WCA Stakeholder Advisory Committee

WCA Assessment Stakeholder Meeting Summary

April 19, 2006
MnDOT Conference and Training Center
Shoreview, Minnesota
Wetland Restoration and Wildlife Habitat Exemptions 

Attendance:
Keith Hanson, Utilities
Tom Warmke, Association of Mn Counties
Sandy Hooker, Mn Association of Townships
Franklin Svoboda, Svoboda Environmental Resources
Kay Cook, BWSR
Kurt Deter, Rinke Noonan Law Firm
Rick Dahlman, DNR - Forestry
Jim Tunheim, Mn Farmer’s Union
Frank Pafko, MnDOT
Dan Greensweig, Mn Association of Townships
Chris Christianson, Mn Viewers Association
Dan Girolamo, BWSR
Harvey Nelson, Mn Waterfowl Association
Perry Bollum, DNR
Allyz Kramer, Wetland Professionals Association
Laurie Fairchild, U.S. Fish and Wildlife Service
Clair Nelson,  BWSR/Lake County
Roger Lake, Mn Association of Watershed Districts
Doug Norris, DNR
Tom Martinson, Lake County
Joe Martin, Mn Department of Agriculture
Ron Shelito, BWSR
Bruce Gerbig, DNR - Waters
Lawrence Zdon, MPCA
Les Bensch,  Mn Conservation Federation
Marita Valencia,  U.S. Army Corps of Engineers
Fred Corrigan, Asphalt-Ready Mix Association of Mn
Sarma Straumanis,  MnDOT

Call to Order

Dave Weirens called the meeting to order and stated this meeting is the first of five meetings to review the Wetland Conservation Act (WCA) exemptions. The exemptions to be discussed today are the Wetland Restoration and Wildlife Habitat Exemptions.

Weirens shared the March meeting summary and asked for comments.

Other information distributed at the meeting included: LGU survey results with exemption comments, one map for each of the exemptions being discussed today showing the location and extent of exemption activity occurring by county, and the exemption guidance from the WCA Manual. 

Doug Norris asked if the maps represent years 2001-2003 or other? Weirens explained that the map represents average data over a five-year period. 

Weirens reviewed the exemption process plan, meeting organization and the prepared questions that are to guide the discussion. 

Wetland Restoration Exemption

Weirens introduced John Overland. Mr. Overland provided the wetland restoration exemption presentation. In this presentation the rule language from 8420 was covered. The reason for the exemption was to create flexibility for restoration work. Eligible work must be done for conservation, under contract or easement that allows future drainage or “pulling the plug on the restoration.”

Overland suggested changing the WCA rule to allow drained basins to be banked. The proposed rule change would allow for these “expired program” restorations to be enrolled into the bank without actually draining and restoring the same project. 

Laurie Fairchild mentioned that these banking projects couldn’t be sites that utilized U.S, Fish and Wildlife Service program dollars, (i.e. - partners program) unless the landowner re-paid the federal dollars. 

Overland commented that construction upgrades may be required that could open the door for banking.  

Bruce Gerbig asked about the expiration of contract periods that identifies when a wetland can be drained. Is there a maximum time allowed? Is the maximum 5-years? Overland stated that the contract will specify.

Fairchild stated that the U.S. Army Corps of Engineers (Corps) may have jurisdiction on expired program wetlands. 

Larry Zdon, inquired about the scope of the exemption maps provided. He asked if the numbers were the number of times the exemption was acted on? Weirens responded the data is an annual average, an indication of the location and extent of exemption activity. 

Zdon then asked if data were available that would show the acres produced via contract without plans to drain? Overland followed by saying this data is not available. 

Weirens asked the group if exemptions for wildlife provide a net gain or not?  Rick Dahlman said we still don’t know how many projects were launched without an exemption. 

Overland reminded the group that wildlife exemptions are like all others, the applicant can proceed without an actual exemption certificate. 

Kurt Deter asked how many times the plug has been pulled on such sites? There is no down side to the exemption. Overland’s reply was the exemption was provided to not conflict with conservation programs. 

A question was asked about one of the maps. In particular, the Morrison County data was suspect. (2 vs. 75-156 range). Overland answered by saying: 2 = number of exemptions and 75-156 are the acres impacted. 

Wildlife Habitat Exemption

Overland moved into the wildlife habitat exemption and gave credit to Keith Grow, the author of the presentation. He discussed the Rule language for the habitat exemption. (habitat improvement, ½ acre or 5% and not in wetland types 3, 4,and 5) 

Overland also pointed out that this exemption cannot be used if threatened or endangered species are present. The project must also be certified by the SWCD as wildlife habitat improvement. Excavation and fill are both measured as impact, limits on deposition (5% or ½ acre); require permanent noninvasive vegetation and development of a wildlife habitat plan. 

Norris asked if the Rule requires SWCD certification? Overland added that this conflicts with the policy of not requiring people to come for an exemption certificate. 

