Ordinance No. 1028 03-21-1994 ORDINANCE NO. 1028
IIIOFFICIAL TITLE AND SUMMARY
I. Title
An ordinance recodifying the Fridley City Code, Chapter 205, entitled
"Zoning" , by adding 205.27, 0-4, Wetland Overlay District, and renumbering
consecutive sections, and amending Chapter 11, entitled "General Provisions
and Fees" .
II. Summary
The City Council of the City of Fridley does hereby ordain as follows:
The proposed ordinance establishes boundaries for wetland regulation within
the City of Fridley. It complies with the 1991 Wetland Conservation Act
Administrative Rules 8420. It is in the public's interest to preserve,
protect, and enhance wetland functions and values.
The ordinance provides a process for development in and around wetlands which
requires avoidance and minimization of wetland impacts. In those instances
where wetland impacts cannot be avoided or minimized, the ordinance provides
standards for replacement of wetland impacts.
III III. Notice
This Title and Summary have been published to clearly inform the public of the
intent and effect of the City of Fridley's Zoning ordinance. A copy of the
ordinance, in its entirety, is available for inspection by any person during
regular business hours at the offices of the City Clerk of the City of
Fridley, 6431 University Avenue N.E. , Fridley, MN 55432.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THE 21ST DAY OF
MARCH, 1994.
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WILLIAM VNEE - MAYOR
ATTEST:
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WILLIAM A. CHAMPA - CITY C RK
Public Hearing: February 22, 1994
III First Reading: March 7, 1994
Second Reading: March 21, 1994
Publication: March 29, 1994
ORDINANCE NO. 1028
AN ORDINANCE RECODIFYING THE FRIDLEY CITY CODE,
CHAPTER 205, ENTITLED "ZONING", BY ADDING 205.27 (0-4
WETLAND DISTRICT) AND RENUMBERING CONSECUTIVE
SECTIONS, AND AMENDING CHAPTER 11, "GENERAL PROVISIONS
AND FEES"
The City Council of the City of Fridley, Minnesota hereby ordains:
205.27 0-4 WETLAND DISTRICT
1. PURPOSE AND INTENT
It is the purpose and intent of this section to establish special controls to
protect the unique and valuable wetland resources within the City of Fridley.
2. DISTRICT BOUNDARIES
The boundaries of the 0-4 district shall be located on the official overlay
map of the City of Fridley and shall encompass all areas delineated within the
Wetland Delineation and Evaluation Study, Westwood Engineering 1993. The
boundaries of the 0-4 district are subject to change due to site-specific
delineations accepted by the City.
3. POLICY
A. The preservation and use of significant wetlands is critical to
the environment. The City will coordinate with federal, state and
local agencies in order to achieve no net loss of wetlands.
B. Significant wetlands will be maintained in their natural condition
or improved to provide more benefits for water quality management,
with consideration for other amenities.
C. The City encourages sound, contemporary land use development that
incorporates grassed, open, and wetland spaces to allow
infiltration of precipitation in all land use categories.
D. The City proposes to preserve and enhance wetlands within the
community through implementation of development regulations that
will ensure the design and construction of adequate on-site storm
water sedimentation and retention and detention basins, flow
control devices, and implementation of effective erosion control
techniques.
E. The City will comply with and implement the 1991 Wetland
Conservation Act and the accompanying rules of the Minnesota Board
of Water and Soil Resources.
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4. INCORPORATION BY REFERENCE
This ordinance incorporates the following documents by reference:
A. The 1991 Wetland Conservation Act (the Act) and Minnesota Rules,
8420.
B. The Federal Manual for Identifying and Delineating Jurisdictional
Wetlands dated January 1989, with appropriate amendments.
C. The United States Fish and Wildlife Service Classification of
Wetlands and Designation Habitats, Table 4.
D. Wetlands and Deep water Habitats of the United States.
E. Minnesota Statutes, Chapter 103.
5. WETLAND OVERLAY DISTRICT REGULATIONS
A. No development shall be allowed within a wetland overlay district
without first:
(1) Having the City or the Local Government Unit certify that
the activity is exempt as defined in Section 205.27.04, or
(2) Having the City or the Local Government Unit certify an
acceptable wetland replacement plan submitted by the
applicant for compliance with the Act.
B. Prior to the issuance of a City permit, the petitioner must show
proof of, compliance or exemption from the DNR and Corps of
Engineers regulations concerning drainage, grading, or filling of
wetlands. In addition, the application must show consideration of
the affected wetland values for stormwater runoff storage and
detention, sedimentation and nutrient trapping and retention, fish
and wildlife habitat, and the recreation and open space needs of
the community.
C. Sequencing
(1) The following principles of wetland mitigation are listed in
descending priority. A wetland replacement plan shall not
be approved unless the applicant has demonstrated that the
activity impacting a wetland has complied with the highest
priority possible:
(a) Avoids direct or indirect impacts to the wetland that
may destroy or diminish the wetland;
(b) Minimizes the impact to the wetland by limiting the
degree or magnitude of the wetland activity and its
implementation;
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(c) Rectifies the impact by repairing, rehabilitating, or
restoring the affected wetland;
(d) Reduces or eliminates the impact to the wetland over
time by preservation and maintenance operations; and
(e) Replaces unavoidable impacts to the wetland by
restoring or creating substitute wetland areas having
equal or greater public value.
