WCA Local Government Units - Comments on Exemptions to WCA

WCA LGU Survey

Exemptions-Comments

April 13, 2006

Exemption 1: Agricultural Activities

• Because such a high percentage of land use in agricultural cropland, I don’t believe there is much wetland impact activity in the area that is not covered by the Swampbuster regulations.  I am unsure of the estimate of agricultural exemptions.
• Review the agricultural exemptions.
• We also need to look closely at the Ag exemption.  If the Federal Farm Program were to become less attractive, our county would stand to lose thousands of type 1 and 2 wetlands less than 2 acres in size, should farmers bow out of the Program.  NRCS has worked extremely hard to protect these since the beginning of swampbuster, and to lose them now would be unexcusable.  Another point that should be looked at here would be the tremendous amount of workload placed on LGU’s in the Ag portion of the State, should producers start dropping out of the Federal Farm Program.  Where would the funds come from to pay for the additional man-hours?
• Despite the dominance of agriculture related land use, most of the exempt activity is observed in the Utilities/Public Works and De minimus categories.  Only recently have we had more direct involvement with USDA wetland regulation – especially with CWNA designations.  For the most part, we continue to subscribe to “divide and conquer” and direct project proposals based upon jurisdiction  – farm program participant or not?
• It is impossible to track unreported Ag. Exemptions. 100,000 of thousands of feet of tile go in every year which I’m sure is draining all sorts of I’s and II.’s.
• Extend the easement period for the Ag and Silviculture exemptions.  Ten years is too soon to allow the loss of wetlands without replacement.  We have two cases locally where wetlands were filled under those exemptions 8-9 years ago, and the landowners are anticipating house construction on those “free” lots a soon as the easement expires. They would never have made it past sequencing if they had said they wanted to fill wetland to gain another house site. 
• Ag activity is a constant throughout the county. Being a LGU and working in the same office as USDA we can attempt to keep track of the drainage activity, but not all. Fed and state wetland regulations complicate matters when both apply.
• Most exemptions are Ag. Related (USDA), maintenance of existing tile & open ditches & tile to type I & type II wetlands under 2.0 acres.
• Eliminate exemption on type I, type II and type VI wetlands under 2.0 acres located on ag. Land.
• This is tough to track, some fill out the 1026 forms for FSA and NRCS which I review for possible WCA rule issues. However they require this for all tiling work, so it can sometimes be difficult to determine if there is really any wetlands being affected or if it’s a case of wetlands that have been lost historically.
• Simplify the exemptions by removing the Ag exemptions as to this point most farm land is effectively drained and continuing to allow these type 1,2 &6 wetlands to be drained is very difficult to enforce.  We often times don’t even know they exists unless someone actually applies for an exemption.  It would be best to treat all wetland types the same, there’s too much technical variation on wetland typing due to the variation in weather conditions from year to year.  A type 2 wetland can become a type 3 over a couple of wet seasons and vice versa, which makes it difficult to make the proper enforcement determination.  It should be treated the same no matter what type of wetland it is.  Who can say that a type 3 has more value than a type 2?
• Eliminate the agricultural exemptions:  Why allow for impacting any type I and up to two acres of type II/VI wetland under the guise of agricultural production.  The rule assumes that NRCS programs are protecting these wetlands but in reality the provisions of the farm program provide for these types of wetlands to be impacted.  The swamp busters provisions of the farm bill are not regulatory it is a farm commodity program, a deterrent program. 
• Ag and drainage exemption rules are too complex and the explanation in the rules is not clear enough.  The landowner should not feel that he needs to hire an attorney because the rules are so difficult to understand. 
• The percentages above do not give an accurate picture of the impacts to the wetlands.  The numbers look like Drainage and De Minimus are the big impacts while if you look at the acres impacted by each exemption the numbers are very different.  Drainage exemptions impacted 27.7 acres, De Minimus only .92 of an acre while Restorations and Wildlife Habitat restored or improved 51.5 acres.
• Given the significant amount of land that is or was formerly in agricultural production Wetlands that have been effectively drained via tile placement tend to constitute a large portion of exemptions granted. 

