Subd. 1.

Council findings and intent.

A.

The council finds that wetlands serve a variety of beneficial functions. Wetlands maintain water quality, reduce flooding and erosion, provide food and habitat for wildlife, provide open space, and are an integral part of the city's environment. Wetlands are important physical, educational, ecological, aesthetic, recreational and economic assets to the city. They are critical to the city's stormwater management and other aspects of health, safety and general welfare. Regulating wetlands and the land uses around them is therefore in the public interest.

B.

In order to protect wetlands, the Minnesota Wetland Conservation Act of 1991 (hereinafter referred to as the WCA) and any future amendments thereto are adopted by reference as though set forth verbatim herein. Any activities exempted from the provisions of the WCA are also exempted from the requirements of this section, insofar as they relate to the WCA. The provisions of this section cover all wetlands, as defined herein and including those governed by the department of natural resources.

Subd. 2.

Purposes and implementation.

A.

Through the adoption and enforcement of this section, the city will promote the general health, safety, and welfare of its residents by both conserving and protecting wetlands, and requiring sound management practices and mitigation when development occurs in the vicinity of wetlands. Through the implementation of this section, the city seeks to accomplish the following:

1.

To satisfy the requirements of the WCA and, thereby, achieve no net loss of wetlands within the city.

2.

To streamline the city administration of the WCA by providing sequencing and varied replacement requirements based on the functional values of the wetland and resulting management classifications.

3.

To allow appropriate usage of wetlands to preserve water quality and prevent downstream flooding.

4.

To protect and restore wetlands adjacent to contiguous open green space.

5.

To address potential nonpoint source impacts from future development with the establishment of wetland buffer requirements to complement existing stormwater requirements.

6.

To enhance wildlife values of wetlands.

7.

To identify potential wetland banking areas.

8

Manage wetlands for their sensitivity to stormwater.

B.

To accomplish these purposes, the city will:

1.

Utilize and continue to complete its wetland inventory and utilize related assessment information for wetlands in Eagan.

2.

Utilize Eagan's Water Quality and Wetland Management Plan and the provisions of this section.

3.

Establish conservation easements over wetlands and wetland buffers that are subject to this section.

Subd. 3.

Definitions.

Building setback: For purposes of this section, the minimum horizontal distance between the nearest point of a building or the principal structure and the edge of the wetland buffer.

Contiguous open green space: Interconnected natural areas that can provide adjacent upland habitat and/or provide habitat connections between wetlands that were identified and mapped in a 2002 study of Eagan's land cover by the Dakota County Soil and Water Conservation District.

Minnesota Routine Assessment Method (MNRAM): A methodology approved by Minnesota Board of Water and Soil Resources that assesses wetlands based on their ability to perform desired functions, such as improving water quality, reducing flow rates, and providing fish and wildlife habitat and that evaluates characteristics such as plant community diversity and structure, connectivity to other habitat types, location in the watershed, and a wide range of other factors.

Native vegetation: Plants original to the Twin Cities area and not introduced as a result of settlement or subsequent human activity.

No grade zone: The portion of the wetland buffer where no grading or wetland alteration activity is permitted.

Plant community: An interacting assemblage of plant populations sharing a given habitat.

Principal structure: A building or structure that is the primary/principally used structure on a lot.

Redevelopment: The removal of the principal structure to the extent of more than 50 percent of its market value or size and (2) reconstruction on the same property. It is not considered redevelopment if construction is for less than 75 percent of a principal structure that was damaged by an involuntary force, such as fire, wind, or vandalism.

Other structure: Any non-principal structure or piece of work artificially built up or composed of parts joined together in some definite manner.

Wetland: Lands transitional between terrestrial and aquatic ecosystems, where the water table is usually at or near the surface or the land is covered by shallow water. Consistent with the WCA, wetlands are to be identified and delineated using the methodology set forth in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (Interagency Task Force on Wetland Delineation, 1987). For purposes of this definition, wetlands must have three of the following attributes:

1.

Contain a predominance of hydric soils;

2.

Are inundated or saturated by surface or ground water at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions;

3.

Under normal circumstances support a prevalence of such vegetation.

This definition does not include wetlands created from uplands either: (1) for stormwater storage and management purposes or (2) by actions not intended to create the wetland and approved, permitted, funded or overseen by a public entity.

