n.a.
WETLAND PROTECTION ACT
Commissioner's Order
AN ORDER to provide for the preservation, management, protection,
and use of wetlands; to require permits to alter certain wetlands; to
provide for a plan for the preservation, management, protection
and use of wetland: and to provide remedies and penalties.
281.701 Short title.
Sec. 1. This order shall be known and may be cited as the "wetland
protection order"
281.702 Definitions.
Sec. 2. As used in this order:
(a) "Department" means the department of Natural Resources
(B.) "Commissioner" means the Commissioner of the Department of
Natural Resources.
(c) "Fill material" means soil, rocks, sand, waste of any kind, or
any other material which displaces soil or water or reduces
water retention potential.
(d) "Minor drainage" included ditching and tiling for the removal
of excess soil moisture incentive to the planting, cultivating,
protecting, or harvesting of crops or improving the
productivity of land in established use for agriculture
horticulture, silvculture, or lumbering.
(e) "Municipality" means a city, village, township, or county.
(f) "Person" means an individual, sole proprietorship, partnership,
corporation, association, municipality, this reservation and
instrumentality or agency of this Band, the state government,
the federal government, or an instrumentality or agency of
the federal/state government, or other legal entity.
(g) "Wetland" means land characterized by the presence of water
at a circumstances does support wetland vegetation or aquatic
life and is commonly referred to as a bog, swamp, or marsh and
which is any of the following:
(i) Contiguous to the Mille Lacs Lake or Sandy Lake, an
inland lake or pond, or a river or stream.
(ii) Not contiguous to the Mille Lacs Lake or Sandy Lake, an
inland lake or and, or a river or stream; and more than
.5 acres in size; except this subdivision shall not be of
effect.
(iii) Not contiguous to the Mille Lacs Lake or Sandy Lake, an
inland lake or pond, or a river or stream; and 5 acres or
less in size if the department determines that protection
of the area is essential to the preservation of the
natural resources of the Reservation from pollution,
impairment, or destruction and he department has so
notified the owner; except this subdivision may be
utilized regardless of wetland size in a county in which
subdivision (ii) is on no effect; except for the purpose
of inventorying, at the time.
281.703 Commissioner finds; criteria to be considered in administration
of order.
Sec. 3 (10 The Commissioner finds that:
(a) Wetland conservation is a matter of Reservation concern since a
wetland of 1 area may be affected by acts on a river, lake,
stream or wetland of other areas.
(b) A loss of wetland may deprive the people of the Reservation of
some or all of the following benefits to be derived from the
wetland:
(i) Flood and storm control by the hydrologic absorption and
storage capacity of the wetland.
(ii) Wildlife habitat by providing breeding, nesting, a and
feeding grounds and cover for many forms of wildlife,
waterfowl, including migratory waterfowl, and rate,
threatened, or endangered wildlife species.
(iii) Protection of subsurface water resources and provision of
valuable watersheds and recharging ground water supplies.
(iv) Pollution treatment by serving as a biological and chemical
oxidation basin.
(v) Erosion control by saving s a sedimentation area and filtering
basin, absorbing silt and organic matter.
(vi) Sources of nutrients in water food cycles and nursery grounds
and sanctuaries for fish.
(c) Wetlands are valuable as an agricultural resource for the
production of food and fiber, including certain crops which
may only be grown on site developed from wetland.
(d) The at the extraction and processing of nonfuel minerals may
necessitate the use of wetland, if it is determined pursuant
to section 9 that the proposed activity is dependent upon
being located in the wetland, and that a prudent and feasible
alternative does not exist.
(2) In the administration of this order, the department shall
consider the criteria provided in subsection (1).
281.704 Studies regarding wetland resources; contracts; study as public
record for distribution at cost.
Sec. 4. The department may enter into an agreement to make contract
with the federal government, other reservations, state
agencies, municipalities, private agencies, or persons for
the purposed of making studies for the efficient
preservation, management, protection, and use of wetland
resources. A study may be available as a public record for
distribution at cost.
281.705 Prohibited activities.
Sec. 5. Except as otherwise provided by this order or by a permit
obtained from the department under section 7 to 12, a person
shall not:
(a) Deposit or permit the placing of fill material in a wetland.
(b) Dredge, remove, or permit the removal of soil or minerals
from a wetland.
(c) Drain surface water from a wetland.
