15. MN Administrative Rules 8420.0520 - SequencingI REVISOR
8420.0520 SEQUENCING.
8420.0520
Subpart 1. Requirement. The local government unit must not approve a wetland
replacement plan unless the local government unit finds that the applicant has demonstrated
that the activity impacting a wetland complies with all of the following principles in
descending order or priority:
A. avoids direct or indirect impacts that may destroy or diminish the wetland
under the criteria in subpart 3;
B. minimizes impacts by limiting the degree or magnitude of the wetland activity
and its implementation under the criteria in subpart 4;
C. rectifies impacts by repairing, rehabilitating, or restoring the affected wetland
under the criteria in subpart 5;
D. reduces or eliminates impacts over time by operating the project in a manner
that preserves and maintains the remaining wetland under the criteria in subpart 6; and
E. replaces unavoidable impacts by restoring or, if wetland restoration
opportunities are not reasonably available, creating replacement wetland areas having equal
or greater public value as provided for in parts 8420.0500 and 8420.0522 to 8420.0528.
Wetlands located in cultivated fields that are subject to subpart 8 are an exception to this
part.
Subp. 2. [Repealed, 34 SR 145]
Subp. 3. Impact avoidance.
A. Avoidance is required when indicated by part 8420.0515.
B. Wetland dependence determination:
(1) Based on information provided by the applicant, the local government
unit must determine if the proposed project is wetland dependent. A project is wetland
dependent if wetland features or functions are essential to fulfill the basic purpose of the
project. A wetland present at the site of a proposed project does not make that project
wetland dependent.
(2) A project that has been determined by the local government unit to be
wetland dependent is exempt from the analysis of avoidance alternatives in item C.
C. Alternatives analysis:
(1) In addition to documentation for the proposed project, the applicant
must provide the local government unit with documentation describing at least two
alternatives that avoid wetland impacts, one of which may be the no -build alternative.
For projects that repair or rehabilitate existing infrastructure, only one alternative is
Copyright 02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
2 REVISOR 8420.0520
required. The alternatives may include consideration of alternate sites or alternative
project configurations on the proposed site. The alternatives must be judged by the local
government unit as good faith efforts, or the local government unit may require the
applicant to redraft them for reconsideration.
(2) The local government unit must determine whether any proposed feasible
and prudent alternatives are available that would avoid impacts to wetlands. An alternative
is considered feasible and prudent if it meets all of the following requirements:
practices;
(a) it is capable of being done from an engineering point of view;
(b) it is in accordance with accepted engineering standards and
(c) it is consistent with reasonable requirements of the public health,
safety, and welfare;
(d) it is an environmentally preferable alternative based on a review of
social, economic, and environmental impacts; and
(e) it would create no truly unusual problems.
(3) The local government unit must consider the following in evaluating
avoidance alternatives as applicable:
(a) whether the basic project purpose can be reasonably accomplished
using one or more other sites in the same general area that would avoid wetland impacts. An
alternate site must not be excluded from consideration only because it includes or requires
an area not owned by the applicant that could reasonably be obtained, used, expanded, or
managed to fulfill the basic purpose of the proposed project;
(b) the general suitability of the project site and alternate sites
considered by the applicant to achieve the purpose of the project;
(c) whether reasonable modification of the size, scope, configuration,
or density of the project would avoid impacts to wetlands;
(d) efforts by the applicant to accommodate or remove constraints
on alternatives imposed by zoning standards or infrastructure, including requests for
conditional use permits, variances, or planned unit developments;
(e) the physical, economic, and demographic requirements of the
project. Economic considerations alone do not make an alternative not feasible and
prudent; and
(f) the amount, distribution, condition, and public value of wetlands and
associated resources to be affected by the project and the potential for direct and indirect
effects over time.
Copyright 02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
3 REVISOR 8420.0520
(4) If the local government unit determines that a feasible and prudent
alternative exists that would avoid impacts to wetlands, it must deny the replacement plan.
