HomeMy WebLinkAbout4.f. Wetland Conservation Act - Local Government Unit Designation Resolution CITY DF ROSEMOUNT
• � EXECUTIVE SUMMARY FOR ACTIQN
CITY COUNCIL MEETING DATE: March 15, 1994
AGENDA ITEM: WCA - LGU Designation Resolution AGENDA SECTION:
Consent
PREPARED BY: Bud Osmundson AGENDA�� �
City Engineer/Assistant Public Works Director �.j- �
ATTACHMENTS: December 1992 Executive Summary APP E .
BWSR Memo; ACSWCA Letter, Resolution, Letter
Attached is an Executive Summary from 1992 which summari2es the Wetland
Conservation Act (WCA� of 1991. As you may be aware, there was an interim program
of the WCA from January 1, 1992 until January 1, 1994. The permanent rules which are
in effect as of January 1, 1994 do not differ greatly from those that are summarized in
the memo.
As of January 1, 1994 each City that was a "Local Governmental Unit" (LGU) must adopt
a resolution which will designate an LGU responsible for administering the permanent
rules of the WCA`for that City. The City has two options at this time. The first is to
keep local control of the wetland program within the City of Rosemount by adopting the
attached resolution which designates the City as the LGU. This gives local control for the
many decisions which have to be made when addressing development near or in a
wetland. 1f the City does not designate itself as the LGU, the remaining option in the
Metro Area is that there would be a complete moratorium on all wetland activities within
the City.
The Dakota County Soil and Water Conservation District is planning to provide assistance
to Cities in "walking through" the WCA process. If they are suceessful in obtaining a
state grant, this assistance would be at no cost for the first year. In any case, the party
responsible for the wetland impact would be financiatly responsible for delineation of the
- wetlands. tf anyone desires more information on wetlands or the WCA, please contact
me.
At this time, Staff recommends that the City adopt the perrnanent rules of the WCA
where the City would assume the responsibilities of the LGU for administration of the
WCA. �I
RECOMMENDED ACTION: M TI I�'�
0 O N T O A D O P T A R E S O L U T I O N F O R A D O P T I N G T H E �
PERMANENT RULfS OF THE WETLAND CONSERVATION ACT. �I
COUNC(L ACTION:
2
CITY OF ROSEMOUNT
DAKUTA COUNTY, MINNESOTA
R�SOLUTtON 1994 - •
A RfSOLUTiON fOR ADOPTtNG THE PERMANENT RULES OF THE
WETLAND CONSERVATILTN ACT
WHEREAS, the Minnesota Wetiand Conservation Act of 1991 (WGAy requires locai
gs�vernment units CLGUs) implement this faw by adopting the rules and regutations
promulgated by the Board of Water and Soii Resources (BWSR) pertaFning to wetland
draining and fiiling; and
WHEREAS, the BWSR is requesting LGUs adopting the permanent rules of the WCA to
notify them of the LGU decision regarding adoption; and
WHEREAS, the LGU is respansible for making WCA determinations for landowners; and
WHEREAS, the City Council previously assumed responsibilities of LGU for wettand
a)terations with the City of Rosemount under the interim rules; and
WHEREAS, the City of Rosemount Engineering Department is a technical sub-unit of
govemment capable of making determinations and developing replacement plans.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Rosemount that
it hereby accepts the responsibility as the LGU for the WCA within the legal boundaries of
the City of Rasemount as of January 1, 1994, within the guidelines as set forth by the
WCA and rules.
ADOPTED this 15th day of March, 1994.
E. B. MeMenom , Ma or II
Y Y
ATTEST:
Susan M. Walsh, City Clerk
Motion by Se�onded by
Voted in favor
Voted against
�� 1 ! 4J� 1\O�L I V t O� l �!� ZS75 Ct�tHSt eet U':'est
— ?.0.Box 5 t 0
Rosem�ur+t,M�
Everything's Caming Up Rosemount!! s5obs•osio
Phone:6 i2-4Z3•4411
�ar.:012•-;?3•5203
March 16, 1994
Minnesota Board of Water & SoiJ Resaurces
East Centrai Regian
c/o Lynette Morisette
Southbridge Office Buiiding
155 South Wabasha St., Suite 104
St. Paul, MN 55107
Dear Ms. Morisette:
Please consider the attached resolution as a formal intention for the City of Rosemount
to be the kocal govemment unit for the Wetland Conservation Act of 1991 . The
contact person for the City of Rosemount is as follows:
Henry Osmundson, City Engineer
City of Rosemount
2875 145ti� Street West, P. 0. Box 510
Rosemount, MN 55068
t612) 322-2022
If there is anything else that you need feef free to calf.
Sincerely,
Bud Osmundson, P.E.
City Engineer/Assistant Public Works Director
cc: Vermillion River WMO I�'�
cIo Dennis Miranowski, City of Appie Valley ��,
Lisa Rohr, Dakota County Soil & Water Conservation District I
� a �,� ,��,,.
ry r
DAKOTA CQUIVTY S�il AND WATER
CONSERYATION DISTR/CT
Farmingtan Professional Building
821 Third Street
P.O. Box 129
a" - Farmington, MN 55024
Phone:{612) 460-8004
FAX: (612) 460-8401
February 14, 1994
Henry Osmundson
City of Rosemount
2875 145th Street West,PO Box S10
Rosemount, MN 55058
Dear Mr. Osmundson:
Back in December of 1993, I communicated with many cities and townships regarding the interim
program of the Wetland Conservation Act(WCA). As you may be aware, January 1 st marked the
onset of the permanent program.