Overland went through an example showing the steps needed to receive a wildlife habitat exemption. The steps are: application submitted, TEP review, if approved, get certificate of exemption, project is built and SWCD certifies. 

Overland gave a historical perspective of the exemption. 1/1/92 WCA began and exemptions were added in 1996. Excavation in wetland types 1,2,6,7 and 8 is not regulated by WCA if depth is not greater than 2 meters, no spoil is placed in the wetland and no drainage is allowed. 

Possible rule changes were discussed as follows:

1.)    Require a formal LGU decision for use of the exemption

2.)    Excavation should be regulated if depth exceeds 2 meters, regulate in all cases

3.)    The term primary purpose needs to be included in this exemption.

4.)    Involve DNR wildlife managers via the TEP.

Zdon pointed out that WCA doesn’t address changing wetland types. Project eligibility requires wildlife habitat improvement. Excavation for aesthetic purposes in new developments might be a misuse of the exemption. MPCA may have a conflict with excavated basins used for storm water treatment.

Overland followed by stating that WCA does not prevent the act of making wetlands wetter. Norris added that guidance says to avoid impacts that change wetland types. Guidance looks at the level of exotics, adding an open water component to a cattail-choked basin. If the MnRAM result is moderate or better the exemption cannot be used. 

Overland added that this problem is linked to not requiring an exemption contact. 

Gerbig inquired if data was available that would be anecdotal on where these exemptions are being used? Overland mentioned that it depends on the area of the state. In types 2 and 6 wetlands they dig until they hit water. The north has abundant type 2 and 6 wetlands that appear as sedge meadow and shrub/scrub vegetation communities. 

Ron Shelito discussed SWCD certification. The plan is certified by the SWCD. The project can also be reviewed when complete. 

Gerbig asked if there were any horror stories regarding misuse of this exemption. Overland provided an example that included excavation in a type 6 wetland to get fill for a driveway. This is not consistent with the intent of the exemption. 

Duck blinds are eligible for the exemption; 400 square feet of impact should be enough for a blind. No driveways. Permanent structures on public land are illegal. 

Allyz Kramer asked about the purpose of the exemptions. If the activity is exempt, the landowner does not have to contact the WCA LGU. She felt it was time to marry the two – exemption and permit. Currently data is not collected, so we do not have accurate impact data. 

Weirens referred back to the no net loss policy. How should these exemptions change to meet this policy? 

Overland provided that some LGUs require exemption certification. Dahlman commented that reporting and certification could go a long way toward satisfying 7050. A certificate would label an activity as regulated. 

Dahlman continued by saying that exemptions exercised under WCA, other than de minimis, requires mitigation under the current MPCA interpretation of the 7050 water quality rule. Ron Harnack added that this issue is relevant to forestry but not to WCA generally. 

Overland mentioned that the forestry road exemption requires that hydraulic disturbance be minimized. Quasi sequencing is recommended but full sequencing is not required. Current WCA allows full exemptions without sequencing. 

Zdon commented that the 7050 rule includes water quality requirements that prohibit the destruction of wetlands without sequencing. MPCA has used other programs to accomplish their goals but if not jurisdictional or exempt, 7050 applies. 

Zdon shared that Corps and WCA conflicts exist. Waters of the US and Corps jurisdiction are shrinking and MPCA enforcement occurs. Overland added that BWSR can’t implement 7050 and MPCA must come in and do it. 

Gerbig asked about the number of LGU’s that do require certificates. What is the scope?

Overland stated that the requirement varies. BWSR does not track this activity and would need to survey LGUs to generate this data. 

Kramer asked about manipulation of type 6 wetlands to allow for open water duck habitat. She stated that we should leave it the way the glaciers left it and focus instead on biological diversity. Overland added that this is not a duck exemption. 

Fairchild commented that she has not heard a lot of good examples of how the exemption is being used. She questioned whether good management principles are being used if the purpose is not being used as originally intended. Overland stated that most exemptions are excavation into existing wetlands. 

Harnack commented that the available numbers indicate less than 100 acres on about 200 sites. He questioned whether the issue is big enough to justify change? 

Marita Valencia stated there seems to be a push/pull between exemptions and certificates. The Corps may regulate excavations allowed under WCA exemptions. 

Les Bensch stated that we have a quality issue. Rather than picking the fly specs out of the pepper we should be looking at the major issue of quality. Minnesota spends big dollars on water quality. Should we get a multi agency effort to address the overall quality issue? Tiling leads to increased lake levels = riprap = river flooding = water quality problems. If we abolished all exemptions, what would we gain? 

Weirens referenced environmental policy and stated that it involves politics and social science. 

Deter asked about excavation on private land and how much is done on public land by agencies? Overland offered that federal lands are outside of WCA’s jurisdiction and on state lands DNR is the LGU. Deter asked if public agencies apply for exemptions? Norris answered by saying DNR rarely does dugouts although dikes are used to keep water off neighbors. 