281.706 Activities not requiring permit under order; uses not requiring
permit; additional permit not required for project involving discharge
of certain fill material.
Sec. 6.(1) Activities which have been permit under under Corps of
Engineers or the state, or the Band, shall not require a permit under
this order. (All new activities shall be required to comply with this
order.)
(2) The following uses shall be allowed in a wetland without a
permit subject to other laws of this Band and the owner's
regulation:
(a) Fishing, trapping, or hunting.
(b) Swimming or boating
(c) Hiking
(d) Grazing of animals
(e) Farming, horticulture, silviculture, lumbering, and
ranching activities including plowing, irrigation,
seeding, cultivating, harvesting for the production of
good, fiber,a and forest products or upland soil and
water conservation practices.
(f) Maintenance or operation of serviceable structures in
existence on the effective date of this order or
constructed pursuant to this order. The effective of
this order or constructed pursuant to this order.
(g) Construction or maintenance, operation, of farm or stock
ponds.
(h) Maintenance, operation, or improvement which includes
straightening, widening, or deepening of the following
which is necessary for the production or harvesting of
agriculture products.
(i) An existing private agricultural drain.
(ii) That portion of a drain legally established
pursuant to the Corps of Engineers or the state or the
Band, which has been constructed or improved for
drainage purposes.
(iii) A drain constructed pursuant to other provisions
of this order.
(j) Construction or maintenance of farm roads, forest
roads, or temporary roads for moving mining or forestry
equipment, if the roads are constructed and maintained
in a manner to assure that any adverse effect of the
wetland will be otherwise minimized.
(k) Drainage necessary for the production and
harvesting of agricultural products if the wetland is
owned by a person who is engaged in commercial farming
and the land is to b used for the production and
harvesting of agricultural products. Except as
otherwise provided in this order, land improved under
this subdivision after the effective date of this order
shall not be used for nonfarming purposes without a
permit from the department. This subdivision shall not
apply to a wetland which is contagious to a lake or
stream, or to a tributary of a lake or stream, or to a
wetland which the department has determine by clear
convincing evidence to be a wetland which is necessary
to be preserved for the public interest, in which case a
permit shall be required.
(l) Maintenance or improvement of public streets, highways,
or road within the right of way and in such a manner as
to assure that any adverse effect on the wetland will be
otherwise minimized. maintenance or improvement does not
include adding extra lanes; increasing the right of way
or deviating from the existing location of the street,
highway, or road.
(m) Maintenance, repair, or operation of gas or oil pipelines
and construction of gas or oil pipelines having a
diameter of 6 inches or less, if the pipelines are
constructed, maintained or repaired in a manner to
assure that any adverse effect on the wetland will
be otherwise minimized.
(n) Maintenance repair, or operation of electric
transmission and distribution power lines and
construction of distribution power lines if the
distribution power lines are constructed, maintained, or
repaired in a manner to a assure that any adverse effect
on the wetland will be otherwise minimized.
(o) Operation or maintenance, including reconstruction of
recently damaged parts, of serviceable dikes and levees
in existence on the effective date of this order or
constructed pursuant to this order.
(3) After the effective date of this order but immediately
prior to the approval of a Band program under section 401
of title 4 of the Clean Water Act Section 518(e), where a
project solely involves the discharge of fill material
subject to the individual permit requirements of section
404 of title 4 of the clean water order of 1977,
33 U.S.C. 1344 and additional permit shall not be
required by this order.
281.707 Permit for use or development listed in Section 281.705;
filing, form, and contents of application; fee; exemption;
proposed use or development as single permit application.
Sect. 7.(1) Except as provided in section 8(4) to obtain a permit
for cause or development listed in section 5, the person desiring the
permit shall file an application with the department on a form provided
by the department accompanied by a fee of $25.00. The application shall
include:
(a) The person's name and address
(b) The location of the wetland
(c) A description of the wetland on which the use or development
is to be made.
(d) A statement describing the proposed use or development.
(e) The wetland owner's name and address
(f) An environmental assessment on form supplied by he department
of the proposed use or development if requested by the
department which shall include effects upon wetland benefits
and the effects upon the water quality, flow and levels,a and
the wildlife, fish, and vegetation within a contiguous lake,
river, or stream.
(2) For the purposes of subsection (1), a proposed use or
development of a wetland shall be considered as a single
permit application under this order if the scope, extends, and
purpose of a use or development are made known at the time of
the application for the permit.
