THE NEW WETLAND RULES How do they affect you? City Engineers Conference January 27, 2010

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1 THE NEW WETLAND RULES How do they affect you? City Engineers Conference January 27, 2010

2 Introduction Beth Kunkel, PWS Certified Professional Wetland Scientist Certified Wetland Delineator 22 years working with MN wetland regulations Brian Watson District Administrator, Dakota County SWCD Certified Wetland Delineator 16 years working with cities and townships

3 Our Focus Recent Changes LGU responsibilities Increased LGU role in compliance LGU reporting requirements Location of wetland replacement Actions eligible for wetland replacement Wetland replacement plan standards Monitoring requirements and accountability

4 Our Message Don t assume anything Documentation is your friend Knowledge provides flexibility Ignoring wetlands or the rules does not make them go away The process is more involved Planning ahead can save you time and money

5 Minnesota Rule 8420 Updates Wetland Conservation Act of 1991 History of change This is not a stagnant law Current rule effective since August 10, 2009 Previous rule changes have occurred in:

6 Wetland Regulatory Process

7 Overview of Wetland Review Process Three general phases Wetland Determination Replacement Plan and Permits Replacement Monitoring Changes emphasize planning, accountability, and setting standards

8 Wetland Determination Phase

9 Wetland Determination Phase Changes Regional supplements to delineation manual Wetland classification system Notice of Decision required for delineations Advise Use current manuals and classifications Don t assume there are no wetlands Verify and document findings Review noticing requirements

10 Is this a Wetland?

11 Could this be a Wetland?

12 Is this a Wetland?

13 Wetland Classification Eggers & Reed 12 Wetland Plant Community Types Shallow, Open Water (Type 5) Deep Marsh (Type 4) Shallow Marsh (Type 3) Sedge Meadow (Type 2) Fresh (Wet) Meadow (Type 1 or 2) Wet/Wet-Mesic Prairie (Type 1 or 2) Calcareous Fen (Type 2) Open Bog/Coniferous Bog (Type 8) Shrub-Carr/Alder Thicket (Type 6) Floodplain Forest (Type 1) Seasonally Flooded Basin (Type 1) Hardwood /Coniferous Swamp (Type 7)

14 Noticing Requirements Notice of Decision for wetland delineations and type classification Determination of complete application timeline: Changed from 10 to 15 business days Must provide copies to TEP within 15 business days Decision timeline remains 60 days (section 15.99) Notice of Decision on permit remains 10 business days

15 Replacement Plan/Permits Phase

16 Compensatory Mitigation Reflects Corps of Engineers guidance Identifies fundamental components for replacement plans Performance standards Maintenance plans Legal protection (easements) Financial assurances Schedule Long-term management plan Adaptive management plan

17 Replacement Standards Establishes order of preference Banked wetland credits preferred over project specific restoration or creation Replacement ratios Credit when in-kind or in-place Added Bank Service Areas to define in-place Actions eligible for credit Created wetlands Upland buffers Stormwater ponds

18 Definitions In-kind: of the same wetland type Wetland types were redefined In-advance: approved banked credits In-place: within the same major watershed or Bank Service Area Bank Service Area: 10 subareas in state identified by ecological and watershed boundaries to define in-place for bank credits use

19 Ecological Suitability The preferred method of replacement is that which takes advantage of naturally occurring hydro-geomorphic conditions with minimal landscape alteration and is most likely to result in a wetland area that functions wholly, perpetually, and naturally

20 Sustainability Self-sustaining refers to the ability of a wetland to provide the desired functions over time in a changing landscape without (or with minimal) human intervention Examples: Naturally occurring hydric soil units New landscape changes attempt to mimic natural hydrology conditions Location of replacement wetland will provide multiple benefits such as habitat connections

21 Timing of Replacement relative to the timing of the wetland impact Shift in preference for banked credits versus project-specific replacement Banked credits are completed in advance and have been certified by technical staff as being initially successful

22 Wetland Type relative to the wetland type of the impacted wetland In-kind replacement provides: Similar wetland plant community and function, or Same hydrologic conditions, or Same landscape position

23 Replacement Location relative to impact site Need to know where you are relative to pre-settlement wetlands Metro vs. non-metro Banked credit vs. project-specific Wetland type is in-kind or not Which bank service area the impact and replacement sites are located

24 Pre-Statehood

25 Bank Service Areas

26 Replacement Location Wetland replacement location must follow a priority order: 1) same minor watershed 2) same major watershed (81) 3) same county 4) for wetland banking, same BSA and same pre-settlement area 5) for project specific, in adjacent major watershed (81) or adjacent BSA and same presettlement area

27 Replacement Location In > 80% pre-settlement wetland counties wetland replacement must follow this priority order: 1) Wetland Banking after evaluating options within the same major watershed (81) 2) Adjacent Wetland Bank Service Area 3) Statewide

28 Replacement Location In 7-County Metro: Same County Another 7-County Metro County, or One of the major watersheds that are present in the 7-County Metro Area, but at least 1:1 must be replaced in the 7-County Metro Area

29 Replacement Location For public transportation projects that are not eligible for BWSR replacement: Outside 7-County Metro Area may be replaced statewide, except <50% areas must be replaced in <50% areas In 7-County Metro Area must be replaced at least at a 1:1 ratio within 7-County Metro Area

30 Transportation Projects New road or expansion solely for additional traffic capacity Regular replacement plan, but credits may be purchased from BWSR at cost

31 Transportation Projects For public transportation projects to be eligible for BWSR credit: Project is on an existing roadway Minimizes impacts and considers on-site replacement Provides project/impact details to BWSR bank administrator, TEP, and others long form 30 days prior to the impact short form within 30 days of impact for impacts <10,000 square feet

