Stakeholder Advisory Committee
WCA Assessment Stakeholder Meeting Summary
1:00 p.m. to 4:00 p.m.
April 24, 2006
MnDOT Conference and Training Center
De minimus/Incidental Wetlands/Approved Development
Lawrence, Zdon MPCA
Keith Hanson, Mn Power
Kay Cook, Board of Water and Soil Resources
Dan Girolamo, Board of Water and Soil Resources
Sheila Vanney, MASWCD
Les Lemm, Board of Water and Soil Resources
Harvey Nelson, Mn Waterfowl Association
Janette Brimmer, Mn Center for Environmental Advocacy
Ben Meyer, Wetland Professionals Association
Frank Pafko, MN/DOT
Allyz Kramer, Wetland Professionals Association
Rick Dahlman, DNR-Forestry
Marita Valencia, U.S. Army Corps of Engineers
Mary Mueller, Minnesotans for Wetlands
Michael Caron, Tiller Corp./Asphalt Ready-Mix Assoc. of Mn
Perry Bollum, DNR-Enforcement
Bruce Gerbig, DNR-Waters
Doug Norris, DNR-Ecological Services
Call to Order.
Weirens pointed out that three new exemption maps are available on
the back table. He explained that the data shown on the maps is an
indication of activity not hard numbers. The afternoon meeting will
follow the same process as the morning session.
Weirens introduced Les Lemm, BWSR Board Conservationist. Lemm shared
some of his Lake of the Woods WCA experience. Lake of the Woods
County has lots of wetlands and little upland.
Lemm opened the presentation on the incidental wetlands exemption by
stating if you created the wetland to be a wetland, then it is
regulated. Beaver dams are incidental as long as there is no
discharge into wetlands. Storm ponds are covered under NPDES and PCA
Rule 7050 for water quality treatment. Storm ponds are considered
incidental under WCA.
Options to consider are: No change, repeal, and middle ground. The
middle ground option could include a time limit (5yrs?) and narrow
Determination of incidental is more of a jurisdictional call rather
than an exemption. Defining a proposed impact to an incidental
wetland as a no-loss is another option.
Larry Zdon mentioned that storm ponds have historically been created
in existing wetlands. Does construction of a stormwater pond in an
existing wetland trigger permit requirements of the Clean Water Act?
Storm ponds in wetlands are still jurisdictional, degraded wetlands.
Marita Valencia reminded the group that the U.S. Army Corps of
Engineers (Corps) does not offer replacement credit for storm water
Mary Mueller commented that storm water ponds are considered
incidental but they are also used to provide mitigation credits.
Lemm replied, only for public value credit above the first one to
one of required replacement.
Weirens interjected and suggested addressing the credit issue when
discussing replacement ratios, later in the Assessment process.
Valencia said the COE is concerned the meeting notes might suggest
that stormwater ponds are eligible for credit.
Approved Development Exemption.
This exemption is difficult to claim due to certification. The
development must remain active and have infrastructure installed to
be eligible. This exemption gets some misuse and sequencing is not
required so larger impacts are possible.
Lemm suggested that options for change are limited to no change or
repeal. Most legitimate projects are done due to the fact that 15
years has passed since this exemption was added. Staff recommends
Janette Brimmer inquired about a discrepancy between data reported
and reality. The lack of response from the metro area could be
Harnack reminded the group that approved development is not exempt
under section 404 of the Clean Water Act.
This exemption generally affects fringe areas of wetlands. Typically
this would include work in a type 2 wetland fringe on a type 3 basin
if the basin is greater than 40 acres in size. The deepest part of
the water regime is used to type the wetland. This exemption cannot
be combined between neighboring landowners.
Lemm discussed regional differences in wetlands and how they are
recognized in WCA. Rick Dahlman asked we why are discussing
replacement ratios during a de minimis discussion. Lemm responded
the purpose is to identify some of the reasons for why the de
minimis exemption is structured the way it is.
Some metro LGU's are charging a fee to allow de minimis. They then
take the money and do restorations within their jurisdiction.
Harnack said that shoreland ordinances in the north may have
eliminated the de minimis in the shore land impact zone. Lemm added
that some LGU’s have expanded the de minimus from 400 square feet to
1,000 square feet as allowed under the law and rule.