(2) The applicant may either submit the information required for
sequencing analysis as part of the application for
replacement plan approval or apply for a preliminary
sequencing determination from the City. For projects
impacting wetland areas less that 4,356 square feet, the
City may provide on-site sequencing determinations without
written documentation from the applicant.
D. Sequencing Determinations
(1) The City shall determine whether any feasible and prudent
alternatives are available that would avoid impacts to
wetlands. An alternative shall be considered feasible and
prudent if:
(a) It is in accordance with accepted engineering
standards and practices;
(b) It is consistent with reasonable requirements
of the public health, safety and general welfare;
(c) It is an environmentally preferable alternative based
on a review of social, economic, and environmental
impacts; and
(d) It would create no truly unusual problems.
(2) The City shall consider the following in evaluating
alternatives:
(a) 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 may not be excluded from consideration
only because it includes or requires an area not owned
by the applicant that could be easily obtained, used,
expanded, or managed to fulfill the basic purpose of
the proposed project;
(b) The general suitability of alternate sites considered
by the applicant;
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III (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
special use permits, variances, or planned unit
developments; and
(e) The physical, economic, and demographic requirements
of the project. Economic considerations alone do not
make an alternative not feasible and prudent.
(3) If the City determines that a feasible and prudent
alternative exists that would avoid impacts to wetlands, it
shall deny the replacement plan.
(4) If no feasible and prudent alternative is available that
would avoid impacts to wetlands, the City shall evaluate the
replacement plan to determine that it will minimize impacts
to wetlands. The City shall use the following criteria to
determine the sufficiency of the applicant's efforts to
III minimize impacts to wetlands:
(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 the 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
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;
III ((2)) Remove or accommodate site constraints including
zoning, infrastructure, access, or other
features; and
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((3)) Minimize other impacts.
(5) If the City finds that an applicant has not complied with
the requirements to minimize wetland impacts, the City shall
list, in writing, its objections to the project. If, within
30 days, the applicant does not withdraw the project
proposal or indicate intent to submit an amended project
proposal satisfying the City's objections, the statement of
objections shall constitute a denial.
(6) Temporary impacts to a wetland shall be rectified by
repairing, rehabilitating, or restoring the affected
wetland. The City may determine that an applicant's
activity may qualify for a no-loss determination if the
following criteria are met:
(a) The physical characteristics of the affected wetland,
including ground elevations, contours, inlet
dimensions, outlet dimensions, substrate, hydrologic
regime, are restored to pre-project conditions
sufficient to ensure that all pre-project functions
and values are restored;
(b) The activity is completed and the physical
characteristics of the wetland are restored within six
months of the start of the activity;
(c) The party responsible for the activity provides a
performance bond to the City for an amount sufficient
to cover the estimated cost to restore the wetland to
pre-project conditions. The City shall return the
performance bond to the responsible party upon a
determination by the City that the conditions in
Section 205.27.5.D. (6) . (c) and Section 205.27.5.D. (4) .
(d) An applicant shall be granted a no-loss determination
under the criteria a through c above once in a
ten-year period for a particular site within a
wetland, except that repairs to the original project
shall be allowed under the no-loss determination, if
the City determines the request to be necessary and
reasonable.
(7) After an activity is completed, further wetland impacts from
the draining or filling must be reduced or eliminated by
maintaining, operating, and managing the project in a manner
that preserves and maintains remaining wetland functions and
values. The City will require applicants to implement best
management practices to protect wetland functions and
values.
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(8) Unavoidable wetland impacts that remain after efforts to
minimize, rectify, reduce, or eliminate them must be
replaced.
6. EXEMPTIONS
A. The following activities are exempt from the 0-4, Wetland Overlay
District regulations:
(1) Activities in a wetland created solely as a result of:
(a) Beaver dam construction;
(b) Blockage of culverts through roadways maintained by a
public or private entity;
(c) Actions by public entities that were taken for a
purpose other than creating the wetland;
(d) Any combination of (a) to (c) .
(2) Impoundments or excavations constructed in non-wetlands
solely for the purpose of effluent treatment, storm water
retention, soil and water conservation practices, and water
quality improvements, and not as part of a compensatory
wetland mitigation process, that may, over time, take on
wetland characteristics, are also exempted.
(3) Placement, maintenance, repair, enhancement, or replacement
of utility or utility-type service, including the
transmission, distribution, or furnishing, at wholesale or
retail, of natural or manufactured gas, electricity,
telephone, or radio service or communications;
(4) Activities associated with routine maintenance of utility
and pipeline rights-of-way, provided the activities do not
result in additional intrusion into the wetland;
(5) Activities associated with routine maintenance or repair of
existing public highways, roads, streets, and bridges,
provided the activities so not result in additional
intrusion into the wetland outside of the existing right of
way;
(6) Emergency repair and normal maintenance of existing public
works, provided the activity does not result in additional
intrusion of the public works into the wetland and do not
result in the draining or filling, wholly or partially, of a
wetland;
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(7) Normal maintenance and repair of structures causing no
additional intrusion of an existing structure into the
wetland, and maintenance and repair of private crossings
that do not result in the draining or filling, wholly or
partially, of a wetland. This exemption applies to private
structures, such as buildings or road crossings;
(8) Activities that result in the draining or filling of less
than 400 square feet of wetlands. This exemption applies if
the total wetland loss by draining and filling will be less
than 400 square feet per year per landowner, and the
cumulative impact by all persons on a wetland over time
after January 1, 1992, does not exceed five percent of the
wetland's area.
