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Minnesota Legislature

Office of the Revisor of Statutes

SF 1766

as introduced - 91st Legislature (2019 - 2020) Posted on 02/27/2019 03:44pm

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

Current Version - as introduced

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A bill for an act
relating to natural resources; modifying provisions for watershed districts; amending
Minnesota Statutes 2018, sections 103D.311, subdivision 2; 103D.335, by adding
a subdivision; 103D.341, subdivisions 2, 3; 103D.515, subdivision 1; 103D.521;
103D.537.

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

Section 1.

Minnesota Statutes 2018, section 103D.311, subdivision 2, is amended to read:


Subd. 2.

Appointment.

(a) At least 30 days before the terms of office of the first
managers named by the board expire, the county commissioners of each county responsible
for appointing a manager to the watershed district must meet and appoint successors.

(b) The county commissioners must meet at least 30 days before the term of office of
any manager expires and appoint a successor.

(c) A vacancy occurring in an office of a manager must be filled by the appointing county
board.new text begin The managers must advise the county commissioners in writing within ten days after
a manager retires, ceases to attend meetings, or otherwise vacates the position on the board.
new text end

(d) Appointing county boards shall provide public notice before making appointments.
Published notice must be given at least once by publication in a newspaper of general
circulation in the watershed district at least 15 days before an appointment or reappointment
is made. The notice must state that persons interested in being appointed to serve as a
watershed district manager may submit their names to the county board for consideration.

new text begin (e) The county commissioners must endeavor to appoint at least one manager that has
experience or a background in real estate investment or development or in construction.
new text end

Sec. 2.

Minnesota Statutes 2018, section 103D.335, is amended by adding a subdivision
to read:


new text begin Subd. 26. new text end

new text begin Engineer and legal fees. new text end

new text begin The managers must require annual public reporting
of engineer fees and legal fees reimbursed by landowners and an annual summary of all
engineer fees and legal fees paid by the watershed district. The managers must review the
fees to determine if the fees are reasonable.
new text end

Sec. 3.

Minnesota Statutes 2018, section 103D.341, subdivision 2, is amended to read:


Subd. 2.

Procedure.

(a) new text beginThe managers must prepare and review a statement of need and
reasonableness, as described in section 14.131, before adopting or amending rules. The
statement of need and reasonableness must be made available for public review at least 45
days before the date set for a hearing on the rules.
new text endRules of the watershed district must be
adopted or amended by a majority vote of the managers, after public notice and hearing.
Rules must be signed by the secretary of the board of managers and recorded in the board
of managers' official minute book.

(b) deleted text beginPrior todeleted text endnew text begin Beforenew text end adoption, the proposed rule or amendment to the rule must be
submitted to the board for review and comment. The board's review deleted text beginshall bedeleted text endnew text begin isnew text end considered
advisory. The board deleted text beginshall havedeleted text endnew text begin hasnew text end 45 days from receipt of the proposed rule or amendment
to the rule to provide its comments in writing to the watershed district.

new text begin (c) At least 45 days before the date set for a hearing on the rules or amendments, the
managers must mail a copy of all
new text endproposed rules or amendments deleted text beginto the rule shall also be
noticed
deleted text end for review and comment tonew text begin:
new text end

new text begin (1)new text end all public transportation authorities that have jurisdiction within the watershed district
deleted text begin at least 45 days prior to adoption. The public transportation authoritiesdeleted text endnew text begin, whichnew text end have 45 days
from receipt of the proposed rule or amendment deleted text beginto the ruledeleted text end to provide comments in writing
to the watershed districtdeleted text begin.deleted text endnew text begin;
new text end

new text begin (2) all persons who have held permits issued under section 103D.345 within the last five
years;
new text end

new text begin (3) all parties that have consulted with the watershed district in the last 12 months about
upcoming projects; and
new text end

new text begin (4) all landowners directly impacted by an increase in wetland buffer setback
requirements, when applicable.
new text end

deleted text begin (c)deleted text endnew text begin (d)new text end For each county affected by the watershed district, the managers must publish a
notice of hearings and adopted rules in one or more legal newspapers published in the county
and generally circulated in the watershed district. The managers must also provide written
notice of adopted or amended rules to public transportation authorities that have jurisdiction
within the watershed district. The managers must file adopted rules with the county recorder
of each county affected by the watershed district and the board.

deleted text begin (d)deleted text endnew text begin (e)new text end The managers must mail a copy of the rules to the governing body of each
municipality affected by the watershed district.

new text begin (f) The rules are effective no earlier than 120 days after adoption.
new text end

Sec. 4.

Minnesota Statutes 2018, section 103D.341, subdivision 3, is amended to read:


Subd. 3.

Rule affecting city; notice.

A rule or resolution that affects land or water within
the boundaries of a city is not effective within the city's boundaries deleted text beginuntildeleted text endnew text begin unlessnew text end the governing
body of the city is notifieddeleted text begin.deleted text endnew text begin 45 days before adoption and the city does not object within 30
days to the adoption of the rule or resolution. If the city objects, the managers must meet
and confer with the city to reasonably resolve the objection before the rule or resolution is
adopted. If the managers are unable to resolve the objection after meeting and conferring
with the city, the managers may adopt the rule or resolution and the city may opt out of
enforcing the rule or resolution within the city's jurisdiction.
new text end

Sec. 5.

Minnesota Statutes 2018, section 103D.515, subdivision 1, is amended to read:


Subdivision 1.