Lemm outlined the following options: No change; reduce; further
define or narrow eligibility; require sequencing; no sequencing but
cash banking for impacts; no change or expand-address concerns with
higher replacement ratios for non exempt impacts; and repeal.
Requiring sequencing will increase the administrative burden, there
is no criminal penalty and it is difficult to enforce. Staff
recommend no change.
Brimmer has two suggestions. First, consider development levels in
applying the de minimus. Development is heavy in the metro and it is
increasing as you go north. Her second recommendation is to place a
cap on its use by county or watershed to keep some heavy use areas
Look at the average data reported by county on the de minimus
exemption map. Project
identification is important so the “Walmart double up” case study
does not continue to
happen (i.e. two de minimis exemptions within one project)
Harnack questioned the amount of de minimus exemptions that occur on
shoreland and non-shoreline. Lemm responded that most are in the
shoreline areas. Harnack added that if most are in shoreland then
existing local government regulation already occurs.
Gerbig added that in Cass County, 70% of the estimated market value
is in the shoreland area. Changing de minimis as part of the “land
status” (i.e. subdivision, commercial, open, agricultural) will
allow focus on developing areas. Lemm added that that works into the
Zdon asked about scope. We have a lot of non-reporting counties. Has
any attempt been made at interpolating the data …. Using an
assumption factor to fill in the non-reporting counties? The values
in the map are limited. Better data is needed to determine the
cost/value of going after these exemptions. Rick Dahlman asked for
clarification on data shown on the map (i.e. the number of
exemptions versus acres/year).
Perry Bollum shared the common scenario that 10,000 square feet of
impact this year, 10,000 more square feet two years down the road
and another 10,000 square feet 5 years later tree and no one ever
knows. Weirens reiterated that people should not rely on the numbers
shown on the map too much.
Discuss Options - Incidental Wetlands
The Committee identified several options to address concerns with
the incidental wetlands.
#1 Establish a time limit.
Brimmer commented on the trend of providing mitigation credit for
Frank Pafko stated that the policy on stormwater basins should be
parallel on both sides of the equation. If they are bankable, they
should be regulated. If they are not bankable, they should not be
#2 Stormwater pond regulatory consistency (if provide mitigation
credit, the regulate impacts to, and vice versa)
Allyz Kramer asked if a wetland is artificially maintained, then the
Corps doesn’t regulate? She continued to ask about an existing ditch
in upland issue. They tried for incidental but were denied.
Replacement was required at 2:1 using taxpayer dollars. Are ditches
in uplands with reed canary grass regulated by WCA? Lemm said it
sounds like a 103E issue.
Zdon questioned if there was a conflict between WCA and the Corps?
Harnack added the Corps and State want to be consistent. Gerbig
commented that DNR mapped natural and altered watercourses.
#3 Regulation of ditches in upland areas needs to be addressed.
Mike Caron asked about gravel pits, and that wetlands created by
gravel mining should be exempt if the resource is not exhausted.
Valencia responded by saying the Corps uses 30 years as the cut off.
This is a rule of thumb and not written anywhere. Dan Greensweig
stated that time limits have to be workable. This will require
memory due to a lack of tracking at the local level.
#4 Gravel mining - no time limit if the resource is not exhausted
Harnack contributed by saying the legislature appropriated money for
beaver control due to liabilities associated with dams and ponding
water. If you propose a change that would regulate an incidental
wetland, who retains liability? Who decides on raising the water
level or creating a wetland? Norris commented it should be tied to
the active management of the basin. If there is active management,
then allow exemption, if not managed the exemption would not apply.
#5 Define an impact to an incidental wetland as a no-loss.
Discuss Options - Approved Development.
The question posed to the Committee is: leave it or repeal it?
#1 Straumanis recommended that we choose the middle ground. Allow
#2 Harnack added that we require replacement but no sequencing.
#3 Brimmer recommended that the above two get combined.
Dahlman asked for clarification, does the Corps regulate these
anyway? Are we changing a lot for those that would still use this?
