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Minnesota GraphicWCA Stakeholder Advisory Committee

WCA Assessment Stakeholder Meeting Summary

1:00 p.m. to 4:00 p.m.
April 24, 2006
MnDOT Conference and Training Center
Shoreview, Minnesota

De minimus/Incidental Wetlands/Approved Development

Lawrence, Zdon MPCA
Keith Hanson, Mn Power
Kay Cook, Board of Water and Soil Resources
Dan Girolamo, Board of Water and Soil Resources
Sheila Vanney, MASWCD
Les Lemm, Board of Water and Soil Resources
Harvey Nelson, Mn Waterfowl Association
Janette Brimmer, Mn Center for Environmental Advocacy
Ben Meyer, Wetland Professionals Association
Frank Pafko, MN/DOT
Allyz Kramer, Wetland Professionals Association
Rick Dahlman, DNR-Forestry
Marita Valencia, U.S. Army Corps of Engineers
Mary Mueller, Minnesotans for Wetlands
Michael Caron, Tiller Corp./Asphalt Ready-Mix Assoc. of Mn
Perry Bollum, DNR-Enforcement
Bruce Gerbig, DNR-Waters
Doug Norris, DNR-Ecological Services

Call to Order.
Weirens pointed out that three new exemption maps are available on the back table. He explained that the data shown on the maps is an indication of activity not hard numbers. The afternoon meeting will follow the same process as the morning session.

Weirens introduced Les Lemm, BWSR Board Conservationist. Lemm shared some of his Lake of the Woods WCA experience. Lake of the Woods County has lots of wetlands and little upland.

Incidental Exemption.
Lemm opened the presentation on the incidental wetlands exemption by stating if you created the wetland to be a wetland, then it is regulated. Beaver dams are incidental as long as there is no discharge into wetlands. Storm ponds are covered under NPDES and PCA Rule 7050 for water quality treatment. Storm ponds are considered incidental under WCA.

Options to consider are: No change, repeal, and middle ground. The middle ground option could include a time limit (5yrs?) and narrow eligibility.

Determination of incidental is more of a jurisdictional call rather than an exemption. Defining a proposed impact to an incidental wetland as a no-loss is another option.

Larry Zdon mentioned that storm ponds have historically been created in existing wetlands. Does construction of a stormwater pond in an existing wetland trigger permit requirements of the Clean Water Act? Storm ponds in wetlands are still jurisdictional, degraded wetlands. Marita Valencia reminded the group that the U.S. Army Corps of Engineers (Corps) does not offer replacement credit for storm water ponds.

Mary Mueller commented that storm water ponds are considered incidental but they are also used to provide mitigation credits. Lemm replied, only for public value credit above the first one to one of required replacement.

Weirens interjected and suggested addressing the credit issue when discussing replacement ratios, later in the Assessment process. Valencia said the COE is concerned the meeting notes might suggest that stormwater ponds are eligible for credit.

Approved Development Exemption.
This exemption is difficult to claim due to certification. The development must remain active and have infrastructure installed to be eligible. This exemption gets some misuse and sequencing is not required so larger impacts are possible.

Lemm suggested that options for change are limited to no change or repeal. Most legitimate projects are done due to the fact that 15 years has passed since this exemption was added. Staff recommends repeal.

Janette Brimmer inquired about a discrepancy between data reported and reality. The lack of response from the metro area could be problematic.

Harnack reminded the group that approved development is not exempt under section 404 of the Clean Water Act.

De minimis.
This exemption generally affects fringe areas of wetlands. Typically this would include work in a type 2 wetland fringe on a type 3 basin if the basin is greater than 40 acres in size. The deepest part of the water regime is used to type the wetland. This exemption cannot be combined between neighboring landowners.

Lemm discussed regional differences in wetlands and how they are recognized in WCA. Rick Dahlman asked we why are discussing replacement ratios during a de minimis discussion. Lemm responded the purpose is to identify some of the reasons for why the de minimis exemption is structured the way it is.

Some metro LGU's are charging a fee to allow de minimis. They then take the money and do restorations within their jurisdiction. Harnack said that shoreland ordinances in the north may have eliminated the de minimis in the shore land impact zone. Lemm added that some LGU’s have expanded the de minimus from 400 square feet to 1,000 square feet as allowed under the law and rule.

