2006 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. Sections 103G.221 to 103G.2372 also apply to excavation in permanently
and semipermanently flooded areas of types 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) Except as provided in paragraph (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.
(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.
(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.
(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.
(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.
(j) This section and sections 103G.223 to 103G.2242, 103G.2364, and 103G.2365 apply
to the state and its departments and agencies.
(k) For projects involving draining or filling of wetlands associated with a new public
transportation project, and for projects expanded solely for additional traffic capacity, public
transportation authorities may purchase credits from the board at the cost to the board to establish
credits. Proceeds from the sale of credits provided under this paragraph are appropriated to
the board for the purposes of this paragraph.
(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;
(2) except as provided in clause (3), submit project-specific reports 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
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.
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.
(m) If a landowner seeks approval of a replacement plan after the proposed project has
already affected the wetland, the local government unit may require the landowner to replace the
affected wetland at a ratio not to exceed twice the replacement ratio otherwise required.
(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.
(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 (n) or provide a
reason why the petition is denied.
    Subd. 2. Road credit funding. The board shall give priority to restoration projects that:
(1) will encourage land use that leads to more compact development or redevelopment;
(2) will encourage public or private infrastructure investments which connect ecosystems and
communities, attract private sector investment in commercial or residential properties adjacent to
the public improvement; or
(3) 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 at a ratio of two to one in: (i) the affected county or, (ii) in another of the
seven metropolitan counties, or (iii) in one of the major watersheds that are wholly or partially
within the seven-county metropolitan area, but at least one to one must be replaced within the
seven-county metropolitan area.
(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.
History: 1991 c 354 art 6 s 8; 1993 c 175 s 2; 1994 c 627 s 3; 1996 c 462 s 24; 2000 c 382 s
5; 2003 c 128 art 1 s 112,113; 2004 c 255 s 44