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Minnesota GraphicWCA Stakeholder Advisory Committee

WCA Assessment Stakeholder Meeting Summary

MnDOT Conference and Training Center
Shoreview, Minnesota

July 10, 2006

Keith Hanson, Mn Power/Mn Chamber of Commerce
Dan Girolamo, Board of Water and Soil Resources
Rick Dahlman, DNR-Forestry
Bruce Gerbig, DNR-Waters
Laurie Fairchild, U.S. Fish and Wildlife Service
Roger Lake, Mn Association of Watershed Districts
Lawrence Zdon, PCA
Tom Warmka, Association of Mn Counties
Mollie Dean, Sierra Club
Lisa Frenette, Builders Association of Mn
Ben Meyer ,Wetland Professionals Association
Keith Carlson, Metropolitan Inter-County Association
Sandy Hooker, Mn Association of Townships
Dan Greensweig, Mn Association of Townships
Kay Cook, Board of Water and Soil Resources
Mary Mueller, Minnesotans for Wetlands
Allyz Kramer, Wetland Professionals Association
Tamara Cameron, U.S. Army Corps of Engineers
Sarah Denali, U.S. Army Corps of Engineers
Brian Pasko, Sierra Club
Bob Whiting, U.S. Army Corps of Engineers
Mark Ten Eyck, Mn Center for Environmental Advocacy
Sarma Straumanis, Mn/DOT
Brian Watson, Dakota SWCD/Mn Association of Soil and Water Conservation Districts

Call to Order.
Dave Weirens called the meeting to order at 1:12 pm. Introductions were made. Weirens referenced the Governor’s letter to remind attendees that the task at hand is to do more to limit the loss of wetlands through the Wetland Conservation Act.

Replacement Ratios.
Dale Krystosek shared his power point presentation that explained replacement ratios for WCA and U.S. Army Corps of Engineers (Corps) activities. He also discussed actions eligible for credit. Krystosek explained that WCA divides the state into three regions with the lowest replacement ratios in the North. A mitigation strategy is being prepared to address the scarcity of wetland restoration sites in northeastern Minnesota.

Base replacement ratios are 2:1 in the less than 80% area and 1:1 in the greater than 80% area. A factor that may increase this ratio is in-kind replacement. WCA defines in-kind as same type, same county or same watershed. Out of kind replacement increases the replacement ratio. WCA allows using direct replacement for the first acre of required replacement and banking for the balance.

Krystosek made the following suggestions for changes: 1.) Match the Corps requirements; 2.) Public value credit (PVC) differences between WCA and Corps should be resolved; 3.) Higher replacement ratios should be used for impacts to higher quality wetlands.

A question was asked how the term in-kind refers to wetland type. Weirens responded that in-kind for WCA is defined as the same county or watershed, and wetland type.

Krystosek proposed three options:
1.) Maintain the current replacement ratios
2.) Refine the definition of in-kind/ in-place
3.) Increase WCA replacement ratios

Keith Carlson asked to have banking and the variation for the metro area explained, both for development and transportation. Weirens commented that the metro area has stricter guidelines than other parts of the state. Ron Harnack added that the first credit must be done in a watershed that drains to the metro. Tom Mings added that there are limitations of where metro impacts can be mitigated. Flexibility has allowed for a further reach for mitigation.

Krystosek continued to give a historical look at ratio development. Originally, the ratios were 1:1 – 3:1 depending on the impact and replacement site. An effort was made to concentrate mitigation replacement at the impact site. Inlet and outlet characteristics were also evaluated.

Laurie Fairchild asked if this would require a better definition of “in-kind” and “in-place”? Krystosek replied that it is tough to compare in kind and in place in the same definition.

Carlson asked what percentage of wetland replacements are subject to location? Mings commented that an analysis of the impact of SWANCC in Minnesota identified about 20% reduction in Corps jurisdiction. Bob Whiting added that the current figure is 15%. Harnack added that wetland types 1 and 2 are typically isolated under 404 and that Swampbuster will pick them up. We will have no-loss even with WCA exemptions.

Krystosek continued that the Rapanos case might take more from COE jurisdiction. Mings added that each Corps permit decision will be case by case so it will be difficult to tell.

