2004-01-04 MN Wetland Conservation Act Manual~..
.r ~' .~ '~
I
The Minnesota
Wetland
Conservation
Act Manual
~i com~re%ehsive imp/emeh~ativh
guide to Mihhesota's wet/ahd /uw
^
Published bythe Minnesota
Board of Water and Soil Resources/ Version 1.1/ Jan. 4, 2004
I
v
Chapter One: Introduction ....................................... Page 5
Wetlands: A Brief Historical Background ................ Page 5
Minnesota Wetland Conservation Act Basics ........ Page 5
Determining Local Governmental Unit ................... Page 7
APPENDIX
Chapter 15_99 Guidance
.Sample Resolution for Adopting the Permanent Rules
of the Wetland Conservation Act
Summary of WCA Court of Appeals Cases
Chapter Two: WCA Exemptions ................................ Page 9
WCA Exemptions at a Glance ............................... Page 10
Exemption 1: Agricultural activities ...................... Page 11
Exemption 2: Drainage .......................................... Page 13
Exemption 3: Federal approvals ........................... Page 14
Exemption 4: Wetland Restoration ....................... Page 15
Exemption 5: Incidental wetlands ........................ Page 15
Exemption 6: Utilities; public works ..................... Page 16
Exemption 7: Forestry ........................................... Page 16
Exemption 8: Approved development .................. Page 17
Exemption 9: De minimis ...................................... Page 18
Exemption 10: Wildlife habitat .............................. Page 19
APPENDIX
WCA Jurisdiction for Wetlands on Agricultural Land
Forestry Exemption Guidance
Drainage Project Exemptions
Drainage Exemption Graphic
De Minimis Exemption Graphic
Forms: ~
De Minimis Calculation Worksheet
Application for Certificate of No Loss or Exemption
Declaration of Restrictions for Impacted Wetla nds
Under Agricultural Exemption
Affidavit/Exemption Evidence for LGUs
Chapter Three: Avoiding, Minimizing, and Replacing
Wetland Impacts .................................................. Page 21
Sequencing-The First Step .................................. Page 21
Wetland Replacement Plans-Adequacy ............. Page 21
Monitoring-A Critical Phase ................................. Page 22
Steps in the Wetland Replacement Plan Application
Process .............................................................. Page 24
Index to Sequencing and Replacement Plan
Information ........................................................ Page 25
APPENDIX
Guidance on "Approved and Active" Stormwater
Management Plans
Guidance on Exceptional Natural Resource Value
Projects
Application of the WCA to Temporary Storage of
Floodwaters in Areas Having Existing Wetlands
Wet~and Conservation Act Manual /April 2003
Index
Guidance on the Application of the WCA to Impacts on
Rare Natural Communities
Guidance on Wetland Replacement Credit for
Restoring Completely and Partially Drained
Wetlands
Forms:
Minnesota Local/State/Federal Application Forms for
Water/Wetland Projects (A B Word) (A B PDF)
Notice of Wetland Conservation Act Application for
Impacts < 10,000 Square Feet
Notice of Wetland Conservation Act Application for
Impacts > 10,000 Square Feet
Certificate of Mailing of Notice of Wetland
Conservation Act Application
Certificate of Mailing of Notice of Wetland
Conservation Act Decision
Notice of Wetland Conservation Act Decision
Replacement Plan-Findings and Decision
Replacement Plan-Determination of Complete
Application
Technical Evaluation Panel Findings of Fact
Sequencing Findings of Fact
BWSR Deed Form Instructions
Declarations of Restrictions and Covenants for Site
Specific Wetland Replacement
Affidavit of Landowners
Consent to Replacement Wetland
Certificate of Compliance Wetland Replacement and/
or Banking Plan
Chapter Four: Local Government Roads Wetland
Replacement Program .......................................... Page 26
The Reporting Process .......................................... Page 26
Common Questions and Answers ........................ Page 27
APPENDIX
Policy on Sale of Wetland Credits to Public
Transportation Authorities
Form:
Minnesota Local/State/Federal Application Forms for
Water/Wetland Projects: Public Transportation and
Linear Utility Projects (C D Word) (C D PDF)
Chapter Five: Weiland Bank Procedures ................Page 30
How to establish a wetland bank account ........... Page 30
Steps within the application, construction, certification,
and deposit phases .......................................... Page 31
Monitoring requirements ...................................... Page 34
How to withdraw credits ........................................ Page 34
How to transfer credits to another account......... Page 35
Enforcement and corrective measures ................ Page 36
Page 3
s~
APPENDIX
Policy on Wetland Banking Fees
Forms:
Wetland Bank Application
Application to Deposit Wetland Bank Credits
Consent and Subordination Agreement for Wetland
Bank
Declarant's Affidavit of Title
Application for Withdrawal of Wetland Credits
Perpetual Conservation Easement for Wetland Bank
Wetland Bank Checklist
Wetland Bank Application (Technical Evaluation Panel
Report) first review
Wetland Bank Application (Technical Evaluation Panel
Report) second review
Application for Transfer
Wetland Bank Application (TEP Report) Final Review
Purchase Agreement for Wetland Banking Credits
Certificate of Compliance Wetland Replacement and/
or Banking Plan
Chapter Six: WCA Appeal .Procedures .................... Page 37
Preparations and procedures for LGU hearings on WCA
decisions ........................................................... Page 37
Local appeals procedures ..................................... Page 38
How to appeal to BWSR ........................................ Page 39
Compensation claims against LGUs ..................... Page 40
WCA compensation ............................................... Page 40
Chapter Seven: Enforcement Procedures ............... Page 42
WCA enforcement process .................................... Page 42
WCA and Public Water enforcement process ...... Page 42
The cease and desist order .................................. Page 42
Restoration and replacement orders ................... Page 43
Deed recording ...................................................... Page 44
After-the-fact replacement .................................... Page 44
Appeals ................................................................... Page 44
Important references in statute and rule ............ Page 44
APPENDIX
Forms:
Interagency Wetlands/Waters Prosecution Checklist
Enforcement Procedures Checklist
Restoration/Replacement Order
Certificate of Satisfactory Restoration/Replacement
Contractor Responsibility and Landowner Statement
Form
Finding of Fact for Violations on Agricultural Land
Chapter Eight: Local Comprehensive Wetland Protection
and. Management Plans ........................................ Page 46
Elements of a Comprehensive Wetland Protection and
Management Plan ............................................ Page 46
Additional (optional) local requirements for wetland
management ..................................................... Page 47
BWSR review and approval ...........::.
