; 1.24 (4) waterbasins previously designated by the commissioner 1.25 for management for a specific purpose such as trout lakes and 1.26 game lakes pursuant to applicable laws; 1.27 (5) waterbasins designated as scientific and natural areas 1.28 under section 84.033; 2.1 (6) waterbasins located within and totally surrounded by 2.2 publicly owned lands; 2.3 (7) waterbasins where the state of Minnesota or the federal 2.4 government holds title to any of the beds or shores, unless the 2.5 owner declares that the water is not necessary for the purposes 2.6 of the public ownership; 2.7 (8) waterbasins where there is a publicly owned and 2.8 controlled access that is intended to provide for public access 2.9 to the waterbasin; 2.10 (9) natural and altered watercourses with a total drainage 2.11 area greater than two square miles; 2.12 (10) natural and altered watercourses designated by the 2.13 commissioner as trout streams; and 2.14 (11) public waters wetlands, unless the statute expressly 2.15 states otherwise. 2.16 (b) Public waters are not determined exclusively by the 2.17 proprietorship of the underlying, overlying, or surrounding land 2.18 or by whether it is a body or stream of water that was navigable 2.19 in fact or susceptible of being used as a highway for commerce 2.20 at the time this state was admitted to the union. 2.21 Sec. 2. Minnesota Statutes 1998, section 103G.005, 2.22 subdivision 19, is amended to read: 2.23 Subd. 19. [WETLANDS.] (a) "Wetlands" means lands 2.24 transitional between terrestrial and aquatic systems where the 2.25 water table is usually at or near the surface or the land is 2.26 covered by shallow water. For purposes of this definition, 2.27 wetlands must have the following three attributes: 2.28 (1) have a predominance of hydric soils; 2.29 (2) are inundated or saturated by surface or ground water 2.30 at a frequency and duration sufficient to support a prevalence 2.31 of hydrophytic vegetation typically adapted for life in 2.32 saturated soil conditions; and 2.33 (3) under normal circumstances support a prevalence of such 2.34 vegetation. 2.35 (b) For the purposes of regulation under this chapter, the 2.36 term wetlands does not include public waters wetlands as defined 3.1 in subdivision 15a. 3.2 Sec. 3. Minnesota Statutes 1998, section 103G.201, is 3.3 amended to read: 3.4 103G.201 [PUBLIC WATERS INVENTORY.] 3.5 (a) The commissioner shall prepare a public waters 3.6 inventory map of each county that shows the waters of this state 3.7 that are designated as public waters under the public waters 3.8 inventory and classification procedures prescribed under Laws 3.9 1979, chapter 199. The public waters inventory map for each 3.10 county must be filed with the auditor of the county. 3.11 (b) The commissioner is authorized to revise the list of 3.12 public waters established under Laws 1979, chapter 199, to 3.13 reclassify those type 3, 4, and 5 wetlands previously identified 3.14 as public waters wetlands under Laws 1979, chapter 199, as 3.15 public waters or as wetlands under section 103G.005, subdivision 3.16 19. The commissioner may only reclassify public waters wetlands 3.17 as public waters if: 3.18 (1) they are assigned a shoreland management classification 3.19 by the commissioner under sections 103F.201 to 103F.22; or 3.20 (2) they are classified as lacustrine wetlands according to 3.21 Classification of Wetlands and Deepwater Habitats of the United 3.22 States (Cowardin, et al., 1979 edition). 3.23 (c) The commissioner must provide notice of the 3.24 reclassification to the local government unit, the county board, 3.25 the watershed district, if one exists for the area, and the soil 3.26 and water conservation district. Within 60 days of receiving 3.27 notice from the commissioner, a party required to receive the 3.28 notice may provide a resolution stating objections to the 3.29 reclassification. If the commissioner does not receive an 3.30 objection from a party required to receive the notice, the 3.31 reclassification of a wetland under paragraph (b) is effective 3.32 60 days after the notice is received by all of the parties. 3.33 (d) The commissioner shall give priority to the 3.34 reclassification of public waters wetlands that are or have the 3.35 potential to be affected by public works projects. 3.36 Sec. 4. [103G.2212] [CONTRACTOR'S RESPONSIBILITY WHEN WORK 4.1 DRAINS OR FILLS WETLANDS.] 4.2 Subdivision 1. [CONDITIONS FOR EMPLOYEES AND AGENTS TO 4.3 DRAIN OR FILL WETLANDS.] An agent or employee of another may not 4.4 drain or fill a wetland, wholly or partially, unless the agent 4.5 or employee has: 4.6 (1) obtained a signed statement from the property owner 4.7 stating that the wetland replacement plan required for the work 4.8 has been obtained or that a replacement plan is not required; 4.9 and 4.10 (2) mailed a copy of the statement to the local government 4.11 unit with jurisdiction over the wetland. 4.12 Subd. 2. [VIOLATION IS SEPARATE OFFENSE.] Violation of 4.13 this section is a separate and independent offense from other 4.14 violations of sections 103G.2212 to 103G.237. 4.15 Subd. 3. [FORM FOR COMPLIANCE WITH THIS SECTION.] The 4.16 board shall develop a form to be distributed to contractors' 4.17 associations, local government units, and soil and water 4.18 conservation districts to comply with this section. The form 4.19 must include: 4.20 (1) a listing of the activities for which a replacement 4.21 plan is required; 4.22 (2) a description of the penalties for violating sections 4.23 103G.2212 to 103G.237; 4.24 (3) the telephone number to call for information on the 4.25 responsible local government unit; 4.26 (4) a statement that national wetland inventory maps are on 4.27 file with the soil and water conservation district office; and 4.28 (5) spaces for a description of the work and the names, 4.29 mailing addresses, and telephone numbers of the person 4.30 authorizing the work and the agent or employee proposing to 4.31 undertake it. 4.32 Sec. 5. Minnesota Statutes 1998, section 103G.222, is 4.33 amended to read: 4.34 103G.222 [REPLACEMENT OF WETLANDS.] 