Preexisting water rights recognized.

new text begin(a) new text endThe rights of private or corporate
landowners to use the waters of the watershed district for any purpose continue as the rights
existed at the time of the organization of the watershed district.

new text begin (b) The managers may not adopt or enforce rules that:
new text end

new text begin (1) require a perpetual, private or public declaration of maintenance, a declaration of
easement, or an easement to be recorded against the landowner's title that obligates the
landowner and the landowner's successors in title to perform tasks and functions in addition
to those provided specifically in the watershed rules;
new text end

new text begin (2) create any wetland buffer, together with any side slope, grade, or other required
setback, that exceeds a cumulative 25 feet;
new text end

new text begin (3) prohibit buffer averaging;
new text end

new text begin (4) prohibit reasonable activities in the buffer zones, including removing trees, grading,
restoration, creating walkways and paths, or grading for adjacent storm ponds or facilities;
new text end

new text begin (5) require the landowner to demonstrate that the landowner's facilities or structures will
not have an adverse impact on local groundwater or natural resources or any other
immeasurable, arbitrary, or subjective standard;
new text end

new text begin (6) impose requirements or manage the watershed to mimic presettlement or
predevelopment hydrologic conditions;
new text end

new text begin (7) require recording in the office of the county registrar or recorder any declarations or
instruments before issuing a permit to perform or construct the permitted work;
new text end

new text begin (8) require the landowner to provide both floodplain replacement volume and water
storage capacity duplicative of the provided storm water ponding capacity;
new text end

new text begin (9) limit the availability of variances by adopting variance standards that require
demonstrating undue hardship, prohibit considering economic hardship, prohibit considering
property-specific situations that might be created by the landowner, or otherwise limit the
landowner to a standard more difficult than the practical difficulty standard of review;
new text end

new text begin (10) unreasonably deny or terminate a landowner's permit rights without due process;
new text end

new text begin (11) require the landowner to pay the watershed district's legal fees or engineer fees
without the ability to object and appeal the fees to the managers for review; or
new text end

new text begin (12) adopt by reference best management practices located on a website or hyperlink
that can randomly and suddenly change with new and subjective content not approved by
a rule or resolution of the watershed district.
new text end

Sec. 6.

Minnesota Statutes 2018, section 103D.521, is amended to read:


103D.521 RIGHTS ASSURED DUE PROCESS OF LAW.

new text begin (a) new text endA person may not be deprived or divested under this chapter of a previously
established beneficial use or right without due process of law.

new text begin (b) The managers may not adopt or enforce rules that deprive or divest a private or
corporate landowner of the use of existing water rights and use of existing water conditions
on an owner's property relating to storm water runoff, infiltration, drainage, ponding, or
flood relief, without payment of adequate compensation.
new text end

Sec. 7.

Minnesota Statutes 2018, section 103D.537, is amended to read:


103D.537 deleted text beginAPPEALS OFdeleted text end RULES, PERMIT DECISIONS, AND ORDERSnew text begin;
EVIDENTIARY BASIS; APPEALS
new text end.

new text begin (a) An order or permit decision of the watershed district or a decision on appeal must
be based on the record made in the proceeding together with any other relevant evidence
or affidavits provided by the parties.
new text end

deleted text begin (a)deleted text endnew text begin (b)new text end Except as provided in section 103D.535, an interested party may appeal a permit
decision deleted text beginordeleted text endnew text begin,new text end order made by the managersnew text begin, or staff enforcement of any provision of the
watershed plan or watershed rules
new text end by a declaratory judgment action brought under chapter
555new text begin. The decision on appeal must determine whether the watershed district's action or
requirement is unreasonable by a preponderance of the evidence
new text end. An interested party may
appeal a rule made by the managers by a declaratory judgment action brought under chapter
555 or by appeal to the board. deleted text beginThe decision on appeal must be based on the record made in
the proceeding before the managers.
deleted text end An appeal of a permit decision or order must be filed
within deleted text begin30deleted text endnew text begin 180new text end days of the managers' decisiondeleted text begin.deleted text endnew text begin, except that an appeal of staff enforcement
or interpretation of the watershed district rules may be brought:
new text end

new text begin (1) at any time during the permit application process;
new text end

new text begin (2) when the permit is issued or denied;
new text end

new text begin (3) when a variance request is granted or denied;
new text end

new text begin (4) after a permit is issued; or
new text end

new text begin (5) while the permit is active.
new text end

deleted text begin (b)deleted text endnew text begin (c)new text end In addition to the authorities identified in paragraph (a), a public transportation
authority may appeal a watershed district permit decision to the board. The board shall,
upon request of the public transportation authority, conduct an expedited appeal hearing
within 30 days or less from the date of the appeal being accepted.

deleted text begin (c)deleted text endnew text begin (d)new text end By January 1, deleted text begin2005deleted text endnew text begin 2021new text end, the board deleted text beginshalldeleted text endnew text begin mustnew text end adopt new text beginreasonable new text endrules governing
appeals to the board under paragraphs (a) and (b)new text begin, but must not limit a landowner's right to
seek immediate judicial relief
new text end. A decision of the board on appeal is subject to judicial review
under sections 14.63 to 14.69. The rules authorized in this paragraph are exempt from the
rulemaking provisions of chapter 14 except that deleted text beginsectiondeleted text endnew text begin sections 14.131 andnew text end 14.386 deleted text beginapplies
and
deleted text endnew text begin apply.
new text end

new text begin (e)new text end The proposed rules must be submitted to the members of senate and house of
representatives environment and natural resource and transportation policy committees at
least 30 days deleted text beginprior todeleted text endnew text begin beforenew text end being published in the State Register. The amended rules are
effective for two years from the date of publication of the rules in the State Register unless
they are superseded by permanent rules.