Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 382-S.F.No. 83
An act relating to natural resources; simplifying and
consolidating wetland regulation; amending Minnesota
Statutes 1998, sections 103G.005, subdivisions 15 and
19; 103G.201; 103G.222; 103G.2241, subdivisions 1, 3,
and 9; 103G.2242, subdivisions 1, 2, 5, 9, 11, and by
adding a subdivision; 103G.2372; 103G.2373; 103G.245,
subdivision 5; and 645.44, by adding a subdivision;
proposing coding for new law in Minnesota Statutes,
chapter 103G.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1998, section 103G.005,
subdivision 15, is amended to read:
Subd. 15. [PUBLIC WATERS.] (a) "Public waters" means:
(1) waterbasins assigned a shoreland management
classification by the commissioner under sections 103F.201 to
103F.221, except wetlands less than 80 acres in size that are
classified as natural environment lakes;
(2) waters of the state that have been finally determined
to be public waters or navigable waters by a court of competent
jurisdiction;
(3) meandered lakes, excluding lakes that have been legally
drained;
(4) waterbasins previously designated by the commissioner
for management for a specific purpose such as trout lakes and
game lakes pursuant to applicable laws;
(5) waterbasins designated as scientific and natural areas
under section 84.033;
(6) waterbasins located within and totally surrounded by
publicly owned lands;
(7) waterbasins where the state of Minnesota or the federal
government holds title to any of the beds or shores, unless the
owner declares that the water is not necessary for the purposes
of the public ownership;
(8) waterbasins where there is a publicly owned and
controlled access that is intended to provide for public access
to the waterbasin;
(9) natural and altered watercourses with a total drainage
area greater than two square miles;
(10) natural and altered watercourses designated by the
commissioner as trout streams; and
(11) public waters wetlands, unless the statute expressly
states otherwise.
(b) Public waters are not determined exclusively by the
proprietorship of the underlying, overlying, or surrounding land
or by whether it is a body or stream of water that was navigable
in fact or susceptible of being used as a highway for commerce
at the time this state was admitted to the union.
Sec. 2. Minnesota Statutes 1998, section 103G.005,
subdivision 19, is amended to read:
Subd. 19. [WETLANDS.] (a) "Wetlands" means lands
transitional between terrestrial and aquatic systems where the
water table is usually at or near the surface or the land is
covered by shallow water. For purposes of this definition,
wetlands must have the following three attributes:
(1) have a predominance of hydric soils;
(2) are inundated or saturated by surface or ground water
at a frequency and duration sufficient to support a prevalence
of hydrophytic vegetation typically adapted for life in
saturated soil conditions; and
(3) under normal circumstances support a prevalence of such
vegetation.
(b) For the purposes of regulation under this chapter, the
term wetlands does not include public waters wetlands as defined
in subdivision 15a.
Sec. 3. Minnesota Statutes 1998, section 103G.201, is
amended to read:
103G.201 [PUBLIC WATERS INVENTORY.]
(a) The commissioner shall prepare a public waters
inventory map of each county that shows the waters of this state
that are designated as public waters under the public waters
inventory and classification procedures prescribed under Laws
1979, chapter 199. The public waters inventory map for each
county must be filed with the auditor of the county.
(b) The commissioner is authorized to revise the list of
public waters established under Laws 1979, chapter 199, to
reclassify those type 3, 4, and 5 wetlands previously identified
as public waters wetlands under Laws 1979, chapter 199, as
public waters or as wetlands under section 103G.005, subdivision
19. The commissioner may only reclassify public waters wetlands
as public waters if:
(1) they are assigned a shoreland management classification
by the commissioner under sections 103F.201 to 103F.22; or
(2) they are classified as lacustrine wetlands according to
Classification of Wetlands and Deepwater Habitats of the United
States (Cowardin, et al., 1979 edition).
(c) The commissioner must provide notice of the
reclassification to the local government unit, the county board,
the watershed district, if one exists for the area, and the soil
and water conservation district. Within 60 days of receiving
notice from the commissioner, a party required to receive the
notice may provide a resolution stating objections to the
reclassification. If the commissioner receives an objection
from a party required to receive the notice, the
reclassification is not effective. If the commissioner does not
receive an objection from a party required to receive the
notice, the reclassification of a wetland under paragraph (b) is
effective 60 days after the notice is received by all of the
parties.