4.35 Subdivision 1. [REQUIREMENTS.] (a) Wetlands must not be 4.36 drained or filled, wholly or partially, unless replaced by 5.1 restoring or creating wetland areas of at least equal public 5.2 value under a replacement plan approved as provided in section 5.3 103G.2242, a replacement plan under a local governmental unit's 5.4 comprehensive wetland protection and management plan approved by 5.5 the board under section 103G.2243, or, if a permit to mine is 5.6 required under section 93.481, under a mining reclamation plan 5.7 approved by the commissioner under the permit to mine. Mining 5.8 reclamation plans shall apply the same principles and standards 5.9 for replacing wetlands by restoration or creation of wetland 5.10 areas that are applicable to mitigation plans approved as 5.11 provided in section 103G.2242. Public value must be determined 5.12 in accordance with section 103B.3355 or a comprehensive wetland 5.13 protection and management plan established under section 5.14 103G.2243. Sections 103G.221 to 103G.2372 also apply to 5.15 excavation in permanently and semipermanently flooded areas of 5.16 type 3, 4, and 5 wetlands. 5.17 (b) Replacement must be guided by the following principles 5.18 in descending order of priority: 5.19 (1) avoiding the direct or indirect impact of the activity 5.20 that may destroy or diminish the wetland; 5.21 (2) minimizing the impact by limiting the degree or 5.22 magnitude of the wetland activity and its implementation; 5.23 (3) rectifying the impact by repairing, rehabilitating, or 5.24 restoring the affected wetland environment; 5.25 (4) reducing or eliminating the impact over time by 5.26 preservation and maintenance operations during the life of the 5.27 activity; 5.28 (5) compensating for the impact by restoring a wetland; and 5.29 (6) compensating for the impact by replacing or providing 5.30 substitute wetland resources or environments. 5.31 For a project involving the draining or filling of wetlands 5.32 in an amount not exceeding 10,000 square feet more than the 5.33 applicable amount in section 103G.2241, subdivision 9, paragraph 5.34 (a), the local government unit may make an on-site sequencing 5.35 determination without a written alternatives analysis from the 5.36 applicant. 6.1 (c) If a wetland is located in a cultivated field, then 6.2 replacement must be accomplished through restoration only 6.3 without regard to the priority order in paragraph (b), provided 6.4 that a deed restriction is placed on the altered wetland 6.5 prohibiting nonagricultural use for at least ten years. 6.6 (d) Restoration and replacement of wetlands must be 6.7 accomplished in accordance with the ecology of the landscape 6.8 area affected. 6.9 (e) Replacement shall be within the same watershed or6.10 county as the impacted wetlands, as based on the wetland6.11 evaluation in section 103G.2242, subdivision 2, except that a6.12 greater than 80 percent area may accomplish replacement in less6.13 than 50 percent areas. Wetlands impacted by public6.14 transportation projects may be replaced statewide, except that6.15 wetlands impacted in a less than 50 percent area must be6.16 replaced in a less than 50 percent area, and wetlands impacted6.17 in the seven-county twin cities metropolitan area by public6.18 highways must be replaced:6.19 (1) in the affected county, or, if no restoration6.20 opportunities exist in the county;6.21 (2) in another seven-county twin cities metropolitan area6.22 county.6.23 The board must maintain a public list of restoration6.24 opportunities within the metropolitan area. Disputes about6.25 restoration opportunities for wetland replacement in a watershed6.26 or county may be appealed to the board's committee for dispute6.27 resolution. Replacement of wetlands may be accomplished under6.28 the rules for wetland banking as provided for under section6.29 103G.2242.6.30 (f)Except as provided in paragraph (g)(f), for a 6.31 wetland or public waters wetland located on nonagricultural 6.32 land, replacement must be in the ratio of two acres of replaced 6.33 wetland for each acre of drained or filled wetland. 6.34 (g)(f) For a wetland or public waters wetland located on 6.35 agricultural land or in a greater than 80 percent area, 6.36 replacement must be in the ratio of one acre of replaced wetland 7.1 for each acre of drained or filled wetland. 7.2 (h)(g) Wetlands that are restored or created as a result 7.3 of an approved replacement plan are subject to the provisions of 7.4 this section for any subsequent drainage or filling. 7.5 (i)(h) Except in a greater than 80 percent area, only 7.6 wetlands that have been restored from previously drained or 7.7 filled wetlands, wetlands created by excavation in nonwetlands, 7.8 wetlands created by dikes or dams along public or private 7.9 drainage ditches, or wetlands created by dikes or dams 7.10 associated with the restoration of previously drained or filled 7.11 wetlands may be used in a statewide banking program established 7.12 in rules adopted under section 103G.2242, subdivision 1. 7.13 Modification or conversion of nondegraded naturally occurring 7.14 wetlands from one type to another are not eligible for 7.15 enrollment in a statewide wetlands bank. 7.16 (j)(i) The technical evaluation panel established under 7.17 section 103G.2242, subdivision 2, shall ensure that sufficient 7.18 time has occurred for the wetland to develop wetland 7.19 characteristics of soils, vegetation, and hydrology before 7.20 recommending that the wetland be deposited in the statewide 7.21 wetland bank. If the technical evaluation panel has reason to 7.22 believe that the wetland characteristics may change 7.23 substantially, the panel shall postpone its recommendation until 7.24 the wetland has stabilized. 