Comprehensive Wetland Management Plans:
Rice Creek Watershed District and Anoka County Ditch 53-62
pdf version of this article
April 21, 2005
I. Introduction and Overview
The Minnesota Wetland Conservation Act (WCA) requires the avoidance, minimization, or mitigation of wetland impacts from proposed development, and is generally applied through applications for individual development projects. In 1996, the Legislature provided that as an alternative to this individual permit approach, Local Government Units (LGUs) may create Local Comprehensive Wetland Management Plans (CWMP) to allow greater flexibility in sequencing analysis and wetland replacement siting based on a more comprehensive evaluation of wetland functions and values within a given planning area. To date, only about 20 CWMP’s have been adopted within Minnesota.
In 2004, the Rice Creek Watershed District adopted a Comprehensive Wetland Management Plan for a 1,132-acre area facing intense development pressure in the City of Blaine in Anoka County. The RCWD’s wetland plan seeks to resolve fifteen years of litigation over drainage rights by assuring both improved comprehensive wetland management and better development opportunities for landowners. This article reviews the legal requirements for adopting CWMPs generally, and the particular experience with the Anoka County Ditch 53-62 CWMP adopted by the Rice Creek Watershed District.
II. Background
The City of Blaine lies in the Anoka sand plain, an area characterized by interspersed peat bogs and wetlands. In the 1890s, the first ditch drainage system was constructed in the area, and in 1912 it was enhanced and identified as Anoka County Ditch 53. Another ditch was constructed in the area in 1918-1919, identified as Ditch 62, and this system became known as Anoka Co. Ditch 53-62. See Figure 1. Much of the area drained by the ditch system was kept in hay production, and throughout the 20th Century roads and culverts were constructed throughout the ditch system, the largest being the culvert/crossing of I-35W.
The proximity to I-35W means that hay production began to give way to development pressures. The area drained by Ditch 53-62 now includes the preferred location for a future stadium for the Minnesota Vikings, and other extensive commercial development plans.
In the early 1990s, landowners sued to seek the lowering of certain culverts and the excavation of sediment in the ditch. Resolution of this dispute was hampered by the fact that apparently no record of the official as-built profile of the ditch was kept by Anoka County at the time the ditch was constructed. A review of historical and field evidence put the as-constructed bottom elevation between 890 and 893 feet, and a 1997 settlement agreement in the litigation set the profile at 891.46. Further investigation and formal proceedings in 2003 officially established the profile at the same elevation.
The engineers for the RCWD modeled a “traditional repair,” the lowering of culverts and the ditch profile to this 891.46 elevation, and estimated that 260 acres of Types 1, 2, and 6 Wetlands would be effectively drained; these impacts would be exempt from replacement under the “drainage exemption” of WCA. An additional 65 acres of Types 3, 4, and 5 Wetlands would be partially drained, and would require 1:1 replacement under WCA. Figure 2 shows existing wetland conditions, and Figure 3shows the modeled wetland impacts from a traditional ditch repair, which would create upland that generally follows the grid matrix of the ditch system.
A CWMP alternative to traditional ditch repair presented the possibility of aggregating existing and replacement wetlands to create a more contiguous wetland complex, while also aggregating upland for development in areas more proximate to roads and other infrastructure. Figure 4 depicts modeled wetland and upland on CWMP implementation.
III. The Legal Framework for CWMPs
The general legal framework for CWMPs is set forth in Minnesota Statutes Section 103G.2243 and Minnesota Rule 8420.0650.
A. General Requirements
Minnesota Statutes Section 103G.2243 provides that a Local Government Unit (or combination of LGUs through a joint powers agreement) may develop a CWMP as an alternative to the wetland replacement and public value criteria provisions in WCA. Section 103G.2242, 103B.3355. An LGU seeking to develop a CWMP must give notice to allow for the active participation of the Board of Water and Soil Resources (BWSR), the Department of Natural Resources, the Minnesota Pollution Control Agency, other affected LGUs, and local citizens. Minn. Rule 8420.0650, Subpart 1. It also is advisable to provide notice and participation opportunity to the Army Corps of Engineers. The failure to comment in this local planning process constitutes a waiver of the right to comment to BWSR’s review of the plan, other than comments on compliance with statute and rule. The Technical Evaluation Panel must be consulted throughout the development of the CWMP. Once the plan is approved by BWSR, it is implemented through local ordinance or rule, which then governs WCA determinations on replacement plans, exemptions, and no-loss determinations.