(d) The commissioner shall give priority to the
reclassification of public waters wetlands that are or have the
potential to be affected by public works projects.
Sec. 4. [103G.2212] [CONTRACTOR'S RESPONSIBILITY WHEN WORK
DRAINS OR FILLS WETLANDS.]
Subdivision 1. [CONDITIONS FOR EMPLOYEES AND AGENTS TO
DRAIN OR FILL WETLANDS.] An agent or employee of another may not
drain or fill a wetland, wholly or partially, unless the agent
or employee has:
(1) obtained a signed statement from the property owner
stating that the wetland replacement plan required for the work
has been obtained or that a replacement plan is not required;
and
(2) mailed a copy of the statement to the local government
unit with jurisdiction over the wetland.
Subd. 2. [VIOLATION IS SEPARATE OFFENSE.] Violation of
this section is a separate and independent offense from other
violations of sections 103G.2212 to 103G.237.
Subd. 3. [FORM FOR COMPLIANCE WITH THIS SECTION.] The
board shall develop a form to be distributed to contractors'
associations, local government units, and soil and water
conservation districts to comply with this section. The form
must include:
(1) a listing of the activities for which a replacement
plan is required;
(2) a description of the penalties for violating sections
103G.2212 to 103G.237;
(3) the telephone number to call for information on the
responsible local government unit;
(4) a statement that national wetland inventory maps are on
file with the soil and water conservation district office; and
(5) spaces for a description of the work and the names,
mailing addresses, and telephone numbers of the person
authorizing the work and the agent or employee proposing to
undertake it.
Sec. 5. Minnesota Statutes 1998, section 103G.222, is
amended to read:
103G.222 [REPLACEMENT OF WETLANDS.]
Subdivision 1. [REQUIREMENTS.] (a) Wetlands must not be
drained or filled, wholly or partially, unless replaced by
restoring or creating wetland areas of at least equal public
value under a replacement plan approved as provided in section
103G.2242, a replacement plan under a local governmental unit's
comprehensive wetland protection and management plan approved by
the board under section 103G.2243, or, if a permit to mine is
required under section 93.481, under a mining reclamation plan
approved by the commissioner under the permit to mine. Mining
reclamation plans shall apply the same principles and standards
for replacing wetlands by restoration or creation of wetland
areas that are applicable to mitigation plans approved as
provided in section 103G.2242. Public value must be determined
in accordance with section 103B.3355 or a comprehensive wetland
protection and management plan established under section
103G.2243. Sections 103G.221 to 103G.2372 also apply to
excavation in permanently and semipermanently flooded areas of
type 3, 4, and 5 wetlands.
(b) Replacement must be guided by the following principles
in descending order of priority:
(1) avoiding the direct or indirect impact of the activity
that may destroy or diminish the wetland;
(2) minimizing the impact by limiting the degree or
magnitude of the wetland activity and its implementation;
(3) rectifying the impact by repairing, rehabilitating, or
restoring the affected wetland environment;
(4) reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the
activity;
(5) compensating for the impact by restoring a wetland; and
(6) compensating for the impact by replacing or providing
substitute wetland resources or environments.
For a project involving the draining or filling of wetlands
in an amount not exceeding 10,000 square feet more than the
applicable amount in section 103G.2241, subdivision 9, paragraph
(a), the local government unit may make an on-site sequencing
determination without a written alternatives analysis from the
applicant.
(c) If a wetland is located in a cultivated field, then
replacement must be accomplished through restoration only
without regard to the priority order in paragraph (b), provided
that 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 a
greater than 80 percent area may accomplish replacement in less
than 50 percent areas. Wetlands impacted by public
transportation projects may be replaced statewide, except that
wetlands impacted in a less than 50 percent area must be
replaced in a less than 50 percent area, and wetlands impacted
in the seven-county twin cities metropolitan area by public
highways must be replaced:
(1) in the affected county, or, if no restoration
opportunities exist in the county;
(2) in another seven-county twin cities metropolitan area
county.