7.25 (k)(j) This section and sections 103G.223 to 103G.2242, 7.26 103G.2364, and 103G.2365 apply to the state and its departments 7.27 and agencies. 7.28 (l)(k) For projects involving draining or filling of 7.29 wetlands associated with a new public transportation project in 7.30 a greater than 80 percent area, public transportation 7.31 authorities, other than the state department of transportation, 7.32 may purchase credits from the state wetland bank established 7.33 with proceeds from Laws 1994, chapter 643, section 26, 7.34 subdivision 3, paragraph (c). Wetland banking credits may be 7.35 purchased at the least of the following, but in no case shall 7.36 the purchase price be less than $400 per acre: (1) the cost to 8.1 the state to establish the credits; (2) the average estimated 8.2 market value of agricultural land in the township where the road 8.3 project is located, as determined by the commissioner of 8.4 revenue; or (3) the average value of the land in the immediate 8.5 vicinity of the road project as determined by the county 8.6 assessor. Public transportation authorities in a less than 80 8.7 percent area may purchase credits from the state at the cost to 8.8 the state to establish credits. 8.9 (m)(l) A replacement plan for wetlands is not required for 8.10 individual projects that result in the filling or draining of 8.11 wetlands for the repair, rehabilitation, reconstruction, or 8.12 replacement of a currently serviceable existing state, city, 8.13 county, or town public road necessary, as determined by the 8.14 public transportation authority, to meet state or federal design 8.15 or safety standards or requirements, excluding new roads or 8.16 roads expanded solely for additional traffic capacity lanes. 8.17 This paragraph only applies to authorities for public 8.18 transportation projects that: 8.19 (1) minimize the amount of wetland filling or draining 8.20 associated with the project and consider mitigating important 8.21 site-specific wetland functions on-site; and8.22 (2) except as provided in clause (3), submit annual8.23 project-specific reports by January 15to the board, the 8.24 technical evaluation panel, the commissioner of natural 8.25 resources, and members of the public requesting a copy at least 8.26 30 days prior to construction that indicate the location, 8.27 amount, and type of wetlands that have been filled or drained8.28 during the previous year and a projection of the location,8.29 amount, and type of wetlandsto be filled or drained by the 8.30 project or, alternatively, convene an annual meeting of the 8.31 parties required to receive notice to review projects to be 8.32 commenced during the upcoming year; and 8.33 (3) for minor and emergency maintenance work impacting less 8.34 than 10,000 square feet, submit project-specific reports, within 8.35 30 days of commencing the activity, to the board that indicate 8.36 the location, amount, and type of wetlands that have been filled 9.1 or drained. 9.2 Those required to receive notice of public transportation 9.3 projects may appeal minimization, delineation, and on-site 9.4 mitigation decisions made by the public transportation authority 9.5 to the board according to the provisions of section 103G.2242, 9.6 subdivision 9. The technical evaluation panel shall review 9.7 minimization and delineation decisions made by the public 9.8 transportation authority and provide recommendations regarding 9.9 on-site mitigation if requested to do so by the local government 9.10 unit, a contiguous landowner, or a member of the technical 9.11 evaluation panel. 9.12 Except for state public transportation projects, for which 9.13 the state department of transportation is responsible, the board 9.14 must replace the wetlands, and wetland areas of public waters if 9.15 authorized by the commissioner or a delegated authority, drained 9.16 or filled by public transportation projects on existing roads in9.17 critical rural and urban watersheds. 9.18 Public transportation authorities at their discretion may 9.19 deviate from federal and state design standards on existing road 9.20 projects when practical and reasonable to avoid wetland filling 9.21 or draining, provided that public safety is not unreasonably 9.22 compromised. The local road authority and its officers and 9.23 employees are exempt from liability for any tort claim for 9.24 injury to persons or property arising from travel on the highway 9.25 and related to the deviation from the design standards for 9.26 construction or reconstruction under this paragraph. This 9.27 paragraph does not preclude an action for damages arising from 9.28 negligence in construction or maintenance on a highway. 9.29 (n)(m) If a landowner seeks approval of a replacement plan 9.30 after the proposed project has already impactedaffected the 9.31 wetland, the local government unit may require the landowner to 9.32 replace the impactedaffected wetland at a ratio not to exceed 9.33 twice the replacement ratio otherwise required. 9.34 (o)(n) A local government unit may request the board to 9.35 reclassify a county or watershed on the basis of its percentage 9.36 of presettlement wetlands remaining. After receipt of 10.1 satisfactory documentation from the local government, the board 10.2 shall change the classification of a county or watershed. If 10.3 requested by the local government unit, the board must assist in 10.4 developing the documentation. Within 30 days of its action to 10.5 approve a change of wetland classifications, the board shall 10.6 publish a notice of the change in the Environmental Quality 10.7 Board Monitor. 