B. Plan Contents
The CWMP must contain an inventory and classification of wetlands in the planning area, including an assessment of wetland functions and values through a method approved by BWSR. Id., Subpart 2. The plan may vary the application of wetland sequencing standards and replacement standards, so long as there is no net loss of public values and a minimum replacement of drained wetland acres at a ratio of: (a) 1:1 in a county or watershed that has between 50 and 80 percent of its presettlement wetlands intact; and (b) a ratio of 2:1 in an area having less than 50 percent of presettlement wetlands. The rule also increases an LGU’s flexibility to grant replacement credit for actions enhancing the wetlands’ public value and allows the extension of WCA’s agriculture exemptions to non-agricultural land.
The CWMP also must prescribe the size and location of replacement wetlands by type, size and functional qualities, and provide for a direct relationship between replacement wetlands and the classifications in the plan. The plan must result in no net loss of wetland quantity, quality, and biological diversity over the life of the plan, up to ten years. It also may identify high priority wetland areas for preservation.
C. Review Procedures
Once an LGU submits a proposed CWMP to BWSR, BWSR has 60 days to approve the plan, or set forth in writing its disagreement, outlining the scientific basis for its concerns and suggested changes. Minn. Rule 8420.0650, Subpart 3. BWSR also must identify parts of the plan that are more restrictive than state law. Thereafter, the LGU has 60 days to revise and resubmit the plan, or request a hearing. If a hearing is requested, BWSR must hold the hearing within 60 days, and issue a report of its decision within 60 days of the hearing. If BWSR and the LGU remain in disagreement about the plan, mediation must ensue within 60 days, and BWSR must initiate a declaratory judgment action for judicial review of BWSR’s decision on the plan within 60 days of either a written agreement not to mediate or the conclusion of the mediation.
D. Plan Adoption
The CWMP becomes effective once it is adopted through local ordinance or rule. All amendments to the plan and its implementing rule or ordinance must be approved by BWSR. Minn. Rule 8420.0650, Subpart 4. An LGU must demonstrate its capacity to administer the CWMP, and also report annually to BWSR on plan implementation.
E. CWMPs and the Army Corps of Engineers
Approval by BWSR and local adoption of a CWMP is effective only for WCA determinations under state law. It in no way binds the federal wetland permitting decisions of the Army Corps of Engineers under Section 404 of the Clean Water Act. At the same time, clearly it is desirable that the Corps, when reviewing a development proposal under Section 404 of the Clean Water Act, will come out in about the same place as the District when it does the same under the CWMP. While the Corps’ regulations provide for adoption of Special Area Management Plans under criteria akin to those for CWMPs, and the Corps’ Regulatory Guidance Letter 02-02 highlights these same policy objectives for review of wetland mitigation proposals, the St. Paul District of the Corps has stated that it is not prepared to approve a SAMP or general permit for Minnesota CWMPs.
It appears that the difficulty rests in the avoidance and minimization analyses the Corps must perform before determining mitigation requirements. These analyses, as the St. Paul District conceptualizes them, are done in the context of a specific, concrete development proposal. To date, the St. Paul District is not able to reconcile its SAMP authority and the watershed focus of its extant regulatory guidance with its view that avoidance and minimization analyses can be performed only on a specific development proposal.
The St. Paul District has approved only one SAMP to date, sponsored by the City of Superior, Wisconsin and approved in 1997. This SAMP involved a limited number of parcels and a high degree of concreteness in the evaluation of development alternatives for each parcel. In effect, the SAMP turned out to be not too different from a number of individual permit reviews performed in parallel. Anyone undertaking a CWMP that would benefit from Section 404 consistency should involve the St. Paul District early, and work hard and creatively to find the vehicle that best expedites the individual permit process consistent with the District’s view of its discretion and constraints.
IV. Rice Creek Watershed District’s CWMP for Anoka Ditch 53-62
Rice Creek Watershed District took well over a year to perform the wetland inventory and assessment necessary to develop a proposed CWMP. Its draft plan was distributed in July 2003 and approved by BWSR in April 2004.
As affirmed through the RCWD’s adopted rule (Rule M), the CWMP commits to the following key principles:
(a) Full replacement of disturbed wetland functions and values on an area, rather than parcel basis;
(b) Aggregation of existing and replacement wetlands to create a larger, contiguous wetland complex that is significantly greater in ecological function and value than what would be realized through a parcel-based traditional application of WCA;
(c) Aggregation of developable upland in proximity to existing and planned development infrastructure (roads and utilities), in a manner consistent with the City of Blaine’s comprehensive plan for land use and open space protection;
(d) Wetland impact from fill, excavation or draining shall be replaced at a ratio of 1:1, conforming to Figure 5 of the CWMP and the following conditions:
(i) No wetland plant community of Natural Heritage Rank B/C or higher (Department of Natural Resources), as shown in the CWMP, Map 1, may be disturbed.
(ii) Upland of Natural Heritage Rank B/C or higher may not be excavated for new wetland replacement credit.
