7.1.2 Permit Program for Water Resource Protection

Application of the District’s rules and permit requirements is governed by Minnesota Statutes §103B.211, subdivision 1(a)(3), which authorizes the District to:

Regulate the use and development of land in the watershed when one or more of the following conditions exists:

  1. the local government unit exercising planning and zoning authority over the land … does not have a local water management plan approved and adopted in accordance with the requirements of section 103B.235 or has not adopted the implementation program described in the plan;
  2. an application to the local government unit for a permit for the use and development of land requires an amendment to or variance from the adopted local water management plan or implementation program of the local unit; or
  3. the local government unit has authorized the organization to require permits for the use and development of land;

In accordance with this statute, on the request of a city or township, the District will cease to apply its rules and permit requirements within the boundaries of that LGU on its approval of the local water plan.  To approve a local plan, however, the District must find that the local permit program is at least as protective of water resources as the District rules.   An LGU may meet this standard, in accordance with §103B.211, subdivision 1(a)(3)(iii), by stating in the plan that it is authorizing the District to continue to apply its rules within the locality.  Alternatively, if an LGU wishes to assume the sole regulatory role, the District will evaluate its plan according to the following:

  1. The local plan must identify those District rules for which it wishes to assume sole regulatory authority.  This includes some or all of District Rules B (Erosion Control), C (Floodplain Alteration), D (Wetland Protection), G (Waterbody Crossings) and N (Stormwater Management).  The District in all cases will continue to apply Rules E (Dredging) and F (Shoreline and Streambank Improvements) within the locality as they concern interjurisdictional resources that cities and townships have limited authority to regulate.
  2. For those District rules, the local plan must include existing or proposed ordinances for a District determination that they are at least as protective of water resources as the District rules.  District staff will provide checklists of substantive requirements and other guidance to LGUs for their use in understanding the standards that must be met.  A proposed ordinance need not be submitted in final form provided there is adequate detail for a District determination.  In its plan or its ordinances, the LGU must confirm that work of the LGU will be subject to the same substantive permitting standards as other work.
  3. Procedural details of local ordinances (relating to, for example, permit processing, hearings or public notice) may differ from District rules provided they do not compromise water resource protection.
  4. The local plan must describe a compliance monitoring and enforcement program in adequate detail, relating to (i) work without a permit; (ii) active work under permit; (iii) maintenance of vegetated waterbody buffer; and (iv) maintenance of stormwater basins and other stormwater facilities.
  5. For those areas for which the LGU wishes to assume sole authority, it must describe the technical expertise it has or will acquire to implement its ordinances, describe how it will monitor and enforce compliance, and present an estimate of its annual cost to implement its program.  
  6. The local plan must state whether the  LGU intends to assume the role of “local government unit” responsible to implement the Minnesota Wetlands Conservation Act within that part of the  LGU that lies within the watershed, or whether it chooses for the District to assume that role.  If the former, it must describe the technical expertise it has or will acquire to implement WCA, describe how it will monitor and enforce WCA compliance, and present an estimate of its annual cost to implement and enforce WCA.
  7. The local plan must state that within one year after the District provides notice that it has significantly revised a District rule, the LGU will submit for District approval, adopt and put into effect a revised ordinance consistent with the District rule change (the LGU should allow 60 days for District review).  If the LGU chooses not to make the revision, it can simply authorize the District to apply its revised rule within LGU boundaries.   
  8. If an LGU chooses to exercise sole regulatory authority with respect to one or more District rules, the District’s approval of the local plan will be given effect through a memorandum of understanding (MOU) executed by the District and the LGU.  The MOU will:
    1. Describe the regulatory roles of each party;
    2. State, in accordance with §103B.211, subdivision 1(a)(3)(ii), that the District must approve the granting of any variance to a water resource ordinance by the  LGU;
    3. Specify ongoing or periodic communication between the District and the  LGU to allow for District awareness of the  LGU’s water resource permitting activity; and
    4. Reserve the District’s ability to exercise its regulatory authority within  LGU boundaries if the  LGU is not implementing its regulatory program in accordance with its local plan.