Harnack continued by saying look where these exist….old shoreland
plats. This fact provides more reason to require mitigation. Weirens
added sequencing may be more important than replacement due to the
lack of availability of replacement sites for shoreland impacts.
Discuss Options – De minimus.
The Committee revisited and identified the following de minimis
#1 Cap by county or watershed district.
#2 Define project.
#3 Eliminate in shoreland areas or eliminate expansion to 1,000
#4 More enforcement
#5 Landowner/contractor reporting
#6 Look at the higher end of exemptions
Harnack suggested putting an asterisk by those that will add
administrative costs. Brimmer added the exemption is rife with
abuse. Do you change the exemption or add enforcement? Greensweig
asked if the dumping of a wheel borrow of soil should be reported?
Zdon added that existing data is limited – even this has attracted
the Governor’s attention. Full data will result in higher costs.
Harnack continued will not have adequate data to make this call
within our time frame. Weirens added more data will increase
Lemm offered that development is creeping north, more houses and a
deer stands as examples. We should differentiate between uses.
Weirens mentioned the issue of equal application of the law.
#7 Lemm suggested it may be appropriate to differentiate between
permanent land use changes versus not.
Weirens continued by asking …does it matter why we are doing the de
minimis? Hunter versus Mc mansion. Norris offered that people are
making value judgments when defining who has a “good project.”
Harnack mentioned that we need to modify the criteria that drive
prioritization of wetlands. Caron said comprehensive plans are used
for land use. WCA is not the place for it. Kramer commented that
north shore LGU’s are pressing consultants to get the WCA approval
so development can proceed. Ben Meyer added that all impacts must be
mitigated in some communities.
#8 Sequencing should be required at a certain level of impact.
Discuss Options – Overall/General
1. Bremer asked to add this item to the big list. Treat type 1,2,6
and 7 wetlands the same as types 3,4 and 5.
Meyer added there is a failure with Circular 39 wetland typing. It
is an antiquated system because the functions and values are not
measured by the process. Harnack added… Does this lean us toward
dropping the Circular 39 1-8 types and going to 1-12 wetland plant
community types. Norris added that the 1-12 will use vegetative
community and functional range.
2. Use a different wetland classification system, Wetland Plant
Community Types and end use the Circular 39 types 1-8.
Harnack continued, counties update local water plans every five
years. Is there value in these plans evaluating and classifying
their wetlands? To guide and direct what happens with their
3. Require wetland component in wetland plan and land use plan.
(restorations and existing wetlands).
Mueller offered that minimum qualifications should be required.
Brimmer added that BWSR should play a role with LGU training. Lemm
stated that BWSR has limited resources to provide support. Weirens
added the rule provides authority for BWSR to require minimum
Brimmer replied that more BWSR support for training and LGU support
is needed. How would you certify an LGU? Weirens responded by saying
clear standards must be provided. The back up plan must also be
identified and will usually be the County.
4. Examine the number and size of LGU’s.
Harnack continued by saying the shoreland program requires that
counties certify the capacity of smaller cities to do shoreland.
Should we apply this to WCA? Weirens offered that would require Rule
and Statute review. Gerbig mentioned we can’t pick and choose what
to do in shore land. Brimmer recommended that we adopt minimum
Someone suggested that if an LGU was determined to be failing in
their administration of WCA that it fell back to BWSR? Weirens
replied…No. Greensweig commented that townships often have no staff.
Townships can push unfunded mandates back to the county.
Kramer asked why not keep it at the SWCD? Weirens responded… In some
cases, cities are the perfect place to do WCA as they are already
involved in all other land use issues.
Harvey Nelson added that counties are not reporting. Would a better
response change anything? Weirens responded by saying no. The WCA
annual reporting receives 100% reporting. Higher response was hoped
for for the WCA Assessment Survey. Many LGU staff are responsible
for multiple programs and WCA may be a lower priority. It is
expected that data requirements will increase in the future.
Weirens asked for last comments. Hearing none he adjourned the
meeting at 3:40 p.m. The next meeting will be on May 9th, 2006 and
will be located in the MPCA Board Room. The last exemption meeting
on agricultural activities/drainage will be on the 23rd of May and
will be back in Shoreview at the MnDOT Conference and Training
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