Dakota County has 20 cities and 13 townships. Of these 33 cities and townships, all but a few
had designated themselves as the "I,ocal Governmental Unit° (LGi� responsibie for administering
the interim program. Many have not yet formally adopted the permanent program. If there is
no LGU responsible for administering the program, a moratorium is in effect on all wetland
activities. By State law, no activity rnay commence in a wetland area. Whether you inadvertently
overlooked tlus process, or have not yet decided to adopt this pragram, we would like to know
your intentions.
The Board of Water & Soil Resowces has asked the Soii & Water Conservation District to
suivey the local governments in the County and deternune which ones have designated themselves
as LGU's for the permanent program. We strongly recommend that you designate yaurself as the
LGU responsible far the Wetland Conservation Act. After you have passed and adopted your
resolution, forward a copy to Board of Water& Soil Resources and to the Dakata County Sail& I
Water Conservation District. �
The Soil and Water Conservation District is currently warking with the County to develop a '
program whereby the District would provide expanded asszstance on the Wetland Conservation
Act (WCA)to local cities and tawnships. We shall keep you informed as these efforts continue.
In the meantime,feel free to contact our office if you have questions regarding the WCA. '
Sincerely, �
� ��.. �- a..�,�
�
Lisa R Rohr
District Administrator
AN EQUAL OPPORTUNITY EMPLOYER
. � IMPORTANT MEMORANDUM
� February 22, 1994
�r �
TO: LGUsxesponsible for the WCA
Sai1 and Water Conservation Districts
Persons using the WCA Administrative Manual and ather interested gersons
SouthbridQs Offios Buitding
155 S.Wabsaha Straet
suns�oa FR: Joha Jaschke, Wetland Management Speci •
St.Paul,MN 5510!
{612)296-3767
Fax(st2)2s�-ssr5 RE: WCA FOLIAW UP- GUIDANCE AND POLICY
�.�d otn�
����: A number of Wettand Conservation Act (WCA) questions and issues ha�e been
a�a s.t,ake n�s��e identifierl as LGUs become mare familiar with using the WCA Rule. That is as
�� expected and thus we have scheduled a second round of one-day follaw up training
a,��n,MN 55802 sessions ia the early spring. The tentative dates and locations aze as described on
�2�a���a7s� Attachment A. The sessions will o from 9:30 a,m. to 3 m. and focus on:
Fax(218)7?.3-4794 g �'
wetland banking, sequencing, many of the items listed below, and on your unique
3217 Bemidji Avenue N: ' iSSu�S aAd uestions. There will be a $2S fee to cover the cost of the facility and
Semidji,MN;66Q1 q
t2�8)�s�a� lunch on-site. What folIows is guidance and policy on some of the mosi pressing
��"�t8����� issues. Althongh it is a lengthy list please read it carefully and insert it and the
. 2»s.Trt,su�t attachments in the WCA Administrative Manual.
Suite 202
era�nerd,MN 5fi401-3660 1. WCA U LIST
�z�s)s�s-zass I
F�(��s>ezs-sa3s Attachment B is onr first attempt at developing a list of LGUs adopting the
WCA Permanent Rule. The list cuntains ali LGUs that were responsible for
soucnsrn Ae�bn: the Iaterim program ancl any LGUs that have sent us notifieation that they
P•o•�x�� have adopted the Permanent Rule. The informatian in the right hand
� ��'�g�' colurna under the "Permanent" heading indicates LGU action aa the
New t�m.MN 560T3
(�3sa�srna Permaneut Pmgram. . If it is btank it means we haven't received any �
F"`���s informatioa abaut that LGUs actions toward Permanent Rule adoution. ,
�20o s,sroadw,y Please review this list a�l let Rabyn Molina at(612)29b 2$40 know if there �
t�oom�3s . aze corrections needed. Also, please send her docum�ntation of the '�
������°4 adoption decision (a l�ter from a LGU official will su�ce) if vau haven't �
F�t��)�-�5 already. After this list is refiaed we will attempt w make separate lists for
P.o.eoX 2sr . Greater MN and the seven-county metro azea. '
_ 1400 E Ly�on S`trest , �_
Marshail.MN 56258 2. NOTI�F
!��-soso - .
Fax�so�s�-s3ss a. Na�rtcE �ro Crr�s ua 'rx� WA�Rsxsn. M.S. 103G.2242, Subd.6,
requires notice of replacement glan application to mayors of cities within the
�o�;�,: .. "�, : area"watershed.� MN Rule 8420.U230 braadens this to state "mayors of
so�nnerid9s orrce eu;�a�n�' . . - cities within the watershed" with watershed define�i as one of the 81 major
���W�"�'$�� ' watershais. The rule accidentaily expanded the requirement of the statute.
S"`t°�°4 � We advise that Greater MN LGUs can meet the intent of the statute and
St Paul,MN'55107. .
ts�z)2s2-s»a . "�-�'� `"�-; '- �� `�..- comply with the rule by sending ane notice to the aiayors of all cities in the
Fa"tg���r'sst5 --, - ". � major watershed as r�uired by the rule and ask if they want to receive
°' - - individnal notice of replacement plans. They should also be informed of the
:, ,_,, _ . ..,�, ...
other notice requuement� (e.g. EQB Monitvr, local newspaper) which may
nn��a� provide them with the information they need and that they can request
OPPQrtu�itY Ert+Ploy�� .
PfiMed bt1�eCydAd papOf 1
individual notice if they desire. If they don't respond a�rmatively, then the LGU may refrain
from mailinb them a copy of each replacement plan application and decision. Attaehment C is
a map of Minnesota (in six pieces) showing the major watersheds, cities, and townships. This
can be used to help identify the cities in the major watershed.
