Bill Text: MN HF1637 | 2013-2014 | 88th Legislature | Introduced
Bill Title: Wetland replacement requirements modified, funding provided, and money appropriated.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-03-20 - Introduction and first reading, referred to Environment and Natural Resources Policy [HF1637 Detail]
Download: Minnesota-2013-HF1637-Introduced.html
1.2relating to natural resources; modifying wetland replacement requirements;
1.3appropriating money;amending Minnesota Statutes 2012, sections 103G.222,
1.4subdivision 1; 103G.2242, subdivisions 1, 3.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2012, section 103G.222, subdivision 1, is amended to
1.7read:
1.8 Subdivision 1. Requirements. (a) Wetlands must not be drained or filled, wholly or
1.9partially, unless replaced by restoring or creating wetland areas of at least equal public
1.10value under a replacement plan approved as provided in section103G.2242 , a replacement
1.11plan under a local governmental unit's comprehensive wetland protection and management
1.12plan approved by the board under section103G.2243 , or, if a permit to mine is required
1.13under section93.481 , under a mining reclamation plan approved by the commissioner
1.14under the permit to mine. For project-specific wetland replacement completed prior to
1.15wetland impacts authorized or conducted under a permit to mine within the Great Lakes
1.16and, Rainy River, and Red River of the North watershed basins, those basins shall be
1.17considered a single watershed for purposes of determining wetland replacement ratios.
1.18Mining reclamation plans shall apply the same principles and standards for replacing
1.19wetlands by restoration or creation of wetland areas that are applicable to mitigation
1.20plans approved as provided in section103G.2242 . Public value must be determined
1.21in accordance with section103B.3355 or a comprehensive wetland protection and
1.22management plan established under section103G.2243 . Sections
103G.221 to
103G.2372
1.23also apply to excavation in permanently and semipermanently flooded areas of types 3,
1.244, and 5 wetlands.
2.1 (b) Replacement must be guided by the following principles in descending order
2.2of priority:
2.3 (1) avoiding the direct or indirect impact of the activity that may destroy or diminish
2.4the wetland;
2.5 (2) minimizing the impact by limiting the degree or magnitude of the wetland
2.6activity and its implementation;
2.7 (3) rectifying the impact by repairing, rehabilitating, or restoring the affected
2.8wetland environment;
2.9 (4) reducing or eliminating the impact over time by preservation and maintenance
2.10operations during the life of the activity;
2.11 (5) compensating for the impact by restoring a wetland; and
2.12 (6) compensating for the impact by replacing or providing substitute wetland
2.13resources or environments.
2.14 For a project involving the draining or filling of wetlands in an amount not exceeding
2.1510,000 square feet more than the applicable amount in section103G.2241, subdivision 9 ,
2.16paragraph (a), the local government unit may make an on-site sequencing determination
2.17without a written alternatives analysis from the applicant.
2.18 (c) If a wetland is located in a cultivated field, then replacement must be accomplished
2.19through restoration only without regard to the priority order in paragraph (b), provided
2.20that the altered wetland is not converted to a nonagricultural use for at least ten years.
2.21 (d) If a wetland is replaced under paragraph (c), or drained under section103G.2241,
2.22subdivision 2 , paragraph (b) or (e), the local government unit may require a deed
2.23restriction that prohibits nonagricultural use for at least ten years. The local government
2.24unit may require the deed restriction if it determines the wetland area drained is at risk of
2.25conversion to a nonagricultural use within ten years based on the zoning classification,
2.26proximity to a municipality or full service road, or other criteria as determined by the
2.27local government unit.
2.28 (e) Restoration and replacement of wetlands must be accomplished in accordance
2.29with the ecology of the landscape area affected and ponds that are created primarily to
2.30fulfill storm water management, and water quality treatment requirements may not be
2.31used to satisfy replacement requirements under this chapter unless the design includes
2.32pretreatment of runoff and the pond is functioning as a wetland.
2.33 (f) Except as provided in paragraph (g), for a wetland or public waters wetland
2.34located on nonagricultural land, replacement must be in the ratio of two acres of replaced
2.35wetland for each acre of drained or filled wetland.