281.708 Hearing; location; notice; approval or disapproval of permit
application; notice of and reasons for denial or modifications;
conditions; appeal; legal action; request and fee for notification
of pending permit applications; biweekly list of applications;
effect of ordinance regulating wetlands; agreement with
municipality; review of permit application by municipality;
recommendations.
Sec. 8(1) Within 60 days after receipt of the completed application
and fee, the department may hold a hearing. If a hearing is held, it
shall be held in the district where the wetland on which the permit is
to apply is located. Notice of the hearings shall be made in the same
manner as for the promulgation of rules under the Band Law. The
department may approve or disapprove a permit application without a
public hearing unless a person requests a hearing in writing within 20
days after the mailing of notification of the permit application as
required by subsection (3), or the department determines that the permit
application is of significant impact to warrant a public hearing.
(2) If a hearing is not held, the department shall approve or
disapprove the permit application within 90 days after the completed
permit application is filed with the department. IF a hearing is held
the department shall approve or disapprove the permit application within
90 days after the conclusion of the hearing. The department may approve
a permit application, request modifications in the application, or deny
the permit application. If the department approves the permit
application, the department denies, or requests a modification of, the
permit application, the department shall send notice of the denial of
modification request, and the reasons for the denial or the
modifications requested to the applicant. Department approval may
include the issuance of a permit containing conditions necessary for
compliance with this order. If the department does not approve or
disapprove the permit application within the time provided by this
subsection, the permit application shall be considered approved, and the
department shall be considered to have made the determinations required
by section 9. The action taken by the department may be appealed
pursuant to Band Law, a property owner may, after exhaustion of
administrative remedies, bring appropriate legal action in Court of
Central Jurisdiction.
(3) A person who desires notification of pending permit
applications may m;make a written request to the department accompanied
by an annual fee of $25.00 which shall be credited to the general fund
of the Band. The department shall prepare a quarterly list of the
applications made during the previous quarter and shall promptly mail
copies of the list for the remainder of the calendar year to the
persons who requested notice. The quarterly list shall state the name
and address of each applicant, the location of the wetland in the
proposed use or development including the size of both the proposed use
or development and of the wetland affected, and a summary statement of
the purpose of the use or development.
(4) A municipality, by ordinance, may provide for more stringent
definition and regulation of wetland than is provided under this order.
This subsection is supplemental to the existing authority of a
municipality to protect wetland. Each municipality which adopts an
ordinance regulating wetlands shall notify the department. The
department shall develop an agreement with each municipality which has
an ordinance regulation wetlands. The agreement shall provide for an
exchange of information with the department including information
regarding the environmental impact of each proposed use or development
on wetlands, the proposed decision on each application for a proposed
use or development on wetlands, and other information that may assist
the municipality in administering its ordinance. The agreement shall
provide that the department shall not issue a permit if the municipality
had denied permission for the permit under its ordinances, unless the
permit involves a use or development of regional or reservation wide
public benefit. The agreement shall require that the municipality use
an application form supplied by the department, and that each person
applying for a permit make application directly with the municipality.
Upon receipt the municipality shall forward a copy of each application
to the department. The department shall begin reviewing the application
as provided in this order. The municipality shall review the
application pursuant to its ordinance and shall modify, approve,
or deny the application within 60 days after receipt.
The department shall inform any interested person whether a
municipality has an ordinance regulating wetlands. If the department
receives an application with respect to a wetland which is located in a
municipality which has an ordinance regulating wetlands, the department
immediately shall forward the application to the municipality, which
shall modify, deny, or approve the application under this subsection.
The municipality shall notify the department of its decision. The
department shall proceed as provided in this order.
(5) If a municipality does not have an ordinance regulating
wetlands, the department shall promptly send a copy of the permit
application to the municipality where the wetland is located. The
municipality m;may review the application; may hold a hearing on the
application to the department. The recommendations of the
municipality shall be made and returned to the department within 45
days after the municipality's receipt of the permit application. The
department shall approve, modify, or deny the application as provided
in this order.
281.709 Permit for activity listed in Section 281.705; approval
conditioned on certain determinations; criteria; findings of
necessity; criteria for determining unacceptable disruption to
aquatic resources; additional showing.
