Current through Register Vol. 49, No. 13, September 23, 2024
Subpart 1.
Field inspection.
The department may conduct field investigations to determine
a project's nature, scope, and impact on water and related land resources. The
department shall determine which applications must be investigated and such
inspections shall be made in a timely fashion.
Subp. 1a.
Effect on environment and
mitigation.
The commissioner may not issue a permit that causes
pollution, impairment, or destruction of the air, water, land, or other natural
resources so long as there is a feasible and prudent alternative consistent
with the reasonable requirements of the public health, safety, and welfare. If
the commissioner determines that a major change in public waters is justified
and can be authorized by parts 6115.0190, subpart 5; 6115.0200, subpart 5;
6115.0210, subpart 5; 6115.0215, subpart 5; 6115.0220, subpart 5; 6115.0230,
subpart 5; 6115.0270, subpart 4; or 6115.0280, subpart 4, the permit must
include provisions to compensate for the detrimental aspects of the change.
Compensation for the identified detrimental aspects of the permitted project
include:
A. restoring degraded or
impacted public waters having equal or greater public value;
B. creating or restoring additional
replacement water areas having equal or greater public value; or
C. any other measures approved by the
commissioner that compensates for the detrimental aspects of the
change.
Subp. 2.
Coordination with other agencies.
Nothing in these standards is intended to supersede or
rescind the laws, rules, regulations, standards, and criteria of other federal,
state, regional, or local governmental subdivisions with the authority to
regulate work in the beds or on the shorelands of public waters. The issuance
of a permit shall not confer upon an applicant the approval of any other unit
of government for the proposed project. The department shall coordinate the
review with other units of government having jurisdiction in such
matters.
Subp. 3.
Procedure upon decision.
The commissioner may grant permits, with or without
conditions, or deny them. In all cases, the applicant, the managers of the
watershed district, the board of supervisors of the soil and water conservation
district, or the mayor of the city may demand a hearing in the manner specified
in Minnesota Statutes, section
103G.311, within
30 days after receiving mailed notice outlining the reasons for denying or
modifying an application. Any hearing shall be conducted as a contested case
hearing before an administrative law judge from the independent Office of
Administrative Hearings according to Minnesota Statutes, chapter 14 and section
103G.311.
Subp. 4.
General
permits.
The commissioner is authorized to issue general permits to a
governmental subdivision or to the general public for classes of activities
having minimal impact on public waters under which more than one activity may
be conducted with a single permit.
Subp.
5.
Public water wetland permit processing.
A. Public waters work permit applications
submitted to the commissioner for proposed projects in public water wetlands
shall be granted if authorized by parts 6115.0190 to 6115.0232 or parts
6115.0270 to 6115.0280 and if the public water wetland is:
(1) assigned a shoreland
classification;
(2) classified as
lacustrine wetland or deepwater habitats according to the document under item
C; or
(3) where the state or
federal government has become titleholder to any of the beds or shores of the
public water wetlands, subsequent to the preparation of the public waters
inventory maps on file with the auditor of the county and where the responsible
state or federal agency declares that the water is necessary for purposes of
public ownership.
B. All
other public waters work permit applications for proposed projects in public
water wetlands shall be:
(1) granted, with or
without conditions, if authorized by parts 6115.0190 to 6115.0232 or 6115.0270
to 6115.0280 and if the permit application complies with provisions for
sequencing under part 8420.0520, and replacement provisions under parts
8420.0522 to 8420.0544, 8420.0810, and 8420.0820, or denied; or
(2) waived pursuant to item D.
C. The following documents are
incorporated by reference:
(1) Classification
of Wetlands and Deepwater Habitats of the United States, Lewis M. Cowardin et
al., United States Department of the Interior, Fish and Wildlife Service
(1979); and
(2) Guidelines for
Ordinary High Water Level (OHWL) Determinations, John Scherek and Glen Yakel,
Minnesota Department of Natural Resources, Division of Waters (June 1993).
These documents are available through the Minitex
interlibrary loan system and are not subject to frequent change.
D. Public waters work
permits in public water wetlands:
(1)
notwithstanding parts 6115.0150 to 6115.0280, the authority of the commissioner
to require a permit for activities within public water wetlands is waived to
the local unit of government under chapter 8420 when the commissioner has
received notice or application from the landowner or project sponsor and when
the commissioner has provided the applicant or project sponsor and the local
unit of government a notice within 15 days of receipt of the notice or permit
application that the department will waive public waters work permit
jurisdiction to the local unit of government; or
(2) the commissioner shall not waive the
requirement for a public waters work permit in a public water wetland for
activities:
(a) allowed under part 8420.0122,
subparts 1 to 7 and 10;
(b) in
public water wetlands assigned a shoreland classification;
(c) in public water wetlands classified as
lacustrine wetland or deepwater habitats according to the document under item
C; or
(d) in public water wetlands
where the state or federal government has become titleholder to any of the beds
or shores of the public water wetlands, subsequent to the preparation of the
public waters inventory maps on file with the auditor of the county and where
the responsible state or federal agency declares that the water is necessary
for purposes of public ownership.