Metro LGUs can satisfy the city notification requirement by sending cogies to the cities within
the metro WMO/WD boundary.
b. NOTIGE FOR SMALL PROJECfS. The WCA Rule allows for an annual EQB Monitor notice for
small projects impacting less than 0.1 acre and those impacting less than 0.25 acres far private
roads and dwellings. This is the gniy "break" afforded these sma11 projects. The project
approval timelines and the rest af the notice requirements including thase to`the required parties
must be foliowerl as for all other projects. There may havebeen an example scenario handed out
at the initial two day training sessions last fall that were inconect. Attachment D is a summary
of the notice requirements.
c. NoricE MArE�u�,s. The summary notice to the EQ,B Monitor and the local newspaper can
be accomplished by using the sample form provided. Notice of application to the Watersheti
District/WMO, the SWCD, the BWSR Boazd Conservationist and the DNR, as well as to any
persons requesting individual notice, should include the complete three page replacement plan
application form along with relevant attachments for ttte impact and replacernent sites such as a
sketch, aerial phatos, soils maps or drawings that can be reasonably ghotocopied. LGUs should
direct replacement plan applicants to furnish these items in a form snitable far photocopying. If
there are other supporting materiais that are not able to be reasonably duplicated, make a note
in the notice of what they are and where they can be viewed.
d. NoTtcF To DEpr. oF Acwcvr.�rtJ�. The Minnesota Department of Agriculture does not
want to receive any individual project notices despite the requirement ut the Rule. They will
track prajects via tha EQ� Monitor and request individual notice an those projects they deem
�PPropriate.
3. APPEAIS �
The BWSR, with the state Attorney General's office, has begun dev�laping rules concerning
procet�ures the BWSR Dispute Resotuuon Committee will follow in handling the vazious WCA
appeals aztd those from other statutes. Untit those rules aze promulgated,the WCA Ru1e provides
the guidance for wetland appeals. Local appeals processes may be estabiished by the LGU,
particularly if the LGU decision is made by aa entiry other than the eleeted body.
4. SEOUENCING FLEXIBILI'I'I'
There is the potential for much controversy over the application of the WCA sequencing
requirements — which mimic the 404(b)(1) guidelines of the Federal Clean Water Act. 'I'he
statute requirements to foilow the "avoid, minimize, replace" stegs are expanded on in the rule
by a requirement for a "prudent and feasible" alternatives test. This part of the rule is di�cult
to apply since the interpretation of words Iike"feasible,prudent, reasonable and practicable" can
vary greatly. Further difficulties arise because there are differences in the functions and va�ues
of a wetland and the severity of the propose� impact. A recentRegulatory Guidanee Letter(RGL
93-2) issued by the Corps of Engineers states that the level of review of project alternatives must
be commensurate with the sEverity of the impact and that not all wetlands have the same functions
and values. For minor projects,"if the function and values tost due to the proposeti drain or fill
are certainly less than that of the proposai replacement, an etaborate search for praeticable
alternatives is not required. The determination of what constitutes an unreasonable exgense
should generaUy consider whether the projected cost is substantially greater than the costs
�
normally associated with the particular type of project. Because LGU staff and the regulated
community have urgently requested guidance on this issue, we are including Attachment E which
consists of a summary of RGL 93-2 and some additional flexibility guidance from the BWSR.
These materials are guidance only and it is up to the LGU to fol}ow the WCA sequencing
requirements, develop flexibility criteria, exercise sound scientific judgement, and apply the rule
in a consistent manner. FuRher discussion of this tapic will occur at the upcoming training
sessions.
5. BANKIN
We wiIl discuss banlcing in some detail at the training sessions, but there aze a few principles to
keep in mind when planning projects: '
• FuncEional wettands must rese�lt. This requires expertise in site selection and
construction xechniqaes. Be sure you have persons involved in the planning
stages of a project who have this Irnowledge or experience. Staff from the
SWCDs, BWSR, DNR, USF&WS, Corps of Engineers, SCS, MNDOT, etc.
may be able to provide some assistaace.
• Public funds cannot be used to subsidize wetland replaeement for private
projeets (see M.S. 103G.z242, Suhd. 12). If a local goven�ment unit uses its
property, funding, staff time for design and monitaring, eu, ta complete a
wetland restaration or creation pmject and gain wexland banking credits, it must
factor those items into the price it chazges for the sale of wetland credits. This
means that when consuucting wetlands for banking on public land, the value of
the land rights needs to be factored into the price of the credits. CAUTION:
Use of state and federally contcolled land is subject m the policies and
regnirements af the responsible agency(s). Before planning a wetland banking
project on these lands, permission must be secured from the coatrolling
agency(s). The sale of wetland banking cre�its is also subject to the laws �
pertaining to the authority and requirements of a LGU seliing assets. Consutt
wh uirements a 1 to sale of
v' ut at r
with the LGU attome for ad ice aba
y e9 PP Y
wetland banking cre�its.
• The wetland area and type on the grnund must exactiy match those credits
in the bank. This means that all wexland size and type dexerminadans @efare
. and after pmject camaiencement) should be dane conservatively. If it wrns out
that more w�and was restoredicreated than originaily determined the banking
plan can be amended —by following the same procedures and requirements for
progosed wetland banking plans — tcy add this area, We must i�e certain that
credits aze not given (and then baught and sold)where wetland does not exist.
6. ALTERNATIVFS TO "CASH BANKING"
"Cash Banleing" is not al�awed. Ths idea of allowing persons impacting wetlands to pay th�
LGU now and have the LGU take caze of the replacement later is not authorized under the WCA
Rule. Hou►ever,there is an option for LGUs to enter into a contxact(or to accept a cash security
or irrevocable bank letter of credit) for sale of replacement credits, oa property controlted and
` managed by the LGU, tbat are being generated at the time the replacement plan is approved, but
will not completed until after the wetland draining or filling occurs, The LGU will be
responsible for wedand reglaeement, as per the approved replacement plan, under this option.