Sec. 9(1) A permit for an activity listed in section 5 shall not be
approved unless the department determines that the issuance of a permit
is in the public interest, that the permit is necessary to realize the
benefits derived from the activity, and that the activity is otherwise
lawful.
(2) In determining whether the activity is in the public interest,
the benefit which reasonably may be expected to accrue from the
proposal shall be balanced against the reasonably foreseeable
detriments of the activity. The decision shall reflect the national,
band, and state concern for the protection of natural resources from
pollution, impairment, and destruction. The following general criteria
shall be considered.
(a) The relative extend to the he public and private need for the
proposed activity.
(b) The availability of feasible and prudent alternative locations
and methods to accomplish the expected benefits from the
activity.
(c) The extend and permanence of the beneficial or detrimental
effects which the prosed activity may have on the public and
private uses to which the are is suited include the benefits
the wetlands provides.
(d) The probable impact of each proposal in relation to the
cumulative effect created by other existing and anticipated
activities in the watershed.
(e) The probable impact on recognized historic, cultural, scenic,
ecological, or recreational values and on he public health or
fish or wildlife.
(f) The size of the wetland being considered.
(g) The amount of remaining wetland in the general area.
(h) Proximity to any waterway.
(i) Economic value, both public and private, of the proposed land
change to the general area.
(3) In considering a permit application, the department shall give
serious consideration to finding of necessity for the proposed
activity which have been made by other band agencies.
(4) A permit shall not be issued unless it is shown that an
unacceptable disruption will not result to the aquatic
resources. In determining whether a disruption o the aquatic
resources is unacceptable, the criteria set forth in section 3
and subsection (2) shall be considered. A permit shall into
be issued unless the applicant also shows either of the
following:
(a) The proposed activity is primarily dependent upon being
located in the wetland.
(b) A feasible and prudent alternative does not exist.
(5) The impact on the esthetic value of the wetland.
281.710 General permit for category of activities; notice and public
hearing; determinations; requirement and standards; conditions; time
for completion or termination of construction, development, or use;
duration of general permit.
Sec. 10.(1) The department, after notice and opportunity for a
public hearing, may issue general permits on a state or county basis
for a category of activities if the department determines that the
activities are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only
minimal cumulative adverse effect on the environment. A general permit
issued under this subsection shall be based on the requirements of
this order and the rules promulgated under this order, and shall set
forth the requirements and standards which shall apply to an activity
authorized by the general permit.
(2) The department may impose conditions on a permit for a use or
development if the conditions are designed to remove an impairment to
the wetland benefits, to mitigate the impact of a discharge of fill
material, or to otherwise improve the water quality.
(3) The department may establish a reasonable time when the
construction, development, or use is to be completed or terminated. A
general permit shall not be valid for more than 5 years.
281.711 Grounds for revocation or modification of general permit;
grounds for termination or modification for cause of general permit.
Sec. 11(1) A general permit may be revoked or modified if, after
opportunity for a public hearing or contested case hearing under Band
law, the department determines that the activities authorized by the
general permit have an adverse impact on the environment or the
activities would be more appropriately authorized by an individual
permit.
(2) A permit may be terminated or modified for cause,
including:
(a) A violation of a condition of the permit.
(b) Obtaining a permit by misrepresentation or failure
to fully disclose relevant facts.
(c) A change in a condition that requires a temporary or
permanent change in the activity.
281.712 Information required to obtain compliance with order;
entering on premises.
Sec. 12(1) The department shall require the holder of a permit to
provide information the department reasonably requires to obtain
compliance with this order.
(2) Upon reasonable cause or obtaining a search warrant, the
department may enter on, upon, or through the premises on which an
activity listed in section 5 located or on which information required
to be maintained under subsection (1) is located.
281.713 Violation; order requiring compliance; civil action.
Sec. 13(1) If, on the basis of information available to the
department, the department find that a person is in violation of this
order or a condition set forth in a permit issued section 9 or 10, the
department shall issue an order requiring the person to comply with the
prohibitions or conditions or the department shall request the solicitor
general to bring a civil action under section 14(1).
(2) An order issued under subsection (1) shall state with
reasonable specificity the nature of the violation and shall specify a
time for compliance, not to exceed 30 days, which the department
determines is reasonable, taking into account the seriousness of the
violation and good faith efforts to comply with applicable requirements.