E. Notwithstanding parts 6115.0150 to
6115.0280, the authority of the commissioner to require a permit for public
road activities that are associated with the repair, rehabilitation,
reconstruction, or replacement of currently serviceable existing public roads
is waived to the public road authority under chapter 8420:
(1) for projects that affect less than 10,000
square feet of public water wetlands, upon receipt of a copy of the state,
city, county, or town public road authority report that is submitted to the
Board of Water and Soil Resources in compliance with part 8420.0544, item D,
except for projects in public water wetlands:
(a) assigned a shoreland
classification;
(b) classified as
lacustrine wetland or deepwater habitats according to the document under item
C, subitem (1); or
(c) when the
state or federal government has become titleholder to any of the beds or shores
of the public water wetlands, subsequent to the preparation of the public
waters inventory maps on file with the auditor of the county and when the
responsible state or federal agency declares that the water is necessary for
purposes of public ownership; or
(2) for projects that affect 10,000 square
feet or more of public water wetlands, when the commissioner has provided the
public road authority notice of the waiver within 15 days of receipt of a copy
of the state, city, county, or town public road authority report that is
submitted to the Board of Water and Soil Resources in compliance with part
8420.0544, item D, except for projects in public water wetlands:
(a) assigned a shoreland
classification;
(b) classified as
lacustrine wetlands or deepwater habitats according to the document under item
C, subitem (1); or
(c) when the
state or federal government has become titleholder to any of the beds or shores
of the public water wetlands, subsequent to the preparation of the public
waters inventory maps on file with the auditor of the county and when the
responsible state or federal agency declares that the water is necessary for
purposes of public ownership.
Subp. 6.
Wetland areas of public waters
affected by public road permit projects.
A. For purposes of this subpart, "wetland
areas of public waters" means areas that are contiguous with the ordinary high
water level and that generally exhibit emergent vegetation within:
(1) public waterbasins;
(2) public water wetlands assigned a
shoreland classification;
(3)
public water wetlands classified as lacustrine wetlands or deepwater habitats
according to the document under item C; or
(4) public water wetlands where the state or
federal government has become titleholder to any of the beds or shores of the
public water wetlands subsequent to the preparation of the public water
inventory maps on file with the auditor of the county and where the responsible
state or federal agency declares that the water is necessary for purposes of
public ownership.
B.
Public waters work permit applications submitted by a public road authority to
the commissioner for proposed projects in wetland areas of public waters shall
be granted if authorized by parts 6115.0190 to 6115.0232 or 6115.0270 to
6115.0280.
C. The classification of
lacustrine wetlands and deepwater habitats found in Classification of Wetlands
and Deepwater Habitats of the United States, Lewis M. Cowardin et al., United
States Department of the Interior, Fish and Wildlife Service (1979) is
incorporated by reference. This document is available through the Minitex
interlibrary loan system and is not subject to frequent change.
D. Notwithstanding parts 6115.0150 to
6115.0280, the authority of the commissioner to require a permit for public
road activities in, on, or over wetland areas of public waters according to the
document under item C is waived for:
(1) all
activities authorized by the local government unit under chapter 8420 when the
commissioner has received notice or application from the public road authority
and when the commissioner has notified the public road authority and the local
unit of government of the waiver within 15 working days of receipt of the
notice or application; or
(2)
activities authorized by the public road authority having jurisdiction under
chapter 8420 for public road activities that are associated with the repair,
rehabilitation, reconstruction, or replacement of currently serviceable
existing public roads when the commissioner has notified the public road
authority of the waiver within 15 working days of receipt of a copy of the
state, city, county, or town public road authority report that is submitted to
the Board of Water and Soil Resources in compliance with part 8420.0544, item
D.
Subp. 7.
Written agreements with local government units.
A. For projects affecting both public waters
and wetlands, the local government may, by written agreement with the
commissioner, waive the requirement for a replacement plan or a no-loss or
exemption determination if a public waters work permit is required and the
commissioner includes provisions of Minnesota Statutes, sections
103A.201,
103B.3355,
103G.222,
and
103G.2372, and rules
adopted thereunder, in the public waters work permit.