7. REPLACEMENT PLAN DETERMINATIONS
A. A landowner intending to drain or fill a wetland who does not
qualify for an exemption in Section 14 or a no-loss determination
in Section 205.27.5.D. (6) . (a-d) shall obtain approval of a
replacement plan from the City or local government unit before
beginning draining or filling.
B. The City shall, within ten days of receipt of the application,
mail a copy of the application and an invitation to submit
comments to the Board of Water and Soil Resources (the board) ,
which will publish it in the Environmental Quality Board Monitor;
members of the public who have requested a copy; the soil and
water conservation district; the watershed district or watershed
management organization; the county board; mayors of cities within
the watershed; and the commissioners of agriculture and natural
resources. At the same time, the City shall publish notice of the
application with an invitation for comment in the City's official
newspaper.
C. The City shall not make its decision before 30 days and not more
than 60 days have elapsed from the mailing of notice, publication
in the Environmental Quality Board Monitor, when required, or
publication in the newspaper, whichever is later. The City's
decision shall not be effective until 30 days after a copy of the
decision has been mailed to the Environmental Quality Board
Monitor for publication, when required, and mailed to the same
list specified above for notice of the application, and to the
applicant. The mailing to the applicant shall be by registered
mail and shall advise that the decision is not effective for 30
days and is stayed if it is appealed.
D. The City's decision shall be based on the replacement standards in
Section 205.27.8 and on the determination of the Technical
Evaluation Panel concerning the public values, location, size, and
type of wetland being altered. The City shall consider the
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recommendation of the Technical Evaluation Panel to approve,
modify, or reject the proposed replacement plan.
8. REPLACEMENT PLAN COMPONENTS
A. On a Combined Joint Notification form provided by the City, and
with needed attachments supplied by the applicant, the following
documentation shall be provided:
(1) Organizational information, including the following:
(a) The post office address of the applicant;
(b) For corporations, the principal officers of the
corporation, any parent companies, owners, partners,
and joint ventures, and a designated contact person;
(c) Managing agents, subsidiaries, or consultants that are
or may be involved with the wetland draining or
filling project;
(2) An affidavit confirming that the wetland values will be
replaced before or concurrent with the actual draining or
filling of a wetland. The City may require an irrevocable
bank letter of credit or other security acceptable to the
City to guarantee the successful completion of the project;
(3) For the impacted wetland:
(a) A recent aerial photograph or accurate map of the
impacted wetland area;
(b) The location of the wetland, including the county,
watershed name or number, and public land survey with
the coordinate of the approximate wetland center;
(c) The size of the wetland, in acres or square feet;
(d) The type of wetland using USFWS Circular 39, and NWI
mapping conventions;
(e) A list of the dominant vegetation in the impacted
wetland area, including common names of the vegetation
exceeding 20 percent coverage and an estimate of
coverage;
(f) A soils map of the site showing soil type and
substrate, where available;
(g) The size of the watershed that drains surface water
into the wetland as determined from a United States
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Government Survey topographical map or other suitable
topographical survey;
(h) The locations of any surface inlets or outlets,
natural or otherwise, draining into or out of the
wetland, and if the wetland is within the floodplain
of a stream, river, or other watercourse, the distance
and direction to the watercourse;
(i) A map, photograph, or written description of the land
use of the immediate watershed within one mile of the
impacted wetland. The surrounding land use
information shall also indicate the presence and
location, if any, of wetland preservation regions and
areas, wetland development avoidance regions and
areas, and wetland deficient regions and areas as
identified in the comprehensive water plan;
(j) The nature of the proposed project, its areal extent,
and the impact on the wetland must be shown in
sufficient detail to allow the City to determine the
amount and types of wetland to be impacted and to
demonstrate compliance with the replacement sequencing
criteria in Section 5D;
(k) Evidence of ownership or rights to the affected areas,
including a legal description. When two or more
landowners are involved, including both the impact
site and the proposed replacement site, a contract or
other evidence of agreement signed by all landowners
and notarized must be included with the replacement
plan. The contract or agreement must contain an
acknowledgement of the covenant provisions in Section
205.27.7.4.9, by landowners on which a replacement
wetland is proposed and the location and acreage of
replacement wetlands. The contract becomes binding
upon final approval of the replacement plan;
(1) A list of all other local, state, and federal permits
and approvals required for the activity; and
(m) Other information considered necessary by the City for
evaluation of the activity.