Overland added that a common impact is the side casing of excavated materials in the wetland. It’s a value judgment. The excavation language was added to prevent excavation in types 3,4 and 5 wetlands. Excavated ponds are not regulated by WCA. 

Fairchild stated the purpose is wildlife improvement. Looking at one function is not appropriate, as we should be looking at wildlife details and decide what will actually happen on each exemption request. 

Gerbig said there could be an interactive process for exemptions. If you request de minimis, then you need a certificate. 

Harvey Nelson mentioned the wetland summit and the discussion that took place. He detailed concerns that included misuse of the exemption, lack of enforcement and a need to assess the program to see what needs fixing. We should identify the parts of the program that need fixing. 

Zdon asked if excavation should be regulated? 

Discuss Options

1. Norris questioned how stakeholder comments will be collected and summarized for the BWSR Wetland Committee? He offered the idea that we list proposals. He began by mentioning: amending WCA to regulate excavation in all wetland but not to specifically require replacement.

Pafko contended that excavation is a main policy issue and is not for the subgroup. Weirens responded by saying that all stakeholders are invited to each exemption meeting.

2. A second proposal was offered that recommended performance standards and conditions.

Kramer asked if spoil seeding with non-invasive species will be required for wetland deposits. Overland said that areas greater than 1.0 acre in size require a NPDES permit that requires upland seeding.

Kramer inquired about performance standards for habitat improvement projects. What happens if non-native invasive plants take over? Overland stated that no monitoring is required because a replacement plan is not required.

3. Gerbig offered another proposal. He recommended that reporting of exemptions over deminimis or require certificates for all including habitat and wetland restoration. Norris seconded the idea to require exemptions certificates for all exemptions.

Overland added that enforcement has difficulty in knowing what is going on. Perry Bollum continued by offering support for reporting by saying that landowners will benefit by getting the certificate.  Gerbig added that the third proposal is a general comment. We will not know the benefit of changes without tracking exempt activities.

4. Weirens suggested the fourth proposal; wetland bank eligibility for restorations conducted under a temporary contract. Eligibility could be tied to additional improvements and current bank standards.

Norris referenced the rule and offered that if a wetland is restored from federal conservation dollars the site is not eligible for banking. Overland said that is a literal reading. The answer is no but repayment of money may be required. Fairchild confirmed that after the federal contract expires, they walk away.

5. Weirens offered the fifth proposal: Primary purpose of the wildlife exemption.

Overland added that the primary purpose may not be in the wildlife habitat exemption language but in the forestry exemption. Dan Greensweig commented that it seems easier to measure the result rather than the original purpose.

6. Proposal number six is to expand the TEP to include DNR wildlife staff.

7. Proposal seven is to give an end date for exemptions. How long after expiration does the exemption still apply? Is there a window?

Keith Hanson asked if the proposals are options or suggestions? Weirens answered by saying they are just suggestions for discussion and presented to the BWSR Wetland Committee as brainstorming ideas.

Weirens asked if there were any questions about the “process”. Pafko recommended that the minutes should state that any subject is open at any time. And comments can be made to brainstorm a topic. These will then be brought to the BWSR wetland committee.

Fairchild asked if the proposals will convey the strength of the recommendation? Due to the lack of preference, we should put more thought into more details or prioritization.

Hanson mentioned that he thought we would discuss the pros and cons more.

Gerbig said that we are trying to focus on exemptions. We need to anticipate a method to bring these together into a merged message. DNR has thoughts on crossing exemptions. How do they interact with each other?

Weirens reminded the group that we have limited time to run the process and have already altered the original schedule.

Pros and Cons of Options

Weirens suggested first discussing the ideas that were specific to the wetland restoration and wildlife habitat exemptions.

Proposal number 4: Pros: better long term sites due to standards; check BWSR bank staff comments and a net gain is realized when the replacement ratio is applied.

Cons: conflict with public dollars used for restoration. Pafko asked if the easement duration should be perpetual or 10 years, Corps certification… Harnack commented that we are moving forward and this will improve and can provide a profit to the landowners.

Disincentives like credit for native vegetation restoration should be avoided.

Zdon concluded that there will be wetland loss because no new wetland is created and when impacts are mitigated a loss will occur.

Proposal number 5: Pros: ID result and alleviate possibility of this exemption.

Cons: included: hard to measure someone’s purpose of doing something.

Dahlman added that number 5 helps justify number 3.

Proposal number 6: Expanded TEP to include DNR wildlife staff. Pros include more TEP expertise and cons included: DNR work overload, increase time requirement, encourages informal actions and already in the Rule under “other experts”.

Proposal number 7: The one pro was reduced landowner uncertainty and the con is communicative problems.

The meeting adjourned at 12:10 pm.

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