Weirens referenced the 2001-2003 wetland report. Table #2 adds exempt acres to regulated acres. The ratio would have to be increased by about 50% to achieve no net loss.

A question was asked if we should consider conservation program acres? Mary Mueller replied CREP and RIM are great programs but they are not mitigation. Mixing those numbers is wrong and should stop!

Bruce Gerbig asked if the report of gains and losses separated new wetland credit (NWC) and PVC? Weirens responded that the report showed the data both with and without PVC included in replacement totals.

Fairchild commented on ratios. PVC with blended scenarios is a possibility. More PVC with higher ratio if the first acre is NWC.

Keith Hanson redirected the discussion by saying before we begin thinking about ratios; we need to look at no net loss. We need to decide if we count conservation acres or not.

Harnack responded by saying that the WCA assessment does not include conservation acres. However the statewide aspect of wetland gain and loss should include change from all sources. Hanson stated that we need a base. We have three or four things moving in different directions. Harnack replied that we won’t have good numbers for five years.

A question was asked why RIM or CREP should be counted? Harnack responded that these acres are not counted in the regulatory program but counted in the overall statewide goal.

Hanson asked if the statewide goal includes both regulatory and non-regulatory programs? Harnack replied the State policy is no net loss and does mention a gain. We don’t have an overall restoration strategy for the state.

Gerbig asked if ratios are affected by what is included in the term “in-kind”. Keep the ratios the same but narrow what is considered “in-kind”.

Rick Dahlman commented whether federal or state regulatory programs may get to less than 1:1 with all buffer. Harnack replied that we are mixing two issues. Modifying replacement ratios to reduce losses and make sure we have one replacement process to get regulatory simplification.

Brian Watson commented increasing ratios will affect buffers. Krystosek added partially drained basins can generate PVC credit that is not upland buffer.

Mueller offered that we should consider increasing ratios proportionally. Increases will be realized in NWC and PVC replacement. PVC can be upland buffer or storm water ponds. Upland buffer will increase, which is good, but storm water ponds are negative.

Harnack stated mitigation sites can be higher quality than impacted areas. Impacts to low value wetlands and are replaced with better bank sites. We strive for quality and biological diversity. Weirens added that there is a programmatic bias that all impacted wetlands are pristine and the replacement should be the same. This is rarely followed through in real life.

A question was asked if increasing the overall ratio in the less than 80% area is balanced on the back of the greater than 80% area? Mueller commented that if not in-kind, the ratio should go up. If not in advance, the ratio should go up. How about the 1:1 agricultural exemption in the entire state? This should go to 2:1.

Allyz Kramer referenced the Corps draft policy. A project specific site is never done in advance, concurrent but not in advance. Whiting offered that banking is in advance.
Mings added airports could easily mitigate in advance because the other federal regulations require it. This will require more real estate.

Whiting commented on the 81 HUC unit watersheds and their relation to “in place”.

Fairchild asked if the increase is a function of quality (i.e. quality and function versus acres)? We should spend more time on this subject. Krystosek stated that higher ratios could go ½ NWC and ½ PVC per Mueller’s comment.

Whiting mentioned that upland buffers are an integral part of wetlands. WCA and the Corps have issues to work out on wetland buffers.

Fairchild compared created wetlands with natural wetlands. One acre of created does not equal one acre of natural wetland.

Weirens summarized there seems to be some agreement that a blended system may be possible. Brian Watson followed by stating that a good wetland is the practitioner’s goal. We could eliminate the mitigation timing issue and decrease our options from 16 to 8.

A question was asked regarding the percent split between in advance versus not in advance? Krystosek responded but most mitigation in the north is done in advance.

Weirens added, “concurrently” is recognized by WCA but not the Corps.

Kramer mentioned that contractors are used to do the work when they are on site and available to do the work.

Carlson asked about transportation mitigation. What percent is done via the bank? Do withdrawal equal purchases that are NWC + PVC? Krystosek replied yes, if 2:1 replacement is required.

Carlson mentioned that a price determination is not made? Weirens replied that private bankers are also showing equal value between NWC and PVC.

Mollie Dean asked if a definition is needed for “not in advance”. Krystosek replied that, failing to comply with replacement timing can result in a violation.