(4) For the replacement wetland:
(a) A recent aerial photograph or accurate map of the
replacement wetland area;
(b) The location of the wetland, including the county,
watershed name or number, and public land survey
coordinate of the approximate wetland center;
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(c) The size of the wetland, in acres or square feet;
(d) The type of wetland using USFWS Circular 39, and NWI
mapping conventions;
(e) A list of the dominant vegetation in the impacted
wetland area, including common names of the vegetation
exceeding 20 percent coverage and an estimate of
coverage;
(f) A soils map of the site showing soil type and
substrate, where available;
(g) The size of the watershed that drains surface water
into the wetland as determined from a United States
Government Survey topographical map or other suitable
topographical survey;
(h) The locations of any surface inlets or outlets,
natural or otherwise, draining into or out of the
wetland, and if the wetland is within the floodplain
of a stream, river, or other watercourse, the distance
and direction to the watercourse;
(i) A map, photograph, or written description of the land
use of the immediate watershed within one mile of the
impacted wetland. The surrounding land use
information shall also indicate the presence and
location, if any, of wetland preservation regions and
areas, wetland development avoidance regions and
areas, and wetland deficient regions and areas as
identified in the comprehensive water plan;
(j) Evidence of ownership or rights to the affected areas,
including a legal description. When two or more
landowners are involved, including both the impact
site and the proposed replacement site, a contract or
other evidence of agreement signed 'by all landowners
and notarized must be included with the replacement
plan. The contract or agreement must contain an
acknowledgement of the covenant provisions in
paragraph 9, by landowners on which a 'replacement
wetland is proposed and the location and acreage of
replacement wetlands. The contract becomes binding
upon final approval of the replacement plan;
(k) A list of all other local, state, and federal permits
and approvals required for the activity;
(1) An explanation of the size and type of wetland that
will result from successful completion of the
replacement plan;
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(m) Scale drawings showing plan and profile views of the
replacement wetland and fixed photo-reference points
for monitoring purposes. Photo-reference points
should include views of any control structures and
enough additional points to accurately depict the
entire project;
(n) How the replacement wetland shall be constructed,
including the best management practices that will be
implemented to prevent erosion or site degradation;
(o) For created wetlands only, additional soils
information sufficient to determine the capability of
the site to produce and maintain wetland
characteristics;
(p) A timetable that clearly states how and when
implementation of the replacement plan shall proceed,
and when construction of the replacement wetland shall
be finalized;
(q) A notice in a form provided by the BWSR attached to
and recorded with the deed for lands containing a
replacement wetland, specifying the following:
((1)) The location of the replacement wetland;
((2)) That the wetland is subject to the act;
((3)) That the fee title owner is responsible for the
costs of repairs or reconstruction, if
necessary, or for replacement costs;
((4)) That reasonable access to the replacement
wetland shall be granted to the proper
authorities for inspection, monitoring, and
enforcement purposes;
((5)) That costs of title review and document
recording is the responsibility of the fee title
owner; and
((6)) That the City or board can require necessary
repairs or reconstruction work to return the
wetland to the specifications of the approved
replacement plan and require reimbursement or
reasonable costs from the wetland owner, or can
require replacement of the wetland according to
the Act;
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(r) A statement that the replacement wetland was not
previously restored or created under a prior approved
replacement plan;
(s) A statement that the replacement wetland was not
drained or filled under an exemption during the
previous ten years;
(t) A statement that the replacement wetland was not
restored with financial assistance from public
conservation programs;
(u) A statement that the replacement wetland was not
restored using private funds other than those of the
landowner unless the funds are paid back with interest
to the individual or organization that funded the
restoration and the individual or organization
notifies the City in writing that the restored wetland
may be considered for replacement;
(v) A plan for monitoring the success of the replacement
plan in meeting the project goal in paragraph 1 and as
specified in Section 205.27.12; and
(w) Other information considered for evaluation of the
project by the City.
(5) The applicant must provide information considering the
special considerations criteria in Section 205.27.8.G.
9. REPLACEMENT PLAN EVALUATION CRITERIA
A. Before consideration or approval of the replacement plan, the City
shall ensure that the applicant has exhausted all possibilities to
avoid and minimize adverse impacts according to sequencing in
Section 5D.
B. The order of preference for the method of replacement, from the
most preferred to least preferred:
(1) Project-specific restoration;
(2) Project-specific creation;
(3) Wetland banking.
Modification or conversion of non-degraded wetland from one
wetland type to another does not constitute adequate replacement.
Wetlands drained or filled under an exemption may not be restored
for replacement credit for ten years after draining or filling.
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C. Replacement of wetland values shall be completed before or
concurrent with the actual draining or filling of a wetland,
unless an irrevocable bank letter of credit or other security
acceptable to the City is submitted to the City to guarantee
successful completion of the replacement. All wetlands to be
restored or created as part of an approved replacement plan shall
be clearly designated prior to approval of the replacement plan by
the City.
D. Replacement wetlands shall be located in the same watershed as the
impacted wetlands, or the ratio in Section 205.27.10 shall apply.
E. Replacement wetlands must be of a size sufficient to ensure that
they provide equal or greater public value than the wetland that
was drained or filled. The minimum size of the replacement
wetland must be in the ratio of two acres of replaced wetland for
each acre of drained or filled wetland. The actual replacement
ratios required for a replacement wetland may be more than the
minimum, subject to the evaluation of wetland functions in Section
9. Future owners may make no use of the wetland after it is
altered for a period of ten years unless future replacement to
achieve a 2:1 ratio occurs. The landowner shall record a notice
of this restriction in the office of the county recorder in which
the project is located.
F. Restoration and replacement of wetlands must be accomplished
according to the ecology of the landscape area affected. A
replacement plan that would result in wetlands or wetland
characteristics that do not naturally occur in the landscape area
in which the replacement will occur will not be approved.
