2007 Minnesota Statutes

103G.2241 EXEMPTIONS.
    Subdivision 1. Agricultural activities. 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 type 1 wetland on agricultural pasture land that remains in the same use,
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 pasture land that remains in the same use;
    (3) activities in a wetland conducted as part of normal farming practices. For purposes of this
clause, "normal farming practices" means farming, silvicultural, grazing, and ranching activities
such as plowing, seeding, cultivating, and harvesting for the production of feed, food, and fiber
products, but does not include activities that result in the draining of wetlands;
    (4) soil and water conservation practices approved by the soil and water conservation district,
after review by the Technical Evaluation Panel;
    (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; or
    (7) agricultural activities on agricultural land that is subject to 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.
    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, except for parcels
subject to local zoning standards that allow for family members to establish an additional
residence on the same 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 agricultural land that: (1) was planted
with annually seeded crops before July 5, except for crops that are normally planted after that
date, in eight out of the ten most recent years prior to the impact; (2) was in a crop rotation
seeding of pasture grass, cover crop, or legumes, or was fallow for a crop production purpose, in
eight out of the ten most recent years prior to the impact; or (3) was enrolled in a state or federal
land conservation program and met the requirements of clause (1) or (2) before enrollment.
    (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 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:
    (1) activities in a wetland restored or created for conservation purposes under a contract or
easement providing the landowner with the right to drain the restored or created wetland; or
    (2) activities in a wetland restored or created by a landowner without any assistance or
financing from public agencies or private entities other than the landowner and the wetland has
not been used for wetland replacement or deposited in the state wetland bank.
    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) A replacement plan for wetlands is not required for:
    (1) new placement or maintenance, repair, enhancement, or replacement of existing utility
or utility-type service, including pipelines, if:
    (i) the direct and indirect impacts of the proposed project 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 operation, routine maintenance, or emergency repair of
existing utilities and public work structures, including pipelines, provided the activities do not
result in additional wetland intrusion or additional draining or filling of a wetland either wholly
or partially; or
    (3) repair and updating of existing individual sewage treatment systems necessary to comply
with local, state, and federal regulations.
    (b) For maintenance, repair, and replacement, the local government unit may issue a
seasonal or annual exemption certification or the utility may proceed without local government
unit certification if the utility is carrying out the work according to approved best management
practices. Work of an emergency nature may proceed as necessary and any drain or fill activities
shall be addressed with the local government unit after the emergency work has been completed.
    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.[Repealed, 2007 c 57 art 1 s 170]
    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, except
within the 11-county metropolitan 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, except within the 11-county metropolitan area;
    (4) 100 square feet of wetland types not listed in clauses (1) to (3) outside of the building
setback zone of the shoreland wetland protection zones in all counties;
    (5) 400 square feet of wetland types listed in clauses (1) to (3), beyond the building setback
zone, as defined in the local shoreland management ordinance, but within the shoreland wetland
protection zone. In a greater than 80 percent area, the local government unit may increase the de
minimis amount up to 1,000 square feet 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;
    (6) up to 20 square feet of wetland, regardless of type or location;
    (7) 2,500 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 within
the 11-county metropolitan area; or
    (8) 1,000 square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland protection
zone in a less than 50 percent area within the 11-county metropolitan area.
    For purposes of this paragraph, the 11-county metropolitan area consists of the counties of
Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, Scott, Sherburne, Washington,
and Wright.
    (b) The amounts listed in paragraph (a), clauses (1) to (8), 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.
    (e) Property may not be divided to increase the amounts listed in paragraph (a).
    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.
    (d) The board shall develop rules that address the application and implementation of
exemptions and that provide for estimates and reporting of exempt wetland impacts, including
those in section 103G.2241, subdivisions 2, 6, and 9.
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; 2007 c 57 art 1 s 122-127; 2007 c 131 art 1 s 55