32 Replacement Ratio New replacement ratios Start at a 2.5 to 1 ratio for <80% counties Start at 1.5 to 1 ratio for >80% counties Ratio s are based on each acre impacted Can be reduced depending on the timing, location, and type

33 Project Specific Ratios The ratio can be reduced by 0.5:1 when replacement is BOTH in-kind and in the same major watershed Location of Impact > 80% area or agricultural land Replacement Outside major watershed or out-of-kind Within major watershed and in-kind Minimum Replacement Ratio 1.5:1 1:1 < 50% areas, 50-80% area, and non-ag. land Outside major watershed or out-of-kind 2.5:1 Within major watershed and in-kind 2:1

34 Banking Ratios The ratio can be reduced by 0.5:1 when replacement is BOTH through banking (inadvance) and in the same bank service area Location of Impact > 80% area or agricultural land < 50% area, 50-80% area, and non-ag. land Replacement Outside bank service area Within bank service area Outside bank service area Minimum Replacement Ratio 1.5:1 1:1 2.5:1 Within bank service area 2:1

35 Actions Eligible for Credit Mitigation Actions Change Credit Eligible Create upland buffer Create storm water quality ponds Eliminated Public Value Credits (PVC) Reduced percentage eligible Buffers required with all replacement Eliminated PVC 10% if non-native, 25% if native, or up to 50% with LGU concurrence 100% credit if designed as wetland New wetland creation Reduced percentage eligible 75%

36 Upland Buffers Native Vegetation Big Bluestem Canada bluejoint grass Red-osier dogwood Non-native Vegetation Reed canary grass Common buckthorn Canada thistle

37 Upland Buffers Definition: The establishment or preservation of un-manicured vegetation adjacent and contiguous to replacement wetlands Requirements: Replacement wetlands < 2 acres, the buffer must be a minimum average width of 25 feet Replacement wetlands > 2 acres, the buffer must be a minimum width of 25 feet and an average width of 50 feet

38 Upland Buffers The area of buffer (used for credit) cannot exceed the area of replacement wetland The LGU may vary the upland buffer standards if approved by the TEP and when compliance is not practicable or it is ecologically beneficial

39 When to Vary the Buffer Standard If the property line crosses the area of the 25 ft minimum buffer. The TEP could deviate the requirement and allow the buffer to be smaller at the property line.

40 When to Vary the Buffer Standard Proposed Wetland Restoration Buffer Allowing little or no buffer on the outside edges in exchange for connecting 4 wetlands into one functional unit will provide significant habitat benefits both for the replacement wetlands and the existing wetlands

41 Replacement Standards For wetland replacement not in advance, a financial assurance is required by LGU The LGU must have sufficient evidence and rational to determine the financial assurance is not needed to ensure successful replacement in order to waive it

42 Financial Assurance May be used to: Cover costs needed to complete monitoring reports Construction, vegetation establishment and management, maintenance, monitoring, or other actions the LGU determines necessary to ensure adequate replacement The financial assurance does not serve as an in-lieu fee and is not a substitute for enforcement

43 Financial Assurance Within 60 days of certification of successful replacement and completion of monitoring, the LGU must release any remaining financial assurance submitted by the applicant, provided all other conditions of the approval are met

44 Example Trail project within road right-of-way Four mile corridor crosses two LGUs One acre of impact (Shrub-Carr/Type 6) Majority of impact in City of Lakes All replacement in Waters Township Non-municipal area and < 80% county Mitigation proposed on-site, not in advance, and with Wet Meadow/Type 2

45 Example

46 Example 2 Development Project 30-acre site with three acres of wetland One-acre of impact (Deep Marsh/Type 4) Impact in a municipal area, 50-80% county, and Bank Service Area 7 Replacement proposed though use of bank credits from same BSA and a 50 80% county Same wetland type

47 Example 2 Wetland replacement ratio = 2:1 Ratio reduce by 0.5:1 due to in-advance and same Bank Service Area

48 Replacement Monitoring

49 Replacement Monitoring What s New? Same requirements for project-specific and banking projects Increased emphasis on monitoring Improve quality of replacement Reduce time/costs spent on corrections Ensure successful completion Requires LGU to be proactive

50 Construction Certification LGU needs to certify the initial construction of replacement wetlands before replacement wetland monitoring begins LGU should consider a preconstruction meeting Should require as-built plan and provide landowner with certification of construction Needs to notify landowner of corrective actions if needed Needs to notify landowner and TEP when construction certification is approved

51 Replacement Monitoring LGU needs to review and should document receipt of monitoring reports LGU needs to distribute copies to TEP If monitoring reports are not submitted, LGU must: Pursue enforcement action Complete monitoring and charge fees LGU needs to notify applicant when monitoring requirement has been fulfilled

52 Replacement Monitoring Financial assurance should not be fully released until replacement site is sustainable and completed according to plan

53 Questions to Ask? Who is responsible for approvals? What wetland types are impacted? Where is replacement site proposed? How much replacement is needed? What are monitoring requirements?

54 What have we Learned? Changes were intended to improve wetland replacement results Have a go to technical person to help you navigate the process Never assume there are no wetlands Create documentation for all decisions and follow-up with monitoring requirements Each project is unique

55 Things to Remember Plan ahead to the extent possible Consider the abundance or significance of the wetland resources involved Consult your technical experts early Consider local options for obtaining inadvance wetland replacement credits

56 Additional Information

57 Questions? Thanks for coming!! Please contact us with any additional questions! Beth Kunkel Brian Watson