Wetland alteration activity: Human-induced actions that alter the existing or natural condition of a wetland or wetland buffer, including grading, filling, and dredging; dumping, cutting, pruning, topping, and clearing native vegetation; and discharging pollutants (except stormwater). Wetland alteration activities do not include walking, passive recreation, fishing, planting that enhances native vegetation, activities that improve the existing or natural condition of a wetland or wetland buffer, or other similar activities allowed under the WCA.

Wetland buffer: An undisturbed or re-established vegetated area between the wetland boundary and a line parallel to and a horizontal distance (in feet) from the wetland boundary.

Wetland buffer width averaging: Buffer width averaging is allowed under circumstances as defined herein. It is used when a buffer width is below the buffer width minimum in one area and above the buffer width minimum in other areas to meet the total surface area of wetland buffer as required for the wetland as classified.

Wetland boundary: The line delineating the outer edge of a wetland that shall be established according to the 1987 Corps of Engineers (COE) Wetlands Delineation Manual (Environmental Laboratory, 1987).

Wetland functions: The natural processes performed by wetlands, including providing wildlife and fisheries habitat; facilitating primary production; maintaining the availability and quality of water, such as purifying water, acting as a recharge and discharge area for groundwater aquifers and moderating surface water and stormwater flows; improving stormwater quality; providing aesthetic benefits; as well as performing other functions, including but not limited to those set out in U.S. Army Corps of Engineers regulations 33 CFR § 320.4(b)(2).

Wetland management classifications:

Protect: These wetlands are valuable for protection of rare species and have high vegetation or wildlife habitat; OR they have moderate ecological quality and are important for contiguous open green space.

Priority: These wetlands are important for contiguous open green space.

Priority A: These wetlands have moderate ecological quality and are important for either flood storage or water quality protection.

Manage: These wetlands are less important for flood storage, water quality protection, or contiguous open green space than the other classifications of wetlands, but have moderate ecological quality.

Manage A: Wetlands are important for flood storage or water quality protection but have low ecological quality.

General use: Wetlands that have been significantly altered and degraded through past disturbance.

Wetland management plan: The chapter of the city's water quality and wetland management plan set forth in this Code.

Subd. 4.

General provisions.

A.

The provisions of this section shall apply to any wetland alteration activities within delineated wetlands and designated wetland buffers. In accordance with this section, wetland buffers and setbacks from wetland buffers shall be required under any of the following circumstances:

1.

When any parcel of land with a wetland is subdivided to create a new lot or when a new principal structure is constructed on an existing vacant parcel of land; or

2.

When redevelopment occurs on a parcel of land with a wetland; or

3.

When any new construction or wetland alteration activity occurs on a parcel of land with a wetland.

In determining whether any wetland alteration activities are occurring, the city will consider the following factors:

a.

The portion of the property disturbed by the subdivision of land, the redevelopment of land, or the new construction drains to a wetland;

b.

City land disturbance and erosion control regulations apply; or

c.

Activity results in a net increase in impervious surfaces that drain to a wetland, or results in the relocation of impervious surfaces closer to a wetland, or results in changes to drainage patterns (slopes, meander patterns, etc.) that increase the velocity or rate of runoff to a wetland.

B.

Any unclassified wetland shall be assigned a management classification and incorporated onto the city maps during the city's review and approval process of proposals having wetland alteration activities as provided herein. It is the responsibility of an applicant to have an existing wetland delineated by a certified wetland delineator utilizing approved methods as stated in the WCA and to assess wetland(s) utilizing the MNRAM (Version 3.0 or later version). The city shall classify wetlands delineated and assessed accordingly based on the criteria provided in the wetland management plan.

C.

This section establishes six wetland management classifications as defined herein.

Subd. 5.

Wetland sequencing and replacement requirements.

This section incorporates the requirements of the WCA, with the exception of the following rules which are modified herein:

• WCA Rules Ch. 8420.0520 Sequencing Requirements

• WCA Rules Ch. 8420.0541 Actions Eligible for Credit

• WCA Rules Ch. 8420.0543 Location of Replacement Wetlands

• WCA Rules Ch. 8420.0546 Size of Replacement Wetlands

The modifications to the above-identified WCA rules are summarized in Table 5-1 and are set forth below:

Table 5-1

A.

