Current through Register Vol. 49, No. 13, September 23, 2024
Subpart 1.
General requirement.
Wetland replacement must replace the public value of wetlands
lost as a result of an impact. Replacement of wetland function and value may
occur at more than one location. The public value of wetlands is based upon the
functions of wetlands, including:
A.
water quality, including filtering pollutants to surface water and groundwater,
using nutrients that would otherwise pollute public waters, trapping sediments,
protecting shoreline, and recharging groundwater;
B. flood water and storm water retention,
including the potential for flooding in the watershed, the value of property
subject to flooding, and the reduction in potential flooding by the
wetland;
C. public recreation and
education, including hunting and fishing areas, wildlife viewing areas, and
nature areas;
D. commercial uses,
including wild rice and cranberry growing and harvesting and
aquaculture;
E. fish, wildlife, and
native plant habitats;
F. low-flow
augmentation; and
G. other
functions and public uses as identified in wetland evaluation methods
demonstrated to reasonably identify appropriate candidates for wetland
replacement. The board shall maintain a publicly available list of the methods
that have been approved for wetland evaluation under the standards set out in
this item.
Subp. 2.
Determining impacts of partial drainage.
In cases where wetlands will be partially drained, the amount
of wetland to be replaced must be determined according to this subpart. The
area impacted by partially draining a wetland is determined in two parts. The
wetland area where the hydrology will be totally removed must be considered an
impact in its entirety. The amount of impact for the area that is partially
drained must be at least 50 percent of the acreage of the remaining wetland
area determined by an assessment acceptable to the technical evaluation
panel.
Subp. 3.
In-kind wetland replacement.
In-kind means a wetland of similar type and function to the
impacted wetland. Wetland replacement is in-kind if it is:
A. the same type or plant community as the
impacted wetland or, for degraded wetlands, the same type or plant community
that historically occurred at the impact site; or
B. the same hydrologic conditions and
landscape position as the impacted wetland.
Subp. 4.
Replacement ratios.
A. The replacement ratio is 2.5 replacement
credits for each acre of wetland impacted, except in greater than 80 percent
areas or on agricultural land the replacement ratio is 1.5 replacement credits
for each acre of wetland impacted. The replacement ratio may be reduced by
0.5:1 when the replacement consists of:
(1)
withdrawal of available credits from an approved wetland bank site within the
same bank service area as the impacted wetland; or
(2) project-specific replacement within the
same major watershed or county as the impacted wetland, a majority of which is
in-kind.
Minimum Replacement Ratios: Banking |
Location of impact |
Replacement |
Minimum replacement ratio |
>80% area or agricultural |
Outside bank service area |
1.5:1 |
land |
Within bank service area |
1.1 |
<50% area, 50-80% area, |
Outside bank service area |
2.5:1 |
and nonagricultural land |
Within bank service area |
2:1 |
Minimum Replacement Ratios:
Project-Specific |
Location of impact |
Replacement |
Minimum replacement ratio |
>80% area or agricultural |
Outside major watershed or out-of-kind |
1.5:1 |
land |
Within major watershed and in-kind |
1.1 |
<50% area, 50-80% area, |
Outside major watershed or out-of-kind |
2.5:1 |
and nonagricultural land |
Within major watershed and in-kind |
2:1 |
B. For replacement via banking, impacts in
bank service area 10 that are replaced in bank service area 9 or the Des Moines
River Basin in bank service area 8 and impacts in bank service area 1 that are
replaced in bank service area 2 count as replacement within the same bank
service area for the purpose of reducing the minimum required replacement ratio
according to this subpart.
C. For
purposes of determining project-specific replacement ratios, the local
government unit may authorize the use of out-of-kind wetland replacement in the
same ratio allowed for in-kind replacement. Out-of-kind replacement may qualify
for the same ratio as in-kind when it consists of a type or plant community
that has been significantly lost in the watershed or that will provide
important functional benefits to the watershed in accordance with the
principles described in part
8420.0830, subpart
5, as determined by the
technical evaluation panel based on a review of available evidence or according
to a local plan approved by the board. A reduced ratio for out-of-kind
replacement is typically not appropriate for wetlands that are difficult to
replace, such as white cedar swamps or bogs.
D. Wetland replacement must be of a size
sufficient to ensure that it provides equal or greater public value than the
impacted wetland it will replace. The actual replacement ratio required may be
more than the ratio required in item A if the local government unit determines
that a higher ratio is necessary to replace the public value of the wetland
lost. In no case shall the replacement ratio be less than 1:1 in greater than
80 percent areas or agricultural land, and 2:1 in all other areas.
E. Owners of wetlands impacted for use as
agricultural land may make no use of the wetland area after it is impacted,
other than as agricultural land, for a period of ten years unless future
replacement to achieve a ratio equaling or exceeding the appropriate ratio for
nonagricultural land in item A occurs. The landowner must record a notice of
this restriction in the office of the county recorder in which the project is
located, and, as a condition of local government unit approval, provide
documentation of the recording to the local government unit.
F. The board may approve special replacement
ratios based on data derived from comprehensive inventories of replacement
opportunities. The board must give notice of the replacement ratios to local
government units and must publish the ratios in the State Register. The board
must provide opportunities for public input and comment before publishing the
special replacement ratios. The conditions and standards take effect 30 days
after publication and remain in effect unless superseded by subsequent statute,
rule, or notice in the State Register.
Subp. 5.
Ecological suitability and
sustainability.
A. The preferred method
of replacement is that which takes advantage of naturally occurring
hydrogeomorphic conditions with minimal landscape alteration and is most likely
to result in a wetland area that functions wholly, perpetually, and naturally.
Wetland restoration is generally preferred over creation, and restoration of
completely impacted wetlands is generally preferred over other methods of
replacement.
B. Restoration and
replacement of wetlands must be accomplished according to the ecology of the
landscape area. The replacement site must be ecologically suitable for
providing the desired functions and compatible with adjacent land uses. A
replacement or banking plan that would result in wetland types or
characteristics that do not naturally occur in the landscape area in which the
replacement will occur must be denied. Replacement must not adversely affect
other habitat types or ecological communities that are important in maintaining
the overall biological diversity of the area.
C. Replacement projects must be located and
designed, to the maximum extent practicable, to be self-sustaining once
performance standards have been achieved. "Self-sustaining" refers to the
ability of a wetland to provide the desired functions over time in a changing
landscape without human intervention.
D. In addition to items A to C, when
determining the location, type, function, and design of replacement, applicants
and local government units must consider: landscape position, habitat
requirements, development and habitat loss trends, sources of watershed
impairment, protection and maintenance of upland resources and riparian areas,
and providing a suite of functions.
Subp. 6.
Required upland buffer.
A. Establishment or preservation of
unmanicured vegetated upland buffer areas is required adjacent and contiguous
to replacement wetlands receiving credit under part
8420.0526, subparts
3 to
7.
B. For replacement wetlands less than two
acres in size, the buffer must be a minimum average width of 25 feet. For all
other replacement wetlands, the buffer must be a minimum width of 25 feet and
an average width of 50 feet.
C. The
applicant may request the local government unit to vary the upland buffer
standards under items A and B. The local government unit may vary the standards
under items A and B based on a recommendation by the technical evaluation panel
when compliance is not practicable or feasible, and the replacement wetland
will otherwise meet the requirements of subpart
5, or when the variance would
be ecologically beneficial.
Subp.
7.
Siting of replacement.