G. The following factors when, applicable to an impact or replacement
site, shall be considered by the City:
(1) The site contains endangered species listed in Minnesota
Rules, parts 6134.0200 to 6134.0400 and the proposed
activities would take those species, the replacement plan
shall not be approved.
(2) The site contains a rare natural community, and the proposed
activity would adversely affect the community, the
replacement plan shall not be approved.
(3) The site contains a significant fish and wildlife resource;
including but not limited to fish passage and spawning
areas, colonial waterbird nesting colonies, migratory
waterfowl concentration areas, deer wintering areas, or
wildlife travel corridors, and the proposed activity would
adversely impact those resources, the replacement plan shall
not be approved.
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(4) The site contains archaeological or historic areas, and the
activity would adversely affect those areas, the replacement
plan shall not be approved.
(5) The proposed activity would have significant adverse impact
on the groundwater quality, the replacement plan shall not
be approved.
(6) The proposed activity would have significant adverse impact
on the water quality of outstanding resource value waters as
listed in Minnesota Rules, 7050.0180 or on trout waters, the
replacement plan shall not be approved.
(7) Wetlands used for educational or research purposes shall be
maintained or adequately replaced.
(8) The proposed activity involves known or potential hazardous
wastes. Such activities shall be conducted in accordance
with applicable federal or state standards.
(9) The proposed activity shall be consistent with other plans,
including, but not limited to zoning, comprehensive,
watershed management, and land use plans.
10. EVALUATION OF WETLAND FUNCTIONS AND VALUES
A. Replacement wetlands shall replace the functions and values that
are lost from a wetland that is drained or filled. A replacement
wetland should replace the same combination or functions and
values provided by the impacted wetland. The wetland type index
system in Minnesota Rules 8420.0540, subpt 10, item B, uses
relative values of wetland functions compared across wetland types
to evaluate the adequacy of wetland replacement. The City may
allow the evaluation of wetlands by measuring and comparing public
values specified in Minnesota Statutes, section 103b.3355, with
the current version of the Minnesota wetland evaluation
methodology or another scientifically acceptable methodology.
B. Table 4, Minnesota Rules, part 8420.0550, provides technical
specifications for constructing wetland types. In evaluating a
wetland replacement plan, the City shall determine whether the
wetland type stated as the replacement plan goal will result from
the replacement plan specifications. If a wetland type other than
the replacement plan goal is likely to result, the City shall
evaluate the plan based on this determination.
C. The City may consider allowing constructed stormwater detention
basins for replacement credit if the basin conforms to the
following specifications:
(1) The basin design uses a two-cell system in which the
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upstream cell has a 24-hour retention time for a two-year
storm event;
(2) The downstream cell is designed for a maximum 12-inch rise
in water level for a ten-year storm event;
(3) The standards in Minnesota Rules, part 8420.0550 are
followed;
(4) The design goal is a palustrine emergent wetland that meets
all statutory definitions of a wetland, for example, soils,
hydrology, and vegetation. Only the downstream cell can be
counted for wetland credit, and the replacement plan must
include a plan and schedule for maintenance of the storm
water basin system. Storm water basins which allowed for
replacement are not eligible for an exemption; and
(5) Storm water management basins constructed for the primary
purpose of controlling or treating stormwater runoff from
impervious surfaces or developed areas, not conforming to
the units in 1-4 above, are not considered wetlands. These
are therefore exempt from replacement plan requirements when
constructed in non-wetlands, and also cannot be considered
for credit as part of a replacement plan, regardless of
their location.
D. When wetland functions lost as a result of drainage or filling are
replaced by restoring a wetland of the same type and in the same
watershed with the same inlet and outlet characteristics as
described in Section 205.27.9.E, and related definitions, the
replacement shall be considered to be in-kind and the minimal
replacement ratio shall be used to determine the necessary size of
the replacement wetland. The minimum replacement ratio is 2:1,
requiring two times the impacted area be replaced.
E. If the wetland functions lost as a result of drainage or filling
are to be replaced by creating a wetland or restoring a wetland of
a different type than the impacted wetland, or if the replacement
wetland is in a watershed other than the impacted wetland or had
different inlet and outlet characteristics than the impacted
wetland, the replacement shall be considered out of kind, and the
City shall use the replacement ratios in Minnesota Rules,
8420.0540, subpt b, item D, Table 2, to determine the amount of
replacement wetland needed to replace the lost wetland values.
(1) Differences in wetland functions and values among wetland
types are to be evaluated and replaced using the wetland
type ratio table located and, to be applied as specified in
Administrative Rules, 8420.0540, subpt 10, Table 2. The
wetland type ratio table incorporates an evaluation of
public values as specified in Minnesota Statutes, section
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103B.3355, for the purposes of comparison among wetland
types.
(2) If a wetland to be drained or filled exhibits more than one
wetland type as determined by the Technical Evaluation
Panel, and more than one wetland type is proposed to be
drained or filled, the City shall use the following
procedure to determine needed replacement. The acreage of
each wetland type to be converted to non-wetland shall be
determined. The wetland type ratio table shall then be used
to determine the amount of replacement wetland for each
wetland type. The sum of the replacement for each wetland
type shall be the resultant acreage requirement for the
wetland type ratio.