Tfiis option is recommended only as a last resort whea direct replacement is not available or
weather conditions, f�r example, prohibit prior replacement, and will likely only be necessary
3
through 1994 or until banking credits beeome available. If an LGU has a wetland replacement
or banking project underway, this option may be an acceptable risk for the LGU, especially for
public road projects that aze ready for construction. Consult with the LGU attorney regarding
any local restrictions regarding the acquisition and use of public land for wetland replacement.
7. METRQ LGU DETERMINATIONS
We believe in giving LGUs as much flexibility as possible in deciding how to best develop
arrangements for WCA administration. However, in the event that a dispute arises, ihe BWSR
response about which LGU in the metro should administer the WCA program is described in a
Ietter to Rice Greek Watershe� District in Attachment F. If you have a unique situation not
addressed by that letter, please contact one of our metro field staff.
8. FEES
The WCA statute says a LGU may charge a proce$5ing fee up to $75. t?ther fees that aze
charged for additional work (e.g. fietd inspections,delineations, etc.) should be reviewed by the
LGU attorney to determine apprapriateness and legality before they are standazdized into an
o�cial fee structure.
9. ENFORCEMENT
Attachment G is ttte WCA Enforcement Procedures developed by the DNR and a list of the
E�forcement Water Resouree Specialists (WRS). Please replace the draft Enforcement
Procedures in the WC�r!Administrative Manual with these materials. AdditionaI information will
be forthcoming on the civil enforcement procedures mentioned at the end of the attachment.
When LGU staff become aware of potential wetland violations they should contact their local
conservation officer or WRS before investigating on site.
10. LGU RECORD KEEPING
In order to justify continued state funding, to minimize liability, and to achieve program
evaluation, it is very important that LGUs maintain records individnally for projects and
summarily for each year. To this end, we ask that LGUs develop forms to keep summary
records of project numbers, time and expenses incuned for the following activities: �project
screening and sequencing, exemption determinations, replacement plan review and approval
(including wetland impact size, type and location), technical panel participation, violations,
delineations eompleted, wetland banking project development and approval, manitoring and
general administration. Also, we request that summaries of work items and expenditures
mentioned above for the interim program dur'�ng calendaz year 1993 be sent to this office by
April 15, 1494 so we can develop a statewide sumrnary.
11. EXEMPT'I N �f23
The Permanent Rule language may change application of this exemption in some LGUs that used
a different definition of ag-tand during the Interim than the one in the WCA Rule. Thus, there
are two criteria that should be added tc� the interpretation of this exemption on page 13 of the
Ezemptions User's Guide:
a. Exemption #23 only applies to wetlands on agriculturaI land (see RuIe for definition).
Simply stated, this exemption applies if half or more af the wedand boundary remains
agricultural land and the landowner remains eligible for federal farm program benefits. '
b. As for all the ag la:nd exemptions, there is a requirement that the land remain in I,
agricultural use for ten years after the euemption is exercised (or the lost wetland must �'�
be replaced). A deed recording is required to provide a means of informing future
buyers of the property of this requirement.
4
. t r
infin
ha ter
420 A
12. WCA RULE ERRATA and INTERPRETATION C p 8 , u�us 1993 a �
Please note these changes in your copies of the rule: �
d on a e 55 Part F• under definition of RR in the formula, it
- On a e 54 Part E an , ,
Pg • Pg
should read ...T b e 2... not�eb�e-�.
- On page 54, Fart D, item 5, line 9; should read ...counties where$Q percent or less...
not ...counties where 38 percent or less...
Please note these interpretations when applying the fotlowing parts of the Rule.
- On page 68, item H, line 6; the word "transfer" rneans "withdrawal" in order to stay
consistent with other uses and definitions of these words in the Rule.
- On page 6$, item G; second paragraph, since the commissioner has approv�l the state
wettand bank established in this rule, the commissioner will nct need to approve
individual replacement plans for public transportation projects. 'I
13. FORMS• ERRATA CHANGFS and CLAWF�CATION
forms disuibuted reviousl and thereafter are provid�for general informational
All the samgle p Y
purposes as a service to LGUs involved with administration of the WCA. Each LGV should
consult vvith its attorney regazding the legality of these forms and making modifications to them.
Please make the following changes to the sample forn�s:
EQ8 Monitor and other Notices
Add a statement to these farnis inviting camments and noting the comment deadline and where
they should be sent. Use these or similar fomns to provide notice to the local newspaper and send
it and ail other notices directly to all those required to receive notice. Do not send the notices
to the BWSR for distribution. The BWSR will receive notice(to be sent to the appropriate Board
Gonservationist)as one party required to receive a copy of all replacement plan applications. As
described in Attachment D, the LGU decision must occur no sooner than 30 days and no later
than 60 days after the date the last natice is published or mailed.
Deed Recordin F� orn�s .
Ali notices should be recardeci after the LGU appmvai is receive�i but before the pmject
commences. If this is not possible, a binding agreement to have the notice recorded shortly
thereafrer should be part of the LGU approval. �
The deed recording notice for banlcing and replacement wetlands references MN Rule$42Q.0750,
Subp. 2 for banking. Ir shauld also reference MN Rule 8420,Subp.D(6)far direct replacement
wetlands. Please add this reference to your farm. '
This form should also include a number of additional informational items:
- The name(s) of the landowner(s). '
- The name and address of the LGU granting the exemption or ap�roving the replacement
or banking plan.
- The date on which the ten year restriction for exempted wetlands being useti for
replacement expires.