..................... Page 47
Local capacity requirements ................................. Page 47
Reporting and oversight ........................................ Page 47
APPENDIX
Forms:
Comprehensive Wetland Protection and Management
Plan Summary Worksheet
Comprehensive Wetland Protection and Management
Plan Additional Local Requirements Worksheet
Chapter Nine Miscellaneous WCA Items ................ Page 48
High priority regions and areas for Local Water
Planning ............................................................. Page 48
Wetland Preservation Areas ................................. Page 48
How to establish a WPA ......................................... Page 49
County review and notice ...................................... Page 50
Duration of WPAs and actions affecting WPAs .... Page 50
Information for county relating to WPA tax-exempt
status ................................................................. Page 51
County or watershed reclassification ................... Page 52
Calcareous fens ..................................................... Page 52
APPENDIX
Fact Sheet: Wetland Preservation Areas
Frequently Asked Questions About Wetland
Preservation Areas
Forms:
Wetland Preservation Area Application Form
Wetland Preservation Area SWCD Advisory Statement
Wetland Preservation Area Enrollment Checklist
Restrictive Covenant for Wetland Preservation Area
Notice of Expiration of Restrictive Covenant for
Wetland Preservation Area
Chapter Ten: Agency Web Sites ............................. Page 53
Chapter Eleven: Technical References (Web Sites) .Page 54
Note: external links to forms are highlighted in red within the manual text. The forms and appendices listed in the index are
also linked to Word files (and PDF files where noted). Word forms are interactive files, which means you can save the files to
your desktop and complete them. References to web sites, statutes, and rnles also have external links, but aren't in red.
INeE/and GonservativN flct Manna//Jan. 2004
Paye 4
~~`
-,,
r
THE 60-DAY DECISION REQUIREMENT OF SECTION 15.99
AND THE WETLAND CONSERVATION ACT
Local government unit ("LGU") decisions under the Wetland Conservation Act ("WCA") must be made
in compliance with Minn. Stat. § 15.99. Generally, this means that an application for a WCA decision must be
approved or denied within 60 days or it will be deemed to be granted. The following provides general
information on the application of Section 15.99 to WCA.
BASICS.
^ Section 15.99 applies to WCA replacement plan, banking plan, exemption, no-loss, and wetland
boundary or type decisions. See Minn. Stat. § 103G.2242, subds. 2a & 4.
^ The LGU must approve or deny a written request for a WCA decision within 60 days of receipt of the
request. See Minn. Stat. § 15.99, subds. 1 & 2; Minn. Stat. § 103G.2242, subds. 2a & 4.
^ Failure to deny a written request within 60 days is approval of the request. See Minn. Stat. § 15.99,
subd. 2.
^ If a resolution or motion to approve a written request fails, the request is considered denied, provided
that those voting against the motion state for the record their reasons for opposing the motion. See
Minn. Stat. § 15.99, subd. 2(b).
^ If the LGU denies a request, it must state in writing the reasons for the denial at the time it denies the
request. See Minn. Stat. § 15.99, subd. 2.
^ If a written request does not contain all required information, the LGU must send written notice within
15 business days of receipt of the request telling the requester what information is missing.
^ If the LGU gives written notice that a request is incomplete within 15 business days of receipt, then the
60-day period starts over when all required information is received. If such notice is not given, the
LGU must approve or deny the incomplete request within 60 days of the original receipt date. See
Minn, Stat. § 15.99, subd. 3(a).
^ The information required for an application must be defined in a previously adopted, rule, ordinance,
or written policy of the local government unit. See Minn. Stat. § 15.99, subd. 3(a).
^ A response meets the 60-day time limit if the LGU can document that the response was sent within 60
days of receipt of the written request. See Minn. Stat. § 15.99, subd. 3(c).
^ The LGU may extend the time limit by written notice prior to the end of the initia160-day period. The
written notice must state the reasons for the extension and its anticipated length. The extension may
not exceed 60 days unless approved by the applicant. See Minn. Stat. § 15.99, subd. 3 (f).
Chap15_99 Guidance.doc
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Page 1 of 3
,z.