Mark Ten Eyck asked if the impact could occur today and then replaced in six years? Whiting added, no, the timing of replacement is part of the permit process. Permit conditions are decided based on the plan with replacement identified.

Dan Greensweig asked if the costs for wetland credits changes? Harnack replied that we will look at the costs, what and who. Mueller commented that the environmental costs need to be addressed as well.

Harnack referenced Watson’s comment and inquired about the environmental cost. Dean mentioned that she had the same question about environmental cost. Harnack commented that back in 1991 early WCA discussions had a 4:1 replacement ratio for high quality wetlands.

Wetland Credit Options
Krystosek continued his presentation by explaining the eight actions that create eligible credit:
1.) Restore Hydrology
2.) Partially Drained – degraded sites typically are eligible for 50% PVC for the degraded area or 25% NWC of the area restored.
3.) ENRV (NWC or PVC) – functional assessment is needed and this is limited to truly exceptional sites.
4.) Restoration of farmed wetlands
5.) Upland Buffer
6.) Previously terminated federal programs
7.) Mineral Extraction
8.) Water Quality Treatment areas

Harnack commented that wildlife needs a 4:1 upland to wetland ratio for ideal conditions. We need to look at function and values and create incentives to encourage quality. Farmed wetlands create a greater incentive.

Rick Dahlman inquired about buffer calculations, a 50 buffer on a non-municipal site would generate 3 acres wetland with less than 3 acres of buffer or a 50 acre wetland would generated more than 50 acres of buffer.

Mings mentioned that five bank applications for the Local Road Wetland Replacement Program are proposing to use the expired program option to generate wetland credits.

Harnack commented that 300,000 acres of land in the Conservation Reserve Program are expiring between now and 2010. Weirens added under the proposed EPA/Corps rule this practice is limited, making this option impractical under WCA.

Harnack stated that he wants to hear about the eligibility of water quality treatment areas for wetland credit. People don’t seem to like the single cell stormwater ponds. Weirens added that a concern exists about double dipping with stormwater ponds.

Fairchild stated that stormwater ponds require maintenance. Are wildlife being attracted to unhealthy areas? Weirens responded that we need to create incentives to make the wetlands and stormwater ponds more similar. Vegetation is an issue but water storage is the main reason that stormwater ponds are created.

Whiting commented that the Corps does not authorize credit for single cell stormwater ponds.

Larry Zdon offered a water quality perspective. Stormwater ponds are used to satisfy permit conditions and therefore are required under the permit conditions.

Dahlman commented that stormwater ponds and adjacent areas conflict. Adjacent landowners look at chemicals, fish and mowing as common issues.

Watson estimated that 50% of their PVC comes from stormwater ponds. He recommends elimination of this credit or possibly lowering it to 25% PVC.

Carlson mentioned that he understands the double dipping concept. Weirens added that stormwater ponds are already required for storm water management, plus receive credit under WCA?

Carlson commented about the counter intuitive nature of current replacement that provides more credit for creations than restorations.

Sarma Straumanis added that double dipping may be appropriate to receive credit. Weirens responded that the proposed Mitigation MOU and others would like to eliminate stormwater pond eligibility.

Greensweig stated that townships may have a problem with this.

Ten Eyck asked if anyone in favor of allowing double dipping? (a few hands went up)

Mings commented that stormwater ponds are related to upland mitigation. Weirens asked then why should they give them NWC? Harnack mentioned the builder’s association will have concerns over eliminating this entirely. Change the criteria but can’t have it both ways. If the Corps won’t allow it, it will be difficult for WCA to allow it.

Fairchild asked if WCA will be able to require management if stormwater rules are in place? Weirens responded maintenance would have to be non-inclusive.

Zdon offered that stormwater ponds do not mimic wetland functions. A concern is the net loss calculation problem. Don’t count stormwater ponds and upland PVC when tracking wetland gains and losses.

Krystosek referenced a Hermantown case where untreated stormwater inflow into a wetland was an impact.

Weirens asked for comment on the proposed & current replacement denominations where WCA has two types: NWC and PVC whereas the Corps only has NWC. Simplification is needed.