10.8 (p)(o) One hundred citizens who reside within the 10.9 jurisdiction of the local government unit may request the local 10.10 government unit to reclassify a county or watershed on the basis 10.11 of its percentage of presettlement wetlands remaining. In 10.12 support of their petition, the citizens shall provide 10.13 satisfactory documentation to the local government unit. The 10.14 local government unit shall consider the petition and forward 10.15 the request to the board under paragraph (o)(n) or provide a 10.16 reason why the petition is denied. 10.17 Subd. 2. [ROAD CREDIT FUNDING.] At least 50 percent of10.18 money appropriated for road repair wetland replacement credit10.19 under this section must be used for wetland restoration in the10.20 seven-county metropolitan area.10.21 The board shall give priority to restoration projects that 10.22 will: 10.23 (1) intensifywill encourage land use that leads to more 10.24 compact development or redevelopment; 10.25 (2) will encourage public or private infrastructure 10.26 investments which connect urban neighborhoods and suburban10.27 ecosystems and communities, attract private sector investment in 10.28 commercial or residential properties adjacent to the public 10.29 improvement; or 10.30 (3) complement projects receiving funding under section10.31 473.253are located in critical rural and urban watersheds. 10.32 Subd. 3. [WETLAND REPLACEMENT SITING.] (a) Siting wetland 10.33 replacement must follow this priority order: 10.34 (1) on site or in the same minor watershed as the affected 10.35 wetland; 10.36 (2) in the same watershed as the affected wetland; 11.1 (3) in the same county as the affected wetland; 11.2 (4) in an adjacent watershed or county to the affected 11.3 wetland; and 11.4 (5) statewide, only for wetlands affected in greater than 11.5 80 percent areas and for public transportation projects, except 11.6 that wetlands affected in less than 50 percent areas must be 11.7 replaced in less than 50 percent areas, and wetlands affected in 11.8 the seven-county metropolitan area must be replaced in the 11.9 affected county or, if no restoration opportunities exist in the 11.10 county, in another seven-county metropolitan area county. 11.11 (b) The exception in paragraph (a), clause (5), does not 11.12 apply to replacement completed using wetland banking credits 11.13 established by a person who submitted a complete wetland banking 11.14 application to a local government unit by April 1, 1996. 11.15 (c) When reasonable, practicable, and environmentally 11.16 beneficial replacement opportunities are not available in siting 11.17 priorities listed in paragraph (a), the applicant may seek 11.18 opportunities at the next level. 11.19 (d) For the purposes of this section, "reasonable, 11.20 practicable, and environmentally beneficial replacement 11.21 opportunities" are defined as opportunities that: 11.22 (1) take advantage of naturally occurring 11.23 hydrogeomorphological conditions and require minimal landscape 11.24 alteration; 11.25 (2) have a high likelihood of becoming a functional wetland 11.26 that will continue in perpetuity; 11.27 (3) do not adversely affect other habitat types or 11.28 ecological communities that are important in maintaining the 11.29 overall biological diversity of the area; and 11.30 (4) are available and capable of being done after taking 11.31 into consideration cost, existing technology, and logistics 11.32 consistent with overall project purposes. 11.33 (e) Regulatory agencies, local government units, and other 11.34 entities involved in wetland restoration shall collaborate to 11.35 identify potential replacement opportunities within their 11.36 jurisdictional areas. 12.1 Sec. 6. Minnesota Statutes 1998, section 103G.2241, 12.2 subdivision 1, is amended to read: 12.3 Subdivision 1. [AGRICULTURAL ACTIVITIES.] (a) A 12.4 replacement plan for wetlands is not required for: 12.5 (1) activities in a wetland that was planted with annually 12.6 seeded crops, was in a crop rotation seeding of pasture grass or 12.7 legumes, or was required to be set aside to receive price 12.8 support or other payments under United States Code, title 7, 12.9 sections 1421 to 1469, in six of the last ten years prior to 12.10 January 1, 1991; 12.11 (2) activities in a wetland that is or has been enrolled in 12.12 the federal conservation reserve program under United States 12.13 Code, title 16, section 3831, that: 12.14 (i) was planted with annually seeded crops, was in a crop 12.15 rotation seeding, or was required to be set aside to receive 12.16 price support or payment under United States Code, title 7, 12.17 sections 1421 to 1469, in six of the last ten years prior to 12.18 being enrolled in the program; and 12.19 (ii) has not been restored with assistance from a public or 12.20 private wetland restoration program; 12.21 (3) activities in a wetland that has received a commenced 12.22 drainage determination provided for by the federal Food Security 12.23 Act of 1985, that was made to the county agricultural 12.24 stabilization and conservation service office prior to September 12.25 19, 1988, and a ruling and any subsequent appeals or reviews 12.26 have determined that drainage of the wetland had been commenced 12.27 prior to December 23, 1985; 12.28 (4) activities in a type 1 wetland on agricultural land, 12.29 except for bottomland hardwood type 1 wetlands, and activities 12.30 in a type 2 or type 6 wetland that is less than two acres in 12.31 size and located on agricultural land; 12.32 (5) aquaculture activities including pond excavation and 12.33 construction and maintenance of associated access roads and 12.34 dikes authorized under, and conducted in accordance