3.1 (g) For a wetland or public waters wetland located on agricultural land or in a greater
3.2than 80 percent area, replacement must be in the ratio of one acre of replaced wetland
3.3for each acre of drained or filled wetland.
3.4 (h) Wetlands that are restored or created as a result of an approved replacement plan
3.5are subject to the provisions of this section for any subsequent drainage or filling.
3.6 (i) Except in a greater than 80 percent area, only wetlands that have been restored
3.7from previously drained or filled wetlands, wetlands created by excavation in nonwetlands,
3.8wetlands created by dikes or dams along public or private drainage ditches, or wetlands
3.9created by dikes or dams associated with the restoration of previously drained or filled
3.10wetlands may be used in a statewide banking program established in rules adopted under
3.11section103G.2242, subdivision 1 . Modification or conversion of nondegraded naturally
3.12occurring wetlands from one type to another are not eligible for enrollment in a statewide
3.13wetlands bank.
3.14 (j) The Technical Evaluation Panel established under section103G.2242, subdivision
3.152 , shall ensure that sufficient time has occurred for the wetland to develop wetland
3.16characteristics of soils, vegetation, and hydrology before recommending that the wetland
3.17be deposited in the statewide wetland bank. If the Technical Evaluation Panel has reason
3.18to believe that the wetland characteristics may change substantially, the panel shall
3.19postpone its recommendation until the wetland has stabilized.
3.20 (k) This section and sections103G.223 to
103G.2242 ,
103G.2364 , and
103G.2365
3.21apply to the state and its departments and agencies.
3.22 (l) For projects involving draining or filling of wetlands associated with a new public
3.23transportation project, and for projects expanded solely for additional traffic capacity,
3.24public transportation authorities may purchase credits from the board at the cost to the
3.25board to establish credits. Proceeds from the sale of credits provided under this paragraph
3.26are appropriated to the board for the purposes of this paragraph. For the purposes of this
3.27paragraph, "transportation project" does not include an airport project.
3.28 (m) A replacement plan for wetlands is not required for individual projects that
3.29result in the filling or draining of wetlands for the repair, rehabilitation, reconstruction,
3.30or replacement of a currently serviceable existing state, city, county, or town public road
3.31necessary, as determined by the public transportation authority, to meet state or federal
3.32design or safety standards or requirements, excluding new roads or roads expanded solely
3.33for additional traffic capacity lanes. This paragraph only applies to authorities for public
3.34transportation projects that:
3.35 (1) minimize the amount of wetland filling or draining associated with the project
3.36and consider mitigating important site-specific wetland functions on site;
4.1 (2) except as provided in clause (3), submit project-specific reports to the board, the
4.2Technical Evaluation Panel, the commissioner of natural resources, and members of the
4.3public requesting a copy at least 30 days prior to construction that indicate the location,
4.4amount, and type of wetlands to be filled or drained by the project or, alternatively,
4.5convene an annual meeting of the parties required to receive notice to review projects to
4.6be commenced during the upcoming year; and
4.7 (3) for minor and emergency maintenance work impacting less than 10,000 square
4.8feet, submit project-specific reports, within 30 days of commencing the activity, to the board
4.9that indicate the location, amount, and type of wetlands that have been filled or drained.
4.10 Those required to receive notice of public transportation projects may appeal
4.11minimization, delineation, and on-site mitigation decisions made by the public
4.12transportation authority to the board according to the provisions of section103G.2242,
4.13subdivision 9 . The Technical Evaluation Panel shall review minimization and delineation
4.14decisions made by the public transportation authority and provide recommendations
4.15regarding on-site mitigation if requested to do so by the local government unit, a
4.16contiguous landowner, or a member of the Technical Evaluation Panel.
4.17 Except for state public transportation projects, for which the state Department of
4.18Transportation is responsible, the board must replace the wetlands, and wetland areas of
4.19public waters if authorized by the commissioner or a delegated authority, drained or filled
4.20by public transportation projects on existing roads.
4.21 Public transportation authorities at their discretion may deviate from federal and
4.22state design standards on existing road projects when practical and reasonable to avoid
4.23wetland filling or draining, provided that public safety is not unreasonably compromised.
