2005 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. 

    HIST: 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