- A complete legal description of the real property affected (to be provided by the
landawner) with a legal description (if available), narrative description, or attached
map/drawing description of the wetland area affected by the WCA restrictian.
5
- A signature line for all landowners.
- A release clause allowing the LGU to make a determination that a subdivision portion of
the property not af;ected by the ten year restriction may be released from this restricuon.
BWSR will work with the Attorney General's office to revise the existing form. It wiil be
available at the training sessions in early spring.
LGU Sequencin�Finding�of Fact
Delete the statement at the bott�m of this form that reads " ,
�
a .
Wetland Banking Pl�n Apglication (and other repaacement and bankzng forms) '
On the last line in item (2) add a checkbox followed by the option to choase >50�'o and �80 0
Add this option to the other €arms where appropriate.
�ombined Project Notification/Application (CPIJI Form
This form can now be used as a notification or application to a}l agencies. The agencies have
agreed to try to respond within 45 days. Lack of a response within 45 days does not constitute
a default approval. If a response is not received within 45 days,the agencies should be cantacted
directly for a jurisdactional decision. The CPN form is � sufficient to' serve as a WCA
replacement plan application. The replacement plan application form pmvided in the WCA
Administrative Manual must be completed.
14. WETLAIvTD TECH1�'ICAL TRAINING
Several training opportunities will be upcoming this summer for wetland technical training. See '
Attachment H. Registration materials will be distributed later this spring. ,
1�. Ofher Attachments '
EQB Monitor publication dates for 1994 ,
Watershed map/accounting units - improved copy to replace Figure 2 on page 52 of the Rule. j
NWI/PWI map availability- both types of maps are now available form the MN Bookstore,
: attchs.
c: Board CanservationistslRegional Supervisors
Matt Seltzer, Attorney General's Office
InterAgency Wetlands Group
WHAC
RWC
DNR Enforcement WRS
a:lgurou.,,�o
6
' ' _ c=�r3r oF Ros�ourrr _
EXECUTIVE SU)�iA,RY FOR ACTION
CITY COUNCIL MEETING DATE: December 15, 1992
AGENDA ITEM: Wetland Con�servatian Act (WCA) AGENDA SEGTION:
Department Head Report
PREPARED BY: Bud Osmundson AGENDA��c� � � �l
City Engineer�Assistant Public Works Director G l�
ATTACffi�lENTS: Protected Water� Map; � d� $�-
Jurisdictional Guide; Notification Form
Attached is a memo discussing the WCA for your information. I will
give a brief overview at the meeting and try to answer any questions
you may have.
RECONtMENDED ACTION: NONE
COL]NCIL ACTION:
1
MEMO
TO: MAYOR McMENOMY
COUNCIL MEMBERS: KLASSEN
STAATS
WILLCOX
WIPPERMANN
FROM: BUD OSMUNDSON, CiTY ENGlNEER
DATE: DECEMBER 11, 1992
RE: Vi/ETLAND CONSERVATiON ACT OF 1991 (WCA)
The Wetland Conservation Act of 1991 (WCA) was impiemented with the purpos�
stated as follows
"A. Aehieve no net loss in the quantity, quality and bialogical diversity of
Minnesata`s wetlands.
B. To increase the quantity, quality and biotogicai diversity of
Minnesota's wetlands by restoring or enhancing diminished or drain�d
wetlands.
C. To avoid direct or indirect impacts from activities that destroy or
diminish the quantity, quality or biological diversity of wetiands; and
D, Reptace wetiand vatues where avoidance of activity is not feasible and
prudent."
The main provision is that all wetlands in Minnesota are protected and eannot be
drained or fitled. The benefits of wetlands inctude flood water storage and
retention, nutrient assimilation, sediment entraprnent, ground water reeharge,
wildlife habitats, and aesthetics and recreation. The WCA permanent rules beeome
effective on July 1, 1993. However the interim rules have been in effect since
January 1, 1992.
Minnesota's waters have been grouped into two categories for protectian I
purposes. The two groups are "Protective Waters" or "Vlletlands". A wet area is '
categorized as either a "Protected Water" or "Wetland" depending on the criteria of
size, physical characteristics and ownership of surraunding land. Certain ponds,
lakes and wetfands were protected by the Minnesota Department of Natural
Resources {DNR) which were identi#ied and cataloged when the initial laws went
MEMO
PAGE 2
into effect in the late 196Q's and early 1970's. in addition, the Army Corp of
Engineers (ACOE) has jurisdiction over filiing or dredging of any water or wettand
in the United States. This was defined by Section 404 of the Ciean Water Act.
ACQE Permits for filling or dredging in a wetland are calfed Section 404 Permits.
The Corp is also authorized ta regulate any work in navigable water in the United
States under Section 10 of the Rivers and Harbors Acz. In Rosemount we would
need a Section 10 permit if we would work in, or afong the Mississippi River.
After the passage of the WCA, we now also have what are referred to as LGU's ar
Local Governing Units that have wetfand responsibilities. These consist of
Counties, Cities, Townships, Towns, Water Management Organizations (WMO'sa, '
Soil and Vt/ater Conservation Districts that are designated to have jurisdiction over
aN wetlands as defined in the WCA. The attached handout shows the jurisdictional
guidelines of the different agencies. This jurisdictional guidetine, as you will note,
is a draft, is stiil being questioned and has not been finalized.
WHAT IS A WETLAND?