SUGGESTED 'DOS" AND "DON'TS" FOR LGU STAFF MEMBERS.
Dos.
Do check the actual language of Section 15.99 frequently rather than relying on your memory or this
summary.
Do consult with the attorney for your LGU on the application of Section 15.99 if you have any question
in a particular circumstance. .
Do keep a log showing dates on which requests are received and responses are sent.
Do respond to all requests in writing rather than relying on oral communications.
Do deny requests that you intend not to approve. Not acting on a request will be treated as an approval
after the passage of 60 days.
Do state the reasons for the denial of a request in writing at the time of the denial of the request.
Do adopt a written policy on the information required for each type of WCA application.
Don'ts
Don't assume that Section 15.99 will be interpreted leniently. The courts stringently apply subdivision 2
of Section 15.99 to require a decision within 60 days, unless there is an exception stated in Section
15.99.
Don't assume it's OK to enact a blanket extension to give you an automatic 60-day extension on all
requests. You have the right to extend the response date by an additiona160 days, but this must be done
in writing on a case-by-case basis after the request is received. See American Tower, L.P. v. City of
Grant; 636 N.W.2d 309 (Minn. Ct. App. 2001).
Don't assume that you have an extension just because you have a verbal understanding with the
applicant. Subdivision 3(f) of Section 15.99 requires a written notice of extension prior to the end of the
initial period, If the extension will be more than 60 days, you must have the applicant's agreement in
writing.
Chap15_99 Guidance.doc
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4
ADDITIONAL COMMENTS.
WCA statutes and rules state that notice of various WCA decisions must be mailed to the landowner
within ten days of the decision. See Minn. Stat. § 103G.2242, subd. 7; Minn. R. 8420.0210-.0230,
8420.0740. On the other hand, subdivision 3(c) of Section 15.99 says that the 60-day time limit is
satisfied if the LGU can document that the response was sent within 60 days of the written request. To be
on the safe side, don't wait a full ten days to send the response if this would take you past the 60 days
allowed by Section 15.99.
Sometimes an application is received outside of the growing season but field investigation during the
growing season is necessary to verify the information in the application. If it is not possible to extend the
response date for an adequate period of time under subdivision 3(f) of Section 15.99, then the application
must be denied before the end of the initial 60-day period or it will be deemed to be granted. If denied,
the reasons for denial must be stated. If applicable, these reasons would include the LGU's analysis of
why a field investigation is necessary.
Start counting the 60 days on the day after the receipt of the written request. You should count calendar
days. If the 60th day is a Saturday, Sunday, or legal holiday, then the last day to act on the request is the
next day-that is not a Saturday, Sunday, or legal holiday. See Minn. Stat § 645.15; Gun Lake Assn v.
County ofAitkin, 612 N.W.2d 177, 181(Minn. Ct. App. 2000)_
This summary is provided forgeneral information purposes only. LGUstaff members and
others should consult with their legal counsel for specifcc advice on application of Section
15.99 to any particular circumstances This summary is not a rule of the Board of Water and
Soil Resources ("BWSR') and is not binding on BWSR or any other party.
Chap15_99 Guidance.doc Page 3 of3
1/5/2003
CHAPTER TWO This section provides local government officials with a complete listing of exemptions,
including guidance (see notes) based on the Wetland Conservation Act statute and rule.
iWC~ LGUs must make their own interpretations,lindings, and decisions based on the facts of
1 the wetland project being proposed. The technical evaluation panel may be convened to
~XeN1~L/Ol'IS render a technical decision as to whether or not an exemption applies. If no exemptions
apply, the sequencing process begins.
Local government units and the applicant must consider the following when determining
eligibility for exemptions;
^ 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.
^ These exemptions do not apply to calcareous fens as identified by the
Commissioner of Natural Resources.
^ No exemptions apply to wetlands that have been previously restored or created as a
result of an approved replacement plan. All such wetlands are subject to replacement
on subsequent drainage or filling.
^ Non-exempt wetlands cannot be partially drained or filled in order to claim an
exemption or no-loss determination on the remainder. Therefore, exemptions or
no-loss determinations cannot be applied to the remaining wetland that would not have
been applicable before the impact.
^ A person conducting an activity in a wetland under an exemption shall ensure that:
1. appropriate erosion control measures are taken to prevent sedimentation of
the water;
2. the activity does not block fish activity 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 Minnesota Statutes, chapter 103H.
A landowner intending to drain or fill a wetland without replacement, claiming an exemp-
tion, may contact the LGU before beginning draining or filling activities for determination
whether or not the activity is exempt. A landowner who does not request a determination
may be subject to the enforcement actions. The LGU must keep on file all documentation
and findings of fact concerning exemption determinations for a period of 10 years.
Local government units may offer exemption certificates as part of the wetland program
within their jurisdiction. An exemption applies whether or not the local government unit
chooses to issue certificates of exemption. If the wetland qualifies for an exemption, and
the landowner requests a certificate of exemption, then the LGU must issue one. The
LGU decision must be made In compliance with Minnesota Statutes, section 15.99,
which generally requires a decision to be made within 60 days of receipt of a com-
plete application. The landowner applying for exemption is responsible for submitting
the proof necessary to show qualii'ication for the particular exemption claimed.
Wetland Conservation ~qct Manual /Jan. 2~4 Faye 9
WCA EXEMPTIONS AT A GLANCE
Note: To ensure that an exemption applies to a project,
a certificate of exemption should be secured from an
LGU before commencing any work.