with, a 12.35 permit issued by the United States Army Corps of Engineers under 12.36 section 404 of the federal Clean Water Act, United States Code, 13.1 title 33, section 1344, but not including construction or 13.2 expansion of buildings; 13.3 (6) wild rice production activities, including necessary 13.4 diking and other activities authorized under a permit issued by 13.5 the United States Army Corps of Engineers under section 404 of 13.6 the federal Clean Water Act, United States Code, title 33, 13.7 section 1344; 13.8 (7) normal agricultural practices to control noxious or 13.9 secondary weeds as defined by rule of the commissioner of 13.10 agriculture, in accordance with applicable requirements under 13.11 state and federal law, including established best management 13.12 practices; and 13.13 (8) agricultural activities in a wetland that is on 13.14 agricultural land: 13.15 (i) annually enrolled in the federal Food, Agricultural,13.16 Conservation, and Trade Act of 1990, United States Code, title13.17 16, section 3821, subsection (a), clauses (1) to (3), as13.18 amended,Agriculture Improvement and Reform Act of 1996 and is 13.19 subject to sections 1421 to 1424 of the federal actUnited 13.20 States Code, title 16, sections 3821 to 3823, in effect on 13.21 January 1, 1991, except that2000; or 13.22 (ii) subject to subsequent federal farm program 13.23 restrictions that meet minimum state standards under this 13.24 chapter and sections 103A.202 and 103B.3355 and that have been 13.25 approved by the board of water and soil resources, the 13.26 commissioners of natural resources and agriculture, and the 13.27 pollution control agency. 13.28 (b) Land enrolled in a federal farm program under paragraph 13.29 (a), clause (8), is eligible for easement participation for 13.30 those acres not already compensated under a federal program. 13.31 (b)(c) The exemption under paragraph (a), clause (4), may 13.32 be expanded to additional acreage, including types 1, 2, and 6 13.33 wetlands that are part of a larger wetland system, when the 13.34 additional acreage is part of a conservation plan approved by 13.35 the local soil and water conservation district, the additional 13.36 draining or filling is necessary for efficient operation of the 14.1 farm, the hydrology of the larger wetland system is not 14.2 adversely affected, and wetlands other than types 1, 2, and 6 14.3 are not drained or filled. 14.4 Sec. 7. Minnesota Statutes 1998, section 103G.2241, 14.5 subdivision 3, is amended to read: 14.6 Subd. 3. [FEDERAL APPROVALS.] A replacement plan for 14.7 wetlands is not required for: 14.8 (1) activities exempted from federal regulation under 14.9 United States Code, title 33, section 1344(f), as in effect on 14.10 January 1, 1991; 14.11 (2) activities authorized under, and conducted in 14.12 accordance with, an applicable general permit issued by the 14.13 United States Army Corps of Engineers under section 404 of the 14.14 federal Clean Water Act, United States Code, title 33, section 14.15 1344, except the nationwide permit in Code of Federal 14.16 Regulations, title 33, section 330.5, paragraph (a), clauses 14.17 (14), limited to when a new road crosses a wetland, and (26), as 14.18 in effect on January 1, 1991; or 14.19 (3) activities authorized under the federal Clean Water 14.20 Act, section 404, or the Rivers and Harbors Act, section 10, 14.21 regulations that meet minimum state standards under this chapter 14.22 and sections 103A.202 and 103B.3355 and that have been approved 14.23 by the board of water and soil resources, the commissioners of 14.24 natural resources and agriculture, and the pollution control 14.25 agency. 14.26 Sec. 8. Minnesota Statutes 1998, section 103G.2241, 14.27 subdivision 9, is amended to read: 14.28 Subd. 9. [DE MINIMIS.] (a) Except as provided in 14.29 paragraphs (b) ,and (c) , and (d), a replacement plan for 14.30 wetlands is not required for draining or filling the following 14.31 amounts of wetlands as part of a project , regardless of the14.32 total amount of wetlands filled as part of a project: 14.33 (1) 10,000 square feet of type 1, 2, 6, or 7 wetland, 14.34 excluding white cedar and tamarack wetlands, outside of the 14.35 shoreland wetland protection zone in a greater than 80 percent 14.36 area; 15.1 (2) 5,000 square feet of type 1, 2, 6, or 7 wetland, 15.2 excluding white cedar and tamarack wetlands, outside of the 15.3 shoreland wetland protection zone in a 50 to 80 percent area; 15.4 (3) 2,000 square feet of type 1, 2, or 6 wetland, outside 15.5 of the shoreland wetland protection zone in a less than 50 15.6 percent area; 15.7 (4) 400 square feet of wetland types not listed in clauses 15.8 (1) to (3) outside of shoreland wetland protection zones in all 15.9 counties; or 15.10 (5) 400 square feet of type 1, 2, 3, 4, 5, 6, 7, or 8 15.11 wetland, in the shoreland wetland protection zone, except that 15.12 in a greater than 80 percent area, the local government unit may 15.13 increase the de minimis amount up to 1,000 square feet in the 15.14 shoreland protection zone in areas beyond the building setback 15.15 if the wetland is isolated and is determined to have no direct 15.16 surficial connection to the public water. To the extent that a 15.17 local shoreland management ordinance is more restrictive than 15.18 this provision, the local shoreland ordinance applies. 15.19 (b) The amounts listed in paragraph (a), clauses (1) to 15.20 (5), may not be combined on a project. 