(3) When a replacement wetland is located in a different
hydrologic unit than the impacted wetland, as indicated by
the USGS Hydrologic Unit Map for Minnesota, the ratios in
MInnesota Rules 8420.0540 must be followed.
(4) If the inlet and outlet characteristics of a replacement
wetland differ from those of the impacted wetland, the
ratios in Minnesota Rules 8420.0540 Table 3 shall be
applied.
(5) The City may, by local ordinance, establish additional local
public value to address wetland conservation or preservation
issues of local concern. These ratios shall have a minimum
value of zero and shall be based on wetland management
objectives of a local water management plan adopted under
Minnesota Statutes, Chapter 103B or 103D.
(6) The required replacement ratio for out-of kind replacement
shall be the sum of the wetland type ratio plus the
hydrologic unit ratio plus the inlet and outlet
characteristic ratio plus the local public value ratio. If
this ratio is less than the minimum in-kind ratio, the
minimum in-kind ratio shall be the required replacement
ratio.
(7) In cases of partial drainage, the amount of wetland to be
replaced shall be calculated using the formulas in Minnesota
Rules 8420.0540, Item E.
(8) In cases where partially drained wetlands are restored to
their former state, credit may be received as calculated in
Administrative Rules 8420.0540, Item F.
(9) For projects of unusual complexity, or replacement plans
that have been denied and are being appealed, and for which
the City believes an alternative evaluation process may
Page 17 - Ordinance No. 1028
produce a substantially different replacement requirement,
the City may evaluate the replacement plan using the current
version of the Minnesota wetland evaluation methodology or
another scientifically accepted methodology approved by the
board, in consultation with the Commissioner, that evaluates
all wetland functions and values for both the impacted and
replacement wetlands.
When using the Minnesota wetland evaluation methodology or
another board, in consultation with the Commissioner,
approved methodology to evaluate replacement plans, the
ratio of impact wetland to replacement wetland shall not be
less than the minimum required. Further, the hydrologic
unit ratio, the inlet and outlet characteristics ratio, and
the local public value ratio, shall also be considered when
using the Minnesota wetland evaluation methodology or
another board, in consultation with the Commissioner,
approved methodology.
(10) A replacement plan that fails to meet the requirements in
items 1-8 shall be considered inadequate in replacing lost
functions and values and shall not be approved by the City.
A replacement plan that has been considered by the City and
not approved may be revised and resubmitted for
consideration by the City. The decision of the City to
approve, approve with conditions, or not approve a
replacement plan becomes final if not appealed to the board
within 30 days after the date on which the decision is
mailed to those required to receive notice of the decision.
Before construction of the wetland, a notice as required in
Section 205.27.7.4.9 must be recorded and proof of recording
provided to the City.
11. WETLAND REPLACEMENT STANDARDS.
A. The standards and guidelines in this part shall be used
in wetland creation and restoration efforts to ensure adequate
replacement of wetland functions and values. Minnesota Rules
8420.0540, Table 4 provides general guidelines for the physical
characteristics that each type of replacement wetland should have.
B. The standards in items 1 to 8 shall be followed in all wetland
replacements unless the technical evaluation panel determines that
a standard is clearly not appropriate.
(1) Water control structures must be constructed using
specification provided in the Minnesota Wetland Restoration
Guide or their equivalent. Control structures may be
subject to the department dam safety regulations.
(2) Best management practices must be established and maintained
to the entire perimeter of all replacement wetlands.
Page 18 - Ordinance No. 1028
(3) For replacement wetlands where the dominant vegetation of
the wetland type identified as the replacement goal in
Section 205.27.7.A.4.1, is not likely to recover naturally
in a five-year period, wooded and shrub wetlands especially,
the replacement wetland must be seeded or planted with
appropriate species, as determined by the soil and water
conservation district, the seed or planting stock should be
of local wetland origin to preserve local genotypes. During
the monitoring period, the applicant must take reasonable
steps to prevent invasion by any species, for example,
purple loosestrife and Eurasian water milfoil, that would
defeat the re-vegetation goal of the replacement plan.
(4) Erosion control measures as determined by the soil and water
conservation district must be employed during construction
and until permanent ground cover is established to prevent
siltation of the replacement wetland or nearby water bodies.
(5) For all restored wetlands where the original organic
substrate has been striped away and for all created
wetlands, provisions must be made for providing an organic
substrate. When feasible, the organic soil used for
backfill should be taken from the drained or filled wetland.
(6) The bottom contours of created types 3, 4, and 5 wetlands
should be undulating, rather than flat, to provide a variety
of water depth.
(7) Sideslopes of created wetlands and buffer strip must not be
steeper than 5:1, five feet horizontal for every one foot
vertical as averaged around the wetland. Sideslopes of 10:1
and 15:1 are preferred.
(8) Created wetlands should have an irregular edge to create
points and bays to be consistent with Section 205.27.8.F.
12. MONITORING ANNUAL REPORT
A. The purpose of wetland value replacement monitoring is to ensure
that the replacement wetland achieves the goal of replacing lost
functions and values.
B. The applicant shall submit the annual report to the City on a date
determined by the City until the applicant has fulfilled all of
the requirements of the City.
C. The purpose of the annual report is to describe actual wetland
restoration or creation activities completed during the past year,
activities planned for the upcoming year, and the information in
Section B.