Lemm outlined the following options: No change; reduce; further define or narrow eligibility; require sequencing; no sequencing but cash banking for impacts; no change or expand-address concerns with higher replacement ratios for non exempt impacts; and repeal. Requiring sequencing will increase the administrative burden, there is no criminal penalty and it is difficult to enforce. Staff recommend no change.

Brimmer has two suggestions. First, consider development levels in applying the de minimus. Development is heavy in the metro and it is increasing as you go north. Her second recommendation is to place a cap on its use by county or watershed to keep some heavy use areas in check.

Look at the average data reported by county on the de minimus exemption map. Project
identification is important so the “Walmart double up” case study does not continue to
happen (i.e. two de minimis exemptions within one project)

Harnack questioned the amount of de minimus exemptions that occur on shoreland and non-shoreline. Lemm responded that most are in the shoreline areas. Harnack added that if most are in shoreland then existing local government regulation already occurs.

Gerbig added that in Cass County, 70% of the estimated market value is in the shoreland area. Changing de minimis as part of the “land status” (i.e. subdivision, commercial, open, agricultural) will allow focus on developing areas. Lemm added that that works into the “narrowing” recommendation.

Zdon asked about scope. We have a lot of non-reporting counties. Has any attempt been made at interpolating the data …. Using an assumption factor to fill in the non-reporting counties? The values in the map are limited. Better data is needed to determine the cost/value of going after these exemptions. Rick Dahlman asked for clarification on data shown on the map (i.e. the number of exemptions versus acres/year).

Perry Bollum shared the common scenario that 10,000 square feet of impact this year, 10,000 more square feet two years down the road and another 10,000 square feet 5 years later tree and no one ever knows. Weirens reiterated that people should not rely on the numbers shown on the map too much.

Discuss Options - Incidental Wetlands
The Committee identified several options to address concerns with the incidental wetlands.

#1 Establish a time limit.

Brimmer commented on the trend of providing mitigation credit for stormwater ponds.
Frank Pafko stated that the policy on stormwater basins should be parallel on both sides of the equation. If they are bankable, they should be regulated. If they are not bankable, they should not be regulated.

#2 Stormwater pond regulatory consistency (if provide mitigation credit, the regulate impacts to, and vice versa)

Allyz Kramer asked if a wetland is artificially maintained, then the Corps doesn’t regulate? She continued to ask about an existing ditch in upland issue. They tried for incidental but were denied. Replacement was required at 2:1 using taxpayer dollars. Are ditches in uplands with reed canary grass regulated by WCA? Lemm said it sounds like a 103E issue.

Zdon questioned if there was a conflict between WCA and the Corps? Harnack added the Corps and State want to be consistent. Gerbig commented that DNR mapped natural and altered watercourses.

#3 Regulation of ditches in upland areas needs to be addressed.

Mike Caron asked about gravel pits, and that wetlands created by gravel mining should be exempt if the resource is not exhausted. Valencia responded by saying the Corps uses 30 years as the cut off. This is a rule of thumb and not written anywhere. Dan Greensweig stated that time limits have to be workable. This will require memory due to a lack of tracking at the local level.

#4 Gravel mining - no time limit if the resource is not exhausted

Harnack contributed by saying the legislature appropriated money for beaver control due to liabilities associated with dams and ponding water. If you propose a change that would regulate an incidental wetland, who retains liability? Who decides on raising the water level or creating a wetland? Norris commented it should be tied to the active management of the basin. If there is active management, then allow exemption, if not managed the exemption would not apply.

#5 Define an impact to an incidental wetland as a no-loss.

Discuss Options - Approved Development.
The question posed to the Committee is: leave it or repeal it?

#1 Straumanis recommended that we choose the middle ground. Allow five-year sunset.

#2 Harnack added that we require replacement but no sequencing.

#3 Brimmer recommended that the above two get combined.