The definition of a wetland as stated in the WCA is based on the classification
system presented in "Wetlands of the United States", United States Department of
the Interior, Fish and Wildlife Circular, No. 39, 1971 Addition. The "Cireular 39"
as it's commonly referred to, will be shown to you at the meeting. The delineation
of wetlands are based on three criteria:
1. Predominance of Hydric Sails
2. Presence of Water
3. Prevaience of Hydrophytic Vegetation
The Iocat government unit is charged with reviewing an application for replacement
o# wetlands if a developer or improvement project wifl have an impact on a
wetfand. The applicant wiH fifl out the "tocal, State and Federal Project
Notification Form" (Attached) which is to be submitted to the LGU. At that time
the I.GU must decide who is the lead jurisdictional agency. The WCA does define
that a technical evatuation panek or "TEP" consisting of one Minnesota Board of
Water and Soil Resources member (BWSR?, a County Soit and Water Conservation
District member, and an LGU designatee, will review the apptication #or the
replacement of the wetland and base their recommendations on the #ollowing
principles (in order of priority):
1 . Avoiding the direct ar indirect impact of the activity which may
destroy or diminish the wetland.
MEMO
PAGE 3
2. Minimizing the impact by limiting the degree or magnitude of the
,_ . wetland activity and its impiernentatian.
3. Correcting the impact by repairing, rehabilitating or restoring the
effected wetland environment.
.
4. Reducing or eliminating the impact over time by preservation and
maintenance operations during the life of the activity.
5. Mitigating for the impact by replacing or providing substitute wetland
resources or environments.
Replacement plans for wetlands are not required for twenty-four exemptions, as
de#ined in the WCA, most dealing with Agricultural lands. The WCA also'sets the
mitigation criteria to be followed.
The LGU is further charged with monitoring the repfacement wetlands and filing
yearly reports on those wetlands with the BWSR. There are also issues of banking
wetlands and future refining and redefining af the law that are currently taking
place and witl be taking place in the future. As an example, Subpart 18 of the Law
is the definition of fi(I. This definition is fifteen lines Iong and is already being
questioned.
SUMMARY
All wetlands in Minnesota are now protected, In the past, you may have heard the
question "whether or not a wetland is protected?". As of January 1, 1992 �tl,
wetlands are protected; its j�st a matter of who or what agency has the ''
jurisdiction. _ _ '',,
As stated, sorne refinement of the faw is forthcoming. There currently are ',
questions over when the technical evaluation panel does become involved and ,
many other jurisdictional and definition issues.
There is a cost involved with the savings of the wetlands. Replacing and
mitigating wetlands is extremely costly. Develapers will shy away from developing
wet areas, which drives up the price on "dry" property.
The State has had public hearings in the past on this subject and they have
another one scheduled on Thursday, December 17, 1992 at the State Office
MEMO
PAGE 4
Building, 100 Constitution Avenue, Basement Hearing Room, at 1:00 'P.M. and
7:00 P.M. More information can be obtained from Greg Larson from BWSR and
other agencies which speciatize in this area. We can provide you with copies of
the WCA if you wouiti desire.
1 •
n � '�,i l , �C � ��
' �' ' „� � r in �'�. i, A r"�
� �l8� 1� ,� (u , _ . ... . . ��.. ,�..��•. - • ;�^�.� � . _.. ---- �\\,�.tus+* "a�
� ��. , � � � •�- ,� �, � ,q� . . j � � �� '� "111'� � sa�•
� p�
� y+„ f�_�N�� �� : �
r9�..,J ar � �' ,� �����la J-r`! 1j1w 3�Nal� ,_.__ —7'i�.. _ ,��pv�" --
'Nµ� � �. r — �= ��r � ' f ! `�
�• •�pr_-..� I����' � mu I� 91iM ' ' w ��; • �/
' ..
� q 1,c . J'.-t .� �'• , i� _-•-----.���s�;. ,.. - . �v
.
�. �ee,♦ �'„� � ( --1� ��� V►! _._ �� } 31L"' "��,p�'.__� ,� . . � �'� 7�2� /
� • � .�'�_rr ;' f � � . •'� .. S
��a '�"�;�+,�3 1.7'�� �1 f� 1 � Ih' ' '---a-=_ � : �,y
� `� %a -- �� � , ..,.r-' -? . ._ ._-�� �, . -:, .; ;.;� � ��N � • . �
'„ � �„ ,.r�� r ��� � MNI ''N.. ;;,�� l. .�� - — °""'
/ p. 1 � �.'���! Nq J�,'Ih� _. ...___ C� � -'� � � . /T
�
'. �"" ='�r �'r 'll�� �!� ',� ,�iy '� � 9� . �I . ..._.._M •��� '` °�, �., (R"SP ve�o LAK�
�%--`�.'� � � ,�„�'"�-'"" ,, "� '� I{ _...._.._. �I�' a�_____\ •
. '�� � � � ���'�s'� R[CORN lk ��J�W~ . ' L - _ • I �.1
. �---�---- � �. ��� � � •� . N � . y� . / � .
S i / •�:�.�.�
.. ' IiP �w,� \ ' ..' ' _._ .._.�
� ', • ' �
AiRbin�. : � �' + ..f� r f'�'" /..
Z.� o ,�6� C .{ 3�J� � IZ41 i +t �� Ib
-- � \ 'i ' -- � ,' � +�
`\ ' . --"• -� :
�I SGiI�+/�A,/' �,�:� • � � � p. i � � 3 � _
�� '"^_,�______tr � � . .�'' '\ ����.h � � . ' � _ T �' _J .
..s. �/�.) � j �• ,``. ^ j; �
"'� � j ! �' !�� p�� , ,.�. `• � _. _ ._____1 I ' ,n
'� -�� � �1� �e „ �s� .. — ,6 �' ' �+ '
� �a: �
—•�..
' � ���� .> '�y � � ' .�.—` ,,, --- 1 ;
• _ ��� f 1r� ` �`.• '_ __ ^�~~ _ i �
� ____..__.