281.714 Civil action; commencement; request; venue; jurisdiction;
violations; penalties; restoration of wetland.
Sec. 14(1) The solicitor general may commence a civil action for
appropriate relief, including injunctive relief upon request of the
department under section 13(1). An action under this subsection may be
brought in the Court of Central Jurisdiction as related to the district
in which defendant is located, resides, or is doing business. The court
has jurisdiction to restrain the violation and to require compliance
with this order. In addition to any other relief granted under this
section, the court may impose a civil fine of not more than $5,000.00
per day of violation. A person who violates an order of the court shall
be subject to a civil fine not to exceed $1,000.00 for each day of
violation.
(2) A person who violates this order is guilty of a misdemeanor,
punishable by a fine of not more than $2,500.00.
(3) A person who willfully or recklessly violates a condition or
limitation in a permit issued by the department under this order, or a
corporate officer who has knowledge of is responsible for a violation,
is guilty of a misdemeanor, punishable by a fine of not less than
$2,500.00 nor more than $5,000.00 per day of violation.
(4) In addition to the penalties provided under subsections (1),
(2), and (3), the court may order a person who violates this order to
restore as nearly as possible the wetland which was affected by the
violation, to its original condition immediately before the violation.
The restoration may include the removal of fill material deposited in
the wetland or the replacement of soil, sand, or minerals.
281.715 Disposition of fees and civil fines
Sec. 15. The fees and civil fines collected under this order shall
be deposited in the general fund of the Band for restoration of
wetlands.
281.716 Revaluation of property for assessment purposes.
Sec. 16. If a permit is denied for proposed wetland activity, the
landowner may request a revaluation of the affected property for
assessment purposes to determine its fair market value under the use
restriction.
281.717 Rules; hearing; judicial review; proceedings to protect
wetland owner's rights.
Sec. 17(1) The department shall promulgate and enforce rules to
implement this order pursuant to Band Law.
(2) If a person is aggrieved by any action or inaction of the
department, the person ;may request a formal hearing on the matter
involved. The hearing shall be conducted by the department.
(3) A determination, action, or inaction by the department
following the hearing shall be subject to judicial review as provided
in Band law.
(4) This section does not limit the right of a wetland owner to
institute proceedings in any circuit of the circuit court of the state
against any person when necessary to protect the wetland owner's rights.
281.718 Inventories of wetland; use; updating maps, ground surveys,
and descriptions as public documents; availability and cost of
aerial photographs and satellite telemetry data reproduction to the
Bureau of Indian Affairs title office and to the office of register
of deeds.
Sec. 18,(1) As inventories of wetland are completed, the
inventories shall be used as 1 of the criteria by the department in
issuing permits. The inventories shall be periodically updated. The
maps, ground surveys, and descriptions of wetlands included in he
inventories shall be submitted to the respective county register of
deeds and shall be come a public document available to review by any
member of the public.
(2) Aerial photographs and satellite telemetry data reproductions
shall be made available to the respective county register of deeds for
cost as determined by the department.
281.719 Basic and filing of preliminary inventory of wetland; hearing
in reservation planning and development band; notice; issuance and
distribution of final inventory; Band Assembly members to receive
inventories; inspection of property; written wetland determination;
inventory not to delay implementation of order.
Sec. 19(1) The department shall make or cause to be made a
preliminary inventory of all wetland in the reservation on a district
by district basis and file the inventory with the, register of deeds,
and clerk.
(2) At least 2 hearings shall be held on reservation planning and
development. The hearing shall be held by the department after
publication and due notice so that interested parties may comment on the
inventory. After the hearings the department shall issue a final
inventory which shall be sent and kept by the register of deeds, and
clerk. The Band Assembly members shall receive and inventory for their
districts including both preliminary and final inventories unless the
Band Assembly member request not to receive the materials.
(3) Before an inventory is made of a county, interested persons may
request the department to inspect property and the department shall make
a written wetland determination. The determination shall be made within
a reasonable time after the request. Completion of the inventory shall
not delay implementation of this order.
281.720 Notice to owners of record of change in status of property
Sec. 20. As wetland and inventories are completed as specified in
section 19, owners of record as identified by the current property tax
roll shall be notified of the possible change in the status of their
property. Notification shall be printed on the next property tax bill
mailed to property owners in the county. It shall contain information
specifying that a wetland inventory has been completed and is on file
with the register of deeds, and clerk, and the property owners may be
subject to regulation under this order.