Dahlman asked for clarification, does the Corps regulate these anyway? Are we changing a lot for those that would still use this? Harnack continued by saying look where these exist….old shoreland plats. This fact provides more reason to require mitigation. Weirens added sequencing may be more important than replacement due to the lack of availability of replacement sites for shoreland impacts.

Discuss Options – De minimus.
The Committee revisited and identified the following de minimis recommendations:

#1 Cap by county or watershed district.
#2 Define project.
#3 Eliminate in shoreland areas or eliminate expansion to 1,000 square feet
#4 More enforcement
#5 Landowner/contractor reporting
#6 Look at the higher end of exemptions

Harnack suggested putting an asterisk by those that will add administrative costs. Brimmer added the exemption is rife with abuse. Do you change the exemption or add enforcement? Greensweig asked if the dumping of a wheel borrow of soil should be reported?

Zdon added that existing data is limited – even this has attracted the Governor’s attention. Full data will result in higher costs. Harnack continued will not have adequate data to make this call within our time frame. Weirens added more data will increase workload.

Lemm offered that development is creeping north, more houses and a deer stands as examples. We should differentiate between uses. Weirens mentioned the issue of equal application of the law.

#7 Lemm suggested it may be appropriate to differentiate between permanent land use changes versus not.

Weirens continued by asking …does it matter why we are doing the de minimis? Hunter versus Mc mansion. Norris offered that people are making value judgments when defining who has a “good project.”

Harnack mentioned that we need to modify the criteria that drive prioritization of wetlands. Caron said comprehensive plans are used for land use. WCA is not the place for it. Kramer commented that north shore LGU’s are pressing consultants to get the WCA approval so development can proceed. Ben Meyer added that all impacts must be mitigated in some communities.

#8 Sequencing should be required at a certain level of impact.

Discuss Options – Overall/General
1. Bremer asked to add this item to the big list. Treat type 1,2,6 and 7 wetlands the same as types 3,4 and 5.

Meyer added there is a failure with Circular 39 wetland typing. It is an antiquated system because the functions and values are not measured by the process. Harnack added… Does this lean us toward dropping the Circular 39 1-8 types and going to 1-12 wetland plant community types. Norris added that the 1-12 will use vegetative community and functional range.

2. Use a different wetland classification system, Wetland Plant Community Types and end use the Circular 39 types 1-8.

Harnack continued, counties update local water plans every five years. Is there value in these plans evaluating and classifying their wetlands? To guide and direct what happens with their comprehensive plans.

3. Require wetland component in wetland plan and land use plan. (restorations and existing wetlands).

Mueller offered that minimum qualifications should be required. Brimmer added that BWSR should play a role with LGU training. Lemm stated that BWSR has limited resources to provide support. Weirens added the rule provides authority for BWSR to require minimum qualifications.

Brimmer replied that more BWSR support for training and LGU support is needed. How would you certify an LGU? Weirens responded by saying clear standards must be provided. The back up plan must also be identified and will usually be the County.

4. Examine the number and size of LGU’s.

Harnack continued by saying the shoreland program requires that counties certify the capacity of smaller cities to do shoreland. Should we apply this to WCA? Weirens offered that would require Rule and Statute review. Gerbig mentioned we can’t pick and choose what to do in shore land. Brimmer recommended that we adopt minimum standards.

Someone suggested that if an LGU was determined to be failing in their administration of WCA that it fell back to BWSR? Weirens replied…No. Greensweig commented that townships often have no staff. Townships can push unfunded mandates back to the county.

Kramer asked why not keep it at the SWCD? Weirens responded… In some cases, cities are the perfect place to do WCA as they are already involved in all other land use issues.

Harvey Nelson added that counties are not reporting. Would a better response change anything? Weirens responded by saying no. The WCA annual reporting receives 100% reporting. Higher response was hoped for for the WCA Assessment Survey. Many LGU staff are responsible for multiple programs and WCA may be a lower priority. It is expected that data requirements will increase in the future.

Weirens asked for last comments. Hearing none he adjourned the meeting at 3:40 p.m. The next meeting will be on May 9th, 2006 and will be located in the MPCA Board Room. The last exemption meeting on agricultural activities/drainage will be on the 23rd of May and will be back in Shoreview at the MnDOT Conference and Training Center.

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