The board must maintain a public list of restoration
opportunities within the metropolitan area. Disputes about
restoration opportunities for wetland replacement in a watershed
or county may be appealed to the board's committee for dispute
resolution. Replacement of wetlands may be accomplished under
the rules for wetland banking as provided for under section
103G.2242.
(f) Except as provided in paragraph (g) (f), for a
wetland or public waters wetland located on nonagricultural
land, replacement must be in the ratio of two acres of replaced
wetland for each acre of drained or filled wetland.
(g) (f) For a wetland or public waters wetland located on
agricultural land or in a greater than 80 percent area,
replacement must be in the ratio of one acre of replaced wetland
for each acre of drained or filled wetland.
(h) (g) 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) (h) Except in a greater than 80 percent area, only
wetlands that have been restored from previously drained or
filled wetlands, wetlands created by excavation in nonwetlands,
wetlands created by dikes or dams along public or private
drainage ditches, or wetlands created by dikes or dams
associated with the restoration of previously drained or filled
wetlands may be used in a statewide banking program established
in rules adopted under section 103G.2242, subdivision 1.
Modification or conversion of nondegraded naturally occurring
wetlands from one type to another are not eligible for
enrollment in a statewide wetlands bank.
(j) (i) The technical evaluation panel established under
section 103G.2242, subdivision 2, shall ensure that sufficient
time has occurred for the wetland to develop wetland
characteristics of soils, vegetation, and hydrology before
recommending that the wetland be deposited in the statewide
wetland bank. If the technical evaluation panel has reason to
believe that the wetland characteristics may change
substantially, the panel shall postpone its recommendation until
the wetland has stabilized.
(k) (j) This section and sections 103G.223 to 103G.2242,
103G.2364, and 103G.2365 apply to the state and its departments
and agencies.
(l) (k) For projects involving draining or filling of
wetlands associated with a new public transportation project in
a greater than 80 percent area, public transportation
authorities, other than the state department of transportation,
may purchase credits from the state wetland bank established
with proceeds from Laws 1994, chapter 643, section 26,
subdivision 3, paragraph (c). Wetland banking credits may be
purchased at the least of the following, but in no case shall
the purchase price be less than $400 per acre: (1) the cost to
the state to establish the credits; (2) the average estimated
market value of agricultural land in the township where the road
project is located, as determined by the commissioner of
revenue; or (3) the average value of the land in the immediate
vicinity of the road project as determined by the county
assessor. Public transportation authorities in a less than 80
percent area may purchase credits from the state at the cost to
the state to establish credits.
(m) (l) A replacement plan for wetlands is not required for
individual projects that result in the filling or draining of
wetlands for the repair, rehabilitation, reconstruction, or
replacement of a currently serviceable existing state, city,
county, or town public road necessary, as determined by the
public transportation authority, to meet state or federal design
or safety standards or requirements, excluding new roads or
roads expanded solely for additional traffic capacity lanes.
This paragraph only applies to authorities for public
transportation projects that:
(1) minimize the amount of wetland filling or draining
associated with the project and consider mitigating important
site-specific wetland functions on-site; and
(2) except as provided in clause (3), submit annual
project-specific reports by January 15 to the board, the
technical evaluation panel, the commissioner of natural
resources, and members of the public requesting a copy at least
30 days prior to construction that indicate the location,
amount, and type of wetlands that have been filled or drained
during the previous year and a projection of the location,
amount, and type of wetlands to be filled or drained by the
project or, alternatively, convene an annual meeting of the
parties required to receive notice to review projects to be
commenced during the upcoming year; and
(3) for minor and emergency maintenance work impacting less
than 10,000 square feet, submit project-specific reports, within
30 days of commencing the activity, to the board that indicate
the location, amount, and type of wetlands that have been filled
or drained.
Those required to receive notice of public transportation
projects may appeal minimization, delineation, and on-site
mitigation decisions made by the public transportation authority
to the board according to the provisions of section 103G.2242,
subdivision 9. The technical evaluation panel shall review
minimization and delineation decisions made by the public
transportation authority and provide recommendations regarding
on-site mitigation if requested to do so by the local government
unit, a contiguous landowner, or a member of the technical
evaluation panel.