Agricultural
^ Wetlands that have been cropped 6 out of the 10
years prior to Jan. 1, 1991.
^ Land that is enrolled in CRP and was cropped 6 of 10
years, prior to being enrolled.
^ Wetlands receiving "commenced drainage"
determinations from the USDA Farm Service Agency.
^ Type 1 wetlands on agricultural land (see definition
of agricultural land) and type 2 and type 6 wetland
areas less than 2 acres on agricultural land.
^ Aquaculture activities as permitted by the U.S. Army
Corps of Engineers.
^ Wild rice production as permitted by the U.S. Army
Corps of Engineers.
^ Weed and pest control that does not drain or fill
wetlands.
^ Activities allowed under the federal farm program
restrictions that meet the minimum state standards
under this chapter.
Drainage
^ Certain public drainage system improvements and
maintenance and repair that doesn't affect type 3,4,
and 5 wetlands that have existed for more than 25
years. Private drainage maintenance and repair that
doesn't affect wetlands (any type) that have existed
for more than 25 years is exempt.
,Federal pPProvals'
Some activities determined to be exempt from the U.S.
Army Corps of Engineers Section 404 regulations.
'iNetland restoration
Wetlands restored under a contract that allows subse-
quent drainage.
Incidental wetlands
Wetlands formed by beavers, culvert blockage, and
other activities/projects not intended to create/restore
wetlands.
Utilities/public works
^ Utility line placement that impacts less than 0.5
acre.
^ Utility line maintenance.
^ Interstate pipelines.
Wet/and Conservation ~1cE Manual/Jan. 2004
^ Public works projects that do not drain or fill wet
lands.
^ Private structural projects that do not drain or fill
wetlands.
^ Individual sewage treatment systems if allowed by
other regulations.
Forestry
^ Temporary roads constructed for forestry activities.
^ Permanent roads constructed for forestry activities.
approved development
Development projects approved between July 1, 1986,
and July 1, 1991.
Deminimis
Projects impactingthefollowing amounts of wetland
unless a 5 percent cap is exceeded:
^ 10,000 square feet of type 1, type 2, type 6, or type
7 wetland, excluding white cedar and tamarack
wetlands, outside of the shoreland wetland
protection zone in a greater than 80 percent area;
^ 5,000 square feet of type 1, type 2, type 6, or type 7
wetland, excluding white cedar and tamarack
wetlands, outside of the shoreland wetland
protection zone in a 50 to 80 percent area;
^ 2,000 square feet of type 1, type 2, or type 6
wetland, outside of the shoreland wetland protection
zone in a less than 50 percent area;
^ 400 square feet of wetland types 3,4,5 everywhere;
^ 400 square feet of all wetland types in the 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.
''";Wildlife habitat
^ Deposition of up to 0.5 acre (not to exceed 5 percent
of the wetland) of spoil associated with excavation
within a wetland for wildlife habitat improvement. If
within the permanently orsemi-permanently flooded
portion of a type 3, 4 or 5 wetland, the combined
area of the excavation and the deposition must be
less than the 0.5 acre or 5 percent limit.
^ Duck blind construction.
Note: Local ordinances may be more restrictive than the WCA and
thus some of the exemptions may not be applied as listed above.
Faye 10
WCA Exemptions
Exemption 1: Agricultural activities
A replacement plan for wetlands is not required for:
A. Activities in a wetland that was planted with annually seeded crops or that was in a
crop rotation seeding of pasture grass or legumes in six of the last 10 years prior to
Jan. 1, 1991. Documentation, such as aerial photographs, United States Department
of Agriculture records, or affidavit of landowner must be required by the local
government unit to show and use as evidence for this exemption. Land eligible for this
exemption must be wetland types 1 and 2.
Guidance: Tfiel8ndowneris'responsible for providingverification of crophistbry. For
landovdners with a hlstory'of participating in USDA farm programs; the Farm ServicE `
Agency geherally his rnforrf~ation concerning cropping hiS~ory for the preceding years.
For other'cases, an~'affidavit from an expert wrtneas (or from the landowner if there is
same evidence of croppingtlisfory) is acceptable:
B.Activities in a wetland that is or has been enrolled in the federal Conservation Reserve
Program that was (1) planted with annually seeded crops or was in a crop rotation
seeding in six of the last 10 years prior to being enrolled in the program and (2) has
not been restored with assistance from a public or private wetland restoration
program. Federal documentation that the wetland is or has been enrolled in the
federal Conservation Reserve Program may be used as evidence for this exemption.
The landowner must also meet the same requirements of item A, except that the years
required are at least six of the 10 years preceding the year of enrollment in the federal
Conservation Reserve Program. The landowner must also state in writing that the
wetland was not restored with assistance from a public or private wetland restoration
fund, or that the restoration was done under a contract or easement providing the
landowner with the right to drain the restored wetland.
