Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 627-H.F.No. 3179
An act relating to wetlands; authorizing grants for
flood control measures along a portion of the Red
river; allowing alternative wetland regulation under
county plans; expanding types of wetlands that may be
used in the state wetland bank; modifying exemptions;
clarifying the applicability of the wetland
conservation act to the state; streamlining notice
requirements for smaller wetland projects; adding an
alternative compensation formula; expanding
eligibility for the permanent wetlands preserve;
amending Minnesota Statutes 1992, sections 103F.161,
subdivision 1; 103F.516, subdivision 1; 103G.2242,
subdivisions 1, 5, 6, 7, and 8; and 103G.237,
subdivision 4; Minnesota Statutes 1993 Supplement,
sections 103G.222; and 103G.2241.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1992, section 103F.161,
subdivision 1, is amended to read:
Subdivision 1. [GRANTS AUTHORIZED.] (a) The commissioner
may make grants to local governments to:
(1) conduct floodplain damage reduction studies to
determine the most feasible, practical, and effective methods
and programs for mitigating the damages due to flooding within
flood prone rural and urban areas and their watersheds; and
(2) plan and implement flood mitigation measures.
(b) The commissioner may cooperate with the North Dakota
state water commission, local governmental units, and local
water management organizations in this state and in North
Dakota, and the United States Army Corps of Engineers to develop
hydrologic models and conduct studies to evaluate the
practicality and feasibility of flood control measures along the
Red river from East Grand Forks to the Canadian border. The
commissioner may make grants to local governmental units for
these purposes. Flood control measures that may be investigated
include agricultural and urban levee systems, wetland
restoration, floodwater impoundments, farmstead ring-dikes, and
stream maintenance activities.
Sec. 2. Minnesota Statutes 1992, section 103F.516,
subdivision 1, is amended to read:
Subdivision 1. [EASEMENTS.] Upon application by a
landowner, the board may acquire permanent easements on land
containing type 1, 2, or 3, or 6 wetlands, as defined in United
States Fish and Wildlife Service Circular No. 39 (1971 edition).
Sec. 3. Minnesota Statutes 1993 Supplement, 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, a replacement plan under a local
governmental unit's comprehensive wetland protection and
management plan approved by the board under section 103G.2242,
subdivision 1, paragraph (c), 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.
(k) This section and sections 103G.223 to 103G.2242,
103G.2364, and 103G.2365 apply to the state and its departments
and agencies.
Sec. 4. Minnesota Statutes 1993 Supplement, section
103G.2241, is amended to read:
103G.2241 [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 outside of the existing right-of-way draining
or filling up to one-half acre of wetlands for the repair,
rehabilitation, or replacement of a previously authorized,
currently serviceable existing public road, provided that minor
deviations in the public road's configuration or filled area,
including those due to changes in materials, construction
techniques, or current construction codes or safety standards,
that are necessary to make repairs, rehabilitation, or
replacement are allowed if the wetland draining or filling
resulting from the repair, rehabilitation, or replacement is
minimized;
(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, 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;
(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) For the purpose of paragraph (a), clause (16),
"currently serviceable" means useable as is or with some
maintenance, but not so degraded as to essentially require
reconstruction. Paragraph (a), clause (16), authorizes the
repair, rehabilitation, or replacement of public roads destroyed
by storms, floods, fire, or other discrete events, provided the
repair, rehabilitation, or replacement is commenced or under
contract to commence within two years of the occurrence of the
destruction or damage.
(c) 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. 5. Minnesota Statutes 1992, section 103G.2242,
subdivision 1, is amended to read:
Subdivision 1. [RULES.] (a) By July 1, 1993, the board, in
consultation with the commissioner, shall adopt rules governing
the approval of wetland value replacement plans under this
section. 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 methodology to be used in identifying and
evaluating wetland functions; 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.
(c) The board may approve as an alternative to the rules
adopted under this subdivision a comprehensive wetland
protection and management plan developed by a local government
unit, provided that the plan:
(1) incorporates sections 103A.201, subdivision 2, and
103G.222;
(2) is adopted as part of an approved local water plan
under sections 103B.231 and 103B.311; and
(3) is adopted as part of the local government's official
controls.
(d) If the local government unit fails to apply the rules,
or fails to implement a local program under paragraph (c), the
government unit is subject to penalty as determined by the board.
Sec. 6. Minnesota Statutes 1992, section 103G.2242,
subdivision 5, is amended to read:
Subd. 5. [PROCESSING FEE.] The local government unit may
charge a processing fee of up to $75 fees in amounts not greater
than are necessary to cover the reasonable costs of implementing
the rules adopted under subdivision 1.
