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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

  
    Laws of Minnesota 1993 

                        CHAPTER 175-H.F.No. 1402 
           An act relating to natural resources; defining as 
          "repair" under the drainage code certain incidental 
          straightening of tiles and use of larger tile sizes 
          under certain circumstances; amending requirements 
          relating to replacement of wetlands; modifying 
          exemptions; requiring the wetland heritage advisory 
          committee to meet at least twice per year; requiring a 
          report; amending Minnesota Statutes 1992, sections 
          103E.701, subdivision 1; 103G.222; 103G.2241; 
          103G.2242, subdivisions 2 and 11; and 103G.2369, 
          subdivision 2, and by adding a subdivision; Laws 1991, 
          chapter 354, article 7, section 2. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  Minnesota Statutes 1992, section 103E.701, 
subdivision 1, is amended to read: 
    Subdivision 1.  [DEFINITION.] The term "repair," as used in 
this section, means to restore all or a part of a drainage 
system as nearly as practicable to the same condition as 
originally constructed and subsequently improved, including 
resloping of ditches and leveling of waste banks if necessary to 
prevent further deterioration, realignment to original 
construction if necessary to restore the effectiveness of the 
drainage system, and routine operations that may be required to 
remove obstructions and maintain the efficiency of the drainage 
system.  "Repair" also includes:  
    (1) incidental straightening of a tile system resulting 
from the tile-laying technology used to replace tiles; and 
    (2) replacement of tiles with the next larger size that is 
readily available, if the original size is not readily available.
    Sec. 2.  Minnesota Statutes 1992, section 103G.222, is 
amended to read: 
    103G.222 [REPLACEMENT OF WETLANDS.] 
    (a) After the effective date of the rules adopted under 
section 103B.3355 or 103G.2242, whichever is later, 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 either a replacement plan approved as 
provided in section 103G.2242 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.  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. 
    (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; and 
     (5) compensating for the impact by replacing or providing 
substitute wetland resources or environments. 
     (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 a deed restriction is placed on the altered wetland 
prohibiting nonagricultural use for at least ten years.  
     (d) Restoration and replacement of wetlands must be 
accomplished in accordance with the ecology of the landscape 
area affected. 
     (e) Replacement shall be within the same watershed or 
county as the impacted wetlands, as based on the wetland 
evaluation in section 103G.2242, subdivision 2, except that 
counties or watersheds in which 80 percent or more of the 
presettlement wetland acreage is intact may accomplish 
replacement in counties or watersheds in which 50 percent or 
more of the presettlement wetland acreage has been filled, 
drained, or otherwise degraded.  Wetlands impacted by public 
transportation projects may be replaced statewide, provided they 
are approved by the commissioner under an established wetland 
banking system, or under the rules for wetland banking as 
provided for under section 103G.2242. 
    (f) Except as provided in paragraph (g), for a 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 located on agricultural land or in 
counties or watersheds in which 80 percent or more of the 
presettlement wetland acreage exists, 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 counties or watersheds where 80 percent or 
more of the presettlement wetlands are intact, 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. 
    Sec. 3.  Minnesota Statutes 1992, section 103G.2241, is 
amended to read: 
    103G.2241 [EXEMPTIONS.] 
    Subdivision 1.  [EXEMPTIONS.] (a) Subject to the conditions 
in paragraph (b), a replacement plan for wetlands is not 
required for:  
    (1) activities in a wetland that was planted with annually 
seeded crops, was in a crop rotation seeding of pasture grasses 
or legumes, or was required to be set aside to receive price 
support or other payments under United States Code, title 7, 
sections 1421 to 1469, in six of the last ten years prior to 
January 1, 1991; 
    (2) activities in a wetland that is or has been enrolled in 
the federal conservation reserve program under United States 
Code, title 16, section 3831, that: 
    (i) was planted with annually seeded crops, was in a crop 
rotation seeding, or was required to be set aside to receive 
price support or payment under United States Code, title 7, 
sections 1421 to 1469, in six of the last ten years prior to 
being enrolled in the program; and 
    (ii) has not been restored with assistance from a public or 
private wetland restoration program; 
    (3) activities necessary to repair and maintain existing 
public or private drainage systems as long as wetlands that have 
been in existence for more than 20 years are not drained; 
    (4) activities in a wetland that has received a commenced 
drainage determination provided for by the federal Food Security 
Act of 1985, that was made to the county agricultural 
stabilization and conservation service office prior to September 
19, 1988, and a ruling and any subsequent appeals or reviews 
have determined that drainage of the wetland had been commenced 
prior to December 23, 1985; 
     (5) activities exempted from federal regulation under 
United States Code, title 33, section 1344(f); 
     (6) activities authorized under, and conducted in 