Page 19 - Ordinance No. 1028
D. The annual report shall include the following information and
other site-specific information identified by the City:
(1) A description of the project location, size, current wetland
type (Cowardin classification) , and desired wetland type
(goal) ;
(2) A comparison of the as-built specifications versus the
design specifications (first annual plan only) and a
rationale for significant changes;
(3) Hydrology measurements: seasonal water level elevations
during the period April through October (msl or referenced
to a known benchmark) ;
(4) A list of the dominant vegetation in the wetland, including
common names of the vegetation exceeding 20 percent coverage
and an estimate of coverage.
(5) Color photographs of the project area taken anytime during
the period June through August, referenced to the fixed
photo-reference points identified on the wetland replacement
plan and labeled accordingly.
13. MONITORING DETERMINATIONS BY THE CITY
The City:
A. Shall inspect the project when construction is complete and
certify compliance with construction specifications, and may
inspect the project at any time during the construction and
monitoring period, and any time after that to assess the long-term
viability of the replaced wetland. When the City certifies that
the construction specifications have been met, the City shall so
advise the applicant and return any bond or other security that
the applicant had provided;
B. May order corrective action at any time during the required
monitoring period if it determines that the goal of the approved
replacement plan will not be met, and may require the applicant to
prepare an amended wetland value replacement plan for review and
approval by the City, which describes in detail the corrective
measures to be taken to achieve the goal of replacing the lost
wetland functions and values;
C. Shall make a finding based on a site visit at the end of the
monitoring period as to whether the goal of the replacement plan
has been met. If the goal of the replacement plan has not been
met, the City shall order corrective action and extend the
monitoring period; and
Page 20 - Ordinance No. 1028
IIID. Shall require one or more of the following actions if, during the
monitoring period, the City finds that the goal of the replacement
plan will not be met:
(1) Order the applicant to prepare and implement a new
replacement plan;
(2) Issue a cease and desist order on the draining and filling
activity if it has not been completed;
(3) Order restoration of the impacted wetland;
(4) Obtain forfeiture of a bond or other security and use the
proceeds to replace the lost wetland values;
(5) Ask the district court to order the applicant to fulfill the
replacement plan; or
(6) Other actions that the City determines necessary to achieve
the goal of the replacement plan.
E. A landowner intending to drain or fill a wetland without
replacement, claiming exemption under Section 205.27.14, shall
III contact the City before beginning draining or filling activities
for determination whether or not the activity is exempt. The City
shall keep in file all documentation and findings of fact
concerning exemption determinations for a period of ten years.
F. The City shall issue a certificate of exemption to the landowner.
G. The landowner requesting the exemption is responsible for
submitting the proof necessary to show qualifications for the
particular exemption claimed. The landowner shall ensure that
proper erosion control measures are taken to prevent sedimentation
in the water, the drain or fill does not block fish passage, and
the drain or fill is conducted in compliance with all other
federal, state, and local requirements, including best management
practices and water resource protection requirements established
under Minnesota Statutes, Chapter 103H.
14. NO LOSS DETERMINATIONS
A landowner unsure if the proposed work will result in a loss of wetland shall
apply to the City for a determination. The City shall keep on file all
documentation and findings of fact concerning no-loss determinations for a
period of ten years.
The landowner applying for a no-loss determination is responsible for
IIIsubmitting the proof necessary to show qualification for the claim.
Page 21 - Ordinance No. 1028
IIIThe City shall issue a no-loss certificate if:
A. The work will not drain or fill a wetland;
B. Water level management activities will not result in the
conversion of a wetland to another use;
C. The activities are in a surface impoundment for containment of
fossil fuel combustion waste or water retention, and are not part
of a compensatory wetland mitigation program; or
D. The activity is being conducted as part of an approved replacement
plan or is conducted or authorized by public agencies for the
purpose of wetland restoration and the activity is restricted to
placing fill in a previously excavated drainage system to restore
a wetland to its original condition.
E. The activity meets the conditions in Section 205.27.5.D.6.
15. TECHNICAL EVALUATION PANEL PROCEDURES
For the City, there is a Technical Evaluation Panel of three persons: a
technical professional employee of the board, a technical professional
III employee of the soil and water conservation district of Anoka county, and a
technical professional with expertise in water resources management appointed
by the City. One member selected by the City shall act as the contact person
and coordinator for the panel. Two members of the panel must be knowledgeable
and trained in applying methodologies of the Federal Manual for Identifying
and Delineating Jurisdictional Wetlands, and evaluation of public values. The
Technical Evaluation Panel may invite additional wetland experts in its work.
The panel shall make technical determinations on questions of public values,
location, size, and type for replacement plans if requested to do so by the
City. the landowner, or a member of the Technical Evaluation Panel. The panel
may review replacement plans and recommend to the City either approval,
approval with changes or conditions, or rejection. The panel shall make no
determinations or recommendations without at least one member having made an
on-site inspection. Panel determinations and recommendations must be endorsed
by at least two of the three members.
The panel, or one of its members when so authorized by all of the members, may
assist the City in making wetland size and type determinations when asked to
do so by the City as part of making an exemption or no-loss determination.
If requested by the City, the landowner, or a member of the Technical
Evaluation Panel, the panel shall answer technical questions or participate in
the monitoring of replacement wetlands according to Section 205.27.13.