15.21 (c) This exemption no longer applies to a landowner's 15.22 portion of a wetland when the cumulative area drained or filled 15.23 of the landowner's portion since January 1, 1992, is the 15.24 greatest of: 15.25 (1) the applicable area listed in paragraph (a), if the 15.26 landowner owns the entire wetland; 15.27 (2) five percent of the landowner's portion of the wetland; 15.28 or 15.29 (3) 400 square feet. 15.30 (d) Persons proposing to conduct an activity under this15.31 subdivision shall contact the board at a toll-free number to be15.32 provided for information on minimizing wetland impacts. Failure15.33 to call by the person does not constitute a violation of this15.34 subdivision.15.35 (e)This exemption may not be combined with another 15.36 exemption in this section on a project. 16.1 Sec. 9. Minnesota Statutes 1998, section 103G.2242, 16.2 subdivision 1, is amended to read: 16.3 Subdivision 1. [RULES.] (a) The board, in consultation 16.4 with the commissioner, shall adopt rules governing the approval 16.5 of wetland value replacement plans under this section and public 16.6 waters work permits affecting public waters wetlands under 16.7 section 103G.245. These rules must address the criteria, 16.8 procedure, timing, and location of acceptable replacement of 16.9 wetland values; may address the state establishment and 16.10 administration of a wetland banking program for public and 16.11 private projects, which may include provisions allowing monetary 16.12 payment to the wetland banking program for alteration of 16.13 wetlands on agricultural land; the administrative, monitoring, 16.14 and enforcement procedures to be used; and a procedure for the 16.15 review and appeal of decisions under this section. In the case 16.16 of peatlands, the replacement plan rules must consider the 16.17 impact on carbon balance described in the report required by 16.18 Laws 1990, chapter 587, and include the planting of trees or 16.19 shrubs. 16.20 (b) After the adoption of the rules, a replacement plan 16.21 must be approved by a resolution of the governing body of the 16.22 local government unit, consistent with the provisions of the 16.23 rules or a comprehensive wetland protection and management plan 16.24 approved under section 103G.2243. 16.25 (c) If the local government unit fails to apply the rules, 16.26 or fails to implement a local comprehensive wetland protection 16.27 and management plan established under section 103G.2243, the 16.28 government unit is subject to penalty as determined by the board. 16.29 Sec. 10. Minnesota Statutes 1998, section 103G.2242, 16.30 subdivision 2, is amended to read: 16.31 Subd. 2. [EVALUATION.] (a) Questions concerning the public 16.32 value, location, size, or type of a wetland shall be submitted 16.33 to and determined by a technical evaluation panel after an 16.34 on-site inspection. The technical evaluation panel shall be 16.35 composed of a technical professional employee of the board, a 16.36 technical professional employee of the local soil and water 17.1 conservation district or districts, anda technical professional 17.2 with expertise in water resources management appointed by the 17.3 local government unit, and a technical professional employee of 17.4 the department of natural resources for projects affecting 17.5 public waters or wetlands adjacent to public waters. The panel 17.6 shall use the "United States Army Corps of Engineers Wetland 17.7 Delineation Manual" (January 1987), including updates, 17.8 supplementary guidance, and replacements, if any, "Wetlands of 17.9 the United States" (United States Fish and Wildlife Service 17.10 Circular 39, 1971 edition), and "Classification of Wetlands and 17.11 Deepwater Habitats of the United States" (1979 edition). The 17.12 panel shall provide the wetland determination and 17.13 recommendations on other technical matters to the local 17.14 government unit that must approve a replacement plan under this17.15 section, wetland banking plan, exemption determination, no-loss 17.16 determination, or wetland boundary or type determination and may 17.17 recommend approval or denial of the plan. The authority must 17.18 consider and include the decision of the technical evaluation 17.19 panel in their approval or denial of a plan or determination. 17.20 (b) Persons conducting wetland or public waters boundary 17.21 delineations or type determinations are exempt from the 17.22 requirements of chapter 326. By January 15, 2001, the board, in 17.23 consultation with the Minnesota Association of Professional Soil 17.24 Scientists, the University of Minnesota, and the Wetland 17.25 Delineators' Association, shall submit a plan for a professional 17.26 wetland delineator certification program to the legislature. 17.27 Sec. 11. Minnesota Statutes 1998, section 103G.2242, is 17.28 amended by adding a subdivision to read: 17.29 Subd. 2a. [WETLAND BOUNDARY OR TYPE DETERMINATION.] (a) A 17.30 landowner may apply for a wetland boundary or type determination 17.31 from the local government unit. The landowner applying for the 17.32 determination is responsible for submitting proof necessary to 17.33 make the determination, including, but not limited to, wetland 17.34 delineation field data, observation well data, topographic 17.35 mapping, survey mapping, and information regarding soils, 17.36 vegetation, hydrology, and groundwater both within and outside 18.1 of the proposed wetland boundary. 18.2 (b) A local government unit that receives an application 18.3 under paragraph (a) may seek the advice of the technical 18.4 evaluation panel as described in subdivision 2, and, if 18.5 necessary, expand the technical evaluation panel. The local 18.6 government unit may delegate the decision authority for wetland 18.7 boundary or type determinations with the zoning administrator, 18.8 or establish other procedures it considers appropriate. 