Current through Register Vol. 49, No. 13, September 23, 2024
Subpart 1.
Requirement.
The local government unit must not approve a wetland
replacement plan unless the local government unit finds that the applicant has
demonstrated that the activity impacting a wetland complies with all of the
following principles in descending order or priority:
A. avoids direct or indirect impacts that may
destroy or diminish the wetland under the criteria in subpart
3;
B. minimizes impacts by limiting the degree
or magnitude of the wetland activity and its implementation under the criteria
in subpart
4;
C. rectifies impacts by repairing,
rehabilitating, or restoring the affected wetland under the criteria in subpart
5;
D. reduces or eliminates impacts over time by
operating the project in a manner that preserves and maintains the remaining
wetland under the criteria in subpart
6; and
E. replaces unavoidable impacts by restoring
or, if wetland restoration opportunities are not reasonably available, creating
replacement wetland areas having equal or greater public value as provided for
in parts
8420.0500 and
8420.0522 to
8420.0528.
Wetlands located in cultivated fields that are subject to
subpart
8 are an exception to this
part.
Subp. 2.
[Repealed, 34 SR 145]
Subp. 3.
Impact avoidance.
A. Avoidance is
required when indicated by part
8420.0515.
B. Wetland dependence determination:
(1) Based on information provided by the
applicant, the local government unit must determine if the proposed project is
wetland dependent. A project is wetland dependent if wetland features or
functions are essential to fulfill the basic purpose of the project. A wetland
present at the site of a proposed project does not make that project wetland
dependent.
(2) A project that has
been determined by the local government unit to be wetland dependent is exempt
from the analysis of avoidance alternatives in item C.
C. Alternatives analysis:
(1) In addition to documentation for the
proposed project, the applicant must provide the local government unit with
documentation describing at least two alternatives that avoid wetland impacts,
one of which may be the no-build alternative. For projects that repair or
rehabilitate existing infrastructure, only one alternative is required. The
alternatives may include consideration of alternate sites or alternative
project configurations on the proposed site. The alternatives must be judged by
the local government unit as good faith efforts, or the local government unit
may require the applicant to redraft them for reconsideration.
(2) The local government unit must determine
whether any proposed feasible and prudent alternatives are available that would
avoid impacts to wetlands. An alternative is considered feasible and prudent if
it meets all of the following requirements:
(a) it is capable of being done from an
engineering point of view;
(b) it
is in accordance with accepted engineering standards and practices;
(c) it is consistent with reasonable
requirements of the public health, safety, and welfare;
(d) it is an environmentally preferable
alternative based on a review of social, economic, and environmental impacts;
and
(e) it would create no truly
unusual problems.
(3)
The local government unit must consider the following in evaluating avoidance
alternatives as applicable:
(a) whether the
basic project purpose can be reasonably accomplished using one or more other
sites in the same general area that would avoid wetland impacts. An alternate
site must not be excluded from consideration only because it includes or
requires an area not owned by the applicant that could reasonably be obtained,
used, expanded, or managed to fulfill the basic purpose of the proposed
project;
(b) the general
suitability of the project site and alternate sites considered by the applicant
to achieve the purpose of the project;
(c) whether reasonable modification of the
size, scope, configuration, or density of the project would avoid impacts to
wetlands;
(d) efforts by the
applicant to accommodate or remove constraints on alternatives imposed by
zoning standards or infrastructure, including requests for conditional use
permits, variances, or planned unit developments;
(e) the physical, economic, and demographic
requirements of the project. Economic considerations alone do not make an
alternative not feasible and prudent; and
(f) the amount, distribution, condition, and
public value of wetlands and associated resources to be affected by the project
and the potential for direct and indirect effects over time.
(4) If the local government unit
determines that a feasible and prudent alternative exists that would avoid
impacts to wetlands, it must deny the replacement plan. If no feasible and
prudent alternative is available that would avoid impacts to wetlands, the
local government unit must evaluate the replacement plan for compliance with
subparts
4 to
8.
Subp. 4.
Impact
minimization.
The applicant shall demonstrate to the local government
unit's satisfaction that the activity will minimize impacts to wetlands. In
reviewing the sufficiency of the applicant's proposal to minimize wetland
impacts, the local government unit must consider all of the following:
A. the spatial requirements of the
project;
B. the location of
existing structural or natural features that may dictate the placement or
configuration of the project;
C.
the purpose of the project and how the purpose relates to placement,
configuration, or density;
D. the
sensitivity of the site design to the natural features of the site, including
topography, hydrology, and existing vegetation;
E. the value, function, and spatial
distribution of the wetlands on the site;
F. individual and cumulative impacts;
and
G. an applicant's efforts to:
(1) modify the size, scope, configuration, or
density of the project;
(2) remove
or accommodate site constraints including zoning, infrastructure, access, or
natural features;
(3) confine
impacts to the fringe or periphery of the wetland; and
(4) otherwise minimize impacts.
Subp. 5.
Impact
rectification.
Temporary impacts must be rectified by repairing,
rehabilitating, or restoring the affected wetland according to the no-loss
provisions of part
8420.0415, item H.
Subp. 6.
Reduction or
elimination of impacts over time.
After an activity is completed, further impacts must be
reduced or eliminated by maintaining, operating, and managing the project in a
manner that preserves and maintains remaining wetland functions. The local
government unit must require applicants to implement best management practices
to protect wetland functions.
Subp.
7.
Unavoidable impacts.
Unavoidable impacts that remain after efforts to minimize,
rectify, or reduce or eliminate them must be replaced according to parts
8420.0522 to
8420.0528.
Subp. 7a.
Sequencing
flexibility.
A. Flexibility in
application of the sequencing steps may be requested by the applicant and
allowed at the discretion of the local government unit, subject to the
conditions in item B, as determined by the local government unit, if:
(1) the wetland to be impacted has been
degraded to the point where replacement of it would result in a certain gain in
function and public value;
(2)
avoidance of a wetland would result in severe degradation of the wetland's
ability to function and provide public value, for example, because of
surrounding land uses, and the wetland's ability to function and provide public
value cannot reasonably be maintained through implementation of best management
practices, land use controls, or other mechanisms;
(3) the only feasible and prudent upland site
available for the project or replacement has greater ecosystem function and
public value than the wetland. This may be appropriate only if the applicant:
(a) demonstrates impact minimization to the
wetland;
(b) agrees to perpetually
preserve the designated upland site; and
(c) completely replaces the impacted
wetland's functions and public value; or
(4) the wetland is a site where human health
and safety is a factor.
B. Flexibility in the order and application
of sequencing standards must not be implemented unless alternatives have been
considered and the proposed replacement wetland is certain to provide equal or
greater public value as determined based on a functional assessment reviewed by
the technical evaluation panel using a methodology approved by the board. The
applicant must provide the necessary information and the local government unit
must document the application of sequencing flexibility in the replacement plan
approval.
Subp. 8.
Wetlands on cultivated fields.
If the wetland is located on a cultivated field and will be
replaced through restoration, then the priority order for sequencing in subpart
1 is not required. A wetland
impacted under this subpart must not be converted to nonagricultural land for
ten years. The landowner must execute and record a notice of this requirement
in the office of the county recorder for the county in which the property is
located and, as a condition of approval, provide documentation of the recording
to the local government unit.
Subp.
9. [Repealed, 34 SR 145]
Statutory Authority: MS s
14.06;
14.386;
103B.101;
103B.3355;
103G.2242