���
c~ -'�'` � UNIV[1121T M{NNESOiA . . . 1 •~•��'�'�"���„ � �
aa.. _ �� � 1 . ' . . , .
�� . ,` -' - .1 . f� IIOfEMOUNT � ��j111CH CENi411 . -��. . _•-�=-y.- ..
�
. (
' �
t
f L_____ --�- - -- ;
. 1 �. . N . � �.� . — � . .. .. ..� ...
� ' � � �.'. ' '
..e . . ; WACNTM�tOND ' � _ : _ - . . .- . . (,J . . ' • .
_ .'���/. � ��+ •� � . � � �J' .qp�iR1. ��- .� . . . ....J �r_ .
� t---- � fj� - ,. � , I � _ �.1�,:i� .��.�._
� ' �' �
� � -�
a ,. � �i " M' y ....�...� i � i O ; ��� �/ �
p �� r I� i 1 � p � t
FIG. 4 tEGEND: , � � � � �
� OPEN WATER r
WATER RESOURCES -- FLOODWAY 4
IUIIIIiilillli WETLANDS �, `��
�
�l �� � �N����' 7 t
� p �E N1 O U NT' � �.�� ��--�
p t�ro i �G
M1 N N E�C7TA C—�--- ,� ��-�.-'��.�`s
� r C� �a �o o�t�, �K 1�1G �G�Fr�� '
.
�� /J2 � F7��� • �
MtNNESOTA STATE AND FEDERAL JURISDICTION OVER "VI/ATERS"
tW�TI.AND TYPE FROM U.S. FWS, CirculAr 99)
ONW OHW
i i
FED — EPA C�RPS -- CWA, Sectic�n 4�4 �
1 I
� CORPS, - �1-IA, Seetion 10 ��
� . 1 � �
STATE - LGU`s — WCA I � �cu•a - wc,�
BWSR —t swsa�
I I
�j ..�---- MNQNR ---• -- -- - —�
I I
TYPE,,,_j._.,_— i N01'
NOT 1YPE � � TYPE �� TYPE TrP� � TYPE T��F�E � TYPE TYPE 'NET
I
WET 8 � 6 5 NAVIGABLE RIVER 5 ( 4 3 � 2 1
�R tAK� '
61NCNE5 � •�6i.vc�a.S
i FOOT �
LESS TItAN \ J FEET
��� 14 FEET 1�55 THAN
10 FE�T
GWA = CLE{W WATER ACT
RHA = RIVERS AND HARBOR5 ACT OF 1899
WCR = MINNESOTA W£TIANQ CQNSERVATlON AC7 OF 1991
AGENCY � EXEMPTIONS
EPA s U.S. ENYIRONMENTAL PROTECTION ACENCY . 'TYpE i, UNFORESTED AGRICULTURAL LAN�
GORPS = U.S. ARMY CORFS OF ENGINEERS TYPE 2, AGRICUITURA! LAND
B'NSR = $O�RO OF WATER ANO SOiI RESOURCES
� ��`lDNR = MlNNESOTA DEPARTMENT OF NATURAt. RESOURCES
'• '�U � LOCAI. UNIT UF GQVERNMEN7 ,
,
LOCAI.--STATE--FEDERAL PRUTECT NOTIFIGATIOW FORM
r.,� ,��� r�f� w�y r��r��a�r�'N�r R� �.��y c� �'�� a�r y��y�
n�°���a P^ol�a'�y�P�'P� �'hich »ury fail within tht�^jurisdicaon. ?7eese agau�c shadd advist ynre vf tlu�
7���4 ��}', wirlun 4S days�r�xerjnt o¢'this�atrf'Ycatiar�. This far�t isprovided as a convdtiaue and its�st is optio�rt Yau
�Y, =f�� 4PP�'fa'P�T or airthoraatiUru usutg standr�nd ag�ncy fam� Fill att this farm uxnpJdily mid mail a co�,with
P��P� dc. to each of the agr.nci�s listad c�n tlu sevuse uf�f� �P a COFY�f all n�ataiaLs submitted for yrxv~nc�d� Yae
must a�btain au ra�u�a authvrir,atio�ns befc�r�e be�nxing warlc Y'solatio�rs �lQca� sta� or Faderal laws mm► he,punishabte hy
admi�isxrativG czvil m�dl/or crirr:iiwl penaltie� � . . _ - _ _ � .
I. Applicant's Name (First, Last, M.I.) / Aut�or'rzed Agent,if any / Area Cade, Telephone
� � � )
Address (Street, RFD, Booc Number, City, State, Z�p Code)
II. LOCATION OF PROPOSED PROJECT (ATTACH DRAWING SXC�WING HOW TO GET 7"D SITE)
Govemment lot(s) Quarter Section(s) Section(s) No. Township(s) No. Range(s) No. Lo� Bloc14 Subdivisian
Fire No., Baz No., or Project Address County Work will af j'ect lake wetland waterway ag procGtcttan
Waterbody Narn� No. {if known)
IIL EST7MATED PRGUECT Ct?S7: S LENGTH OF ShEDRE AFFECIED (in feat):
IY. Volume of fill or ercavation (cubic yds.J: Area filled or excavated is acres, ar squar�e fee�
(NOTE: You may substuute dimensions}
i! TYPE OF WORKANDARF.A (G7reck all that apply): FI1L EXG�YATE REPAIR CONSTRUCl
RF.hfOVE DRAIN UAb!
SHOREL(NE i�TIAND WATERiYAY DfX:K CULVER7' BRIlX"E Lrtl�
ACCESS PATN RIPRAP S�4M�BIAM�1' OT�'..R(d�xcnbe):
R'ET7.�1ND TYPE(S)AND ACRF.rlGE(S)PROPOSED T1U BE FIL[.EDIDRAINEU:
Anach drawings and plau. IncLlde a daaiptio,ri oj meJ'P^�P�d G�P�'� ��� j�9�1'���+d ban�v mr,as.