Except for state public transportation projects, for which
the state department of transportation is responsible, the board
must replace the wetlands, and wetland areas of public waters if
authorized by the commissioner or a delegated authority, drained
or filled by public transportation projects on existing roads in
critical rural and urban watersheds.
Public transportation authorities at their discretion may
deviate from federal and state design standards on existing road
projects when practical and reasonable to avoid wetland filling
or draining, provided that public safety is not unreasonably
compromised. The local road authority and its officers and
employees are exempt from liability for any tort claim for
injury to persons or property arising from travel on the highway
and related to the deviation from the design standards for
construction or reconstruction under this paragraph. This
paragraph does not preclude an action for damages arising from
negligence in construction or maintenance on a highway.
(n) (m) If a landowner seeks approval of a replacement plan
after the proposed project has already impacted affected the
wetland, the local government unit may require the landowner to
replace the impacted affected wetland at a ratio not to exceed
twice the replacement ratio otherwise required.
(o) (n) A local government unit may request the board to
reclassify a county or watershed on the basis of its percentage
of presettlement wetlands remaining. After receipt of
satisfactory documentation from the local government, the board
shall change the classification of a county or watershed. If
requested by the local government unit, the board must assist in
developing the documentation. Within 30 days of its action to
approve a change of wetland classifications, the board shall
publish a notice of the change in the Environmental Quality
Board Monitor.
(p) (o) One hundred citizens who reside within the
jurisdiction of the local government unit may request the local
government unit to reclassify a county or watershed on the basis
of its percentage of presettlement wetlands remaining. In
support of their petition, the citizens shall provide
satisfactory documentation to the local government unit. The
local government unit shall consider the petition and forward
the request to the board under paragraph (o) (n) or provide a
reason why the petition is denied.
Subd. 2. [ROAD CREDIT FUNDING.] At least 50 percent of
money appropriated for road repair wetland replacement credit
under this section must be used for wetland restoration in the
seven-county metropolitan area.
The board shall give priority to restoration projects that
will:
(1) intensify will encourage land use that leads to more
compact development or redevelopment;
(2) will encourage public or private infrastructure
investments which connect urban neighborhoods and suburban
ecosystems and communities, attract private sector investment in
commercial or residential properties adjacent to the public
improvement; or
(3) complement projects receiving funding under section
473.253 are located in critical rural and urban watersheds.
Subd. 3. [WETLAND REPLACEMENT SITING.] (a) Siting wetland
replacement must follow this priority order:
(1) on site or in the same minor watershed as the affected
wetland;
(2) in the same watershed as the affected wetland;
(3) in the same county as the affected wetland;
(4) in an adjacent watershed or county to the affected
wetland; and
(5) statewide, only for wetlands affected in greater than
80 percent areas and for public transportation projects, except
that wetlands affected in less than 50 percent areas must be
replaced in less than 50 percent areas, and wetlands affected in
the seven-county metropolitan area must be replaced in the
affected county or, if no restoration opportunities exist in the
county, in another seven-county metropolitan area county.
(b) The exception in paragraph (a), clause (5), does not
apply to replacement completed using wetland banking credits
established by a person who submitted a complete wetland banking
application to a local government unit by April 1, 1996.
(c) When reasonable, practicable, and environmentally
beneficial replacement opportunities are not available in siting
priorities listed in paragraph (a), the applicant may seek
opportunities at the next level.
(d) For the purposes of this section, "reasonable,
practicable, and environmentally beneficial replacement
opportunities" are defined as opportunities that:
(1) take advantage of naturally occurring
hydrogeomorphological conditions and require minimal landscape
alteration;
(2) have a high likelihood of becoming a functional wetland
that will continue in perpetuity;
(3) do not adversely affect other habitat types or
ecological communities that are important in maintaining the
overall biological diversity of the area; and
(4) are available and capable of being done after taking
into consideration cost, existing technology, and logistics
consistent with overall project purposes.
(e) Regulatory agencies, local government units, and other
entities involved in wetland restoration shall collaborate to
identify potential replacement opportunities within their
jurisdictional areas.