Exemption 2: Drainage

• Impacts from ditch maintenance are unreasonable to determine, acreage may be in the 10s of acres for the various JD2 activities that qualify for Ex 2 and 5. 
• Ditch work is better handled under #2.
• Most exemptions are Ag. Related (USDA), maintenance of existing tile & open ditches & tile to type I & type II wetlands under 2.0 acres.
• Ag and drainage exemption rules are too complex and the explanation in the rules is not clear enough.  The landowner should not feel that he needs to hire an attorney because the rules are so difficult to understand.  It is time to eliminate exemption #8.  If the approved plan has not yet been executed it seems that there is usually a valid reason
• The percentages above do not give an accurate picture of the impacts to the wetlands.  The numbers look like Drainage and De Minimus are the big impacts while if you look at the acres impacted by each exemption the numbers are very different.  Drainage exemptions impacted 27.7 acres, De Minimus only .92 of an acre while Restorations and Wildlife Habitat restored or improved 51.5 acres
• Drainage law/code and WCA need to be cohesive.

Exemption 3: Federal Approval

• Eliminate the Fed Approval (#3) as it refers to the old Corps Nationwide Permit system, and doesn’t apply to any current conditions other than mud-truck rallies. 
• Eliminate federal approvals since the ACOE program in the State no longer issue many of the permits this exemption was based on.

Exemption  4 and 10: Wetland Restoration/Wildlife Habitat

• Is it necessary to “exempt” activities that result in a net gain of wetland resources or wetland related habitat (wildlife habitat/wetland restoration exemptions)?
• Lessen restrictions for wildlife habitat exemptions. Many good-hearted projects had to be turned down due to the strict guidelines of the wildlife exemption criteria. Complicating the matters worse are the numerous government agencies that need to be a part of every decision made.
• Define (or eliminate) duck blind as allowed in the wildlife exemption. 
• In a 2 year period Exemption 10 has been issued once.  The applicant must implement DNR Wildlife recommendations to be eligible.  This project began as a WCA violation, a combination of wetland restoration and implementation of DNR wildlife recommendations resulted in a no loss of wetlands.  

Exemption 5: Incidental Wetlands

• Incidental wetlands should be consistent with COE regulations and be considered jurisdictional wetlands. 

Exemption 6: Utilities; public works

• Reconsider the 0.5 acre exemption under Exemption #6.
• Happy with the existing exemptions except the Utility; public works exemption.  The Utilities seem to think that they are exempt regardless of what they are doing.
• Despite the dominance of agriculture related land use in Clay County, most of the exempt activity is observed in the Utilities/Public Works and De minimus categories. 
• Most unreported work is related to utility maintenance and reconstruction that impact wetlands cause a no net loss.
• Require restoration standards and monitoring for utility projects. This exemption assumes that the wetland impact is temporary and the wetland functions and values will be restored once the project is complete.
• Some utility exemptions would be the only ones that do not result in a reduction in wetland area.  The percent would be approximately 2%. 

Exemption 7: Forestry

• Revisit the forestry exemption
• Extend the easement period for the Ag and Silviculture exemptions.  Ten years is too soon to allow the loss of wetlands without replacement.  We have two cases locally where wetlands were filled under those exemptions 8-9 years ago, and the landowners are anticipating house construction on those “free” lots a soon as the easement expires. They would never have made it past sequencing if they had said they wanted to fill wetland to gain another house site. 
• Principle use for the forestry exemption is not realistic.  LGU’s have no way of actually tracking what is happening on the ground years after the exemption is issued.  The only way an LGU would be notified of principle use change is if the land is platted as a subdivision.  Eliminate the exemption for forestry roads.  Temporary forestry roads could fall under the process of rectification, permanent forest road would require replacement. 
• Forestry and De minimis exemptions do not meet the intent of WCA and should be illuminated.
• It is time to eliminate exemption #8.  If the approved plan has not yet been executed it seems that there is usually a valid reason

Exemption 8: Approved development

• Remove Exemption #8 as it likely does not apply any longer or should not.
• The approved developments exemption is obsolete –it should be removed.
• Sunset the Approved Development (#8).  If it hasn’t been built on in 15 years, it’s too late to grandfather it in.  New rules should apply.  Sequencing could be relaxed if the proposal hasn’t changed, but impacts need to be replaced.
• Eliminate the approved development exemption, as it is no longer valid exemption.  Its my understanding that the purpose was to grandfather in those projects underway at the time of inception of WCA.
• Remove the approved development exemption since it is outdated
• Eliminate all exemptions related to development.
• It is time to eliminate exemption #8.  If the approved plan has not yet been executed it seems that there is usually a valid reason