B. The written agreement may be done on a
project-by-project basis when:
(1) the
agreement identifies the parties having authority to make the agreement and the
proposed project subject to the agreement;
(2) the commissioner requires an individual
public waters work permit for the proposed project;
(3) the majority of the proposed project
impacts on public waters and wetlands are to public waters;
(4) the proposed wetland impacts are subject
to approval of a wetland replacement plan or a no-loss or exemption
determination by the local unit of government according to part 8420.0210,
8420.0220, or 8420.0230;
(5) the
local government unit provides the commissioner with specific language
addressing no-loss or exemption determinations or allowable wetland impacts and
required wetland replacement for incorporation into the commissioner's public
waters work permit; and
(6) the
local government unit agrees to assist the commissioner should appeals be
brought against the commissioner based on the language impacting the wetlands
covered in the public waters work permit.
C. The written agreement may be done on a
local unit of government basis, a watershed basis, a waterbody basis, or a
project activity basis when:
(1) the written
agreement identifies the parties having authority to enter into the agreement,
the location of agreement application, and the scope of proposed activities
subject to the agreement;
(2) the
commissioner requires an individual public waters work permit for the proposed
project;
(3) the majority of the
proposed project impacts to public waters and wetlands are to public
waters;
(4) the wetland impacts are
subject to approval of a wetland replacement plan or a no-loss or exemption
determination by the local unit of government according to part 8420.0210,
8420.0220, or 8420.0230;
(5) the
local government unit provides the commissioner with specific language
addressing no-loss or exemption determinations or allowable wetland impacts and
required wetland replacement for incorporation into the commissioner's public
waters work permit;
(6) the local
government unit agrees to assist the commissioner should appeals be brought
against the commissioner based on the language impacting the wetlands covered
in the public waters work permit; and
(7) the agreement addresses enforcement
procedures and procedures for the commissioner or the local government unit to
terminate the written agreement.
Subp. 8.
Local plan
implementation.
Notwithstanding parts 6115.0150 to 6115.0280, the
commissioner may authorize alternative regulation of public waters activities
that are specifically identified in a local plan, ordinance, or other similar
written document approved by the commissioner and subject to the
following:
A. the proposed activities
are subject to the following principles in descending order of priority:
(1) avoid direct or indirect impacts to the
public water that may destroy or diminish the public water;
(2) minimize the impact to the public water
by limiting the degree or magnitude of the public water activity;
(3) rectify the impact by repairing,
rehabilitating, or restoring the affected public water;
(4) reduce or eliminate the impact to the
public water over time by preservation and maintenance operations;
and
(5) replace unavoidable impacts
to the public water when a major change in the resource is justified, by
including provisions to compensate for the detrimental aspects of the change
according to subpart 1a;
B. the proposed activities, their dimensional
standards, the criteria used to issue or deny applications, and allowable
locations are identified in the local plan;
C. adverse effects of the proposed activity
on the physical and biological character of the area are subject to mitigation
measures identified in the local plan;
D. the proposed activities are consistent
with locally adopted controls;
E.
the plan addresses enforcement procedures;
F. the plan includes procedures for the
commissioner to reassume the permit authorities in parts 6115.0150 to 6115.0280
upon notice, if determined necessary by the commissioner or plan
sponsor;
G. the local plan sponsor
publishes a notice in the State Register identifying:
(1) the local plan sponsor that is developing
an alternative plan for regulation of public waters;
(2) the scope of activities and the location
of the public waters impacted by the plan;
(3) the groups the local plan sponsor has
been working with in the development of the plan;
(4) the name and address of the local plan
sponsor who can be contacted for copies of the plan, and the name and address
of the plan contact for the department; and
(5) a statement that the interested public
has a time period of no less than 30 days in which to forward comments to the
plan sponsor and the department plan contact for consideration before the plan
sponsor submits the draft plan to the commissioner for approval;
H. when considering whether the
plan should be approved, the commissioner shall determine that:
(1) the proposed plan, when not in conformity
to parts 6115.0150 to 6115.0280, provides an explanation of how the proposed
changes are justified;
(2) the
public values provided by public waters subject to the plan are maintained or
improved; and
(3) the proposed plan
provides a mechanism for a periodic review of the plan contents and a procedure
to revise the plan, if determined necessary by the commissioner and plan
sponsor, or to terminate the plan upon notice being provided by either the plan
sponsor or commissioner; and
I. nothing in the review of local plans
proposed under this part shall be construed as prohibiting or discouraging a
local plan from creating standards that are more restrictive than parts
6115.0150 to 6115.0280.
Statutory Authority: MS s
14.386;
103G.315;
105.415
