Wetland Protection Summary: Minnesota

Name of State Statute: Minnesota Public Waters Law and Wetland Conservation Act

In Minnesota, wetlands are regulated under the DNR’s Public Waters Work Permit Program, the state Wetlands Conservation Act, and Section 404 of the Clean Water Act. The WCA requires persons to first avoid and minimize and then "replace any impacted area with another wetland of at least equal function and value." One of the purposes of the act is to "achieve no net loss in the quantity, quality, and biological diversity of Minnesota’s existing wetlands."

Under the Wetlands Conservation Act, the Minnesota Board of Water and Soil Resources (BWSR), local government units (LGUs) and the Department of Natural Resources (DNR) have regulatory authority over wetlands. The BWSR has the statewide regulatory authority over permitting activities in wetlands where the LGUs implement the Act locally. In addition to administering the Act, local governments may enact their own ordinances regarding wetlands. The DNR requires a state public waters work permit for activities that impact "public waters" or "public water wetlands," typically types 3, 4, and 5 wetlands.

For regulation under the 404 Program, a statewide General Permit/ Letter of Permission/ (GP/LOP-MN) currently replaces all nationwide permits. The GP/LOP-MN can be viewed at http://www.mvp.usace.army.mil/docs/regulatory/PERMNfin2.pdf

Wetland definition and delineation:
Two definitions of wetlands are used in Minnesota. In its application of the Public Waters Work Permit Program, the DNR uses the definition of "Public Waters Wetlands." Public Waters Wetlands are defined as "all types 3, 4, and 5 wetlands, as defined in United State Fish and Wildlife Service Circular No. 39 (1971 Edition), not included within the definition of public waters, that are ten or more acres in size in unincorporated areas or 2_ acres or more in incorporated areas." Public Waters Wetlands are delineated using the ordinary high water level (OHWL), which is the level at which water has remained for a long enough period to leave evidence, such as a shift from upland vegetation to wetland vegetation.

Under the Wetland Conservation Act, wetlands are defined as lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this definition, wetlands must have the following three attributes: (1) have a predominance of hydric soils; (2) are inundated or saturated by surface or ground water at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) under normal circumstances support a prevalence of such vegetation. WCA wetlands do not include "public water wetlands." Wetland delineations for either Wetland Conservation Act determinations or 404 permits are conducted using the Corps’ 1987 Wetland Delineation Manual (http://www.wes.army.mil/el/wetlands/pdfs/wlman87.pdf).

Wetlands regulated:
WCA rules 8420.0105. Regulates excavation in the permanently and semi permanently flooded areas of type 3, 4, or 5 wetlands (as defined by U.S. Fish and Wildlife Service Circular 39), and in all wetland types if excavation includes filling or draining or results in conversion to non-wetland.

SWANCC Fix:
While isolated wetlands are generally regulated under WCA, a number of activities, including agricultural activities, are exempted in some of the most at risk wetlands that no longer regulated by the corps after SWANCC. The needed SWANCC fix is to eliminate eligibility for these activity exemptions in wetlands that are no longer regulated by the corps under the CWA.

Indirect or local regulation:
The Minnesota Environmental Policy Act (MEPA) and the Minnesota Environmental Rights Act (MERA) affect wetlands. At the local level, watershed district rules, shoreland and floodplain ordinances, and municipal wetlands ordinances regulate some wetland activities, and the DNR may grant a waiver of authority for projects on Public Waters Wetlands that are also regulated under the Wetland Conservation Act. In that case, the local government unit that is responsible for administering the Wetland Conservation Act has regulatory authority regarding that wetland. There are some situations in which the DNR is not permitted to grant a waiver of its authority.

Contacts:
Source of information: U.S. Army Corps of Engineers
(http://www.mvp.usace.army.mil/regulatory/)

Type of information: Public notices of 404 individual permits

To be added to the list: For e-mail notification, which is faster and covers more projects, send a request to Mick Weberg at michael.m.weburg@mvp02.usace.army.mil. For written notices of standard individual permit notices, send a request to Brenda.d.miller@mvp02.usace.army.mil or 651-290-5375. Specify the state.

Exemptions:
http://www.revisor.leg.state.mn.us/stats/103G/2241.html; WCA rules, 8420.0115 and 8420.0120; and http://www.bwsr.state.mn.us/wetlands/wcamanual/wcamanual02.pdf.

For more information, see: http://www.bwsr.state.mn.us/wetlands/publications/MNRegulations.pdf AND http://www.bwsr.state.mn.us/wetlands/wcamanual/wcamanual02.pdf.

For information on DNR Public Waters: http://www.dnr.state.mn.us/permits/water/index.html AND http://www.dnr.state.mn.us/waters/law.html or contact Mr. Kent Lokkesmoe, Director, Division of Water, Minnesota Department of Natural Resources, 500 Lafayette Road, St. Paul, MN 55155, (651) 296-4800.