Gerbig passed on a comment from Doug Norris Wetland impacts in shoreland areas should be replaced with “in-kind” sites.

Tamara Cameron asked for clarification on 404 references in the ratio handouts. What is the source of data in the 404 column? The Corps requirements are guidelines versus rule in state rule.

Wetland Banking.
Mings presented a brief overview of the Minnesota Wetland Banking Program.

A question was asked regarding what percentage of total acres are replaced? Harnack replied about 20%. PVC credit sales are less than NWC sales.

Carlson inquired about private credit withdrawals. How does BWSR generate credits? Are they only used for the transportation program? Weirens replied that BWSR buys credits from existing private bank accounts and through its own projects.

Mueller referenced the 2003 Wetland Report and compared year 1 data on page 13 (1630 acres of local road impacts) with page 15 that shows only 522 debited? Weirens responded that BWSR balances impacts within 2 years under our agreement with the Corps. Mueller replied that’s not what you told us in March. Weirens replied that the timing issue is different.

Krystosek mentioned there is a longer delay with public site deposits which may be partly responsible for this discrepancy. Mueller continued by asking if BWSR should meet the Rule under the Road Program that requires timing.

Carlson asked if MnDOT is creating its own deposits? Are they replacing impacts adjacent to projects or using banking? Are they making no distinction between PVC and NWC? Purchasing credits will require data from the road authority.

Harnack replied that the flat rate charged by BWSR when credits are sold to a road authority does not distinguish between NWC and PVC. Weirens added that BWSR and MnDOT recently entered into an agreement on replacing transportation credit.

Carlson asked if we talking about MnDOT or the Road Program? Weirens replied that the MOU is one year old so we do have not data yet but they buy or create credits for their own use.

Mings referenced a graduate study from Wisconsin that evaluated the banking credit balance issue. Minnesota has more credits in the bank and also has a slower turn around with credits.

Harnack made clear that we would not let private bankers off the hook. We will require high quality replacement sites for public sites and others. The market will drive this process.

Carlson asked if you have enough credits or is there a shortfall? Weirens responded to say bank opportunities will be available. Bank sites in low demand areas will result in less bank development.

Harnack mentioned that impacts can be mitigated anywhere in the state with a penalty.
Whiting added that there is a crediting and debiting side when examining wetland replacement.

Carlson continued by asking, are in–kind needs met by the Road Program? Weirens answered that our current effort focus on current needs with regards to wetlands type. Harnack offered that the metro is ok. Statewide will depend on funding.

Mueller had two issues: (1) high quality is great and (2) a market driven system is needed. She further expressed concerns over the in-lieu fee option and northeast Minnesota Strategy whether there will be Stakeholder input. Will the rulemaking process go through the stakeholder group? Weirens responded that the Northeast Minnesota Mitigation Strategy will go through the BWSR Board. In lieu fee is still an option, although both BWSR and the Corps are in agreement that there is no plan to implement in-lieu fee in Minnesota.

Harnack stated that counties that went into the banking program are not happy they did so. They would prefer to buy from the bank.

Weirens asked for other comments, is there anything further?

Harnack presented two major issues. First, are people in favor of one common bank? (no comments) Secondly, are people in favor of getting rid of PVC credit? (yes and no responses)

Fairchild recommended that upland buffer credit should be recognized.

Zdon commented that we are trying to give credit for what is not wetland. If you are counting, extract stormwater ponds and upland PVC to evaluate the no net loss issue.

Ten Eyck commented that maybe we should consider upland destruction. Weirens responded this is the Wetland Conservation Act.

Zdon asked what happens if Oak Savanna upland, for example, is spared to move the mitigation elsewhere? Kramer added that some LGU's take this discretion to protect uplands

Carlson asked for a review of the process. Weirens replied the stakeholder group comments are referred to the BWSR wetland committee, which in turn go to the BWSR Board and Clean Water Cabinet with a feedback loop to the stakeholders group. We will look for consensus in November.

Dean asked what process will we use to convey stakeholder data to the wetland committee? Weirens answered a summary report will be prepared.

Harnack confirmed that the meeting notes are the report.

Weirens added that this is not the final word on ratios as was with the exemptions. Being not further comments the meeting was adjourned at 4:10 p.m.

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