2023 Minnesota Statutes › Chapters 103A - 114B — Water › Chapter 103G — Waters Of The State › Section 103G.2241 — Exemptions.

103G.2241 EXEMPTIONS.
Subdivision 1.
Agricultural activities.
A replacement plan for wetlands is not required for:
(1) activities in a wetland that was planted with annually seeded crops, was in a crop rotation seeding of pasture grass or legumes, or was required to be set aside to receive price support or other payments under United States Code, title 7, sections 1421 to 1469, in six of the last ten years prior to January 1, 1991;
(2) activities in a type 1 wetland on agricultural pasture land that remains in the same use, 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 pasture land that remains in the same use;
(3) activities in a wetland conducted as part of normal farming practices. For purposes of this clause, "normal farming practices" means farming, silvicultural, grazing, and ranching activities such as plowing, seeding, cultivating, and harvesting for the production of feed, food, and fiber products, but does not include activities that result in the draining of wetlands;
(4) soil and water conservation practices approved by the soil and water conservation district, after review by the Technical Evaluation Panel;
(5) 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;
(6) wild rice production activities, including necessary diking and other activities authorized under 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; or
(7) agricultural activities on agricultural land that is subject to the swampbuster provisions of the federal farm program restrictions consistent with a memorandum of understanding and related agreements between the board and the United States Department of Agriculture, Natural Resources Conservation Service.
Subd. 2.
Drainage.
(a) For the purposes of this subdivision, "public drainage system" means a drainage system as defined in section 103E.005, subdivision 12, and any ditch or tile 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 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:
(i) there was an expenditure made from the drainage system account for the public drainage system;
(ii) the public drainage system was repaired or maintained as approved by the drainage authority; or
(iii) no repair or maintenance of the public drainage system was required under section 103E.705, subdivision 1, as determined by the public drainage authority; and
(2) the wetlands are not drained for conversion to:
(i) platted lots;
(ii) planned unit, commercial, or industrial developments; or
(iii) any development with more than one residential unit per 40 acres, except for parcels subject to local zoning standards that allow for family members to establish an additional residence on the same 40 acres.
If wetlands drained under this paragraph are converted to uses prohibited under clause (2) during the ten-year period following drainage, the wetlands must be replaced under section 103G.222.
(c) A replacement plan is not required for draining 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.
(d) A replacement plan is not required for draining 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.
(e) A replacement plan is not required for draining agricultural land that:
(1) was planted with annually seeded crops before July 5, except for crops that are normally planted after that date, in eight out of the ten most recent years prior to the impact;
(2) was in a crop rotation seeding of pasture grass, cover crop, or legumes, or was fallow for a crop production purpose, in eight out of the ten most recent years prior to the impact; or
(3) was enrolled in a state or federal land conservation program and met the requirements of clause (1) or (2) before enrollment.
(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 of all types that would be drained as a part of a public drainage repair project are eligible for the permanent wetlands preserve under section 103F.516. The 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.
Subd. 3.
Federal approvals.
A replacement plan for wetlands is not required for activities authorized under the federal Clean Water Act, section 404, or the Rivers and Harbors Act, section 10, regulations that meet minimum state standards under this chapter and sections 103A.202 and 103B.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.
Subd. 4.
Wetland restoration.
A replacement plan for wetlands is not required for:
(1) activities in a wetland restored or created for conservation purposes under a contract or easement providing the landowner with the right to drain the restored or created wetland; or
(2) activities in a wetland restored or created by a landowner without any assistance or financing from public agencies or private entities other than the landowner and the wetland has not been used for wetland replacement or deposited in the state wetland bank.
Subd. 5.
Incidental wetlands.
A replacement plan for wetlands is not required for activities in a wetland created solely as a result of:
(1) beaver dam construction;
(2) blockage of culverts through roadways maintained by a public or private entity;
(3) actions by public or private entities that were taken for a purpose other than creating the wetland; or
(4) any combination of clauses (1) to (3).
Subd. 6.
Utilities; public works.
(a) A replacement plan for wetlands is not required for:
(1) new placement or maintenance, repair, enhancement, or replacement of existing utility or utility-type service, including pipelines, if:
(i) the direct and indirect impacts of the proposed project have been avoided and minimized to the extent possible; and
(ii) the proposed project significantly modifies or alters less than one-half acre of wetlands;
(2) activities associated with operation, routine maintenance, or emergency repair of existing utilities and public work structures, including pipelines, provided the activities do not result in additional wetland intrusion or additional draining or filling of a wetland either wholly or partially; or
(3) repair and updating of existing subsurface sewage treatment systems necessary to comply with local, state, and federal regulations.
(b) 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 the utility is carrying out the work according to approved best management 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.
Subd. 7.
Forestry.
A replacement plan for wetlands is not required for:
(1) 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 activities do not result in the construction of dikes, drainage ditches, tile lines, or buildings; and the timber harvesting and other silvicultural practices do not result in the drainage of the wetland or public waters; or
(2) 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 tile line; filling is avoided wherever possible; and there is no drainage of the wetland or public waters.
Subd. 8.
[Repealed, 2007 c 57 art 1 s 170]
Subd. 9.
De minimis.
(a) Except as provided in paragraphs (d), (e), (f), (g), (h), and (i), a replacement plan for wetlands is not required for draining or filling the following amounts of wetlands as part of a project outside of the shoreland wetland protection zone:
(1) 10,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack wetlands, in a greater than 80 percent area;
(2) 5,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack wetlands, in a 50 to 80 percent area, except within the 11-county metropolitan area;
(3) 2,000 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack wetlands, in a less than 50 percent area, except within the 11-county metropolitan area; or
(4) 100 square feet of type 3, 4, 5, or 8 wetland or white cedar and tamarack wetland.
(b) Except as provided in paragraphs (e), (f), (g), (h), and (i), a replacement plan for wetlands is not required for draining or filling the following amounts of wetlands as part of a project within the shoreland wetland protection zone beyond the shoreland building setback zone:
(1) 400 square feet of type 1, 2, 6, or 7 wetland; or
(2) 100 square feet of type 3, 4, 5, or 8 wetland or white cedar and tamarack wetland.
In a greater than 80 percent area, the de minimis amount allowed under clause (1) may be increased up to 1,000 square feet if the wetland is isolated and is determined to have no direct surficial connection to the public water or if permanent water runoff retention or infiltration measures are established in proximity as approved by the shoreland management authority.
(c) Except as provided in paragraphs (e), (f), (g), (h), and (i), a replacement plan for wetlands is not required for draining or filling up to 20 square feet of wetland as part of a project within the shoreland building setback zone, as defined in the local shoreland management ordinance. The amount in this paragraph may be increased to 100 square feet if permanent water runoff retention or infiltration measures are established in proximity as approved by the shoreland management authority.
(d) Except as provided in paragraphs (b), (c), (e), (f), (g), (h), and (i), a replacement plan is not required for draining or filling amounts of wetlands as part of a project:
(1) 2,500 square feet of type 1, 2, 6, or 7 wetland, excluding white cedar and tamarack wetlands, outside of the shoreland wetland protection zone in a 50 to 80 percent area within the 11-county metropolitan area; or
(2) 1,000 square feet of type 1, 2, or 6 wetland, outside of the shoreland wetland protection zone in a less than 50 percent area within the 11-county metropolitan area.
For purposes of this subdivision, the 11-county metropolitan area consists of the counties of Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, Scott, Sherburne, Washington, and Wright.
(e) The amounts listed in paragraphs (a), (b), and (c) may not be combined on a project.
(f) 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 January 1, 1992, is the greatest of:
(1) the applicable area listed in paragraph (a), (b), or (c), if the landowner owns the entire wetland;
(2) five percent of the landowner's portion of the wetland; or
(3) 400 square feet.
(g) This exemption may not be combined with another exemption in this section on a project.
(h) Property may not be divided to increase the amounts listed in paragraph (a).
(i) If a local ordinance or similar local control is more restrictive than this subdivision, the local standard applies.
Subd. 10.
Wildlife habitat.
A replacement plan for wetlands is not required for:
(1) deposition of spoil resulting from excavation within a wetland for a wildlife habitat improvement project, if:
(i) the area of deposition does not exceed five percent of the wetland area or one-half acre, whichever is less, and the spoil is stabilized and permanently seeded to prevent erosion;
(ii) the project does not have an adverse impact on any species designated as endangered or threatened under state or federal law; and
(iii) the project will provide wildlife habitat improvement as certified by the soil and water conservation district; or
(2) duck blinds.
Subd. 11.
Exemption conditions.
(a) A person conducting an activity in a wetland under an exemption in subdivisions 1 to 10 shall ensure that:
(1) appropriate erosion control measures are taken to prevent sedimentation of the water;
(2) the activity does not block fish passage 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 chapter 103H.
(b) 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.
(c) Persons proposing to conduct an exempt activity are encouraged to contact the local government unit or the local government unit's designee for advice on minimizing wetland impacts.
(d) The board shall develop rules that address the application and implementation of exemptions and that provide for estimates and reporting of exempt wetland impacts, including those in section 103G.2241, subdivisions 2, 6, and 9.
History:
1991 c 354 art 6 s 10; 1993 c 175 s 3; 1993 c 226 s 20; 1994 c 627 s 4; 1996 c 462 s 25; 2000 c 382 s 6-8; 2007 c 57 art 1 s 122-127; 2007 c 131 art 1 s 55; 2009 c 109 s 14; 2012 c 272 s 42,43