Sec. 7. Minnesota Statutes 1992, section 103G.2242,
subdivision 6, is amended to read:
Subd. 6. [NOTICE OF APPLICATION.] (a) Except as provided
in paragraph (b), within ten days of receiving an application
for approval of a replacement plan under this section, a copy of
the application must be submitted to the board for publication
in the Environmental Quality Board Monitor and separate copies
mailed to individual members of the public who request a copy,
the board of supervisors of the soil and water conservation
district, the managers of the watershed district, the board of
county commissioners, the commissioner of agriculture, and the
mayors of the cities within the area watershed. At the same
time, the local government unit must give general notice to the
public in a general circulation newspaper within the area
affected.
(b) Within ten days of receiving an application for
approval of a replacement plan under this section for an
activity affecting less than 10,000 square feet of wetland, a
summary of the application must be submitted for publication in
the Environmental Quality Board Monitor and separate copies
mailed to the members of the technical evaluation panel,
individual members of the public who request a copy, and the
managers of the watershed district, if applicable. At the same
time, the local government unit must give general notice to the
public in a general circulation newspaper within the area
affected.
Sec. 8. Minnesota Statutes 1992, section 103G.2242,
subdivision 7, is amended to read:
Subd. 7. [NOTICE OF DECISION.] (a) Except as provided in
paragraph (b), at least 30 days prior to the effective date of
the approval or denial of a replacement plan under this section,
a copy of the approval or denial must be submitted for
publication in the Environmental Quality Board Monitor and
separate copies mailed to the applicant, the board, individual
members of the public who request a copy, the board of
supervisors of the soil and water conservation district, the
managers of the watershed district, the board of county
commissioners, the commissioner of agriculture, and the mayors
of the cities within the area watershed.
(b) Within ten days of the decision approving or denying a
replacement plan under this section for an activity affecting
less than 10,000 square feet of wetland, a summary of the
approval or denial must be submitted for publication in the
Environmental Quality Board Monitor and separate copies mailed
to the applicant, individual members of the public who request a
copy, the members of the technical evaluation panel, and the
managers of the watershed district, if applicable. At the same
time, the local government unit must give general notice to the
public in a general circulation newspaper within the area
affected.
Sec. 9. Minnesota Statutes 1992, section 103G.2242,
subdivision 8, is amended to read:
Subd. 8. [PUBLIC COMMENT PERIOD.] Except for activities
impacting less than 10,000 square feet of wetland, before
approval or denial of a replacement plan under this section,
comments may be made by the public to the local government unit
for a period of 30 days.
Sec. 10. Minnesota Statutes 1992, section 103G.237,
subdivision 4, is amended to read:
Subd. 4. [COMPENSATION.] (a) The board shall award
compensation in an amount equal to 50 percent of the value of
the wetland, calculated by multiplying the acreage of the
wetland by the greater of:
(1) the average equalized estimated market value of
agricultural property in the township as established by the
commissioner of revenue at the time application for compensation
is made; or
(2) the assessed value per acre of the parcel containing
the wetland, based on the assessed value of the parcel as stated
on the most recent tax statement.
(b) A person who receives compensation under paragraph (a)
shall convey to the board a permanent conservation easement as
described in section 103F.515, subdivision 4. An easement
conveyed under this paragraph is subject to correction and
enforcement under section 103F.515, subdivisions 8 and 9.
Sec. 11. [INTERGOVERNMENTAL AGREEMENTS.]
The legislature encourages the use of intergovernmental
agreements between federal, state, and local governmental
entities for the purpose of further coordinating and simplifying
implementation of regulatory programs relating to activities in
wetlands.
Sec. 12. [PERMANENT WETLANDS PRESERVE; ELIGIBILITY OF
WATER BANK PARTICIPANTS.]
Notwithstanding Minnesota Statutes, section 103F.516,
subdivision 1, an owner of property that, as of July 1, 1991,
was subject to an easement agreement under Minnesota Statutes,
section 103F.601, is eligible for participation in the permanent
wetlands preserve program under Minnesota Statutes, section
103F.516.
Sec. 13. [EFFECTIVE DATE.]
Section 10 is effective July 1, 1994, and applies to
applications for compensation received by the board of water and
soil resources on or after that date. Section 9 is effective
the day following final enactment.
Presented to the governor May 6, 1994
Signed by the governor May 10, 1994, 3:54 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes