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Minnesota GraphicWCA Stakeholder Advisory Committee

WCA Assessment Stakeholder Meeting Summary

MnDOT Conference and Training Center
Shoreview, Minnesota

June 27, 2006

Steve Commerford, Mn Soybean Growers Association
Doug Norris, DNR-Ecological Services
Laurie Fairchild, U.S. Fish and Wildlife Service
Keith Hanson, Mn Power/Mn Chamber of Commerce
Brian Pasko, Sierra Club
Mary Mueller, Minnesotans for Wetlands
Chris Radatz, Mn Farm Bureau Federation
Tom Warmka, Association of Mn Counties
Wayne Brandt, Timber producers Association/Mn Forest Industries
Dan Helwig, PCA
Larry Zdon, PCA
Roger Lake, Mn Association of Watershed Districts
Dale Krystosek, BWSR
Scott Moen, Fish and Wildlife Legislative Alliance
Richard Fish, Sierra Club
Perry Bollum, DNR-Enforcement
Sandy Hooker, Mn Association of Townships
Dan Greensweig, Mn Association of Townships
Chris Hughes, BWSR
Tim Grant, Blue Earth County
Dan Girolamo, BWSR
Marita Valencia, Army Corps of Engineers
Wayne Edgerton, DNR
Ron Harnack, BWSR
Kay Cook, BWSR
Chuck Holtman, Smith Partners
Michelle Wilwerding, Smith Partners
Sarma Straumanis, MnDOT
Annalee Garletz, Association of Mn Counties
Bruce Gerbig, DNR-Waters
Carol Lovro, Association of Mn Counties
Tom Mings, BWSR
Ben Meyer, Wetland Professionals Association
Brian Watson, Mn Association of Soil and Water Conservation Districts

Call to Order.
Dave Weirens called the meeting to order at 1:10 pm. Introductions were made. Weirens asked for comments on the previous meeting summary.

Doug Norris asked to check on Paul Flynn’s comments regarding rescinded guidance in the Agricultural Activities/Drainage summary. Weirens replied that we will look at the notes and make edits if needed. He went on to explain the handouts and discussion points for exemptions. The process will be stakeholder’s identification of discussion items that will be referred to the BWSR Wetland Committee.

Wetland Restoration and Wildlife Habitat
Stakeholders were referred to the draft document which includes the following discussion points:

1. Require reporting exemptions over current de minimis impacts or require LGU interaction for all
2. Allow expiring program wetlands to be eligible for deposit into the wetland bank
3. Require use of the wildlife habitat exemption to specify this as the primary purpose
4. Expand TEP to include DNR Wildlife staff
5. Give a end date for exemptions

Laurie Fairchild responded regarding our request to her to check with her coworkers to see if expired Partner’s for Fish and Wildlife Program sites would be eligible for banking. The response was USFWS will frown heavily due to federal funds being used.

Weirens asked if the expiration of contract still applies? Fairchild responded affirmatively and also should require a wildlife plan.

Norris referenced #4 and clarified that the division of wildlife is willing to add staff to the TEP. He also had a question regarding discussion point 5 about what it meant. Weirens clarified the question by asking that the project is done, the contract has expired, now how long after expiration can a wetland be impacted under this exemption?

Federal Approval
Weirens commented that this one is more straightforward and referred the Stakeholders to the draft discussion point list:

1. Statute still holds obsolete language – modernize the statute (federal approvals)
2. Define exempt versus non-jurisdictional
3. Streamline this exemption to provide “Allowed only when U.S. Army Corps of Engineers regulates activity also regulated WCA”

Fairchild asked about discussion point three. How does the landowner determine which is which? Weirens replied that the landowner needs to know that Corps approval is in hand, and then WCA says you are good to go.

Utilities; Public Works
Weirens referred the Stakeholders to the draft discussion point list:

1. Define "Public Works"
2. Consolidate and simplify the exemption
3. Develop BMP's specific to utilities
4. Consider a "general permit" for certain activities
5. Differentiate between impact types associated with utilities

Weirens asked for comments. Keith Hanson commented that its ok but #2 and #5 may conflict.

De Minimus
Weirens referred the Stakeholders to the draft discussion point list:

1. Cap by county or watershed
2. Re-define “project”
3. Eliminate eligibility in shore land areas or eliminate expansion in greater than 80% counties to 1,000 square feet
4. More enforcement
5. Require landowner or contractor reporting
6. Look at the higher end of exemptions (reduce allowed exempt amount)
7. Differentiate exemption application between permanent land use change and other (deer stand)
8. Sequencing at certain level of impact.

Weirens asked for questions. No questions were asked.

Weirens referred the Stakeholders to the draft discussion point list:

1. Time limit
2. Storm water pond regulatory consistency (if provide mitigation credit then regulate impacts to, and vice versa)
3. Regulation of ditches in upland areas needs to be addressed
4. Gravel mining – no time limit if resources are not exhausted
5. Define as “No Loss”

Weirens asked how long does the wetland have to be in existence before the exemption expires? Weirens noted the relationship between credit and regulation regarding stormwater ponds. WCA currently allows credit but doesn’t regulate.

Weirens asked for questions.

Steve Commerford asked if #3 is inclusive of just agricultural settings or non-agricultural as well? Weirens replied the example given at the prior meting was in an urban setting. Commerford asked how might this intersect with the drainage exemption?
Ron Harnack commented that wetlands within the ditch are exempt.

Commerford asked how about if the wetland encroaches into cropland? Harnack responded if the wetland is the result of a lack of maintenance, then the time period is 25 years. If 25 years goes by, it is regulated. Commerford asked if there is a difference on public versus private land? Harnack responded there is no differentiation both are regulated.

Approved Development
Weirens explained that these developments are prior to 1991 and must show evidence of continuous development. Discussion items include:

1. Find a middle ground to sunset this exemption (5 years)
2. Require replacement but no sequencing
3. Combine the above two recommendations

Norris stated that another option was identified at the Stakeholder meeting, that being repeal.

Weirens commented that there was not a lot of discussion on this exemption. Discussion issues include:

1. Study to identify extent of exemption misuse.
2. Put guidance in the Rule.
3. Time Period?
4. LGU contact – non-industry landowner education and enforcement issue.

Discussion points include:

1. Simplify language – will require all to agree
2. State retain authority to determine Swampbuster compliance, or use existing BWSR appeal process or develop audit process/normalization
3. Data reporting and sharing
4. Reliance on offsite determinations
5. Reduce amounts
6. Clarify application of wetland type (sub-exemption D)
7. Sub-exemption A. fix dates and be consistent on wetland typing (Circular 39, Plant Community Types, Cowardin)
8. Sub-exemption C. Repeal
9. Sub-exemption D. Items 5, 6 and more above
10. Sub-exemption G. Further review applicability

Weirens asked for comments.

Brian Pasko commented that reporting is a must. We will never get a handle on loss without good data. Mary Mueller also commented on the importance of mitigation reporting – what is the replacement and where is it. How often are we losing a wetland?

Weirens redirected by reminding the group that we are discussing replacement ratios. That is the July meeting topic where credit creation will be discussed.

Chuck Holtman commented on the same subject the reporting issue and the next steps? Require a landowner to come in and get a sign off? Another principle to get applicants to come forward. Corps exemptions and non-jurisdiction equals confusion especially as they use the same framework to apply exemptions.

Harnack responded that the language must be simplified and also updated to eliminate the old farm bill references. Mings added that we lost part of this exemption due to the Farm Bill. Harnack continued, if the LGU thinks the exemption is misused, they can appeal. This has occurred on one or two occasions.

Chris Radatz asked about #3 and that he is not clear on the need for additional data.
Weirens commented that it is difficult getting data from NRCS. Mings added this might be an enforcement issue.

Harnack commented that all wetland types fall under the Swampbuster waiver.

Radatz asked if agriculture is covered? Harnack replied that Swampbuster covers the type 1 and 2 exceptions in WCA. Radatz commented that he has received calls from farmers who are confused between the old maps and the new maps and the blue dots.

Norris inquired that maps rely on NRCS determinations. It all depends on how well NRCS is doing their job. Tom Warmka added the blue dots are put on maps that are done by others that lack experience and skill. Puddles can equal wetlands, but it’s all done in the office.

Weirens summarized by saying its benefit versus cost, a policy decision. Harnack added that if WCA applied there would be a decision within 60 days.

Pasko redirected to get back to his question of getting a handle on what is being exempted; types 1 and 2 are getting lost with no record of their impact.

Wayne Brandt commented that a private citizen has to appear before the government while complying with the forestry exemption. Harnack replied that a statewide monitoring effort will show a trends perspective.

Dan Helwig referenced sub-exemption D and confirmed that this only affects types 1, 2 and 6 wetlands. Does this rely on Swampbuster? Will the recent court decisions and Swampbuster changes create concerns about relying too heavily on waivers? Larry Zdon added that there may be exemption exposure under 404?

Weirens responded an analysis of the impact of the SWANCC decision is on the BWSR web site. Wetland types 1 and 2 is where the gap occurs. The Ranapos decision is expected to have a nominal effect. The issue will be determining if there is a significant nexus.

Zdon continued that isolated wetlands will not be protected after these court decisions.
Weirens responded that Swampbuster and WCA working together will result in a small exposure. Harnack commented that WCA only waives types 1 and 2 under 2 acres on cropland. There are not many that fall through the cracks; the system only needs to be more efficient.

Discussion items include:

1. Sub-exemption A. Time period 1972-92, time period for land use change (10 years), and/or match ditch benefit payment period
2. Sub-exemption B. Clarify/Simplify
3. Sub-exemption C. Define repair and maintenance throughout the drainage exemption
4. Sub-exemption D. Repeal.

Discussion items include:

1. Require LGU interaction for all exemptions
2. Establish/improve/increase performance standard requirements when using an exemption
3. Regulate excavation in all wetland types
4. Refine definition of project
5. Treat wetland types 1, 2, 6, and 7 the same as types 3, 4, and 5 (Treat all wetlands the same)
6. Use different wetland classification system (i.e. Eggers and Reed Wetland Plant Community Types), and end use of Circular 39 types 1-8 system
7. Require a wetland component in the county comprehensive local water management plan or land use plan (to address existing wetlands and restoration opportunities)
8. Examine the number and size of WCA LGU’s
9. More BWSR support and LGU commitment to training

Helwig offered an option to consider. Conduct a short-term audit to identify the loss as a result of the exemptions. Use this data to replace losses. This will help satisfy the no loss requirements.

Zdon added this audit would generate a report and data that can be used for policy planning. As recommendations go up the ladder what payoff will be realized if we make a change? Do nothing is the default position.

Helwig added it is impossible to identify the scope of exemptions using existing data. Forestry and public utilities and others are obscure. Might be cheaper to keep the basic system in place.

Weirens replied that requiring all impacts to be reported would have killed WCA in 1991. Property rights, cost of the regulatory system and functions to get better data would be a significant cost.

Fairchild offered that this item is key. Other ideas rely on the data. We would have a short report that will summarize the data. Weirens replied that the process keeps impacts small but cumulative impacts is another deal.

Fairchild perhaps we should separate out waivers from exemptions. Brandt commented that the exemptions in 1991 were negotiated. The legislature expanded, slimmed and changed others. Change is not likely to happen. The burden is on those wishing for change.

Fairchild commented that she felt good about the forestry data. The others do not have it. Make a phone call to have people call in and report their impact.

Brandt stated that philosophically, the exemption community will not like this idea. Speaking for the forestry, forestry is working together as an industry.

Helwig mentioned the legislature didn’t have a view on how much would be impacted. Industry may mitigate their work. It is like no fault insurance?

Weirens summarized the common themes which include: time limits, definitions, update and modernize language, simplify and streamline, LGU oversight, limit impacts/ amounts and sequencing and data.

Weirens asked for any last questions.

Helwig asked if we will have the same discussion with the Board tomorrow? Weirens replied that this will be part of the discussion with the Wetland Committee.

Five key questions will be used to review the exemption discussion points:

1. How does the exemption contribute to or inhibit meeting the state wetland policy to “achieve a no net loss in the quantity, quality and biological diversity of Minnesota’s existing wetlands
2. What is the impact of the exemption discussion point on economic and development activities?
3. What impact does the exemption discussion point have on coordination with other regulatory programs (federal-state-local)?
4. How does the exemption discussion point contribute to regulatory simplification and LGU workload?
5. How does the exemption discussion point contribute to the development of date to evaluate WCA effectiveness and efficiency?

Weirens shared the plan to start the Wetland Committee’s discussion. First, we will discuss the federal approval and approved development exemptions. Second, we will discuss the LGU interaction issue.

Norris asked if the Committee will be doing these three things tomorrow? Any others?
Weirens replied that just these three on the agenda.

Fairchild asked if we could change #2 to separate out economic and development? Norris added that wetlands are covered under #1. Weirens added that #2 would be edited to remove “wetland resources” as it is in #1.

Helwig asked can other go to the meeting tomorrow? Weirens responded the meeting is as a public meeting.
Radatz asked if the meeting on July 27th will be from 9-3 using the same format?
Weirens responded, yes.

Weirens adjourned the meeting at 3:10 p.m.

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