(iii) Upland of lower quality than Natural Heritage Rank B/C may be converted to wetland for wetland fill replacement.
(iv) The property owner may include upland within the replacement area, but upland area will not receive replacement credit.
(v) Wetland buffer declared pursuant to section 6 of the Rule will not receive replacement credit.
(vi) Actual acres of wetland impact and replacement will be determined using the methodology, and the scope and effect parameters, detailed in the CWMP.
(vii) Actual final site conditions within the CWMP will depend on approved wetland delineations and detailed property information.
(e) The property owner must record a declaration establishing a 50-foot buffer adjacent to the edge of the wetland identified in the CWMP;
(f) The property owner must convey a permanent, assignable easement to the RCWD granting the District the authority to monitor, modify and maintain hydrological and vegetative conditions within CWMP wetland, upland enclosed by CWMP wetland and vegetative buffer;
(g) The property owner must initiate partial abandonment proceedings where CWMP implementation calls for ditch realignment on the parcel in question.
V. Legal and Policy Issues in CWMP Development
A key question in evaluating the usefulness of the CWMP is the set of circumstances in which a CWMP can create significant value to share between development interests and resource protection. The present case resulted from the intersection of two very favorable features: Development pressure creating a fairly uniform set of landowner interests across the CWMP area with respect to both development time frame and the class of uses; and a large, degraded wetland area with features highly suited for successful restoration.
Perhaps we can abstract from this example to say that a CWMP can add value when there is a degraded wetland resource, the functions and values of which reliably can be improved by the human hand, and a set of landowners with the interest, in effect, in underwriting such an undertaking. Two examples of a wetland resource meeting this description are: (a) a degraded (e.g., drained) resource and one that consists of fragmented wetlands vulnerable to adjacent uses. The urbanizing lands around the Twin Cities, and from Rochester to St. Cloud, are candidates. So is developing lakeshore with fringe wetland. The CWMP also can be used less ambitiously in a proactive land planning effort to inventory and assess the wetland resource and tailor development regulations to protect the resource as growth occurs.
Areas changing from drained agricultural use to more intensive uses are particularly good candidates, because we can be relatively confident that these areas can be successfully restored. The likelihood of successful restoration is even more important for a CWMP than for an ordinary WCA replacement plan, because of the greater scale and longer time frame between the wetland impact and the realization of net wetland improvement. The District and the City of Blaine chose not to change the legal status of the ditch system or the legal rights of benefited properties in that system. In other cases, a CWMP could be combined with abandonment of a ditch system under Minnesota Statutes §103E.805 or §103E.811, or its formal incorporation into the local stormwater system under Minnesota Statutes §103E.812.
It may be of interest to note explicitly several other choices that the RCWD made in developing the CWMP.
First, it proceeded essentially on a consensual basis with landowners -- not in the sense of a formal, executed agreement, but in the sense of many, many hours meeting with landowners and potential developers to explain the legal framework and the hydrology, and to gain information on the proper sharing of net benefits for development and enhancement of the wetland resource. Can a CWMP be adopted over the broad objection of the affected parties? As a legal matter, we tend to believe that it can. But the RCWD Board of Managers, as we expect most other LGU’s, strongly desired something closer to a consensus process.
As noted, the local government unit may establish wetland replacement acreage ratios above the minimum specified in Minnesota Rules 8420.0650. The RCWD chose not to do so, for two reasons. First, the intentional focus was on enhancing wetland function and value, rather than simply augmenting wetland acreage. Second, a choice was made to emphasize the long-term integrity of the wetland – through stringent stormwater management requirements, establishment of vegetated buffer, and easement rights for hydrologic and vegetative enhancements – rather than to press for additional wetland acreage.
In the Superior SAMP, the City of Superior took responsibility for all of the wetland replacement, and it was performed off-site on a large piece of parkland owned by the City. In the present CWMP, all replacement is on-site, and is the responsibility of the landowner. However, the Corps will like it better if the LGU is willing and able to guarantee, or otherwise formally assume, responsibility for mitigation implementation. An LGU choosing to proceed in that way should review its assessment and surety tools that can be used to recover costs from the benefited landowners and otherwise protect its fiscal interests.
Finally, we recommend proactive collaboration among resource and development interests. Put simply, all parties share the goal of creating as much net benefit, aside from how the allocation of that benefit is negotiated. This means optimizing the resource value of the wetland to be created, and optimizing the value of the upland for development. The latter depends on elements including upland configuration, its relation to road and utility infrastructure, locations of preferred soils, floodplain elevations and soil balance, features to which resource scientists and LGU’s generally may pay little attention. Collaboration during CWMP development will allow the benefit to each set of interests to be maximized.
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