1997 Minnesota Statutes

     103G.2242 Wetland value replacement plans. 

    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.  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.

    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 a technical professional 
 with expertise in water resources management appointed by the 
 local government unit.  The panel shall use the "United States 
 Army Corps of Engineers Wetland Delineation Manual" (January 
 1987), "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 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. 

    Subd. 3.    Replacement completion.  Replacement of 
 wetland values must be completed prior to or concurrent with the 
 actual draining or filling of a wetland, or an irrevocable bank 
 letter of credit or other security acceptable to the local 
 government unit must be given to the local government unit to 
 guarantee the successful completion of the replacement.  

    Subd. 4.    Decision.  Upon receiving and considering 
 all required data, the local government unit reviewing 
 replacement plan applications, banking plan applications, and 
 exemption or no-loss determination requests must act on all 
 replacement plan applications, banking plan applications, and 
 exemption or no-loss determination requests in compliance with 
 section 15.99. 

    Subd. 5.    Processing fee.  The local government unit 
 may charge processing fees in amounts not greater than are 
 necessary to cover the reasonable costs of implementing the 
 rules adopted under subdivision 1.  

    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, copies of the complete application must be mailed to 
 the members of the technical evaluation panel, the managers of 
 the watershed district if one exists, and the commissioner of 
 natural resources.  Individual members of the public who request 
 a copy shall be provided information to identify the applicant 
 and the location and scope of the project. 

    (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 mailed to the members of the 
 technical evaluation panel, individual members of the public who 
 request a copy, and the commissioner of natural resources. 

    (c) For the purpose of this subdivision, "application" 
 includes a revised application for replacement plan approval and 
 an application for a revision to an approved replacement plan if:

    (1) the wetland area to be drained or filled under the 
 revised replacement plan is at least ten percent larger than the 
 area to be drained or filled under the original replacement 
 plan; or 

    (2) the wetland area to be drained or filled under the 
 revised replacement is located more than 500 feet from the area 
 to be drained or filled under the original replacement plan. 

    Subd. 7.    Notice of decision.  Within ten days of the 
 approval or denial of a replacement plan under this section, a 
 summary of the approval or denial must be mailed to members of 
 the technical evaluation panel, the applicant, individual 
 members of the public who request a copy, the managers of the 
 watershed district, if one exists, and the commissioner of 
 natural resources. 

    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. 

    Subd. 9.    Appeal.  Appeal of a replacement plan, 
 exemption, 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 the wetland owner, by any 
 of those to whom notice is required to be mailed under 
 subdivision 7, or by 100 residents of the county in which a 
 majority of the wetland is located.  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 the appeal is meritless, 
 trivial, or brought solely for the purposes of delay; that the 
 petitioner has not exhausted all local administrative remedies; 
 or that the petitioner has not posted a letter of credit, 
 cashier's check, or cash if required by the local government 
 unit.  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.  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. 

    Subd. 10.    Local requirements.  The rules adopted 
 under subdivision 1 shall allow for local government units to 
 use their own notice and public comment procedures so long as 
 the requirements of this section are satisfied. 

    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. 

    Subd. 12.    Replacement credits.  (a) No public or 
 private wetland restoration, enhancement, or construction may be 
 allowed for replacement unless specifically designated for 
 replacement and paid for by the individual or organization 
 performing the wetland restoration, enhancement, or 
 construction, and is completed prior to any draining or filling 
 of the wetland. 

    (b) Paragraph (a) does not apply to a wetland whose owner 
 has paid back with interest the individual or organization 
 restoring, enhancing, or constructing the wetland. 

    (c) Notwithstanding section 103G.222, subdivision 1, 
 paragraph (i), the following actions are eligible for 
 replacement credit as determined by the local government unit, 
 including enrollment in a statewide wetlands bank: 

    (1) Reestablishment of permanent vegetative cover on 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 supports 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.  
 Replacement credit may not exceed 50 percent of the total 
 wetland area vegetatively restored; 

    (2) Buffer areas of permanent vegetative cover established 
 on upland adjacent to replacement wetlands, provided that the 
 upland buffer must be established at the time of wetland 
 replacement and replacement credit for the buffer may not exceed 
 75 percent of the replacement wetland area and may only be used 
 for replacement above a 1:1 ratio; 

    (3) Wetlands restored for conservation purposes under 
 terminated easements or contracts, provided that up to 75 
 percent of the restored wetland area is eligible for replacement 
 credit and adjacent upland buffer areas reestablished to 
 permanent vegetative cover are eligible for replacement credit 
 above a 1:1 ratio in an amount not to exceed 25 percent of the 
 restored wetland area; and 

    (4) Water quality treatment ponds constructed to pretreat 
 storm water runoff prior to discharge to wetlands, public 
 waters, or other water bodies, provided that the water quality 
 treatment ponds must be associated with an ongoing or proposed 
 project that will impact a wetland and replacement credit for 
 the treatment ponds may not exceed 75 percent of the treatment 
 pond area and may only be used for replacement above a 1:1 ratio.

    Subd. 13. Repealed, 1996 c 462 s 44 

    HIST: 1991 c 354 art 6 s 11; 1993 c 175 s 4,5; 1994 c 627 s 
 5-9; 1996 c 462 s 26-32