accordance with, an applicable general permit issued by the 
United States Army Corps of Engineers under section 404 of the 
federal Clean Water Act, United States Code, title 33, section 
1344, except the nationwide permit in Code of Federal 
Regulations, title 33, section 330.5, paragraph (a), clause 
(14), limited to when a new road crosses a wetland, and all of 
clause (26); 
     (7) activities in a type 1 wetland on agricultural land, as 
defined in United States Fish and Wildlife Circular No. 39 (1971 
edition) except for bottomland hardwood type 1 wetlands; 
     (8) activities in a type 2 wetland that is two acres in 
size or less located on agricultural land; 
     (9) activities in a wetland restored for conservation 
purposes under a contract or easement providing the landowner 
with the right to drain the restored wetland; 
     (10) activities in a wetland created solely as a result of: 
     (i) beaver dam construction; 
     (ii) blockage of culverts through roadways maintained by a 
public or private entity; 
     (iii) actions by public entities that were taken for a 
purpose other than creating the wetland; or 
     (iv) any combination of (i) to (iii); 
     (11) placement, maintenance, repair, enhancement, or 
replacement of utility or utility-type service, including the 
transmission, distribution, or furnishing, at wholesale or 
retail, of natural or manufactured gas, electricity, telephone, 
or radio service or communications if: 
     (i) the impacts of the proposed project on the hydrologic 
and biological characteristics of the wetland have been avoided 
and minimized to the extent possible; and 
     (ii) the proposed project significantly modifies or alters 
less than one-half acre of wetlands; 
     (12) activities associated with routine maintenance of 
utility and pipeline rights-of-way, provided the activities do 
not result in additional intrusion into the wetland; 
     (13) alteration of a wetland associated with the operation, 
maintenance, or repair of an interstate pipeline; 
     (14) temporarily crossing or entering a wetland to perform 
silvicultural activities, including timber harvest as part of a 
forest management activity, so long as the activity limits the 
impact on the hydrologic and biologic characteristics of the 
wetland; the activities do not result in the construction of 
dikes, drainage ditches, tile lines, or buildings; and the 
timber harvesting and other silvicultural practices do not 
result in the drainage of the wetland or public waters; 
    (15) permanent access for forest roads across wetlands so 
long as the activity limits the impact on the hydrologic and 
biologic characteristics of the wetland; the construction 
activities do not result in the access becoming a dike, drainage 
ditch or tile line; with filling avoided wherever possible; and 
there is no drainage of the wetland or public waters; 
    (16) activities associated with routine maintenance or 
repair of existing public highways, roads, streets, and bridges, 
provided the activities do not result in additional intrusion 
into the wetland and do not result in the draining or filling, 
wholly or partially, of a wetland outside of the existing 
right-of-way; 
    (17) emergency repair and normal maintenance and repair of 
existing public works, provided the activity does not result in 
additional intrusion of the public works into the wetland and do 
not result in the draining or filling, wholly or partially, of a 
wetland; 
    (18) normal maintenance and minor repair of structures 
causing no additional intrusion of an existing structure into 
the wetland, and maintenance and repair of private crossings 
that do not result in the draining or filling, wholly or 
partially, of a wetland; 
    (19) duck blinds; 
    (20) aquaculture activities, except building or altering of 
docks and activities involving the draining or filling, wholly 
or partially, of a wetland including pond excavation and 
associated access roads and dikes authorized under, and 
conducted in accordance with, a permit issued by the United 
States Army Corps of Engineers under section 404 of the federal 
Clean Water Act, United States Code, title 33, section 1344, but 
not including buildings; 
    (21) wild rice production activities, including necessary 
diking and other activities authorized under a permit issued by 
the United State Army Corps of Engineers under section 404 of 
the federal Clean Water Act, United States Code, title 33, 
section 1344; 
    (22) normal agricultural practices to control pests or 
weeds, defined by rule as either noxious or secondary weeds, in 
accordance with applicable requirements under state and federal 
law, including established best management practices; 
    (23) activities in a wetland that is on agricultural land 
annually enrolled in the federal Food, Agricultural, 
Conservation, and Trade Act of 1990, United States Code, title 
16, section 3821, subsection (a), clauses (1) to (3), as 
amended, and is subject to sections 1421 to 1424 of the federal 
act in effect on January 1, 1991, except that land enrolled in a 
federal farm program is eligible for easement participation for 
those acres not already compensated under a federal program; 
    (24) development projects and ditch improvement projects in 
the state that have received preliminary or final plat approval, 
or infrastructure that has been installed, or having local site 
plan approval, conditional use permits, or similar official 
approval by a governing body or government agency, within five 
years before July 1, 1991.  In the seven-county metropolitan 
area and in cities of the first and second class, plat approval 
must be preliminary as approved by the appropriate governing 
body; and 
    (25) activities that result in the draining or filling of 
less than 400 square feet of wetlands. 
     (b) A person conducting an activity in a wetland under an 
exemption in paragraph (a) shall ensure that: 
     (1) appropriate erosion control measures are taken to 
prevent sedimentation of the water; 
     (2) the activity does not block fish passage in a 
watercourse; and 
     (3) the activity is conducted in compliance with all other 
applicable federal, state, and local requirements, including 
best management practices and water resource protection 
requirements established under chapter 103H. 
    Sec. 4.  Minnesota Statutes 1992, section 103G.2242, 
subdivision 2, is amended to read: 
    Subd. 2.  [EVALUATION.] Questions concerning the public 
value, location, size, or type of a wetland shall be submitted 
to and determined by a technical evaluation panel after an 
on-site inspection.  The technical evaluation panel shall be 
composed of a technical professional employee of the board, a 
technical professional employee of the local soil and water 
conservation district or districts, and an engineer for a 
technical professional with expertise in water resources 
management appointed by the local government unit.  The panel 
shall use the "Federal Manual for Identifying and Delineating 
Jurisdictional Wetlands" (January 1989).  The panel shall 
provide the wetland determination to the local government unit 
that must approve a replacement plan under this section, and may 
recommend approval or denial of the plan.  The authority must 
consider and include the decision of the technical evaluation 
panel in their approval or denial of a plan. 
     Sec. 5.  Minnesota Statutes 1992, section 103G.2242, 
subdivision 11, is amended to read: 
    Subd. 11.  [WETLAND HERITAGE ADVISORY COMMITTEE.] The 
governor shall establish a wetland heritage advisory committee 
consisting of a balanced diversity of interests including 
agriculture, environmental, and sporting organizations, land 
development organizations, local government organizations, and 
other agencies.  The committee must consist of nine members 
including the commissioner of agriculture, or a designee of the 
commissioner, the commissioner of natural resources, and seven 
members appointed by the governor.  The governor's appointees 
must include one county commissioner, one representative each 
from a statewide sporting organization, a statewide conservation 
organization, an agricultural commodity group, one faculty 
member of an institution of higher education with expertise in 
the natural sciences, and one member each from two statewide 
farm organizations.  The committee shall advise the board on the 
development of rules under this section and, after rule 
adoption, shall meet at least twice a year to review 
implementation of the program, to identify strengths and 
weaknesses, and to recommend changes to the rules and the law to 
improve the program. 
    Sec. 6.  Minnesota Statutes 1992, section 103G.2369, 
subdivision 2, is amended to read: 
    Subd. 2.  [PROHIBITED ACTIVITIES.] (a) Except as provided 
in subdivision 3, until July 1, 1993, a person may not drain, 
burn, or fill a wetland. 
    (b) Except as provided in subdivision 3, until July 1, 
1993, a state agency or local unit of government may not issue a 
permit for an activity prohibited in paragraph (a) or for an 
activity that would include an activity prohibited in paragraph 
(a). 
    Sec. 7.  Minnesota Statutes 1992, section 103G.2369, is 
amended by adding a subdivision to read: 
    Subd. 4a.  [ELECTION BY LOCAL GOVERNMENT 
UNIT.] Notwithstanding subdivision 2 and sections 103G.222 and 
103G.2242, a local government unit may elect to operate under 
this section after July 1, 1993, but not beyond December 31, 
1993. 
    Sec. 8.  Laws 1991, chapter 354, article 7, section 2, is 
amended to read: 
    Sec. 2.  [EFFECTIVE DATE.] 
    Section 1 is effective January 1, 1992, and is repealed 
July January 1, 1993 1994. 
    Sec. 9.  [STUDY AND REPORT ON WETLAND ISSUES.] 
    The wetland heritage advisory committee shall study the 
following issues and submit a report by January 15, 1994, to the 
legislative committees having jurisdiction over environmental 
and natural resource issues: 
    (1) the appropriateness of requirements under existing 
state laws relating to replacement of drained or filled 
wetlands; 
    (2) the advisability of establishing a minimum size of 
wetland that would not be subject to regulation under these 
laws; 
    (3) the appropriate level of regulation of activities in 
wetlands located in counties in which a high percentage of 
presettlement wetland acreage is intact; 
    (4) the appropriate level of regulation for activities in 
type I wetlands, as defined in United States Fish and Wildlife 
Circular No. 39 (1971 edition); 
    (5) the feasibility and advisability of allowing local 
units of government to establish alternative regulatory programs 
for wetlands that would operate in lieu of state law; and 
    (6) other issues identified by the committee as deserving 
of attention. 
    The report must include the committee's recommendations, if 
any, for changes to existing state laws and rules regulating 
draining and filling activities in wetlands. 
    Sec. 10.  [EFFECTIVE DATE.] 
    This act is effective the day following final enactment. 
    Presented to the governor May 12, 1993 
    Signed by the governor May 14, 1993, 10:04 p.m.