Guidance BAs rn exerptron~(1), th~',lando}vner musf-verify,the exemption iri the form
^' k r,; ~
~ of a,CRP ~~o~jtract ar~d for cropprngtilstosry t
~ ,, t .
ti~ t r ,. ~ , u v ~
~~e iap~oW[t~r' Musx'sta~#. atrng~ba~tthe w~tlaricf was n~~ot restored with outside"
~ F°: ,a xrv~ ~ ° ~' r ~+' i=., i~l,yX.~w,.. r~~ .Si'~ a ~ ~ r N~ a,. . s-
,func~s, or show t(~atr~ yo ~ r fUr~dsere,~lsed ~fhe contract nr.easement allowed'
drainage~pfthe Sesfored'~'tldrtt( ,. ~~r ~,.u, ,, 1
C.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
USDA office prior to Sept. 19, 1988, and a ruling and any subsequent appeals or
reviews have determined that drainage of the wetland had been commenced prior to
Dec. 23, 1985. The landowner must provide United States Department of Agriculture
documents confirming that the county USDA office determined before Sept. 19, 1988,
that drainage had begun before Dec. 23, 1985, and that the determination has not
been overturned by subsequent appeal or review and is not currently under
administrative review.
Guidance: Th~e~landowner must docurrien~~that a Co'riiix~enced deten7~inatioriwas rliade
by USDA prior~to Sept, 19, 188. °-'
INeE/and Gonservatioa ~lct Manua//lan. 2004 Paye 1>
D. 1. 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.
Guidance: This exemption applies if the wetland is a type for 2 or 6 on agricultural,
land, and the~'type 2 or 6 wetland isless than two acres,
2. This exemption 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;
3. The exemption in subitem 2 is subject to the size limits included in subitem (1);
Guidance: The Maximum amount of type 2 or 6 wetland that cari be drained or filled is
2 acres. -
E.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.
Guidance'Xhis exenptioil'coyers excavation and road/dike construction aspe'rmitted
~.~. ;,
by~the U S;i'Army ~orps of fng~nee'rs To qualify fo;r this~exeh~ptio,n,,a copy of a valid U:S.
Army Corps of ~ gineers permit 'must be .presented to the LGU. ~ '
F. Wild rice production activities, including necessary diking and other activities
authorized under a permit issued by the U.S. Army Corps of Engineers under section
404 of the federal Clean Water Act, United States Code, title 33, section 1344.
Guidance An~p~'licant rnustfdelnonstrafe~that~ihis'exenpUon applies by showi'rig
os`sessin'~t a "I~,S Arna ~ ~'
p Q y~or~5~ of 1_ngmeers, perrtlit for the'~roject
G.Normal agricultural.practices to control noxious o1r 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
H. Agricultural activities that are:
1. in a wetland that is on agricultural land annually enrolled in or determined to be
eligible for benefits under the federal Agriculture Improvement and Reform Act of
1996, Public Law Number 104127; or
2. subject to subsequent federal farm program restrictions that meet minimum state
standards under this chapter and Minnesota Statutes, sections 103A.202 and
1036.3355, 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.
The approved conditions and standards shall be noticed by the board to local govern-
ment units and published in the State Register. The conditions and standards shall
take effect 30 days after publication and remain in effect unless superseded by
subsequent statute, rule, or notice in the State Register.
This exemption may be applied to agricultural land annually enrolled in the federal
1Net/and Conservation flct Manaa//Jan. 2004 Page 12
Farm Program as long as wetlands are not drained, excavated, or filled beyond what is:
(a) allowed under the other exemptions in this part;
(b) necessary to replace, maintain, or repair existing private drainage infrastructure
with a capacity not to exceed that which was originally constructed; or
(c) replaced at a ratio of 1:1 or greater under United States Department of Agriculture
provisions as supported by documentation from the United States Department of
Agriculture which must be included as evidence to support this exemption.
If the activity would result in loss of eligibility, the landowner cannot qualify for the
exemption.
` Refer to the flowchart Guidance: An activity that has been deternirned by the USDA to be compliant with the `
WCA Jurisdiction for Federal Farm~Program is riot ~utorriatically exempt.under WCA: l_GUs and land
U~Jetlands'on
~ owners must applythe criteria listed under Subpart H.2.(a) - (c) to determine if the
Agricultural Lahd° in ~ projectis exempt:under WCA _See~also the guidance followingExemption 2. B;
the appendix to this
chapter. Exemption 2: Drainage
A. For the purposes of this subpart, "public drainage system" means a drainage system
as defined in Minnesota Statutes, section 103E.005, subdivision 12, and any ditch or
the 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 type 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:
(a) there was an expenditure made from the drainage system account for the
public drainage system;
(b) the public drainage system was repaired or maintained as approved by
the drainage authority; or
(c) no repair or maintenance of the public drainage system was required under
Minnesota Statutes, section 103E.705, subdivision 1, as determined by the public
drainage authority; and
2. the wetlands are not drained for conversion to:
(a) platted lots;
(b) planned unit, commercial, or industrial developments; or
(c) any development with more than one residential unit per 40 acres.