281.721 Legal rights or authority not abrogated; action to determine if
property taken without just compensation; court order; limitation on
value of property.
Sec. 21(1) This order shall not be construed to abrogate rights or
authority otherwise provided by law.
(2) For the purposes of determining if there has been a taking of
property without just compensation under Band Law, an owner of property
who has sought and been denied a permit or has been made subject to
modifications or conditions in the permit under this order or the
department's action or inaction pursuant to this order may file an
action in a Court of Central Jurisdiction.
(3) If the court determines that an action of the department
pursuant to this order constitutes a taking of the property of a
person then the court shall order the department, at the department's
option, to do one or more of the following:
(a) Compensate the property owner for the full amount of the lost
value.
(b) Purchase the property in the public interest as determined
before its value was affected by this order or the department's action
or inaction pursuant to this order.
(c) Modify its action or inaction with respect to the property so
as to minimize the detrimental affect to the property's value.
(4) For the purposes of this section, the value of the property may
not exceed that share which the area in dispute occupies in the total
parcel of land, of the equalized evaluation of the total parcel,
multiplied by 2, as determined by an inspection of the most recent
assessment roll of the township or city in which the parcel is
located.
DEPARTMENT OF NATURAL RESOURCES
LAND AND WATER MANAGEMENT DIVISION
WETLAND PROTECTION
R281.921 Definitions
Rule 1.(1) As used in these rules:
(a) "Order" means Commissioner's Order //, being Section 281.701 et
seq.
(b) "Contiguous" means any of the following:
(i) A permanent surface water connection or other direct physical
contact with an inland lake or pond, a river or stream, one
of the Mille Lacs Lake or Sandy Lake.
(ii) A permanent Surface water connection to an inland lake or
pond, a river or stream, one of the Mille Lacs Lake or Sandy
Lake.
(iii) A wetland is partially or entirely locate within 500 feet of
the ordinary high watermark of an inland lake or pond or a
river or stream or is within 1,000 feet of the ordinary high
watermark of one of the Mille Lacs Lake or Sandy Lake, unless
it is determined by the department, pursuant to R281.924(4),
that there is no surface water or groundwater connection to
these waters.
(iv) Two or more areas of wetland separated only by barriers, such
as dikes, roads, berms, or other similar features, but with
any of the wetland areas contiguous under the criteria
described in paragraph (i), (ii), (iii) of this subdivision.
(c) "General permit" means a permit which, as authorized by
section 10 of the order, is issued for categories of minor
activities, as defined in subdivision (f) of this subrule.
(d) "Individual permit" means a permit which, as authorized by
sections 7, 8 and 9 of the order, is issued for categories of
activities that are not classified as minor.
(e) "Inland lake or ponds, a river or stream" means any of the
following:
(i) A river or stream which has definite banks, a bed, and visible
evidence of a continued flow or continued occurrence of water.
(ii) A natural or permanent artificial inland lake or impoundment
that has definite banks, a bed, visible evidence of a
continued occurrence of water, and a surface area of water
that is more than 5 acres. This does not include lakes
constructed by excavating or diking dry land and maintained
for the sole purpose of cooling or storing water and does
not include lagoons used for treating polluted water.
(iii) A natural or permanent artificial pond that has permanent
open water with a surface are that is more than 1 acres,
but less than 5 acres. This does not include ponds
constructed by excavating or diking dry land and maintained
for the sole purpose of cooling or storing water and does
not include lagoons used for treating polluted water.
(f) "Minor activities" means activities that are similar in nature,
that will cause only minimal adverse environmental effects
when performed separately, and that will have only minimal
cumulative adverse effects on the environment.
(g) "Wetland vegetation" means plants that exhibit adaptations to
allow, under normal conditions, germination or propagation
and to allow growth with at least their root systems in water
or saturated soil.
(2) As used in the order:
(a) "Electric distribution line": means underground line below 30
kilovolts and line supported by wood poled.
(b) "Electric transmission line" means those conductors and their
necessary supporting or containing structures located outside
of building that are used for transmitting a supply of
electric energy, except those lines defined in subdivision
(a) of this subrule.
(c) "Pipelines having a diameter of 6 inches or less" means a pipe
which is equal to or less than what is commonly referred to
as a 6-inch pipe and which has an actual measured outside
diameter of less than 6.75 inches.