Describe the wark betow; how u would be done, whut equipment would be ured: �
Vl. PRQI£CT PURPOSE ( why is this project needed--what benefits will it provide?):
Yll. ALTERNAT7VES (dcccribc arry oth�r sit�s ar nuthvds that cQuld be used to athicve tht pio�Ose vf y�an'�nlux wJsile avc�iding �
or,rni�umizing wdlarid/water impacts: Attach additional sl� if needed). ',,
VIII, DATES-- Activiry proposed to begin on: Be completed: '
Has arry of the work been done? NO YES (ulentify any compteted work on drawing). ,
IX. .41)JOIIVING PROPERTY OWNERS (Attach list if mare thun two).
Name Address City State Zip
L
2
X. PERMITS have been received (enter an R) or already app[ied for (enter an A)fram: DNR A.RMY CORPS
COUNTI' TOWN/CITY WATERSHED DISTRICT MN. POLLUTION CONTROL AGENCY.
Has an m�chaeological survry of tlst p�nlect site been doncp If so, by whom:
Xl I hene6Y�IY��P� oI�T I� �I�P►nlect prolwsed herein and rtquPst tlurt l be odvised of rury'Psrn:its or ozher
determinatians concenung tJsis project thut I must obtain I understand that pror.eedv:g with work befare all requfred autharizaturns
me obtavsed may subject me to Federa� Stut� and/or local admv:irtrativ� civil and/or criminal peisrtlri�.�
DATE:
Signatune af Fersvn Proposing Project �r Agent
«< PLEASE CAREFULLYREAD AND COMPLETE BACK dF FORM»>
. . INSTRUC!°fONS-PLEASE RF.AD CARFFUI�Y .
A copy of t�us form�,with copies of all plans,drawin8s,:etc.,should be sent to each aBeacY inrlicat,ed below : _ . ��.. >
Please check t�e rn riate .. :
aPP F spaces below to show everywhere you are�sending t�is form., Remember_m,keep a copy fc�r: ;,;
yoursel� DO NOT SEND l�NY PF.RM[T PROC�SSING FEES W1TI-i THIS FORM. - _ .__ _� --.. .:. -. : -_ -.._ __.. __ ...
MUNIG�AL GdVERNNfENT(Q1Y OR TOVVN) OR COUNIY ZONIIQG OFFICE. SEND T'O GOUNTY ff Yf7UR PRQTEGT�ITE LS
NOT IN A MfTNICIPAL ARFA PLFASE LtST THE MUMCIPAI.PtY OR COUN'IY TO Wf-IICH YOU AAE SENDING TT� -
FORM•
WATERSI�D DISIRIGT OFFICE (�ONE FJ�S'i'5 FOR YOUR PR03EGT AFtFA�.
PLEA,SE LiST DL�'I'RICT OFFICE NAME•
MINNESQTA DEPT.OF NATURAL RESOURCES F.EGIONAL OFFI�E.
YOUR LOCAL SOIL AND WATER CONSERVATION DISIRIGT:
US.ARMY GORPS OF FNGINEERS. SEND TO:
Depa�'tm�t of t�e A�y,Co�'pc of ERBmeers, St Paul D�c�
ATIN:CO-R, 188 Rellogg Btvd.E.,Room 1421,St Paul,bdAT` 55101-1479
Note: The ataove agencies may provide a copy of your completed farm to the Minnesota Pollutiaa Control�genc.y(1viPGA). MPCA water
quality rules may apply to your proposal.
ATTENTION! FR.OM USDA: Any activity includinS a�S� �S�RB', �8� leveling or othes manipulatians,
including maintenance, may affect a landuse�s elig�b�iry for USDA benefitr under the i985 Food �ecutity Act as
amende� Check with your local USDA affice to request and complete Farm AD-1026 prior to initiating activity.
IMPORTANT: Some of the above'offices may allow this form to be used as a pernut applicauon form. The Corps of ,
Engineers will accept this form as an application form. If you wish this form to constitute an application to the Corps of ,
Engineers for any necessary penmits for your project under Section 1Q of the Rivers and Harbors Act of 1899, and/or under ''
Section 404 of the Clean Water Act, please carefully read the following information and sign where indicated below.
Application is hereby made for a permit or permits to authorize the activities described herein. I certify that I am famiiiar
with the information eontained in this agplication, and that to the best of my knowledge and belief such informatian is true,
complete, and accurate. I further cert.i�y that I possess the authority to undertake the proposed activities or I am acting as
the duly authorized agent of the applican�
Signature of Applicant Date Signature s�f Agent Date
NOTE: The application must be signed by the yerson who desires to undertake tt►e progosed activity{applicaiat) or it m�y be s�gned by a
s'
duly autharized ag+ent if the iaformation iequest�d below is prrrvided.
Ag�at's Natne• �geat's Title:
Add:+es�s•
Telephoae: ( )
18 U.S.G.Sectioa 1001 provides that: tNhoever, in any maruier within the jurisdiction of any departmeat or agency of The United States
kaowingly and w�lfully faLsifies, conceaLs, or eovers up by any trick, scheme,or device a material fact or makes any faLse,fictitious or
fraudulent statements or representarions or makes or uses any false writing or documeat Irnowing same to contain aay faLse,fictitious, or
fraudulent statement or eatry, shall be fined not more than$10,000 or imprisuned not snore than five yeazs,or both.
DC}NOT SEND ANY PERMIT PROCESSIIJG FEES WITH THIS FORM
�RIMTEO ON
. . . �NECYCIEDPMEII� � � � . . .