18.9 (c) The local government unit decision must be made in 18.10 compliance with section 15.99. Within ten calendar days of the 18.11 decision, the local government unit decision must be mailed to 18.12 the landowner, members of the technical evaluation panel, the 18.13 watershed district or watershed management organization, if one 18.14 exists, and individual members of the public who request a copy. 18.15 (d) The local government unit decision is valid for three 18.16 years unless the technical evaluation panel determines that 18.17 natural or artificial changes to the hydrology, vegetation, or 18.18 soils of the area have been sufficient to alter the wetland 18.19 boundary or type. 18.20 Sec. 12. Minnesota Statutes 1998, section 103G.2242, 18.21 subdivision 5, is amended to read: 18.22 Subd. 5. [PROCESSING FEE.] The local government unit and 18.23 soil and water conservation district may charge processing fees 18.24 in amounts not greater than are necessary to cover the 18.25 reasonable costs of implementing the rules adopted under 18.26 subdivision 1 and for technical and administrative assistance to 18.27 landowners in processing other applications for projects 18.28 affecting wetlands. 18.29 Sec. 13. Minnesota Statutes 1998, section 103G.2242, 18.30 subdivision 9, is amended to read: 18.31 Subd. 9. [APPEAL.] (a) Appeal of a replacement plan, 18.32 exemption, wetland banking, wetland boundary or type 18.33 determination, or no-loss decision may be obtained by mailing a 18.34 petition and payment of a filing fee of $200, which shall be 18.35 retained by the board to defray administrative costs, to the 18.36 board within 15 days after the postmarked date of the mailing 19.1 specified in subdivision 7. If appeal is not sought within 15 19.2 days, the decision becomes final. The local government unit may 19.3 require the petitioner to post a letter of credit, cashier's 19.4 check, or cash in an amount not to exceed $500. If the petition 19.5 for hearing is accepted, the amount posted must be returned to 19.6 the petitioner. Appeal may be made by: 19.7 (1) the wetland owner , by; 19.8 (2) any of those to whom notice is required to be mailed 19.9 under subdivision 7 ,; or by19.10 (3) 100 residents of the county in which a majority of the 19.11 wetland is located. 19.12 (b) Within 30 days after receiving a petition, the board 19.13 shall decide whether to grant the petition and hear the appeal. 19.14 The board shall grant the petition unless the board finds that: 19.15 (1) the appeal is meritless, trivial, or brought solely for 19.16 the purposes of delay; that19.17 (2) the petitioner has not exhausted all local 19.18 administrative remedies; 19.19 (3) expanded technical review is needed; 19.20 (4) the local government unit's record is not adequate; or 19.21 that19.22 (5) the petitioner has not posted a letter of credit, 19.23 cashier's check, or cash if required by the local government 19.24 unit. 19.25 (c) In determining whether to grant the appeal, the board 19.26 shall also consider the size of the wetland, other factors in 19.27 controversy, any patterns of similar acts by the local 19.28 government unit or petitioner, and the consequences of the delay 19.29 resulting from the appeal. 19.30 (d) All appeals must be heard by the committee for dispute 19.31 resolution of the board, and a decision made within 60 days of 19.32 the appeal. The decision must be served by mail on the parties 19.33 to the appeal, and is not subject to the provisions of chapter 19.34 14. A decision whether to grant a petition for appeal and a 19.35 decision on the merits of an appeal must be considered the 19.36 decision of an agency in a contested case for purposes of 20.1 judicial review under sections 14.63 to 14.69. 20.2 Sec. 14. Minnesota Statutes 1998, section 103G.2242, 20.3 subdivision 11, is amended to read: 20.4 Subd. 11. [WETLAND HERITAGE ADVISORY COMMITTEE.] The 20.5 governor shall establish a wetland heritage advisory committee 20.6 consisting of a balanced diversity of interests including 20.7 agriculture, environmental, and sporting organizations, land 20.8 development organizations, local government organizations, and 20.9 other agencies. The committee must consist of nine members 20.10 including the commissioner of agriculture, or a designee of the 20.11 commissioner, the commissioner of natural resources, and seven 20.12 members appointed by the governor. The governor's appointees 20.13 must include one county commissioner, one representative each 20.14 from a statewide sporting organization, a statewide conservation 20.15 organization, an agricultural commodity group, one faculty 20.16 member of an institution of higher education with expertise in 20.17 the natural sciences, and one member each from two statewide 20.18 farm organizations. The committee shall advise the board on the 20.19 development of rules under this section and, after rule 20.20 adoption, shall meet at least twice a year to review 20.21 implementation of the program, to identify strengths and 20.22 weaknesses, and to recommend changes to the rules and the law to 20.23 improve the program. The committee expires on July 1, 2000. 20.24 Sec. 15. Minnesota Statutes 1998, section 103G.2372, is 20.25 amended to read: 20.26 103G.2372 [ENFORCEMENT.] 20.27 Subdivision 1. [COMMISSIONER OF NATURAL RESOURCES.] The 20.28 commissioner of natural resources, conservation officers, and 20.29 peace officers shall enforce laws preserving and protecting 20.30 wetlands and public waters. The commissioner of natural 20.31 resources, a conservation officer, or a peace officer may issue 20.32 a cease and desist order to stop any illegal activity adversely 20.33 affecting a wetland or public waters. In the order, or by 20.34 separate order, the commissioner, conservation officer, or peace 20.35 officer may require restoration or replacement of the wetland or 20.36 public waters, as determined by the local soil and water 21.1 conservation district for wetlands and the commissioner of 21.2 natural resources for public waters. 