2006 Minnesota Statutes

103G.2241 EXEMPTIONS.
    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 Agriculture Improvement and Reform Act of 1996 and is
subject to United States Code, title 16, sections 3821 to 3823, in effect on January 1, 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.
(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.
    Subd. 2. Drainage. (a) For the purposes of this subdivision, "public drainage system" means
a drainage system as defined in section 103E.005, subdivision 12, and any ditch or tile lawfully
connected to the drainage system.
(b) A replacement plan is not required for draining of type 1 wetlands, or up to five acres of
type 2 or 6 wetlands, in an unincorporated area on land that has been assessed drainage benefits
for a public drainage system, provided that:
(1) during the 20-year period that ended January 1, 1992:
(i) there was an expenditure made from the drainage system account for the public drainage
system;
(ii) the public drainage system was repaired or maintained as approved by the drainage
authority; or
(iii) no repair or maintenance of the public drainage system was required under section
103E.705, subdivision 1, as determined by the public drainage authority; and
(2) the wetlands are not drained for conversion to:
(i) platted lots;
(ii) planned unit, commercial, or industrial developments; or
(iii) any development with more than one residential unit per 40 acres.
If wetlands drained under this paragraph are converted to uses prohibited under clause (2) during
the ten-year period following drainage, the wetlands must be replaced under section 103G.222.
(c) A replacement plan is not required for draining or filling of wetlands, except for draining
types 3, 4, and 5 wetlands that have been in existence for more than 25 years, resulting from
maintenance and repair of existing public drainage systems.
(d) A replacement plan is not required for draining or filling of wetlands, except for draining
wetlands that have been in existence for more than 25 years, resulting from maintenance and
repair of existing drainage systems other than public drainage systems.
(e) A replacement plan is not required for draining or filling of wetlands resulting from
activities conducted as part of a public drainage system improvement project that received final
approval from the drainage authority before July 1, 1991, and after July 1, 1986, if:
(1) the approval remains valid;
(2) the project remains active; and
(3) no additional drainage will occur beyond that originally approved.
(f) The public drainage authority may, as part of the repair, install control structures, realign
the ditch, construct dikes along the ditch, or make other modifications as necessary to prevent
drainage of the wetland.
(g) Wetlands of all types that would be drained as a part of a public drainage repair project
are eligible for the permanent wetlands preserve under section 103F.516. The board shall give
priority to acquisition of easements on types 3, 4, and 5 wetlands that have been in existence for
more than 25 years on public drainage systems and other wetlands that have the greatest risk of
drainage from a public drainage repair project.
    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.
    Subd. 4. Wetland restoration. A replacement plan for wetlands is not required for activities
in a wetland restored for conservation purposes under a contract or easement providing the
landowner with the right to drain the restored wetland.
    Subd. 5. Incidental wetlands. A replacement plan for wetlands is not required for activities
in a wetland created solely as a result of:
(1) beaver dam construction;
(2) blockage of culverts through roadways maintained by a public or private entity;
(3) actions by public or private entities that were taken for a purpose other than creating
the wetland; or
(4) any combination of clauses (1) to (3).
    Subd. 6. Utilities; public works. A replacement plan for wetlands is not required for:
(1) placement, maintenance, repair, enhancement, or replacement of utility or utility-type
service 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;
(2) activities associated with routine maintenance of utility and pipeline rights-of-way,
provided the activities do not result in additional intrusion into the wetland;
(3) alteration of a wetland associated with the operation, maintenance, or repair of an
interstate pipeline within all existing or acquired interstate pipeline rights-of-way;
(4) 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 does
not result in the draining or filling, wholly or partially, of a wetland;
(5) 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; or
(6) repair and updating of existing individual sewage treatment systems as necessary to
comply with local, state, and federal regulations.
    Subd. 7. Forestry. A replacement plan for wetlands is not required for:
(1) 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; or
(2) 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; filling is avoided wherever
possible; and there is no drainage of the wetland or public waters.
    Subd. 8. Approved development. A replacement plan for wetlands is not required for
development projects and ditch improvement projects in the state that have received preliminary
or final plat approval or have infrastructure that has been installed or has 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. As used in this subdivision, "infrastructure" means public
water facilities, storm water and sanitary sewer piping, outfalls, inlets, culverts, bridges, and any
other work defined specifically by a local government unit as constituting a capital improvement
to a parcel within the context of an approved development plan.
    Subd. 9. De minimis. (a) Except as provided in paragraphs (b) and (c), a replacement plan
for wetlands is not required for draining or filling the following amounts of wetlands 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) This exemption may not be combined with another exemption in this section on a project.
    Subd. 10. Wildlife habitat. A replacement plan for wetlands is not required for:
(1) deposition of spoil resulting from excavation within a wetland for a wildlife habitat
improvement project, if:
(i) the area of deposition does not exceed five percent of the wetland area or one-half acre,
whichever is less, and the spoil is stabilized and permanently seeded to prevent erosion;
(ii) the project does not have an adverse impact on any species designated as endangered
or threatened under state or federal law; and
(iii) the project will provide wildlife habitat improvement as certified by the soil and water
conservation district; or
(2) duck blinds.
    Subd. 11. Exemption conditions. (a) A person conducting an activity in a wetland under an
exemption in subdivisions 1 to 10 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.
(b) An activity is exempt if it qualifies for any one of the exemptions, even though it may be
indicated as not exempt under another exemption.
(c) Persons proposing to conduct an exempt activity are encouraged to contact the local
government unit or the local government unit's designee for advice on minimizing wetland
impacts.
History: 1991 c 354 art 6 s 10; 1993 c 175 s 3; 1993 c 226 s 20; 1994 c 627 s 4; 1996 c
462 s 25; 2000 c 382 s 6-8