Exemption 9: De minimus

• Despite the dominance of agriculture related land use in Clay County, most of the exempt activity is observed in the Utilities/Public Works and De minimus categories. 
• I think that the De minimus exemption could be dropped or at least lowered.  A little multiplied many times, still ends up being a lot, and this is what we are seeing in the fast developing Lakes area, as well as the Metro and St. Cloud area.
• If Type 1 and 2 wetlands are “under-represented” in terms of the overall makeup of wetlands in the state, why do we allow 2,000 square feet of de minimus impact for these wetland types, whereas we allow only 400 square feet of de minimus impact for wetland types that are more prevalent and “over-represented”?  Also, what was the rationale behind these figures (400 and 2000 square feet), and are they subject to change?
• I believe that generally the exemptions provided in the rule are fair.  Somewhat problematic for older lots of record with no development plan.
• Eliminate de minimis, this results in a cumulative net loss and may effect other functions and values other than the impact site.
• The Deminimis exemption needs some writing clarity.  In applying Deminimis exemption a maximum impact cap for the wetland basin is needed in the rule.  If that maximum currently exists in the Deminimis exemption then back to my statement of a need for clarity in the verbage.
• Exemptions particularly the de minimis is responsible for continued wetland loss.  Reduce the de minimis to 400 square feet.  Do not allow a de minimis exemption within shoreland protection zone. 
• Forestry and De minimis exemptions do not meet the intent of WCA and should be illuminated.
• Increase De minimus in shoreland area to 2000 sq. ft.  Anything under Army Corps jurisdiction should be exempt
• The most prevalent exemption tends to be de minimis exemptions for small impacts totaling a few hundred square feet.
• 85% of documented impacts are driveway/access development and are exempt from replacement
• In 2005, the De Minimus exemption that was issued was minimal. 
• De minimis exemptions should be based upon the functions and values of the wetland rather than the wetland size.  It seems sequencing flexibility should be what is used for determining de minimis exemptions.  Another option may be to us the 2005 Draft Management Classifications document authored by BWSR.

Process

• If a landowner is eligible for an exemption we always issue an official exemption paper “trail”.
• County requires documentation of all wetland impacts through exemption certificate, replacement plan, etc.  A significant number of no loss determinations from pond excavations are not included in these figures (approx. 1/3 of all permits)
• Require applications for all wetland activities, help assess what’s going on
• All wetland work in the City requires a permit
• Exemptions must be submitted and acted on by the wetland administrator.  It is not a voluntary application in the city as it is in state rules.
• We did not issue any exemptions in 2005.  I don’t believe there would be many unreported exemptions.  People usually ask if they can “do something” in a wetland area  -or- they just go ahead and do it and hope they don’t “get caught” I think the general public knows very little about WCA and it’s exemptions.
• When exemption determinations are made in this LGU a wetland loss results.
• Until this past year, we have tended to utilize “guidance” as opposed to formal exemption determinations.  If people called in to inquire about wetland regulations, we would simply advise them, in writing, that if they avoided the wetlands, no further action was required.  In an attempt to be more comprehensive, we have recently taken the stance that all projects involving wetlands and public waters, even if no impacts are expected, should be directed through the application process for the LGU Board to consider and make a decision on.  Given the legal arena we are a part of, the WCA TEP felt this would serve to protect the wetland/water resources of the county, the SWCD, and the public.
• When considering the impact of exempt impacts to wetlands in watersheds where wetlands are a limited component, exemptions should be “capped” or limited.
• It would be terrific to on-site sequence all activity, and that exemptions were not an automatic.  The interim rules back in 1991 made the best sense. 
• Records for exemptions are kept 10 years and then can be disposed of (except agricultural and forestry).  This will eventually lead to exemptions being issued on properties and projects where an exemption has already been issued. A record of issued exemptions should remain within LGU offices regardless of time.  Exemptions should only be issued if the individual request an exemption by submitting required applications and documents.   Exemptions should not be granted as they presently are, which is, if the individual is eligible he is allowed the exemption, whether he notified the LGU or not.  Require the individual to restore the impacted wetland, he than can submit an application for the exemption, receive authorization and proceed with the project. 
• Continued improvements to applications have made tracking easier
• Relatively few exemptions are granted as the City has placed a high value on preserving the wetlands that exist within the municipal boundaries.
• The only exemptions that should be viable are exemptions that create wildlife habitat with minimal impact to the wetland and exemptions that increase wetland acreage.   
• Most of ours are no-loss determinations.
• The development proposal that have come in for this area have all required that the development not impact wetlands and they were placed in conservation easements or deeded to the City in an outlot.
• Also, the exemptions that serve special interest groups should be forfeited.  Who is to say that a person’s need for a driveway isn’t just as important as a forestry road that isn’t necessary if winter harvesting is an option?
• Do not allow exemptions within shoreland areas, or the most critical portion of the shoreland area depending on waterbody and ecoregion. 
• The amount of acreage that is impacted from exemptions should not be counted against the no net loss policy because that is what landowners are allowed to do under the WCA without replacement. 
• Regulate excavation in all wetland types, as it typically results in wetland impact.

