Development of Property in Minnesota with Wetlands

Did you know that if you are developing property in Minnesota you may need to work around the topography.  If there are existing wetlands you may be able to develop the property, but may need to replace disturbed wetlands.  Such development issues are covered by the Wetland Conservation Act (Minn. Stat. §§103G.221 - .2373; Minn. R. ch. 8420).

The Wetland Conservation Act protects all types of wetlands and prohibits draining unless it can be replaced by an area of equal or greater value.



a. What is a Wetland?  Wetlands are defined as areas that have a predominate of hydric soils, and are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, or periodically support, hydrophytic vegetation typically adapted for life in saturated soils and support this vegetation under normal circumstances.  Minn. Stat. §103G.005.

b. Who Makes the Decision?  No drainage, filling or altering is permitted unless permitted by the local government unit (“LGU”) under the LGU’s wetland protection and management plan.  Minn. Stat. §103G.222; Minn. R. 8420.0200.  

 i. LGU is defined as:

1. outside of the seven-county metropolitan area, a city council, county board of commissioners, or a soil and water conservation district or their delegate;

2. in the seven-county metropolitan area, a city council, a town board, a watershed management organization, or a soil and water conservation district or their delegate; and

3. on state land, the agency with administrative responsibility for the land.

ii. The LGU reviews applications requesting changes to wetlands.  Minn. R. 8420.0200.  Decisions by the LGU are subject to the “60-day” rule.  Minn. Stat. §§15.99, 103G.2242. 

iii. Wetlands may not be drained or filled unless replaced with wetlands of at least equal public value.  Id.

c. What Body Hears an Appeal of the LGU Decision?  Under Minn. R. 8420.02905:

i. The decision by an LGU becomes final if not appealed to the Minnesota Board of Water & Soil Resources (“BWSR”) within 30 days after the date on which the decision is mailed to those required to receive notice of the decision.  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. 

ii. Within 30 days after receiving the petition, BWSR or its dispute resolution committee or executive director shall decide whether to grant the petition and hear the appeal. BWSR or its executive director shall grant the petition unless the appeal is deemed meritless, trivial, or brought solely for the purposes of delay; that the petitioner has not exhausted all local administrative remedies; or that the petitioner has not posted a letter of credit, cashier's check, or cash if required by the LGU.

iii. BWSR or its executive director may stay the LGU decision until the appeal is resolved.

iv. BWSR will affirm the LGU's decision if the LGU’s findings of fact are not clearly erroneous; if the LGU correctly applied the law to the facts; and if the LGU made no procedural errors prejudicial to a party. Otherwise, BWSR will reverse the decision, amend it, or remand it with instructions for further proceedings.