Sequencing requirements (WCA Rules Ch. 8420.0520).

1.

The city will strictly enforce avoidance of impacts to protected and priority wetlands. The city may allow impacts to protect and priority wetlands only if there is demonstration of significant public benefit.

2.

The city may review proposed impacts to general use wetlands to determine if they meet WCA requirements for sequencing flexibility, as described under WCA rules Ch. 8420.0520 Subp. 7a.

3.

The city will follow WCA sequencing requirements for Priority A, Manage, Manage A, and general use wetlands.

B.

Actions eligible for credit (WCA Rules Ch. 8420.0541). In accordance with Table 5-1, protect wetlands shall be replaced on a 3:1 total basis. At least 2:1 of total replacement of protect wetlands is eligible for replacement credit or banking credit as provided in WCA rules Ch. 8420.0541. The remaining 1:1 of total replacement may follow provisions of WCA rules Ch. 8420.0541 or may be fulfilled by other activities found acceptable by the city. Other activities may include but are not limited to: Installation of stormwater best management practices (BMPs), increasing flood storage capacities, connecting upland habitat, establishing wetland buffers around existing wetlands, expanding wetland buffers beyond minimum requirements of this section, and restoring native vegetation.

C.

Location of replacement wetlands (WCA Rules Ch. 8420.0543).

1.

Protect and priority wetlands shall be replaced according to the following priority:

a.

On-Site

b.

Off-site but within the city

2.

Priority A, Manage, Manage A, and general use wetlands shall be replaced in accordance with WCA rules.

D.

Size of replacement wetlands (WCA Rules Ch. 8420.0546).

1.

Protect wetlands shall be replaced in accordance with Table 5-1, and an applicant may complete actions and be eligible for credit, as described herein.

2.

Priority, Priority A, Manage, Manage A, and general use wetlands shall be replaced in accordance with WCA rules.

E.

Functions and values of replacement wetlands. The functions and values of wetlands the city approves for draining, filling, or excavation shall be replaced according to the following:

1.

Replacements for Protect, Priority, and Priority A wetlands shall provide vegetative diversity and maintenance of a variety of wetland communities; promote productive wildlife habitat; and have wetland buffers that contain native vegetation. The city may require such replacement wetlands to be located within or adjacent to contiguous open green space.

2.

Replacements for Manage and Manage A wetlands shall have one or more of the following functions: stormwater treatment, water quality, and/or connectivity to contiguous open green space.

3.

Replacements for general use wetlands shall meet WCA requirements.

Subd. 6.

Wetland buffers.

A.

This subsection establishes minimum requirements for wetland buffers and the associated buffer protection requirements for each wetland management classification, as indicated in Table 6-1.

Table 6-1

* Add 20% to wetland buffer minimum width requirements in areas where slopes are six percent or greater.

** Native vegetation for wetland buffer plantings is required to have a seed origin in accordance with MnDOT requirements for native seed, per the 2003 (or most recent) MnDOT seeding manual, at a minimum.

B.

Wetland buffer flexibility: The city may allow a variance from wetland buffer requirements, as provided herein, to avoid unreasonable restrictions on existing uses of properties. If a variance is granted, the city may require alternative requirements including but not limited to wetland buffer width averaging to fulfill minimum width; redirecting drainage to an area where a wetland buffer is feasible; combining methods such as rain gardens, rain barrels, vegetated swales, or other BMPs to replace functions of wetland buffers to filter and treat drainage; and/or protecting additional upland to connect to contiguous open green space and to replace wildlife values.

C.

Easements:

1.

Conservation easements will be required over lands with a Protect, Priority, Priority A, or Manage wetland and its wetland buffer.

2.

Wetland buffer easements will be required over lands with a Manage A wetland and its wetland buffer.

D.

Permitted activities:

1.

The following activities may occur within wetland buffers:

a.

Planting of native vegetation, provided no change is made to the ground elevation;

b.

Wildlife and nature preserves;

c.

Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances;

d.

Environmental monitoring or control facilities, including those related to water quality and wildlife regulation;

e.

Overhead utility poles and lines that are less than two feet in diameter, underground utility lines and distribution equipment, light poles, traffic signals, traffic regulatory signs, mailboxes and other equipment that provides an essential public service;

f.