Unreported Exemptions

• I would guess unreported exemptions to be about 30%.  I should add that we have had a lot of wetland acres impacted by public drainage exemptions.  However, I feel this is appropriate.  Many of these public ditches were constructed a long time ago, and were maintained little, if at all.  Either way, farm families have relied on the cropland adjacent to these areas and have passed the land onto the next generation.  I don ’t think it is right to take away the maintenance rights on existing drainage ways.  We need to become stricter on NEW drainage and impacts, but we can’t take away drainage that once was there. 
• Nearly impossible to guess how many are occurring that are not reported.  Most communities have local regulations that encourage the exemption review (if not the paperwork), such as via a grading permit or local ordinance.
• The estimated unreported exemption totals are strictly a guess.  We should have a better idea this year after the enforcement campaign that will occur.
• It is impossible to accurately estimate the percent of exempt activity given that it is not required under statute to be reported.  The accuracy of “unregulated” exemptions is highly dependent upon the LGU’s attention to the matter.  Undoubtedly, there have been ag related exemptions, incidental wetland exemptions, and public works/utilities exemptions in county no matter how attentive we are to wetland management.

No loss or gain under exemptions

• 25% does not result in reduction of wetland areas. 10% results in increase in wetland area.
• 0% results in a reduction of wetland area and 0% results in increase.
• For non impacted wetlands preserved within developments, we require the elevation of emergency overflow or outlet elevations to be set at or above the delineated wetland average boundary elevation.  This generally provides a larger wetland area by effectively raising the water table. Storm water ponding requirements typically provide wetland function especially where no existing wetlands on site existed prior to development. In developments with wetland impacts where onsite mitigation occurred more than 50% provided  excess credits of both NWC and PVC and did not bank those credits.
• We have many potential impacts that are avoided through informal discussion simply by pointing out that the proposed impacts are avoidable or that the process does not warrant the result—red tape is a powerful deterrent.  Few projects result in wetland improvements.  I would favor severely restricting all exemptions.
• 5%-Pond construction with upland disposal of the spoil (conversion of type).  (2)  1%-Difficult to address because there is no way to report local wetland restoration activities or other projects that increases the functions and values of a wetland.  For example:  we worked with a private landowner and purchased a conservation easement for 80 acres.  ELINK doesn’t provide a reporting option for this.
• For the most part, a no loss or gain occurred in excavations in Types 3, 4, or 5 wetlands.  2) One restoration netting approximately 7 acres of wetland
• 53% of the area covered under the exemptions noted resulted in no reduction of wetlands and an increase in wildlife habitat.  39% resulted in no loss of wetlands, and 8% resulted in a reduction of wetlands.
• We have provided some notations in the spreadsheet where the exemption wetland impacts were temporary (all were associated with utility projects).   In addition, there are a number of permits each year that involve excavations in wetland areas that are not regulated under the WCA (i.e. excavation in non-permanently and non- semi-permanently flooded areas of wetlands).  However, the WD regulates these non-WCA activities under our own rules to ensure no loss of wetland functions.  These projects probably involve around 2 acres of total affected wetland annually within the District.  These type of projects do not involve an increase or decrease in wetland area, just a change in character.
• I think about 40% of the exempted acres that I have granted are not filled/drained/excavated. The applicant usually will request more sq ft than necessary for his/her project to make sure their ends are covered.
• The two replacement wetlands that were constructed within the district were actually a 3.94:1 replacement instead of a 2:1 replacement, so in that case wetlands were gained.  As far as a percentage, in 2005, 90% of the approved work in wetlands resulted in a gain through replacement
• About 20% result in wetland improvements and actually increase the wetland area through wildlife habitat or de minimus exemptions. Many landowners show interest in removing sediment from a degraded wetland or installing dam/weir structures on wetland swale areas. These activities generally take place where gullies are present directly through a wetland and some sort of retention and/or erosion control is needed.  Landowners come to me and ask if any $ or c/s is available for some of these activities in wetland areas and I offer them offer them some possibilities like wetland banking (but they usually frown on that when they see the red tape involved). Many are disappointed when they see WCA/fed limitations put on a wetland when they are trying to improve the water/wildlife quality own their own dollar.
• An exemption by definition is a permitted wetland loss, no replacement is required.  If the project result was no wetland loss then a no loss permit would be issued to the landowner.  In 2005 one project, or 5% of exemptions, did not result in a wetland loss.  This project was a federal Fish and Wildlife project issued a wildlife habitat exemption.  The net gain on this project is approximately 2 acres of restored wetland.  It should be noted that the easement protecting the restored wetland is short term.  Any noted wetland gain could be lost by removal of the structure at the end of the easement period.
• 10% of exemptions issued are for vegetation management that causes no impact.  15% of exemptions issued are development approved and deal with stormwater treatment facilities that both benefit downstream wetland and provide some of the functions and values of the impacted wetlands.
• Some exemptions were used to create storm water ponding which were planted with suitable native vegetation.  While some functions and values may have decreased others were increased.  A fair estimate would be 15%.
• One of the eight exemptions resulted in an increase.  The exemption was granted for a wetland restoration project that will result in improved water quality, habitat and vegetative diversity.