A. Siting wetland replacement must follow
this priority order:
(1) in the same minor
watershed as the affected wetland;
(2) in the same major watershed as the
affected wetland;
(3) in the same
county as the affected wetland;
(4)
for replacement by wetland banking, in the same wetland bank service area as
the impacted wetland, except that impacts in a 50 to 80 percent area must be
replaced in a 50 to 80 percent area and impacts in a less than 50 percent area
must be replaced in a less than a 50 percent area; and
(5) for project-specific replacement, in an
adjacent major watershed to the affected wetland or, for replacement by wetland
banking, in an adjacent wetland bank service area, except that impacts in a 50
to 80 percent area must be replaced in a 50 to 80 percent area and impacts in a
less than 50 percent area must be replaced in a less than 50 percent
area.
B. Notwithstanding
item A, siting wetland replacement in greater than 80 percent areas may follow
the priority order under this item:
(1) by
wetland banking after evaluating replacement within the minor and major
watersheds;
(2) replaced in an
adjacent wetland bank service area if wetland bank credits are not reasonably
available in the same wetland bank service area as the affected wetland, as
determined by a comprehensive inventory approved by the board; or
(3) statewide.
C. Notwithstanding item A, siting wetland
replacement in the seven-county metropolitan area must follow the priority
order under this item:
(1) in the affected
county;
(2) in another of the seven
metropolitan counties; or
(3) in
one of the major watersheds that are wholly or partially within the
seven-county metropolitan area, but at least one-to-one must be replaced within
the seven-county metropolitan area.
D. Siting wetland replacement for public
transportation projects must comply with part
8420.0544.
E. When reasonable, practicable, and
environmentally beneficial replacement opportunities are not available in
siting priorities listed in items A to D, the applicant may seek opportunities
at the next level. For the purposes of this item, "reasonable, practicable, and
environmentally beneficial replacement opportunities" means opportunities that
are:
(1) ecologically suitable and sustainable
according to subpart
5; and
(2) available and capable of being done after
taking into consideration cost, existing technology, and logistics consistent
with overall project purposes. The cost of replacement credits alone is not
sufficient reason to conclude that reasonable, practicable, or environmentally
beneficial replacement opportunities are not available.
F. Regulatory agencies, local government
units, and other entities involved in wetland restoration must collaborate to
identify potential replacement opportunities in watersheds within their
jurisdictional areas.
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LIST OF 81 MAJOR WATERSHED UNITS OF MINNESOTA
|
1 |
Lake Superior (north) |
|
2 |
Lake Superior (south) |
|
3 |
St. Louis River |
|
4 |
Cloquet River |
|
5 |
Nemadji River |
|
7 |
Mississippi River (Headwaters, Lake
Winnibigoshish) |
|
8 |
Leech Lake River |
|
9 |
Mississippi River (Grand Rapids) |
|
10 |
Mississippi River (Brainerd) |
|
11 |
Pine River |
|
12 |
Crow Wing River |
|
13 |
Redeye River (Leaf River) |
|
14 |
Long Prairie River |
|
15 |
Mississippi River (Sartell) |
|
16 |
Sauk River |
|
17 |
Mississippi River (St. Cloud) |
|
18 |
North Fork Crow River |
|
19 |
South Fork Crow River |
|
20 |
Mississippi River (Metro) |
|
21 |
Rum River |
|
22 |
Minnesota River (Headwaters) |
|
23 |
Pomme de Terre River |
|
24 |
Lac qui Parle River |
|
25 |
Minnesota River (Granite Falls) |
|
26 |
Chippewa River |
|
27 |
Redwood River |
|
28 |
Minnesota River (Mankato) |
|
29 |
Cottonwood River |
|
30 |
Blue Earth River |
|
31 |
Watonwan River |
|
32 |
Le Sueur River |
|
33 |
Minnesota River (Shakopee) |
|
34 |
St. Croix River (Upper) |
|
35 |
Kettle River |
|
36 |
Snake River |
|
37 |
St. Croix River (Stillwater) |
|
38 |
Mississippi River (Red Wing) and Lake Pepin |
|
39 |
Cannon River |
|
40 |
Mississippi River (Winona) |
|
41 |
Zumbro River |
|
42 |
Mississippi River (La Crescent) |
|
43 |
Root River |
|
44 |
Mississippi River (Reno) |
|
46 |
Upper Iowa River |
|
47 |
Wapsipinican River (Headwaters) |
|
48 |
Cedar River |
|
49 |
Shell Rock River |
|
50 |
Winnebago River (Lime Creek) |
|
51 |
West Fork des Moines River (Headwaters) |
|
52 |
West Fork des Moines River (Lower) |
|
53 |
East Fork des Moines River |
|
54 |
Bois de Sioux River |
|
55 |
Mustinka River |
|
56 |
Otter Tail River |
|
57 |
Red River of the North (Headwaters) |
|
58 |
Buffalo River |
|
59 |
Marsh River |
|
60 |
Wild Rice River |
|
61 |
Sandhill River |
|
62 |
Upper and Lower Red Lake |
|
63 |
Red Lake River |
|
65 |
Thief River |
|
66 |
Clearwater River |
|
67 |
Grand Marais Creek (Red River of the North) |
|
68 |
Snake River |
|
69 |
Tamarack River (Red River of the North) |
|
70 |
Two River |
|
71 |
Roseau River |
|
72 |
Rainy River (Headwaters) |
|
73 |
Vermillion River |
|
74 |
Rainy River (Rainy Lake) |
|
75 |
Rainy River (Manitou) |
|
76 |
Little Fork River |
|
77 |
Big Fork River |
|
78 |
Rapid River |
|
79 |
Rainy River (Baudette) |
|
80 |
Lake of the Woods |
|
81 |
Big Sioux River (Medary Creek) |
|
82 |
Big Sioux River (Pipestone) |
|
83 |
Rock River |
|
84 |
Little Sioux River |
Subp.
8.
Timing of replacement.
A. Replacement of wetland function and value
must be completed in advance of or concurrent with the actual wetland impact.
For replacement that is not in advance, a financial assurance is required
according to subpart
9.
B. Replacement is in advance if the
replacement is:
(1) approved wetland bank
credits withdrawn before the impact; or
(2) project-specific replacement for which
construction has been certified and the first monitoring report of the first
full growing season following construction certification has been submitted
according to part
8420.0810, and the replacement
meets all goals and performance standards applicable to that development stage
of the replacement site.
C. Any action being proposed for replacement
credit must be specifically identified for replacement purposes and approved by
the local government unit as part of a replacement or banking plan before the
actual restoration or creation activity is initiated.
Subp. 9.
Financial assurance.
A. For wetland replacement that is not in
advance, a financial assurance acceptable to the local government unit must be
submitted to, and approved by, the local government unit to ensure successful
replacement. The local government unit may waive this requirement if it
determines the financial assurance is not necessary to ensure successful
replacement. The local government unit may incorporate this requirement into
any financial assurance required by the local government unit for other aspects
of the project.
B. The financial
assurance may be used to cover costs of actions necessary to bring the project
into compliance with the approved replacement plan specifications and
monitoring requirements. The financial assurance does not serve as an in-lieu
fee and is not a substitute for enforcement, but may be used for repair,
construction, vegetation establishment and management, maintenance, monitoring,
or other actions the local government unit determines necessary to ensure
adequate replacement.
C. Before
drawing on the financial assurance, the local government unit must provide
written notice to the landowner stating the actions necessary to bring the
replacement project into compliance and that the landowner has 30 days to
complete the actions, after which the local government unit will use the
financial assurance to gain compliance. Use of the financial assurance by the
local government unit may be appealed by the landowner within 30 days after the
date on which the notice is mailed, according to part
8420.0910.
D. The local government unit may release a
portion of the financial assurance upon successful completion of construction,
but must retain a sufficient amount to ensure successful vegetative
establishment and completion of the monitoring requirements. Within 60 days of
certification of successful replacement and completion of monitoring according
to part
8420.0820, subpart
2, the local government unit
must release any remaining financial assurance submitted by the applicant,
provided all other conditions of the approval are met.
Statutory Authority: MS s
103G.2242