21.3 Subd. 2. [MISDEMEANOR.] A violation of an order issued 21.4 under subdivision 1 is a misdemeanor and must be prosecuted by 21.5 the county attorney where the wetland isor public waters are 21.6 located or the illegal activity occurred. 21.7 Subd. 3. [RESTITUTION.] The court may, as part of 21.8 sentencing, require a person convicted under subdivision 2 to 21.9 restore or replace the wetland or public waters, as determined 21.10 by the local soil and water conservation district for wetlands 21.11 and the commissioner of natural resources for public waters. 21.12 Sec. 16. Minnesota Statutes 1998, section 103G.2373, is 21.13 amended to read: 21.14 103G.2373 [ANNUAL WETLANDS AND PUBLIC WATERS WETLANDS 21.15 REPORT.] 21.16 By March 1 of each year, the commissioner of natural 21.17 resources and the board of water and soil resources shall 21.18 jointly report to the committees of the legislature with 21.19 jurisdiction over matters relating to agriculture, the 21.20 environment, and natural resources on: 21.21 (1) the status of implementation of state laws and programs 21.22 relating to wetlands and public waters wetlands; 21.23 (2) the quantity, quality, acreage, types, and public value 21.24 of wetlands and public waters wetlands in the state; and 21.25 (3) changes in the items in clause (2). 21.26 Sec. 17. Minnesota Statutes 1998, section 103G.245, 21.27 subdivision 5, is amended to read: 21.28 Subd. 5. [DELEGATION OF PERMIT AUTHORITY TO LOCAL UNITS OF 21.29 GOVERNMENT.] (a) The commissioner may delegate public waters 21.30 work permit authority to the appropriate county or municipality 21.31 or to watershed districts or watershed management organizations 21.32 that have elected to assert local authority over protected 21.33 waters. The public waters work permit authority must be 21.34 delegated under guidelines of the commissioner and the 21.35 delegation must be done by agreement with the involved county, 21.36 municipality, watershed district, or water management 22.1 organization and in compliance with section 103G.315. 22.2 (b) For projects affecting public waters wetlands, the 22.3 commissioner may waive the requirement for a public waters work 22.4 permit if the local government unit makes a replacement, no-loss 22.5 or exemption determination in compliance with sections 103A.201, 22.6 103B.3355, and 103G.222 to 103G.2373, and rules adopted pursuant 22.7 to these same sections. 22.8 (c) For projects affecting both public waters and wetlands, 22.9 the local government unit may, by written agreement with the 22.10 commissioner, waive the requirement for a replacement plan, 22.11 no-loss or exemption determination if a public waters work 22.12 permit is required and the commissioner includes the provisions 22.13 of sections 103A.201, 103B.3355, and 103G.222 to 103G.2373, and 22.14 rules adopted pursuant to these same sections in the public 22.15 waters work permit. 22.16 Sec. 18. Minnesota Statutes 1998, section 645.44, is 22.17 amended by adding a subdivision to read: 22.18 Subd. 13a. [WETLANDS.] "Wetlands" means lands transitional 22.19 between terrestrial and aquatic systems where the water table is 22.20 usually at or near the surface or the land is covered by shallow 22.21 water. For purposes of this definition, wetlands must have the 22.22 following three attributes: 22.23 (1) have a predominance of hydric soils; 22.24 (2) are inundated or saturated by surface water or 22.25 groundwater at a frequency and duration sufficient to support a 22.26 prevalence of hydrophytic vegetation typically adapted for life 22.27 in saturated soil conditions; and 22.28 (3) under normal circumstances, support a prevalence of 22.29 such vegetation. 22.30 Sec. 19. [REPORT.] 22.31 By January 15, 2001, the board of water and soil resources 22.32 and the commissioner of natural resources shall provide a joint 22.33 report to the house and the senate committees responsible for 22.34 agriculture and environmental policy on further technical 22.35 changes to the Wetland Conservation Act and rules to provide for 22.36 an improved regulatory consolidation process, public water 23.1 inventory refinement, and other changes to improve wetland 23.2 regulatory programs. The report shall include the language on 23.3 any recommended draft law and rule changes. 23.4 Sec. 20. [EXEMPT RULES.] 23.5 (a) Within 90 days of the effective date of this section, 23.6 the board of water and soil resources and the commissioner of 23.7 natural resources shall adopt rules that amend the rules 23.8 previously adopted under Minnesota Statutes, sections 103G.2242, 23.9 subdivision 1; 103B.3355; and 103G.315, subdivision 15, to: 23.10 (1) provide sequencing and standard of application rules 23.11 for public waters wetlands and permanently and semipermanently 23.12 flooded areas of type 3, 4, and 5 wetlands under the Wetland 23.13 Conservation Act; 23.14 (2) incorporate changes to the statutes in this act; and 23.15 (3) other provisions to improve consistency of wetland 23.16 regulatory processes. 23.17 (b) The rules authorized under paragraph (a) are exempt 23.18 from the rulemaking provisions of Minnesota Statutes, chapter 23.19 14, except that Minnesota Statutes, section 14.386, applies and 23.20 the proposed rules must be submitted to the members of senate 23.21 and house environment and natural resource and agriculture 23.22 policy committees at least 30 days prior to being published in 23.23 the State Register. The amended rules are effective for two 23.24 years from the date of publication of the rules in the State 23.25 Register unless they are superseded by permanent rules. 23.26 Sec. 21. [EFFECTIVE DATE.] 23.27 Sections 1 to 5, 9 to 10, 14 to 16, and 18 to 20 are 23.28 effective the day following final enactment.