4.24The local road authority and its officers and employees are exempt from liability for
4.25any tort claim for injury to persons or property arising from travel on the highway and
4.26related to the deviation from the design standards for construction or reconstruction under
4.27this paragraph. This paragraph does not preclude an action for damages arising from
4.28negligence in construction or maintenance on a highway.
4.29 (n) If a landowner seeks approval of a replacement plan after the proposed project
4.30has already affected the wetland, the local government unit may require the landowner to
4.31replace the affected wetland at a ratio not to exceed twice the replacement ratio otherwise
4.32required.
4.33 (o) A local government unit may request the board to reclassify a county or
4.34watershed on the basis of its percentage of presettlement wetlands remaining. After
4.35receipt of satisfactory documentation from the local government, the board shall change
4.36the classification of a county or watershed. If requested by the local government unit,
5.1the board must assist in developing the documentation. Within 30 days of its action to
5.2approve a change of wetland classifications, the board shall publish a notice of the change
5.3in the Environmental Quality Board Monitor.
5.4 (p) One hundred citizens who reside within the jurisdiction of the local government
5.5unit may request the local government unit to reclassify a county or watershed on the basis
5.6of its percentage of presettlement wetlands remaining. In support of their petition, the
5.7citizens shall provide satisfactory documentation to the local government unit. The local
5.8government unit shall consider the petition and forward the request to the board under
5.9paragraph (o) or provide a reason why the petition is denied.
5.10 Sec. 2. Minnesota Statutes 2012, section 103G.2242, subdivision 1, is amended to read:
5.11 Subdivision 1. Rules. (a) The board, in consultation with the commissioner, shall
5.12adopt rules governing the approval of wetland value replacement plans under this section
5.13and public waters work permits affecting public waters wetlands under section103G.245 .
5.14These rules must address the criteria, procedure, timing, and location of acceptable
5.15replacement of wetland values; may address the state establishment and administration of
5.16a wetland banking program for public and private projects, which may includeprovisions
5.17allowing the development of an in-lieu fee wetland replacement program that allows
5.18satisfaction of wetland replacement requirements via a monetary paymentto the wetland
5.19banking program for alteration of wetlands on agricultural land; the administrative,
5.20monitoring, and enforcement procedures to be used; and a procedure for the review and
5.21appeal of decisions under this section. In the case of peatlands, the replacement plan rules
5.22must consider the impact on carbon balance described in the report required by Laws
5.231990, chapter 587, and include the planting of trees or shrubs.
5.24(b) After the adoption of the rules, a replacement plan must be approved by a
5.25resolution of the governing body of the local government unit, consistent with the
5.26provisions of the rules or a comprehensive wetland protection and management plan
5.27approved under section103G.2243 .
5.28(c) If the local government unit fails to apply the rules, or fails to implement a
5.29local comprehensive wetland protection and management plan established under section
5.30103G.2243
, the government unit is subject to penalty as determined by the board.
5.31 Sec. 3. Minnesota Statutes 2012, section 103G.2242, subdivision 3, is amended to read:
5.32 Subd. 3. Replacement completion. Replacement of wetland values must be
5.33completed prior to or concurrent with the actual draining or filling of a wetland, unless an
5.34irrevocable bank letter of credit or other security acceptable to the local government unit
6.1or the board is given to the local government unit or the board to guarantee the successful
6.2completion of the replacement. The board may establish, sponsor, or administer a wetland
6.3banking program, which may include an in-lieu fee wetland replacement program with
6.4 provisions allowing for the satisfaction of wetland replacement requirements via a
6.5monetary paymentto the wetland bank for impacts to wetlands on agricultural land, for
6.6impacts that occur in greater than 80 percent areas, and for public road projects. For
6.7the purposes of this section, the board may acquire land or an interest in land, enter
6.8into agreements, and purchase existing wetland replacement credits. The board may
6.9establish and collect fees to be deposited into a dedicated account. Funds deposited in
6.10the dedicated account are annually appropriated to the board for administering an in-lieu
6.11fee wetland replacement program. The board shall coordinate the establishment and
6.12operation of a wetland bank with the United States Army Corps of Engineers, the Natural
6.13Resources Conservation Service of the United States Department of Agriculture, and the
6.14commissioners of natural resources, agriculture, and the Pollution Control Agency.
6.15 Sec. 4. WETLAND REPLACEMENT RECOMMENDATIONS.
6.16The Board of Water and Soil Resources shall develop recommendations to target
6.17and authorize wetland mitigation in priority watersheds when wetland mitigation is not
6.18reasonably available within the watershed of the wetland impact. The recommendations
6.19may include an in-lieu fee wetland replacement program or other options for the siting
6.20of replacement wetlands, as well as procedures for identifying priority watersheds. The
6.21board shall include stakeholders in this effort, including the United States Army Corps
6.22of Engineers, and provide the recommendations to the chairs and ranking minority
6.23members of the senate and house of representatives committees and divisions having
6.24primary jurisdiction over environment and natural resources policy and finance no later
6.25than February 15, 2014.
1.3appropriating money;amending Minnesota Statutes 2012, sections 103G.222,
1.4subdivision 1; 103G.2242, subdivisions 1, 3.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2012, section 103G.222, subdivision 1, is amended to
1.7read:
1.8 Subdivision 1. Requirements. (a) Wetlands must not be drained or filled, wholly or
1.9partially, unless replaced by restoring or creating wetland areas of at least equal public
1.10value under a replacement plan approved as provided in section
1.11plan under a local governmental unit's comprehensive wetland protection and management
1.12plan approved by the board under section
1.13under section
1.14under the permit to mine. For project-specific wetland replacement completed prior to
1.15wetland impacts authorized or conducted under a permit to mine within the Great Lakes
1.16
1.17considered a single watershed for purposes of determining wetland replacement ratios.
1.18Mining reclamation plans shall apply the same principles and standards for replacing
1.19wetlands by restoration or creation of wetland areas that are applicable to mitigation
1.20plans approved as provided in section
1.21in accordance with section
1.22management plan established under section
1.23also apply to excavation in permanently and semipermanently flooded areas of types 3,
1.244, and 5 wetlands.
2.1 (b) Replacement must be guided by the following principles in descending order
2.2of priority:
2.3 (1) avoiding the direct or indirect impact of the activity that may destroy or diminish
2.4the wetland;
2.5 (2) minimizing the impact by limiting the degree or magnitude of the wetland
2.6activity and its implementation;
2.7 (3) rectifying the impact by repairing, rehabilitating, or restoring the affected
2.8wetland environment;
2.9 (4) reducing or eliminating the impact over time by preservation and maintenance
2.10operations during the life of the activity;
2.11 (5) compensating for the impact by restoring a wetland; and
2.12 (6) compensating for the impact by replacing or providing substitute wetland
2.13resources or environments.
2.14 For a project involving the draining or filling of wetlands in an amount not exceeding
2.1510,000 square feet more than the applicable amount in section
2.16paragraph (a), the local government unit may make an on-site sequencing determination
2.17without a written alternatives analysis from the applicant.
2.18 (c) If a wetland is located in a cultivated field, then replacement must be accomplished
2.19through restoration only without regard to the priority order in paragraph (b), provided
2.20that the altered wetland is not converted to a nonagricultural use for at least ten years.
2.21 (d) If a wetland is replaced under paragraph (c), or drained under section
2.22subdivision 2
2.23restriction that prohibits nonagricultural use for at least ten years. The local government
2.24unit may require the deed restriction if it determines the wetland area drained is at risk of
2.25conversion to a nonagricultural use within ten years based on the zoning classification,
2.26proximity to a municipality or full service road, or other criteria as determined by the
2.27local government unit.
2.28 (e) Restoration and replacement of wetlands must be accomplished in accordance
2.29with the ecology of the landscape area affected and ponds that are created primarily to
2.30fulfill storm water management, and water quality treatment requirements may not be
2.31used to satisfy replacement requirements under this chapter unless the design includes
2.32pretreatment of runoff and the pond is functioning as a wetland.
2.33 (f) Except as provided in paragraph (g), for a wetland or public waters wetland
2.34located on nonagricultural land, replacement must be in the ratio of two acres of replaced
2.35wetland for each acre of drained or filled wetland.
3.1 (g) For a wetland or public waters wetland located on agricultural land or in a greater
3.2than 80 percent area, replacement must be in the ratio of one acre of replaced wetland
3.3for each acre of drained or filled wetland.
3.4 (h) Wetlands that are restored or created as a result of an approved replacement plan
3.5are subject to the provisions of this section for any subsequent drainage or filling.
3.6 (i) Except in a greater than 80 percent area, only wetlands that have been restored
3.7from previously drained or filled wetlands, wetlands created by excavation in nonwetlands,
3.8wetlands created by dikes or dams along public or private drainage ditches, or wetlands
3.9created by dikes or dams associated with the restoration of previously drained or filled
3.10wetlands may be used in a statewide banking program established in rules adopted under
3.11section
3.12occurring wetlands from one type to another are not eligible for enrollment in a statewide
3.13wetlands bank.
3.14 (j) The Technical Evaluation Panel established under section
3.152
3.16characteristics of soils, vegetation, and hydrology before recommending that the wetland
3.17be deposited in the statewide wetland bank. If the Technical Evaluation Panel has reason
3.18to believe that the wetland characteristics may change substantially, the panel shall
3.19postpone its recommendation until the wetland has stabilized.
3.20 (k) This section and sections
3.22 (l) For projects involving draining or filling of wetlands associated with a new public
3.23transportation project, and for projects expanded solely for additional traffic capacity,
3.24public transportation authorities may purchase credits from the board at the cost to the
3.25board to establish credits. Proceeds from the sale of credits provided under this paragraph
3.26are appropriated to the board for the purposes of this paragraph. For the purposes of this
3.27paragraph, "transportation project" does not include an airport project.
3.28 (m) A replacement plan for wetlands is not required for individual projects that
3.29result in the filling or draining of wetlands for the repair, rehabilitation, reconstruction,
3.30or replacement of a currently serviceable existing state, city, county, or town public road
3.31necessary, as determined by the public transportation authority, to meet state or federal
3.32design or safety standards or requirements, excluding new roads or roads expanded solely
3.33for additional traffic capacity lanes. This paragraph only applies to authorities for public
3.34transportation projects that:
3.35 (1) minimize the amount of wetland filling or draining associated with the project
3.36and consider mitigating important site-specific wetland functions on site;
4.1 (2) except as provided in clause (3), submit project-specific reports to the board, the
4.2Technical Evaluation Panel, the commissioner of natural resources, and members of the
4.3public requesting a copy at least 30 days prior to construction that indicate the location,
4.4amount, and type of wetlands to be filled or drained by the project or, alternatively,
4.5convene an annual meeting of the parties required to receive notice to review projects to
4.6be commenced during the upcoming year; and
4.7 (3) for minor and emergency maintenance work impacting less than 10,000 square
4.8feet, submit project-specific reports, within 30 days of commencing the activity, to the board
4.9that indicate the location, amount, and type of wetlands that have been filled or drained.
4.10 Those required to receive notice of public transportation projects may appeal
4.11minimization, delineation, and on-site mitigation decisions made by the public
4.12transportation authority to the board according to the provisions of section
4.13subdivision 9
4.14decisions made by the public transportation authority and provide recommendations
4.15regarding on-site mitigation if requested to do so by the local government unit, a
4.16contiguous landowner, or a member of the Technical Evaluation Panel.
4.17 Except for state public transportation projects, for which the state Department of
4.18Transportation is responsible, the board must replace the wetlands, and wetland areas of
4.19public waters if authorized by the commissioner or a delegated authority, drained or filled
4.20by public transportation projects on existing roads.
4.21 Public transportation authorities at their discretion may deviate from federal and
4.22state design standards on existing road projects when practical and reasonable to avoid
4.23wetland filling or draining, provided that public safety is not unreasonably compromised.
4.24The local road authority and its officers and employees are exempt from liability for
4.25any tort claim for injury to persons or property arising from travel on the highway and
4.26related to the deviation from the design standards for construction or reconstruction under
4.27this paragraph. This paragraph does not preclude an action for damages arising from
4.28negligence in construction or maintenance on a highway.
4.29 (n) If a landowner seeks approval of a replacement plan after the proposed project
4.30has already affected the wetland, the local government unit may require the landowner to
4.31replace the affected wetland at a ratio not to exceed twice the replacement ratio otherwise
4.32required.
4.33 (o) A local government unit may request the board to reclassify a county or
4.34watershed on the basis of its percentage of presettlement wetlands remaining. After
4.35receipt of satisfactory documentation from the local government, the board shall change
4.36the classification of a county or watershed. If requested by the local government unit,
5.1the board must assist in developing the documentation. Within 30 days of its action to
5.2approve a change of wetland classifications, the board shall publish a notice of the change
5.3in the Environmental Quality Board Monitor.
5.4 (p) One hundred citizens who reside within the jurisdiction of the local government
5.5unit may request the local government unit to reclassify a county or watershed on the basis
5.6of its percentage of presettlement wetlands remaining. In support of their petition, the
5.7citizens shall provide satisfactory documentation to the local government unit. The local
5.8government unit shall consider the petition and forward the request to the board under
5.9paragraph (o) or provide a reason why the petition is denied.
5.10 Sec. 2. Minnesota Statutes 2012, section 103G.2242, subdivision 1, is amended to read:
5.11 Subdivision 1. Rules. (a) The board, in consultation with the commissioner, shall
5.12adopt rules governing the approval of wetland value replacement plans under this section
5.13and public waters work permits affecting public waters wetlands under section
5.14These rules must address the criteria, procedure, timing, and location of acceptable
5.15replacement of wetland values; may address the state establishment and administration of
5.16a wetland banking program for public and private projects, which may include
5.17
5.18satisfaction of wetland replacement requirements via a monetary payment
5.19
5.20monitoring, and enforcement procedures to be used; and a procedure for the review and
5.21appeal of decisions under this section. In the case of peatlands, the replacement plan rules
5.22must consider the impact on carbon balance described in the report required by Laws
5.231990, chapter 587, and include the planting of trees or shrubs.
5.24(b) After the adoption of the rules, a replacement plan must be approved by a
5.25resolution of the governing body of the local government unit, consistent with the
5.26provisions of the rules or a comprehensive wetland protection and management plan
5.27approved under section
5.28(c) If the local government unit fails to apply the rules, or fails to implement a
5.29local comprehensive wetland protection and management plan established under section
5.31 Sec. 3. Minnesota Statutes 2012, section 103G.2242, subdivision 3, is amended to read:
5.32 Subd. 3. Replacement completion. Replacement of wetland values must be
5.33completed prior to or concurrent with the actual draining or filling of a wetland, unless an
5.34irrevocable bank letter of credit or other security acceptable to the local government unit
6.1or the board is given to the local government unit or the board to guarantee the successful
6.2completion of the replacement. The board may establish, sponsor, or administer a wetland
6.3banking program, which may include an in-lieu fee wetland replacement program with
6.4 provisions allowing for the satisfaction of wetland replacement requirements via a
6.5monetary payment
6.6
6.7the purposes of this section, the board may acquire land or an interest in land, enter
6.8into agreements, and purchase existing wetland replacement credits. The board may
6.9establish and collect fees to be deposited into a dedicated account. Funds deposited in
6.10the dedicated account are annually appropriated to the board for administering an in-lieu
6.11fee wetland replacement program. The board shall coordinate the establishment and
6.12operation of a wetland bank with the United States Army Corps of Engineers, the Natural
6.13Resources Conservation Service of the United States Department of Agriculture, and the
6.14commissioners of natural resources, agriculture, and the Pollution Control Agency.
6.15 Sec. 4. WETLAND REPLACEMENT RECOMMENDATIONS.
6.16The Board of Water and Soil Resources shall develop recommendations to target
6.17and authorize wetland mitigation in priority watersheds when wetland mitigation is not
6.18reasonably available within the watershed of the wetland impact. The recommendations
6.19may include an in-lieu fee wetland replacement program or other options for the siting
6.20of replacement wetlands, as well as procedures for identifying priority watersheds. The
6.21board shall include stakeholders in this effort, including the United States Army Corps
6.22of Engineers, and provide the recommendations to the chairs and ranking minority
6.23members of the senate and house of representatives committees and divisions having
6.24primary jurisdiction over environment and natural resources policy and finance no later
6.25than February 15, 2014.