Sec. 6. Minnesota Statutes 1998, section 103G.2241,
subdivision 1, is amended to read:
Subdivision 1. [AGRICULTURAL ACTIVITIES.] (a) 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 grass 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 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;
(4) activities in a type 1 wetland on agricultural land,
except for bottomland hardwood type 1 wetlands, and activities
in a type 2 or type 6 wetland that is less than two acres in
size and located on agricultural land;
(5) aquaculture activities including pond excavation and
construction and maintenance of 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 construction or
expansion of buildings;
(6) wild rice production activities, including necessary
diking and other activities authorized under 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;
(7) normal agricultural practices to control noxious or
secondary weeds as defined by rule of the commissioner of
agriculture, in accordance with applicable requirements under
state and federal law, including established best management
practices; and
(8) agricultural activities in a wetland that is on
agricultural land:
(i) 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, Agriculture Improvement and Reform Act of 1996 and is
subject to sections 1421 to 1424 of the federal act United
States Code, title 16, sections 3821 to 3823, in effect on
January 1, 1991, except that 2000; or
(ii) subject to subsequent federal farm program
restrictions that meet minimum state standards under this
chapter and sections 103A.202 and 103B.3355 and that have been
approved by the board of water and soil resources, the
commissioners of natural resources and agriculture, and the
pollution control agency.
(b) Land enrolled in a federal farm program under paragraph
(a), clause (8), is eligible for easement participation for
those acres not already compensated under a federal program.
(b) (c) The exemption under paragraph (a), clause (4), may
be expanded to additional acreage, including types 1, 2, and 6
wetlands that are part of a larger wetland system, when the
additional acreage is part of a conservation plan approved by
the local soil and water conservation district, the additional
draining or filling is necessary for efficient operation of the
farm, the hydrology of the larger wetland system is not
adversely affected, and wetlands other than types 1, 2, and 6
are not drained or filled.
Sec. 7. Minnesota Statutes 1998, section 103G.2241,
subdivision 3, is amended to read:
Subd. 3. [FEDERAL APPROVALS.] A replacement plan for
wetlands is not required for:
(1) activities exempted from federal regulation under
United States Code, title 33, section 1344(f), as in effect on
January 1, 1991;
(2) 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), clauses
(14), limited to when a new road crosses a wetland, and (26), as
in effect on January 1, 1991; or
(3) activities authorized under the federal Clean Water
Act, section 404, or the Rivers and Harbors Act, section 10,
regulations that meet minimum state standards under this chapter
and sections 103A.202 and 103B.3355 and that have been approved
by the board of water and soil resources, the commissioners of
natural resources and agriculture, and the pollution control
agency.
Sec. 8. Minnesota Statutes 1998, section 103G.2241,
subdivision 9, is amended to read:
Subd. 9. [DE MINIMIS.] (a) Except as provided in
paragraphs (b), and (c), and (d), a replacement plan for
wetlands is not required for draining or filling the following
amounts of wetlands as part of a project, regardless of the
total amount of wetlands filled as part of a project:
(1) 10,000 square feet of type 1, 2, 6, or 7 wetland,
excluding white cedar and tamarack wetlands, outside of the
shoreland wetland protection zone in a greater than 80 percent
area;
(2) 5,000 square feet of type 1, 2, 6, or 7 wetland,
excluding white cedar and tamarack wetlands, outside of the
shoreland wetland protection zone in a 50 to 80 percent area;
(3) 2,000 square feet of type 1, 2, or 6 wetland, outside
of the shoreland wetland protection zone in a less than 50
percent area;
(4) 400 square feet of wetland types not listed in clauses
(1) to (3) outside of shoreland wetland protection zones in all
counties; or
(5) 400 square feet of type 1, 2, 3, 4, 5, 6, 7, or 8
wetland, in the shoreland wetland protection zone, except that
in a greater than 80 percent area, the local government unit may
increase the de minimis amount up to 1,000 square feet in the
shoreland protection zone in areas beyond the building setback
if the wetland is isolated and is determined to have no direct
surficial connection to the public water. To the extent that a
local shoreland management ordinance is more restrictive than
this provision, the local shoreland ordinance applies.