Miscellaneous Comments

• 65% of the county is water or hydric soils. Because of our flat terrain just about ever ditch bottom will meet the definition of a Type 1 or Type 2 wetland. All the wetlands that are in the exempted category are either Type 1, 2, or 6 unless they are incidentally formed through the actions of beaver or sedimentation from erosion. Wetland restorations always result in much more wetland acres than are filled. Land use changes with CRP and RIM even without any restorations has had a great effect on the increase of w wetland acres because grass sod produces greater infiltration and less lose through evaporation and transpiration than agricultural crops. I cannot say what percent of exempt activity in Red Lake County has not reduced or has increased wetland area, but I am willing to say we have more wetland area now than 20 years ago even with the increase through restorations.
• 5% of actual exemptions; but 95+% of all exempt activities because most of our projects are pond enhancement projects in, or adjacent to, a reed canary setting -supervised by the County & SWCD. (2) 2%± of actual exemptions –with explanation from (1).
• The City issued approximately 5 No-Loss Exemptions during this period, with an impact of approximately 1 acre. This would represent approximately 20% of our WCA activity. This is frequently for storm sewer related maintenance, or other activity that results in a temporary impact with no filling or draining.
• Our county is mostly agricultural cropland with very little urban development. With above normal rains over the last 15 years many converted wetlands have reestablished themselves and existing wetlands have increased in size. Wet falls have prevented needed maintenance to field ditches. Because it was a drier fall in 2005 many farmers were able to maintain and improve their drainage. Wetland restorations have been a large component of CRP contracts over the last 8 years in the county. Beavers have been a huge problem in legal and other outlet ditches as while as natural streams. Sediment carried into outlet ditches after heavy rains resulted in deposits in front of culverts and in flatter sections of the ditches.
• I feel that the existing exemptions have already been changed too much. These exemptions were thrashed out in the early stages of the bill to get the political support in order to be passed it into law in the first place.
• They aren’t that big of an issue for our county’s ag zoning district because wetlands are typically expanded, excavated and improved rather than merely filling via De minimus, etc. Most of the landowners want to improve habitat and rural amenities by working with us to enhance reed canary type 1 & 2 wetlands
• Used properly the existing exemptions work for us in rural Minnesota, Rapidly developing areas may need changes.
• I think it’s working fine.
• Existing exemptions are fine.
• We are a fully developed community.  No projects with wetland impacts have taken place in 2005.
• Exemptions are important for LGU'’s  to administer the WCA Program
• It is important to note that only eight exemptions had been applied for in 2005.
• The City has made exemption determinations under De minimus and Utilities in the past but not in 2005.
• These numbers are our overall experiences over the years because we didn’t have requests of all of the exemptions in 2005. The vast majority of our wetland related projects result in wetland expansions, improvements, no loss or avoidance. Also, the exemptions listed result in relatively small impacts.
• The majority of the workload in the district is restoration orders for work already completed, about 80% of my workload are violations.  Not many exemptions are issued, only one exemption was issued in 2005, under De Minimus.  Two replacement plans were worked on, one for a ring dike and one to improve a berm for the DNR.  The majority of the work done in wetlands is done without the landowner contacting anyone.  I would guess that due to the amount of violations that I have worked on, there are many more that go undetected.