1999 Minnesota Statutes

     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. 

    (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), 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 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) 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 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) 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. 

    (l) 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) 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) submit annual reports by January 15 to the board and 
 members of the public requesting a copy 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 
 during the upcoming year. 

    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 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) If a landowner seeks approval of a replacement plan 
 after the proposed project has already impacted the wetland, the 
 local government unit may require the landowner to replace the 
 impacted wetland at a ratio not to exceed twice the replacement 
 ratio otherwise required. 

    (o) 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) 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) 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 land use that leads to more compact 
 development or redevelopment; 

    (2) encourage public infrastructure investments which 
 connect urban neighborhoods and suburban 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. 

    HIST: 1991 c 354 art 6 s 8; 1993 c 175 s 2; 1994 c 627 s 3; 
 1996 c 462 s 24