(b) The amounts listed in paragraph (a), clauses (1) to
(5), may not be combined on a project.
(c) This exemption no longer applies to a landowner's
portion of a wetland when the cumulative area drained or filled
of the landowner's portion since January 1, 1992, is the
greatest of:
(1) the applicable area listed in paragraph (a), if the
landowner owns the entire wetland;
(2) five percent of the landowner's portion of the wetland;
or
(3) 400 square feet.
(d) Persons proposing to conduct an activity under this
subdivision shall contact the board at a toll-free number to be
provided for information on minimizing wetland impacts. Failure
to call by the person does not constitute a violation of this
subdivision.
(e) This exemption may not be combined with another
exemption in this section on a project.
Sec. 9. Minnesota Statutes 1998, section 103G.2242,
subdivision 1, is amended to read:
Subdivision 1. [RULES.] (a) The board, in consultation
with the commissioner, shall adopt rules governing the approval
of wetland value replacement plans under this section and public
waters work permits affecting public waters wetlands under
section 103G.245. These rules must address the criteria,
procedure, timing, and location of acceptable replacement of
wetland values; may address the state establishment and
administration of a wetland banking program for public and
private projects, which may include provisions allowing monetary
payment to the wetland banking program for alteration of
wetlands on agricultural land; the administrative, monitoring,
and enforcement procedures to be used; and a procedure for the
review and appeal of decisions under this section. In the case
of peatlands, the replacement plan rules must consider the
impact on carbon balance described in the report required by
Laws 1990, chapter 587, and include the planting of trees or
shrubs.
(b) After the adoption of the rules, a replacement plan
must be approved by a resolution of the governing body of the
local government unit, consistent with the provisions of the
rules or a comprehensive wetland protection and management plan
approved under section 103G.2243.
(c) If the local government unit fails to apply the rules,
or fails to implement a local comprehensive wetland protection
and management plan established under section 103G.2243, the
government unit is subject to penalty as determined by the board.
Sec. 10. Minnesota Statutes 1998, section 103G.2242,
subdivision 2, is amended to read:
Subd. 2. [EVALUATION.] (a) 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 a technical professional
with expertise in water resources management appointed by the
local government unit, and a technical professional employee of
the department of natural resources for projects affecting
public waters or wetlands adjacent to public waters. The panel
shall use the "United States Army Corps of Engineers Wetland
Delineation Manual" (January 1987), including updates,
supplementary guidance, and replacements, if any, "Wetlands of
the United States" (United States Fish and Wildlife Service
Circular 39, 1971 edition), and "Classification of Wetlands and
Deepwater Habitats of the United States" (1979 edition). The
panel shall provide the wetland determination and
recommendations on other technical matters to the local
government unit that must approve a replacement plan under this
section, wetland banking plan, exemption determination, no-loss
determination, or wetland boundary or type determination 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 or determination.
(b) Persons conducting wetland or public waters boundary
delineations or type determinations are exempt from the
requirements of chapter 326. By January 15, 2001, the board, in
consultation with the Minnesota Association of Professional Soil
Scientists, the University of Minnesota, and the Wetland
Delineators' Association, shall submit a plan for a professional
wetland delineator certification program to the legislature.
Sec. 11. Minnesota Statutes 1998, section 103G.2242, is
amended by adding a subdivision to read:
Subd. 2a. [WETLAND BOUNDARY OR TYPE DETERMINATION.] (a) A
landowner may apply for a wetland boundary or type determination
from the local government unit. The landowner applying for the
determination is responsible for submitting proof necessary to
make the determination, including, but not limited to, wetland
delineation field data, observation well data, topographic
mapping, survey mapping, and information regarding soils,
vegetation, hydrology, and groundwater both within and outside
of the proposed wetland boundary.
(b) A local government unit that receives an application
under paragraph (a) may seek the advice of the technical
evaluation panel as described in subdivision 2, and, if
necessary, expand the technical evaluation panel. The local
government unit may delegate the decision authority for wetland
boundary or type determinations with the zoning administrator,
or establish other procedures it considers appropriate.
(c) The local government unit decision must be made in
compliance with section 15.99. Within ten calendar days of the
decision, the local government unit decision must be mailed to
the landowner, members of the technical evaluation panel, the
watershed district or watershed management organization, if one
exists, and individual members of the public who request a copy.
(d) The local government unit decision is valid for three
years unless the technical evaluation panel determines that
natural or artificial changes to the hydrology, vegetation, or
soils of the area have been sufficient to alter the wetland
boundary or type.
Sec. 12. Minnesota Statutes 1998, section 103G.2242,
subdivision 5, is amended to read:
Subd. 5. [PROCESSING FEE.] The local government unit and
soil and water conservation district may charge processing fees
in amounts not greater than are necessary to cover the
reasonable costs of implementing the rules adopted under
subdivision 1 and for technical and administrative assistance to
landowners in processing other applications for projects
affecting wetlands.
Sec. 13. Minnesota Statutes 1998, section 103G.2242,
subdivision 9, is amended to read:
Subd. 9. [APPEAL.] (a) Appeal of a replacement plan,
exemption, wetland banking, wetland boundary or type
determination, or no-loss decision may be obtained by mailing a
petition and payment of a filing fee of $200, which shall be
retained by the board to defray administrative costs, to the
board within 15 days after the postmarked date of the mailing
specified in subdivision 7. If appeal is not sought within 15
days, the decision becomes final. The local government unit may
require the petitioner to post a letter of credit, cashier's
check, or cash in an amount not to exceed $500. If the petition
for hearing is accepted, the amount posted must be returned to
the petitioner. Appeal may be made by:
(1) the wetland owner, by;
(2) any of those to whom notice is required to be mailed
under subdivision 7,; or by
(3) 100 residents of the county in which a majority of the
wetland is located.
(b) Within 30 days after receiving a petition, the board
shall decide whether to grant the petition and hear the appeal.
The board shall grant the petition unless the board finds that:
(1) the appeal is meritless, trivial, or brought solely for
the purposes of delay; that
(2) the petitioner has not exhausted all local
administrative remedies;
(3) expanded technical review is needed;
(4) the local government unit's record is not adequate; or
that
(5) the petitioner has not posted a letter of credit,
cashier's check, or cash if required by the local government
unit.
(c) In determining whether to grant the appeal, the board
shall also consider the size of the wetland, other factors in
controversy, any patterns of similar acts by the local
government unit or petitioner, and the consequences of the delay
resulting from the appeal.
(d) All appeals must be heard by the committee for dispute
resolution of the board, and a decision made within 60 days of
the appeal. The decision must be served by mail on the parties
to the appeal, and is not subject to the provisions of chapter
14. A decision whether to grant a petition for appeal and a
decision on the merits of an appeal must be considered the
decision of an agency in a contested case for purposes of
judicial review under sections 14.63 to 14.69.
Sec. 14. Minnesota Statutes 1998, 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. The committee expires on July 1, 2000.
Sec. 15. Minnesota Statutes 1998, section 103G.2372, is
amended to read:
103G.2372 [ENFORCEMENT.]
Subdivision 1. [COMMISSIONER OF NATURAL RESOURCES.] The
commissioner of natural resources, conservation officers, and
peace officers shall enforce laws preserving and protecting
wetlands and public waters. The commissioner of natural
resources, a conservation officer, or a peace officer may issue
a cease and desist order to stop any illegal activity adversely
affecting a wetland or public waters. In the order, or by
separate order, the commissioner, conservation officer, or peace
officer may require restoration or replacement of the wetland or
public waters, as determined by the local soil and water
conservation district for wetlands and the commissioner of
natural resources for public waters.
Subd. 2. [MISDEMEANOR.] A violation of an order issued
under subdivision 1 is a misdemeanor and must be prosecuted by
the county attorney where the wetland is or public waters are
located or the illegal activity occurred.
Subd. 3. [RESTITUTION.] The court may, as part of
sentencing, require a person convicted under subdivision 2 to
restore or replace the wetland or public waters, as determined
by the local soil and water conservation district for wetlands
and the commissioner of natural resources for public waters.