If wetlands drained under this item are converted to uses prohibited under subitem (2)
during the 10-year period following drainage, the wetlands must be replaced under
Minnesota Statutes, section 103G.222:
Guidance Present and
und~e~ ~exernptions~ 1 ~_ar
drained or filled ?other
filling .Unless it is fifS~
8420.D500 to 8420.0
replacement credrt.~At
notice af~~heserestr'jcti
'~ the project is locafe~d ,
or n~mes'of tre 1an~do~
,~ture owners of wetlands drained~or filled without replacement
1 2 8: can'make no'us~ of the wetland area after it is '
~ar1'as agricultural lapel, for 10 years after tiie draining or
phced under the te~uirenients of Minnesota Rules, part
3Q Also, for.10 years the wetlahd i7~ay,'not be~'re'stared for
.,,:~;
~e time of dt~ining or,fillirig, the landowner shall recorder
~s~jri'the office of the county recorder for the county in which
~4fri~Ir)rrnum, the'reCordec~:docurt~ent must coitain'the nairie
i~~rs, a legal;;~descrjptiori'of the.~roperty to which the
WetlaNd GDNSeYVat%ON ~IGE Manual~JaN. 2004 Paye 13
restrictions apply,'a statement of he restrictions the date on which the 1.0-year
period excites; the name of the local government which certified the exemption, if
such occurred, the signatures of all owners, and an acknowledgment.
C. A replacement plan is not required for draining, excavating, 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 conducted or authorized by a public drainage authority pursuant to Minnesota
Statute, chapter 103E.
D. A replacement plan is not required for draining, excavating, 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.
Guidance: For,ifems C and,D, the 3andowher must provide'docwl~entation that the
wetlands that will~pe par5ti~lly~or completely drained by the maintenance have not
~,.
existed for.more than ~5 years.~Do'eumentation may include, but is not limited to:
,,ae'rial photographs,,clrmatological records; soil borings, vegetative analysis, elevation
r.
'surveys,~,or sworri`'a~fidavrts
.. .. ~.
E. A replacement plan is not required for draining, excavating, 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 and public waters of all types that could be drained as a part of a public
drainage repair project are eligible for the Permanent Wetlands Preserve program
established under Minnesota Statutues, section 103F.516. The BWSR 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.
Gmdance ,~(erraf ~~hdtdgraphs sh9~uld be used as ~~guide~ Photos taken dutrng wefter
thao~~?norma;~Of~ditiott5dur~ngthe~pastfve~~ears~:which"~showno`v~etlari'd~s (ora
Smaller wetland) to exist, ate good~evrdence for parts C.a~nd D or"this exeii~ption "State'
,..~
drainage !aw ~~031w) may apply to'certdin activities involving pukilic drainage sys~ems:
~• u ~ ~ -,
questions eonCernirig dra'frjage 1ativshould`fje referred to DNR Division of Waters
rpersonnel~L'anddwiiers should be a•,vare that repair and maintenance of public or `
~,:
private drai~i~age`systems rtiay be t~gulafed by the,tJSDA under°Swampbuster."
x~,:^ c
Nat~7ral Resources~;EOnserVation~Service hersonriel should be consulted..
Exemption 3: Federal approvals
A replacement plan for wetlands is not required for activities described in items A and B.
A. Activities exempted from federal regulation under United States Code, title 33, section
Wetland Ganservatian ~lct Manaal//an. 2004 Paye 14
1344(f), as in effect on January 1, 1991. The local government unit may certi the
exemption only if the landowner furnishes proof qualification for one of the exemp-
tions from the U.S. Army Corps of Engineers. This exemption does not apply to a project
with the purpose of converting a wetland to a nonwetland, either immediately or
gradually, or converting the wetland to another use, or when the fill will result in
significant discernible change to the flow or circulation of water in the wetland, or partly
draining it, or reducing the wetland area;
B.Activities authorized under section 404 of the Clean Water Act, United States Code,
title 33, section 1344, or section 10 of the Rivers and Harbors Act of 1899, United
States Code, title 33, section 403, and regulations that meet minimum state standards
under this chapter and that have been approved by BWSR, the Minnesota Department
of Agriculture, the Minnesota Department of Natural Resources, and the Minnesota
Pollution Control Agency.
Exemption 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. The landowner must provide a contract or easement
conveyance or affidavit demonstrating that the landowner or a predecessor restored the
wetland for conservation purposes but retained the right to subsequently drain the
restored wetland.
Guidance: The landowner must~documen~ the existence of drainage rights.
Exemption 5: Incidental wetlands
A replacement plan for wetlands is not required for activities in wetland areas created
solely as a result of:
A. beaver dam construction;
B. blockage of culverts through roadways maintained by a public or private entity;
C. actions by public or private entities that were taken for a purpose other than creating
the wetland; or
D. any combination of items A to C.
Wetland areas created by beaver activities may be drained by removing those materials
placed by beavers. Drainage is permitted by removing or moving materials blocking
installed roadway culverts and related drainage structures. Additional excavation or
removal of other materials is not permitted unless it can be shown by aerial photographs
that the proposed activity will not drain or fill wetland that was there before the beaver
dam was built or before the culvert became plugged. Wetland areas may be drained,
excavated, or filled if the landowner can show that the wetland was created solely by
actions, the purpose of which was not to create the wetland.
Impoundments or excavations constructed in nonwetlands solely for the purpose of
effluent treatment, storm water retention; soil and water conservation practices, and
water quality improvements, and not as part of a wetland replacement process that may,
over time, take on wetland characteristics, are also exempt.