(3) Terms defined in the order have the same meanings when used in
these rules.
R281.922 Permit Application
Rule 2.(1) An application for a permit shall be made on a form
prescribed and provided by the department.
(2) An application for a permit shall not be deemed as received or
filed until the department has received all information requested on the
application form, the application fee, and other information authorized
by the order and necessary to reach a decision. The period for granting
or denying an application begins as soon as all such information and the
application fee are received by the department.
(3) Application fees shall be submitted to the department with he
initial sumittal of an application form. The fee shall be paid by
check, money order, or draft made payable to: "Mille Lacs Band".
(4) An application may be considered to be withdrawn and the file
for the application may be closed if an applicant fails to respond to
any written inquiry or request from the department for information
requested as a part of the application form within 30 days of the
request or such longer period of time as needed by the applicant to
provide the information agreed to, in writing, between the applicant
and the department.
(5) Upon request, the department shall provide any person with a
copy of a permit application and supporting documents consistent with
all provision of Band law.
(6) Decisions reached by the department which deny or modify an
application for a permit shall be supported by written documentation to
the applicant based upon the applicable criteria contained in section 9
of the order. The department shall create a form based on the criteria
from section 9 of the order to be completed and placed into each
application file. When a proposed activity involved a coordinated
review by federal agencies as provided for under the order and section
401 of title 4 of the Clean Water Act for inclusion in the application
file.
R281.923 Permits
Rule 3(1) An application for a proposed activity which is within a
general permit category may be processed and issued by the department
without the noticing or hearings specified under section 7, 8, and 90
of the order. The department may process, by public notice, an
application which would normally qualify under a general permit category
to allow more opportunity for public review and comment. Categories of
minor activities will be established in the general permit in accordance
with section 10 of the order. The factors set forth in section 3 and 9
of the order shall be considered in determining whether such a permit is
in the best interest of the public.
(a) Applications for activities that are not classified as minor
shall be reviewed through the process prescribed under section 7, 8 and
9 of the order. The department may issue an individual permit 21 days
after the mailing of notification of the permit application if comments
of nonobjection have been received from the municipality, if a public
hearing has not been requested, and if the proposed activities are
otherwise in accordance with the order. (3) If the department t does
not approve or disapprove the permit application n within the time
provided by section 8(2) of the order, the permit application shall be
considered approved and the department shall be considered to have
made the determination required by section 9 of the order.
(4) A permit may be issued for a period extending until the end of
the following calendar year. A permit may be issued for a longer
period of time if agreed to, in writing, between he applicant and the
department. Before a permit expires, extensions of time may be
granted by the department upon permit expires, extensions of time may
be granted by the department upon receipt of a written request from the
permit holder explaining why such an extension is needed to complete
the project. Up to two 12 month extensions shall be granted if there
is no change in the activity for which the permit was originally
issued. Administrative fees shall not be require for such extensions.
(5) Any permit issued under the order does not obviate the
necessity of receiving, when applicable, approval from other federal,
state, and local government agencies.
(6) Any permit issued by the department under the order may be
revoked or suspend, after notice and opportunity for a hearing, for
any of the following causes:
(a) A violation of condition of the permit.
(b) Obtaining a permit by misrepresentation or failure to
fully disclose relevant facts in the application.
(c) A change in a condition that requires a temporary or
permanent change in the activity.
R281.924 Wetland determinations
Rule 4.(1) When permforming wetland determinations, as required by
section 19(3) of the order, the department shall utilize criteria
consistent with the definition of "wetland" provided in section 2(g) of
the order and shall provide a written response stating, to the legal
landowner within 30 days of on-site evaluation, whether the parcel
contains wetland and the basis for that determination.
(2) When permforming wetland determinations, the department shall
rely on visible evidence that the normal seasonal frequency and
duration of water is above, at, or near the surface of the area to
verity the existence of a wetland, Under normal circumstances, the
frequency and duration of water that is necessary to determine an area
to be a wetland will be reflected in the vegetation or aquatic life
present within the are being considered. A wetland that has not been
recently or severely distributed will contain a predominance, not just
an occurrence, of wetland vegetation or aquatic life. Where there is
a predominance of wetland d vegetation, and no direct visible evidence
that water is, or has been, at or above the surface the department
shall use the following characteristics of the soils or substrate to
verify the existence of a wetland:
(a) The presence of a soil that is saturated, flooded, or ponded
long enough during the growing season to develop anaerobic conditions
in the upper part of the soil that favor the growth and regeneration
of wetland vegetation.
