WCA Stakeholder Advisory Committee
WCA Assessment Stakeholder Meeting Summary
a.m. to 12:00 noon
Federal Approvals / Utilities and Public Works Exemptions
Kay Cook, Board of Water and Soil
Call to Order.
Dave Weirens opened the meeting and began with introductions. He provided an overview of the handouts and explained the process to be used to discuss each exemption. Each exemption will be summarized while allowing questions and answers. Proposed changes will be identified along with pros and cons. Weirens introduced Tom Mings, BWSR Senior Wetland Specialist.
Federal Approval Exemption
Mings began by informing the group that projects are either exempt or regulated by federal law. Federal permits include Clean Water Act Section 404 and section 10 of the Rivers and Harbors Act.
Activities exempt from federal regulation include normal farming, silviculture and ranching. Activities permitted under this scenario include: dams, levees and dikes for sediment basins. Under this exemption, if the U.S. Army Corps of Engineers doesn’t require a permit, then WCA will not require a replacement plan.
Marita Velencia added that 404 exempts toxic waste cleanup in a wetland. This does not cover conversion of a wetland to a non-wetland.
The federal exemption covers logging roads. Does WCA require an exemption? Janette Brimmer commented that the confusion is due to the language that is less than the rule. We need to recapture the language, as we need to be precise.
If the Department of Agriculture, MPCA and DNR agree on the permit, and the PCA automatically waives section 401. Is this federally linked? Zdon added if it is used at all it’s linked to categories not specific projects.
Valencia asked for an example. Bruce Gerbig offered that during creation of the rule it was noticed that interpretations were changing, so they allowed state agencies to get together to approve an activity without changing the rules. Mings offered the DM&E example. The magnitude may be unknown.
Weirens clarified that the federal approvals exemption must be tied to work that is authorized by the Corps. Regulations must be included in the permit that meets minimum state standards. The permits are reviewed and approved by the state agencies collectively.
Zdon added that it was included to streamline permit activity. The Corps accepts WCA or Corps is accepted by WCA. Works both ways for a category of activities, not specific projects.
Valencia asked what is BWSR’s authority with these exemptions? If it is covered under WCA how can BWSR say its exempt? Brimmer stated that BWSR is approving the exemption. Weirens added that we would be better off calling it a waiver, not an exemption.
Mings said that it is required to meet the LGU’s needs. Doug Norris said if the Corps authorized a project, and it is ok with WCA, let the Corps do the paperwork and WCA is met. The discussion with the Corps never happened. This will be an issue with NRCS and Swamp Buster too. It’s a streamlining deal that was never implemented.
Utilities; Public Works Exemption.
Mings began by informing the group that replacement is not required for utility poles across a peat bog. Many poles are necessary to get ½ acre. A question was asked about clearing a right of way; how is this activity viewed under the exemption? Clearing and grubbing could be an issue if material is placed in a wetland.
Keith Hanson mentioned that he agreed, in most part, with the right-of -way explanation. Language is needed to cover where the pole went into the ground. Trees are sheered off trees at the ground line to avoid disturbance.
Brimmer asked about physical activities compared to paperwork. Are access roads being created? Are utilities being buried? Are maintenance activities needed? Hanson responded by saying that vegetation management is done every 5-8 years, towers are maintained every 40-50 years and roads require replacement.
Zdon inquired: as we go through A- E of the exemption, these provisions seem very similar. Mings stated that we should compare the presentation to the rule as some words were cut for presentation purposes.
Discuss Options-Utilities; Public Works.
1. Weirens added that the language could be consolidated and simplified.
Zdon asked: what if there is no intrusion? ½-acre or less? and the work is in the right of way? It is hard to see the difference and whether the subparts of the exemption are necessary. Mings responded Subpart 6C covers interstate pipelines. Subpart E covers private crossings if there are no wetland impacts and Subpart F covers sewage treatment systems.
Brimmer asked ... is the term “Public Works” defined anywhere? She understands that bridges, roads and waste treatment systems are included. Utility examples include water, radio etc. Are dams or bridges covered? New placement versus enhancement language can be added.
2. Weirens responded by saying utilities versus public works is an issue and “public works” should be defined.
Zdon focused on item D.; public works equal no loss? It seems like feel good language with no application. Hanson added that utilities use temporary roads to service lines. Doug Fischer stated that storm sewer systems do not trigger the “additional intrusion” language. They should fall under this exemption. Work will be done and the wetland restored to prior conditions.
3. Zdon asked about the forestry BMP examples. Utility BMPs are needed. A state BMP list for utilities should be developed.
Brimmer commented that utilities and public works are not high on her list of issues. Performance standards are a good idea but we also need to focus on ensuring that BMPs are in place and there is consistency between contractors. She continued: normal maintenance and repair of public facilities is standard operation but the agricultural exemption is different due to new technology and increase in drainage efficiency, which results in more drainage.
4. A fourth proposal is to consider a general permit for certain activities.
Allyz Kramer stated the law allows ½ acre impact. B-F does ½ acre still apply? Does it still allow for ½ acre impact. Weirens said part E has the word “or” which means you can’t double up. Kramer summarized….. ½ acre or B-F?
Zdon mentioned that item C allows impacts within the right of way.