Wetland GanservationAcEManual/Jan. 20P4 Paye 15
Exemption 6: Utilities; public works
A replacement plan for wetlands is not required for:
A. placement, maintenance, repair, enhancement, or replacement of utility or utility-
type service if:
1. the impacts of the proposed project on the hydrologic and biological characteris-
tics of the wetland have been avoided and minimized to the extent possible; and
2. the proposed project significantly modifies or alters less than one-half acre of
wetlands;
B. activities associated with routine maintenance of utility and pipeline rights-of--way,
provided the activities do not result in additional intrusion into the wetland;
C. 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;
D. 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;
E. 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
F. repair and updating of existing individual sewage treatment systems as necessary to
comply with local, state, and federal regulations. For new placement and enhance-
ment of existing facilities, the utility must demonstrate that the character and extent
of the impacts of the proposed project on the wetlands have been minimized. 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 it is carrying out the work according to best manage-
ment 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.
Gwdanc9e U{i~t~~~ro~ects~ha~invplye t~~any;I~GIJs'may require coordinated d~scussians
A ~ J' ~ b ~F A .f ~.f i~~~r ~ ~ r .i s [ i~ y, ~ ~~~ Ns '.7
pnor.#o the o"~$et of;,activjtl~~ uA~copy Of the~projec~ pi~hs shoulci~be kept on f~le~a'S ~ , . ;
~~
support~n~~octl~ien~ation.~o fthe'exemptio~rimr ; t F
Exemption 7: Forestry
A replacement plan for wetlands is not required for:
A. 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 activity does not result in the construction of dikes, drainage ditches, the lines, or
buildings; and the timber harvesting and other silvicultural practices do not result in
the drainage of the wetland or public waters; or
B. 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 the line;
Wetland Ganservation ~lct Manual/Jan. 2004 Page 16
filling is avoided wherever possible; and there is no drainage of the wetland or public
waters.
This exemption is for roads constructed for the primary purpose of providing access for
the conduct of silvicultural activities.
Guidance: See link to "Guidance on Forestry Exemption."
Exemption 8: Approved development
A replacement plan for wetlands is not required for devel~ament ~roie~ cts+and ditch
/~1 improvement projects' the state that have rPr_eiveri preliminary or final plat apps r~ Dull or
l.% 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 subpart, "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. Subdivid-
ers who obtained preliminary plat approval in the specified time per and other project
y- develops 'th one of the listed~apphvals timely obtained, providproval has not
expired a project remains active, may drain and fill wetlands, to the extent docu-
mented by the approval, without replacement. Those elements of the project that can be
carried out without changing the approved plan and without draining or filling must be
done in that manner. If wetlands can be avoided within the terms of the approved plan,
they must be avoided.
For county, joint county, and watershed district ditch projects, this exemption applies to
projects that received final approval in the specified time period.
Guidance: Wetlands may be' drained or filled by construction projects without
replacement if: .
1.`The lari'downerreceived.governmental.approvals required by federal, state, county,
city;`or towrroffic~~~ICOritrols before July-9,°1991, buCafterJuly 11986,_that ideritified
orclearly implied:~~'at w~tla,nds wets io be drained or filled. The approvals must not
have 'expired• and no wetlandj~t~rainage or".filling can occur beyond that documented by
the approval. For plats approval means'preliminary or final approval, except that in the
.metro area and in cities of the first and second class, it means preliminary approval
For otherprojects, approval means site, plan approval, conditional use permits, or
similar a~provals'required;by the local controls, or state and federal regulations (First
.class city means those having more than 100,000 inhabitants. Second class city . -.
means those having more xhan 20,000 an~d~not more than 100,000 inhabitants,:); or,
2. (a) The landowner had started or completed legally installed infrastructure that
clearly implied wetland impacts on a specific parcel Infrastructure includes storm
water piping; outfalls,'inlets, riprap; street sub-base, electric and water utilities,
culverts, bridges, and any work defined by the LGU as constituting a capital improve-
ment to the specific parcel Under consideration. This includes (b) partially completed
projects approved and initiated before July 1, 1986, provided that ongoing activity - as
defined by the LGU - is documented for the period between July 1, 1986, and July 1, 1991.
Wetland Conservation Act Manua/ /Apri12003 ~ Page 17
Exemption 9: De minimis
WETLAND TYPE SHORELAND CLASS PRE-STATEHOOD DE MINIh11S
(Circular 39) ' WET(AND AREA AMOUNT I
1, 2, fi, or 7` Non-Shoreland > 80% 10,000 ftz
*exCluding white 50-80% 5,000 ft'
cedar and'tamarack < 50% 2,000 ft~
wetlands
7* . Non-Shoreland Any 400 ft2
white cedar grid
tamarack wetlands
only'
~
3, 4,~ 5, of 8 ` : ~ ~ "Non Shoreland
, ~ Any ~ 400 ft=
Any Wetland YRe. ; `5horelarid Any 400 ftz
iff more than one de minimis amount is applicable to the project, the exemption amount is the lesser of these.
A. Except as provided in items B and C, a replacement plan for wetlands is not required
NOTE: Given, th'e for draining, excavating, or filling the following amounts of wetlands:
complexity. of this
exerT~ption; it is i. 10,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tama-
_ strongly suggested to , rack wetlands, outside of the Shoreland wetland protection zone and that are not
seek the &dvice'of the fringe areas of type 3, 4, or 5 wetlands in a greater than 80 percent area;
local government unit '
_ ~iiorto beginning!a,,, , . 2.5,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack
„project. LGUs should wetlands, outside of the shoreland wetland protection zone and that are not fringe
develop arecord- areas of type 3, 4, or 5 wetlands in a 50 to 80 percent area;
keeping system that :
t~acks~`projects by ' 3.2,000 square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland
{' fSa'sin or,locatron in° ~ protection zone and that are not fringe areas of type 3, 4, or 5 wetlands in a less than
order to p~oyide a 50 percent area;
means #o'.docunient .,
the cur~~ri(a~tive "' '"`'r 4.400 square feet of wetland types not listed in subitems (1) to (3) outside of
as~ect$ of this shoreland wetland protection zones in all counties; or
F axeml rt~ori: 5.400 s uare feet of
q 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
wetland protection zone in areas beyond the building setback if the wetland is not a
type 3, 4, or 5 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 subitem, the local shoreland ordinance applies.