Sec. 16. Minnesota Statutes 1998, section 103G.2373, is
amended to read:
103G.2373 [ANNUAL WETLANDS AND PUBLIC WATERS WETLANDS
REPORT.]
By March 1 of each year, the commissioner of natural
resources and the board of water and soil resources shall
jointly report to the committees of the legislature with
jurisdiction over matters relating to agriculture, the
environment, and natural resources on:
(1) the status of implementation of state laws and programs
relating to wetlands and public waters wetlands;
(2) the quantity, quality, acreage, types, and public value
of wetlands and public waters wetlands in the state; and
(3) changes in the items in clause (2).
Sec. 17. Minnesota Statutes 1998, section 103G.245,
subdivision 5, is amended to read:
Subd. 5. [DELEGATION OF PERMIT AUTHORITY TO LOCAL UNITS OF
GOVERNMENT.] (a) The commissioner may delegate public waters
work permit authority to the appropriate county or municipality
or to watershed districts or watershed management organizations
that have elected to assert local authority over protected
waters. The public waters work permit authority must be
delegated under guidelines of the commissioner and the
delegation must be done by agreement with the involved county,
municipality, watershed district, or water management
organization and in compliance with section 103G.315.
(b) For projects affecting public waters wetlands, the
commissioner may waive the requirement for a public waters work
permit if the local government unit makes a replacement, no-loss
or exemption determination in compliance with sections 103A.201,
103B.3355, and 103G.222 to 103G.2373, and rules adopted pursuant
to these same sections.
(c) For projects affecting both public waters and wetlands,
the local government unit may, by written agreement with the
commissioner, waive the requirement for a replacement plan,
no-loss or exemption determination if a public waters work
permit is required and the commissioner includes the provisions
of sections 103A.201, 103B.3355, and 103G.222 to 103G.2373, and
rules adopted pursuant to these same sections in the public
waters work permit.
Sec. 18. Minnesota Statutes 1998, section 645.44, is
amended by adding a subdivision to read:
Subd. 13a. [WETLANDS.] "Wetlands" means lands transitional
between terrestrial and aquatic systems where the water table is
usually at or near the surface or the land is covered by shallow
water. For purposes of this definition, wetlands must have the
following three attributes:
(1) have a predominance of hydric soils;
(2) are inundated or saturated by surface water or
groundwater at a frequency and duration sufficient to support a
prevalence of hydrophytic vegetation typically adapted for life
in saturated soil conditions; and
(3) under normal circumstances, support a prevalence of
such vegetation.
Sec. 19. [REPORT.]
By January 15, 2001, the board of water and soil resources
and the commissioner of natural resources shall provide a joint
report to the house and the senate committees responsible for
agriculture and environmental policy on further technical
changes to the Wetland Conservation Act and rules to provide for
an improved regulatory consolidation process, public water
inventory refinement, and other changes to improve wetland
regulatory programs. The report shall include the language on
any recommended draft law and rule changes.
Sec. 20. [EXEMPT RULES.]
(a) Within 90 days of the effective date of this section,
the board of water and soil resources and the commissioner of
natural resources shall adopt rules that amend the rules
previously adopted under Minnesota Statutes, sections 103G.2242,
subdivision 1; 103B.3355; and 103G.315, subdivision 15, to:
(1) provide sequencing and standard of application rules
for public waters wetlands and permanently and semipermanently
flooded areas of type 3, 4, and 5 wetlands under the Wetland
Conservation Act;
(2) incorporate changes to the statutes in this act; and
(3) other provisions to improve consistency of wetland
regulatory processes.
(b) The rules authorized under paragraph (a) are exempt
from the rulemaking provisions of Minnesota Statutes, chapter
14, except that Minnesota Statutes, section 14.386, applies and
the proposed rules must be submitted to the members of senate
and house environment and natural resource and agriculture
policy committees at least 30 days prior to 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.
Sec. 21. [EFFECTIVE DATE.]
Sections 1 to 5, 9 to 10, 14 to 16, and 18 to 20 are
effective the day following final enactment.
Presented to the governor April 10, 2000
Signed by the governor April 13, 2000, 4:58 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes