Bill Text: MN HF901 | 2011-2012 | 87th Legislature | Introduced
Bill Title: Wetland replacement requirements modified.
Sponsorship: Bipartisan Bill
Status: (Introduced - Dead) 2011-03-07 - Introduction and first reading, referred to Environment, Energy and Natural Resources Policy and Finance [HF901 Detail]
Download: Minnesota-2011-HF901-Introduced.html
1.2relating to natural resources; modifying certain wetland replacement
1.3requirements;amending Minnesota Statutes 2010, section 103G.222, subdivision
1.41.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2010, section 103G.222, subdivision 1, is amended to
1.7read:
1.8 Subdivision 1. Requirements. (a) Wetlands must not be drained or filled, wholly
1.9or partially, unless replaced by restoring or creating wetland areas of at least equal
1.10public value under a replacement plan approved as provided in section103G.2242 , a
1.11replacement plan under a local governmental unit's comprehensive wetland protection
1.12and management plan approved by the board under section103G.2243 , or, if a permit to
1.13mine is required under section93.481 , under a mining reclamation plan approved by
1.14the commissioner under the permit to mine. For project-specific wetland replacement
1.15conducted under a permit to mine within the Great Lakes and Rainy River watershed
1.16basins, those basins shall be considered a single watershed for purposes of determining
1.17wetland replacement ratios. Mining reclamation plans shall apply the same principles
1.18and standards for replacing wetlands by restoration or creation of wetland areas that
1.19are applicable to mitigation plans approved as provided in section103G.2242 . Public
1.20value must be determined in accordance with section103B.3355 or a comprehensive
1.21wetland protection and management plan established under section103G.2243 . Sections
1.22103G.221
to
103G.2372 also apply to excavation in permanently and semipermanently
1.23flooded areas of types 3, 4, 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
2.19accomplished through restoration only without regard to the priority order in paragraph
2.20(b), provided that a deed restriction is placed on the altered wetland prohibiting
2.21nonagricultural use for at least ten years.
2.22 (d) If a wetland is drained under section103G.2241, subdivision 2 , paragraphs
2.23(b) and (e), the local government unit may require a deed restriction that prohibits
2.24nonagricultural use for at least ten years unless the drained wetland is replaced as provided
2.25under this section. The local government unit may require the deed restriction if it
2.26determines the wetland area drained is at risk of conversion to a nonagricultural use within
2.27ten years based on the zoning classification, proximity to a municipality or full service
2.28road, or other criteria as determined by the local government unit.
2.29 (e) Restoration and replacement of wetlands must be accomplished in accordance
2.30with the ecology of the landscape area affected and ponds that are created primarily to
2.31fulfill storm water management, and water quality treatment requirements may not be
2.32used to satisfy replacement requirements under this chapter unless the design includes
2.33pretreatment of runoff and the pond is functioning as a wetland.
2.34 (f) Except as provided in paragraph (g), for a wetland or public waters wetland
2.35located on nonagricultural land, replacement must be in the ratio of two acres of replaced
2.36wetland 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
4.9board that indicate the location, amount, and type of wetlands that have been filled
4.10or drained.
4.11 Those required to receive notice of public transportation projects may appeal
4.12minimization, delineation, and on-site mitigation decisions made by the public
4.13transportation authority to the board according to the provisions of section103G.2242,
4.14subdivision 9 . The Technical Evaluation Panel shall review minimization and delineation
4.15decisions made by the public transportation authority and provide recommendations
4.16regarding on-site mitigation if requested to do so by the local government unit, a
4.17contiguous landowner, or a member of the Technical Evaluation Panel.
4.18 Except for state public transportation projects, for which the state Department of
4.19Transportation is responsible, the board must replace the wetlands, and wetland areas of
4.20public waters if authorized by the commissioner or a delegated authority, drained or filled
4.21by public transportation projects on existing roads.
4.22 Public transportation authorities at their discretion may deviate from federal and
4.23state design standards on existing road projects when practical and reasonable to avoid
4.24wetland filling or draining, provided that public safety is not unreasonably compromised.
4.25The local road authority and its officers and employees are exempt from liability for
4.26any tort claim for injury to persons or property arising from travel on the highway and
4.27related to the deviation from the design standards for construction or reconstruction under
4.28this paragraph. This paragraph does not preclude an action for damages arising from
4.29negligence in construction or maintenance on a highway.
4.30 (n) If a landowner seeks approval of a replacement plan after the proposed project
4.31has already affected the wetland, the local government unit may require the landowner to
4.32replace the affected wetland at a ratio not to exceed twice the replacement ratio otherwise
4.33required.
4.34 (o) A local government unit may request the board to reclassify a county or
4.35watershed on the basis of its percentage of presettlement wetlands remaining. After
4.36receipt of satisfactory documentation from the local government, the board shall change
5.1the classification of a county or watershed. If requested by the local government unit,
5.2the board must assist in developing the documentation. Within 30 days of its action to
5.3approve a change of wetland classifications, the board shall publish a notice of the change
5.4in the Environmental Quality Board Monitor.
5.5 (p) One hundred citizens who reside within the jurisdiction of the local government
5.6unit may request the local government unit to reclassify a county or watershed on the basis
5.7of its percentage of presettlement wetlands remaining. In support of their petition, the
5.8citizens shall provide satisfactory documentation to the local government unit. The local
5.9government unit shall consider the petition and forward the request to the board under
5.10paragraph (o) or provide a reason why the petition is denied.
1.3requirements;amending Minnesota Statutes 2010, section 103G.222, subdivision
1.41.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2010, section 103G.222, subdivision 1, is amended to
1.7read:
1.8 Subdivision 1. Requirements. (a) Wetlands must not be drained or filled, wholly
1.9or partially, unless replaced by restoring or creating wetland areas of at least equal
1.10public value under a replacement plan approved as provided in section
1.11replacement plan under a local governmental unit's comprehensive wetland protection
1.12and management plan approved by the board under section
1.13mine is required under section
1.14the commissioner under the permit to mine. For project-specific wetland replacement
1.15conducted under a permit to mine within the Great Lakes and Rainy River watershed
1.16basins, those basins shall be considered a single watershed for purposes of determining
1.17wetland replacement ratios. Mining reclamation plans shall apply the same principles
1.18and standards for replacing wetlands by restoration or creation of wetland areas that
1.19are applicable to mitigation plans approved as provided in section
1.20value must be determined in accordance with section
1.21wetland protection and management plan established under section
1.23flooded areas of types 3, 4, 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
2.19accomplished through restoration only without regard to the priority order in paragraph
2.20(b), provided that a deed restriction is placed on the altered wetland prohibiting
2.21nonagricultural use for at least ten years.
2.22 (d) If a wetland is drained under section
2.23(b) and (e), the local government unit may require a deed restriction that prohibits
2.24nonagricultural use for at least ten years unless the drained wetland is replaced as provided
2.25under this section. The local government unit may require the deed restriction if it
2.26determines the wetland area drained is at risk of conversion to a nonagricultural use within
2.27ten years based on the zoning classification, proximity to a municipality or full service
2.28road, or other criteria as determined by the local government unit.
2.29 (e) Restoration and replacement of wetlands must be accomplished in accordance
2.30with the ecology of the landscape area affected and ponds that are created primarily to
2.31fulfill storm water management, and water quality treatment requirements may not be
2.32used to satisfy replacement requirements under this chapter unless the design includes
2.33pretreatment of runoff and the pond is functioning as a wetland.
2.34 (f) Except as provided in paragraph (g), for a wetland or public waters wetland
2.35located on nonagricultural land, replacement must be in the ratio of two acres of replaced
2.36wetland 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
4.9board that indicate the location, amount, and type of wetlands that have been filled
4.10or drained.
4.11 Those required to receive notice of public transportation projects may appeal
4.12minimization, delineation, and on-site mitigation decisions made by the public
4.13transportation authority to the board according to the provisions of section
4.14subdivision 9
4.15decisions made by the public transportation authority and provide recommendations
4.16regarding on-site mitigation if requested to do so by the local government unit, a
4.17contiguous landowner, or a member of the Technical Evaluation Panel.
4.18 Except for state public transportation projects, for which the state Department of
4.19Transportation is responsible, the board must replace the wetlands, and wetland areas of
4.20public waters if authorized by the commissioner or a delegated authority, drained or filled
4.21by public transportation projects on existing roads.
4.22 Public transportation authorities at their discretion may deviate from federal and
4.23state design standards on existing road projects when practical and reasonable to avoid
4.24wetland filling or draining, provided that public safety is not unreasonably compromised.
4.25The local road authority and its officers and employees are exempt from liability for
4.26any tort claim for injury to persons or property arising from travel on the highway and
4.27related to the deviation from the design standards for construction or reconstruction under
4.28this paragraph. This paragraph does not preclude an action for damages arising from
4.29negligence in construction or maintenance on a highway.
4.30 (n) If a landowner seeks approval of a replacement plan after the proposed project
4.31has already affected the wetland, the local government unit may require the landowner to
4.32replace the affected wetland at a ratio not to exceed twice the replacement ratio otherwise
4.33required.
4.34 (o) A local government unit may request the board to reclassify a county or
4.35watershed on the basis of its percentage of presettlement wetlands remaining. After
4.36receipt of satisfactory documentation from the local government, the board shall change
5.1the classification of a county or watershed. If requested by the local government unit,
5.2the board must assist in developing the documentation. Within 30 days of its action to
5.3approve a change of wetland classifications, the board shall publish a notice of the change
5.4in the Environmental Quality Board Monitor.
5.5 (p) One hundred citizens who reside within the jurisdiction of the local government
5.6unit may request the local government unit to reclassify a county or watershed on the basis
5.7of its percentage of presettlement wetlands remaining. In support of their petition, the
5.8citizens shall provide satisfactory documentation to the local government unit. The local
5.9government unit shall consider the petition and forward the request to the board under
5.10paragraph (o) or provide a reason why the petition is denied.