Brimmer asked how are the project limits defined? Mings offered the Clearwater – Metro gas line project. Is the exemption for ½ acre per county? Norris responded to say it is not ½ acre per county.
Forsberg commented that engineers know to avoid and minimize impacts on road curves for example. We must balance other interests. Multiple objectives are real. We have archaeology, history, agricultural land preservation, roads and wetlands.
Gerbig asked if LGUs are requesting assistance or experiencing problems? Mings offered that lots of small projects are exempt and new issues are brought to BWSR’s attention.
Frank Pafko asked about Todd County and why their exemption use was so high? Brimmer said she is more interested in the counties that don’t report. Kramer added LGU approval of all exemptions will help track activity.
Weirens stated that to get better data will increase LGU workload. Dollars would help but it will be difficult. Brimmer offered that “reporting” exemptions could bypass the LGU and go straight to BWSR. Weirens followed up to say that won’t work. The LGUs will want to know what is going on. Changes in reporting might equal less enforcement.
Shelia Vanney commented that these projects are to be kept out of the system. That was the legislative intent.
Hanson added that the potential for LGU interaction is huge. Are we going to require a LGU exemption to fix a utility service repair? What are we trying to protect? We have 40-50 line crews up north and the certificate requirement will be troublesome.
Forsberg informed the group that frequently a permit is started and submitted to the Corps, DNR and WCA but we don’t get any information back. We have significant investment made in right of ways, design and landowner time. Fischer offered that we have the same issue with noise standards; you can exceed with an exemption.
Ben Meyer recommended that a Minn. Stat. 15.99 reminder be sent to the LGU. Mings added that roads are done step be step but communications are not always going both ways.
Meyer recommended that we define utilities to be either above or below ground. Some LGUs have performance standards while others make do with inspections. A-F could be pushed together into fewer items.
LGUs need to know about projects. If local permits are not required, some will assume no other permits are needed.
Sarma Straumanis provided that we need to keep in perspective the amount of impact versus the work required. 1300 acres of impact needs to be broke out by exemption. Kramer commented that we are missing what is calculated as “no loss”. Activity is exempt but no relative impact.
Brimmer stated that the quality and function of wetlands are changing. Weirens added that the numbers reported do not necessarily equal losses. Instead, it’s a record of what is processed by the LGUs.
Norris contributed by saying …farmed wetlands are critical even though they are farmed. Water quality and aesthetics are low with agricultural sites but wildlife benefits are high.
5. Another proposal offered is to differentiate between impact types associated with utilities
Hanson asked about performance standards. Why differentiate between utilities? Fischer asked about the “big trench” utility example. It’s a public improvement but it does not fit into this exemption.
Discuss Options-Federal Approvals.
Weirens commented on federal approvals; we need to clarity how it is applied. When the Corps exempts an activity so does WCA and vice versa.
1. Norris added two items. First, Statute still includes obsolete language; the statute should be modernized.
2. The second issue is to distinguish between exempt versus non-jurisdictional.
Brimmer asked about “the gap”. What happens when the Corps doesn’t exert jurisdiction? This has created confusion. If the Corps doesn’t permit, does that equal exempt? Valencia mentioned the issue of “isolated wetlands.” These are not waters of the US.
3. Norris added another item, streamline this exemption to say “Allow only when the Corps permits activity that would otherwise be regulated by WCA”.
However, Norris cautioned…don’t let the Corps make the calls for Minnesota. Brimmer agreed. Minnesota retains its own permit authority but requiring two permits for the same project does not make sense.
Fischer stated the federal element should be defined, guidance is needed on who gets what. Weirens explained the process provides effective protection of wetlands. Currently, if WCA and Corps meets and the Corps covers, then WCA does not apply. Part B should be retained.
Zdon had a question on part A. No wetland drainage, filling or no conversion. How many acres are we talking about? Does this exemption really allow impacts?
Forsberg said we should be careful about defining when only a Corps permit is required? Norris answered by saying a permit should be submitted to both.
Brimmer replied that the evidence is showing that we don’t regulate the same as the Corps. Gerbig added that Minnesota wetland law is based on statute not the Section 404 of the Clean Water Act. Section 404 changed with SWANCC and is currently changing.
Pafko agrees with streamlining. The jurisdiction line should be demarcated so both permits are not needed. If the Corps issues a permit, does this waive WCA? DNR?
Ron Harnack informed the group what was intended in 1991, which is now reversed. General permit and letter of permission language allows for more change. The reality of today doesn’t meet the legislative intent in 1991. What streamline opportunities exist today? Norris cited the DM&E example again. Give WCA exemption and leave the LGU’s out.
Fischer asked if WCA in 1991 assumes the Corps recognizes all exemptions? The Corps has changed since 1991.
Weirens commented on the WCA Rule. The WCA Rule and Statute do not match. How do we define the relationship between the feds and the state? Harnack stated we don’t want to change the Rule as relationships change. Instead a formal agreement that ensures one stop shopping and ensures the regulatory protection.
Brimmer continued. Streamlining is not as big a deal as exemptions. The state should retain independent enforcement authority.
Weirens closed the meetings to provide that an additional meting will likely be added to the Assessment schedule to allow pulling the exemptions together.
Minnesota Board of Water and Soil