B. The amounts listed in item A may not be combined on a project.
C. This exemption no longer applies to a landowner's portion of a wetland when the
proposed project impact area and the cumulative area of the landowner's portion
drained, excavated, or filled since January 1, 1992, is the greater of:
1. the applicable area listed in item 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 on a project.
E. For the purposes of this subpart, for wetlands greater than 40 acres, the wetland
WeElAnd GaaservaEian s4cE Manual/Jan. 2004 ~irye 18
type may be determined to be the wetland type with the deepest water regime with
the wetland and within 300 feet of the impact.
A note about the de minimis exemption -and its i~erpretation
There are two things key to understanding the application of this exemption: 1)The
Refer to the calculation definition of "project"; and 2) the exemption is limited - or "capped"- by the amount of
sheet that illustrates the wetland owned by the person proposing to drain or fill the wetland. A "project"
application of this means a specific plan, contiguous activity, proposal, or design necessary to accomplish
,exemption, found at a goal as defined by the local government unit. As used in the Wetland Conservation
this link.
Act, a project may not be split into components or phases for the sole purpose of
gaining additional exemptions. Landowners exercise the de minimis exemption by doing
projects as determined by the local government unit. The de minimis applies to the total
project impact whether to one, or more than one, wetland basin. Although the
exemption generally allows a person to use the full de minimis amount, use of the
exemption depends on the amount of the wetland owned by the person proposing the
impact, the size of the wetland, and the extent of previous drain and fill projects. The
exemption reads: "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
tan. 1, 1992, is the greatest of:
1. the applicable area (10,000; 5,000; 2,000 or 400 square feet), if the Landowner
owns the entire wetland;
2. five percent of the landowner's portion of the wetland; or
3.400 square feet."
The full de minimis amount may not be available if: previous projects-regardless of the
number of owners of the wetland-have partially drained or filled the wetland; the
wetland is owned by more than one person; or the wetland size is limiting.
Guidance` ~`~ie'tie nln~mis q~[rtcanno~;be subtracted from,the amount needed to ~"~
be''replace~}~h"oughg~,lv~ti~d Xe~lac'emeiit plan.: Mrlnnesota Laws 2000, Chapter 382;
t ~ ~` ~ S4'` 'S. >~ i tip{ ~ ~~ 3~ =~ i.' r .. ~ ~. , .,
~ Sec ~.~$wrem.ovd the:~rovi,~r'o~ thdf pCevrQ~sly allov3sdntiie,cJe minimis amount to be
~ su~6tra t~~ otli the ~a~ headed fo ~ieTeplaced through a wetland rreplacement ,~
la~ s,~€~~an~e` ' ~ ~r ~' ~ ~'~ `` ~ ,
~ g ~, p 1r17~ ly to enhance~the alignment:flf xhe WCA and, -
~,~~et~e~al~4d~kprp ,r~ ~tu5 ~a e~po~~srb~e the regulatory streamlining"Ge~etal
P,ennrts~nd Lettersn~fP~ mrssio~r~ IpW ~'~iN~
Exemption 10: Wildlife habitat
' ~'` '"
5 ,Local ordinances may A replacement plan for wetlands is not required for:
be inure restrictive A. Excavation or the associated deposition of spoil within a wetland for a wildlife habitat
than WCA a.nd thus improvement project, if:
some of the exemp
tiori5 nrw got be i. the area of deposition and excavation within the permanently and semi
applied as listed here.. permanently flooded areas of types 3, 4, or 5 wetlands does not exceed five percent
of the wetland area or one-half acre, whichever is less, and the spoil is stabilized and
permanently seeded with native, noninvasive species to prevent erosion;
2. the project does not have an adverse impact on any species designated as
endangered or threatened under state or federal law; and
Wetland Conservation ~1 ct Manaa///an. 2004 Faye 19
3. the project will provide wildlife habitat improvement as certified by the soil and
water conservation district; or the technical evaluation panel using the "Wildlife
Habitat Improvements in Wetlands: Guidance for Soil and Water Conservation
Districts and Local Government Units in Certifying and Approving Wetland
Conservation Act Proposals" (Minnesota Interagency Wetlands Group; December
2000) or similar criteria approved by the BWSR board; or
B. duck blinds.
Guidance: Soil grid-Water Conservation Districts are encouraged to consult local wildlife
sir'
management experts such, as the DNR;'area wildlife manager or U.S. Fish and Wildlife
Service staff to seek inputpn activities ~xh;et will benefit wildlife habitat. in addition to
using the publication listed rn (3)~above,~ Landowners considering wildlife habitat
"improvement projects should consult the DNR publication: "excavated Ponds for
Wildlife.," -~
Wet/anQConservatron llct Manual/Jan. 2004 Faye 20