If no feasible and prudent alternative is available that would avoid impacts to wetlands, the
local government unit must evaluate the replacement plan for compliance with subparts 4
to 8.
Subp. 4. Impact minimization. The applicant shall demonstrate to the local
government unit's satisfaction that the activity will minimize impacts to wetlands. In
reviewing the sufficiency of the applicant's proposal to minimize wetland impacts, the
local government unit must consider all of the following:
A. the spatial requirements of the project;
B. the location of existing structural or natural features that may dictate the
placement or configuration of the project;
C. the purpose of the project and how the purpose relates to placement,
configuration, or density;
D. the sensitivity of the site design to the natural features of the site, including
topography, hydrology, and existing vegetation;
E. the value, function, and spatial distribution of the wetlands on the site;
F. individual and cumulative impacts; and
G. an applicant's efforts to:
(1) modify the size, scope, configuration, or density of the project;
(2) remove or accommodate site constraints including zoning, infrastructure,
access, or natural features;
(3) confine impacts to the fringe or periphery of the wetland; and
(4) otherwise minimize impacts.
Subp. 5. Impact rectification. Temporary impacts must be rectified by repairing,
rehabilitating, or restoring the affected wetland according to the no -loss provisions of part
8420.0415, item H.
Subp. 6. Reduction or elimination of impacts over time. After an activity is
completed, further impacts must be reduced or eliminated by maintaining, operating,
and managing the project in a manner that preserves and maintains remaining wetland
functions. The local government unit must require applicants to implement best
management practices to protect wetland functions.
Copyright 02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
4 REVISOR 8420.0520
Subp. 7. Unavoidable impacts. Unavoidable impacts that remain after efforts
to minimize, rectify, or reduce or eliminate them must be replaced according to parts
8420.0522 to 8420.0528.
Subp. 7a. Sequencing flexibility.
A. Flexibility in application of the sequencing steps may be requested by the
applicant and allowed at the discretion of the local government unit, subject to the conditions
in item B, as determined by the local government unit, if -
(1)
£(1) the wetland to be impacted has been degraded to the point where
replacement of it would result in a certain gain in function and public value;
(2) avoidance of a wetland would result in severe degradation of the
wetland's ability to function and provide public value, for example, because of surrounding
land uses, and the wetland's ability to function and provide public value cannot reasonably
be maintained through implementation of best management practices, land use controls, or
other mechanisms;
(3) the only feasible and prudent upland site available for the project or
replacement has greater ecosystem function and public value than the wetland. This may
be appropriate only if the applicant:
value; or
(a) demonstrates impact minimization to the wetland;
(b) agrees to perpetually preserve the designated upland site; and
(c) completely replaces the impacted wetland's functions and public
(4) the wetland is a site where human health and safety is a factor.
B. Flexibility in the order and application of sequencing standards must not
be implemented unless alternatives have been considered and the proposed replacement
wetland is certain to provide equal or greater public value as determined based on a
functional assessment reviewed by the technical evaluation panel using a methodology
approved by the board. The applicant must provide the necessary information and the
local government unit must document the application of sequencing flexibility in the
replacement plan approval.
Subp. 8. Wetlands on cultivated fields. If the wetland is located on a cultivated
field and will be replaced through restoration, then the priority order for sequencing in
subpart 1 is not required. A wetland impacted under this subpart must not be converted
to nonagricultural land for ten years. The landowner must execute and record a notice of
this requirement in the office of the county recorder for the county in which the property is
located and, as a condition of approval, provide documentation of the recording to the local
government unit.
Copyright 02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
5 REVISOR 8420.0520
Subp. 9. [Repealed, 34 SR 145]
Statutory Authority: MS s 14.06; 14.386; 103B.101; 103B.3355; 103G.2242
History: 18 SR 274; 22 SR 1877; 25 SR 152; 27 SR 135; 32 SR 281; 34 SR 145
Published Electronically: August 26, 2009
Copyright 02009 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.