(b) Physical or chemical characteristics of a soil column which
provide evidence of the current and recent degree of saturation or
inundation. Characteristics, such a gleying, low chroma mottling, or
chemically demonstrated anaerobic conditions, can be utilized to
identify the current and recent depth and fluctuation of the water table
or inundation.
(3) If the department makes a determination that a wetland
otherwise outside of the jurisdiction of the order is essential to the
preservation of the natural resources of the state under section
2(g) (iii) of the order, it shall provide such findings, in writing, to
the legal landowner stating the reasons for this determination. In
making such a determination, 1 or more of the following functions shall
apply to a particular site.
(a) It supports reservation or federal endangered or
threatened plants, fish, or wildlife.
(b) It represents what the department has identified as a
rare or unique ecosystem.
(c) It supports plants or animals of an identified regional
importance.
(d) It provides groundwater recharge documented by a public
agency.
(4) Upon the request of a property owner or his or her agent, the
department shall determine if there is no surface or groundwater
connection that meets the definition of contiguous under R281.921(1)(b)
(iii). The determination shall be made in writing and shall be provided
to the property owner or agent within a reasonable permit of time after
receipt of the request.
R281.925 Mitigation.
Rule 5.(1) A authorized by section 10(2) of the order, the
department may impose conditions on a permit for use or development if
the conditions are designed to remove an impairment to the wetland
benefits, to mitigate the impact of a discharge of fill material, or
otherwise improve the water quality.
(2) The department shall consider a mitigation plan if submitted by
the applicant and may incorporate the mitigation actions as permit
conditions for the improvement of the existing wetland resources or the
creation of a new wetland resource to offset wetland resource losses
resulting form the proposed project. If agreed to by the applicant,
financial assurances may be required to ensure that mitigation is
accomplished as specified by the permit conditions, The department
shall, when request by the applicant, meet with the applicant to review
the applicant's mitigation plan.
(3) In developing conditions to mitigate impacts, the department
shall consider mitigation to apply only to unavoidable impacts that
are otherwise permittable utilizing the criteria under sections 3 and
9 of the order, Mitigation shall not be considered when it is feasible
and prudent to avoid impacts or when the impacts would be otherwise
prohibited under the order.
(4) When considering mitigation proposals, the department shall
make all of the following determinations:
(a) That all feasible and prudent efforts have been made to
avoid the loss of wetland resource values.
(b) That all practical means have been considered to minimize
impacts.
(c) That it is practical to replace the wetland resources
values which will be unavoidably impacted.
(5) If the department determines that it is practical to replace
the wetland resources values which will be unavoidably impacted, the
department shall consider all of the following criteria when reviewing
an applicant's mitigation proposal:
(a) Mitigation shall be provided on-site where practical and
beneficial to the wetland resources.
(b) When subdivision (a) of this subrule does not apply,
mitigation shall be provided in the immediate vicinity of the permitted
activity where practical and beneficial to the wetland resources. When
possible, this means within the same watershed and municipality as the
location of the proposed project.
(c) Only when it has been determined that subdivisions (a)
and (b) of this subrule are inappropriate and impractical shall
mitigation be considered elsewhere.
(d) Any proposal shall assure that, upon completion, there
will be no net loss to the wetland resource.
(e) The proposal shall give consideration to replacement of
the predominant functional values lost within the impacted wetland.
(6) Except where a mitigation plan is to occur on band, state or
federally owned property or where the mitigation is to occur in the same
municipality where the project is proposed, the municipality where the
proposed mitigation site is located shall be given notice and an
opportunity to comment in writing to the department on the proposed
mitigation plan before a permit is issued.
(7) Any mitigation activity shall be completed before initiation of
other permitted activities, unless a phased concurrent schedule can be
agreed upon between the department and the applicant.
(8) Monitoring to establish documentation of the functional
performance of the mitigation may be required as permit conditions, as
well as necessary corrective actions required, to deliver the wetland
resources values identified.
(9) Mitigation, by replacement of lost wetland resources, shall not
be required if any activity is authorized and permitted under the
authority of a general permit issued under section 10(1) of the order.
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