III 16. APPEAL OF CITY DECISIONS
A. The decision of the City to approve, approve with conditions, or
Page 22 - Ordinance No. 1028
reject a replacement plan, or determination of exemption or no-
loss, becomes final if not appealed to the board within 30 days
after the date on which the decision is mailed to those required
to receive notice of the decision.
B. Appeal may be made by the landowner, by any of those required to
receive notice of the decision, or by 100 residents of the county
in which a majority of the wetland is located.
C. Appeal is effective upon mailing of the notice of appeal to the
board with an affidavit that a copy of the notice of appeal has
been mailed to the City. The City shall then mail a copy of the
notice of the appeal to all those to whom it was required by
Section 205.27.6.B to mail a copy of the notice of decision.
D. An exemption or no-loss determination may be appealed to the board
by the landowner after first exhausting all local administrative
appeal options.
E. Those required to receive notice of replacement plan decisions as
provided for in Section 205.27.6.B may petition the board to hear
an appeal from an exemption or no-loss determination. The board
shall grant the petition unless it finds that the appeal is merit-
less, trivial, or brought solely for the purposes of delay. In
determining whether to grant the appeal, the board shall give
consideration to the size of the wetland, other factors in
controversy, any patterns of similar acts by the City or landowner
of petition, and the consequences of the delay.
17. APPEAL FROM BOARD DECISION
An appeal of a board decision is taken to the state court of appeals and must
be considered an appeal from a contested case decision for purposes of
judicial review under Minnesota Statutes, section 14.63 to 14.69.
18. COMPENSATION
A. Replacement plan applicants who have completed the City's process
and the board appeal process, and the plan has not been approved
as submitted, may apply to the board for compensation under
Minnesota Statutes, section 103G.237.
B. The application must identify the applicant, locate the wetland,
and refer the board to its appeal file in the matter.
C. The application must include an agreement that in exchange for
compensation the applicant will convey to the state a perpetual
conservation easement in the form required by Minnesota Statutes,
section 103F.516. The applicant must provide an abstract of title
demonstrating the ability to convey the easement free of any prior
title, lien, or encumbrance. Failure to provide marketable title
negates the state's obligation to compensate.
Page 23 - Ordinance No. 1028
D. The applicant must submit official documentation from the US Army
Corps of engineers, the Minnesota Pollution Control Agency, the
watershed district or water management organization if any, the
county, and the City, as applicable, that the proposed drain or
fill activity and the proposed subsequent use of the wetland are
lawful under their respective legal requirements.
E. The landowner must demonstrate that the proposed drain or fill is
a feasible and prudent project and that the replacement plan as
proposed is a reasonable good faith effort to fulfill the
replacement requirements of Sections 205.27.7 to 205.27.10 and the
Act.
F. If the plan was approved, but with conditions or modifications,
the applicant must show that the conditions or modifications make
the replacement unworkable or not feasible. A plan is unworkable
or not feasible if the replacement must be on land that the
applicant does not own, the applicant has make good faith efforts
to acquire a replacement site and not succeeded, and there is not
a qualifying replacement available in a wetland bank. A plan is
also unworkable or not feasible if it is not possible to carry out
for engineering reasons. The applicant must show that not going
ahead with the project will cause the applicant damages and that
disallowing the proposed use will enhance the public values of the
wetland.
G. The applicant must submit the requirements of this Section in
writing, by certified mail, to the board. If the applicant wants
to make oral argument to the board, it must be indicated art of
the application. The board may require that the applicant appear
before the board.
H. If the board finds that the applicant has submitted a complete
application and proved the requirements in this Section, the board
shall compensate the applicant as required by law within 90 days
after the board received a completed application, provided that
within the same time period the applicant must convey to the board
a conservation easement in the form required by Minnesota
Statutes, section 103F.516. If the board does not provide the
required compensation in exchange for the conservation easement,
the applicant may drain or fill the wetland in the manner
proposed, without replacement.
19. WETLAND BANKING
The applicant may use wetland banking credits if the project complies with
Minnesota Rules 8420.0740 subparagraph 2 if no alternative site is available.
20. PENALTIES
Any violation of this Chapter is a misdemeanor and is subject to all penalties
provided for such violations under the provisions of Chapter 901 of this Code.
Page 24 - Ordinance No. 1028
11.10. FEES
CODE SUBJECT FEE
205 Wetlands
Certifying Exemptions $75.00
Replacement Plan Application $75.00
No Loss Determination $75.00
Appeal of Decision $75.00
11.11. ADMINISTRATIVE ASSESSMENTS
In addition to the fees in Section 11.10, an administrative assessment will be
required to fund special studies such as environmental assessment worksheets,
transportation, drainage, noise impacts, indirect source permits, wetland
impacts, etc. The amount of the assessment is to be based on the site,
complexity, diversity, and location of the project as determined by staff, but
shall not be less than 2.5 times the hourly wage of estimated staff time.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 21ST DAY OF
MARCH, 1994.
WILLIAM J. - MAYOR
ATTEST:
WILLIAM A. CHAMPA, CITY LERK
Public Hearing: February 22, 1994
First Reading: March 7, 1994
Second Reading: March 21, 1994
Publication: March 29, 1994