No other structures may be erected or installed unless the city determines that a particular structure or its erection, installation, or maintenance will not occur as a wetland alteration activity.

2.

The following activities are permitted in a wetland buffer:

a.

Maintenance of an existing public or private lawfully located road, other structure, or facility, including drainage facilities, water conveyance structures, dams, fences, or trails, and any facility used to provide transportation, electric, gas, water, telephone, telegraph, telecommunication, or other services;

b.

Weed control consistent with state, county, and city laws and regulations.

Subd. 7.

Wetland buffer vegetative requirements.

A.

This subsection establishes vegetative requirements for wetland buffers.

1.

Wetland buffer requirements:

a.

Less than 30 percent of the wetland buffer shall consist of noxious weeds;

b.

More than 90 percent of the wetland buffer is vegetated; and

c.

More than 90 percent of the wetland buffer contains vegetation other than turf grass (Kentucky blue grass).

The city's designated official shall determine if a wetland buffer is acceptable at the time of the wetland boundary review.

2.

When a wetland buffer is not acceptable or is graded as part of a proposed use for a property, a wetland buffer landscaping plan shall be submitted to the city for approval. At a minimum, the plan shall include the following:

a.

A plan sheet that shows the location of the wetland buffer within the subdivision. This sheet should also show wetland buffers that are considered acceptable in their current state and identify them as areas that shall not be disturbed during grading.

b.

For wetland buffers that are not acceptable, a plan shall be developed that provides species and planting and/or seeding locations. The plan must include the following:

1.

Wetland buffer areas shall be planted with a seed mix containing 100 percent perennial native plant species, except for a one-time planting of annual nurse or cover crop such as oats or rye.

2.

Native seed shall be of local ecotype and be from stock originating within 300 miles of the site, and shall represent species that were historically part of the native vegetation of the Dakota County region. Seeding rates shall follow Minnesota Department of Transportation (MnDOT) or Board of Water and Soil Resources (BWSR) Standard Specifications for Construction.

3.

Native shrubs or trees may be part of the planting plan. Shrubs and/or trees shall be distributed so as to provide a natural appearance and shall not be planted in rows. Plants shall be of local ecotype and represent species that were historically part of the native vegetation of Dakota County.

4.

Native grasses, forbs, trees and shrubs shall be planted by a qualified contractor utilizing methods described in the MNDOT Standard Specifications for Construction.

5.

No fertilizer shall be used in establishing new wetland buffers.

c.

Wetland buffers (both natural and created) shall be protected by erosion control measures as determined by the city. These must be employed during construction until permanent ground cover is established to prevent siltation of the wetland buffer and wetland.

B.

In cases of new development or redevelopment, vegetation in the Wetland buffer shall be installed prior to the issuance of the certificate of occupancy. The city may waive this requirement in lieu of a cash escrow or letter of credit equal to 150 percent of the cost to install the required wetland buffer.

C.

The city may allow the disturbance of an existing wetland buffer area during the course of construction activity. This disturbance must be kept to a minimum, soils must be uncompacted to a level that will accommodate root growth, and the wetland buffer must be re-established as required by the city. The city may require a cash escrow or letter of credit equal to 150 percent of the cost to re-establish the wetland buffer to its original condition.

D.

When the city requires a wetland buffer planting and maintenance because the wetland buffer is considered unacceptable, according to this subsection, the city may require a cash escrow or letter of credit equal to 150 percent of the estimated cost of the vegetation and installation. The escrow or letter of credit must be valid for up to two years and may be used by the city to replace any vegetation that dies.

Subd. 8.

Wetland buffer protection requirements.

A.

The clearing and removal of vegetation in the wetland buffer is prohibited, except for selective clearing and pruning of individual trees and shrubs which are dead, diseased, noxious weeds, or hazards.

B.

No structures are allowed in the wetland buffer, except as provided herein.

C.

Activities including, but not limited to, building, paving, mowing, cutting, filling, dumping, yard waste disposal or fertilizer application are prohibited in the wetland buffer. Mowing may be permitted when approved by the city as a wetland buffer management strategy. However, invasive non-native vegetation, such as European buckthorn and noxious weeds, may be removed.

D.

Before grading or construction near a wetland or wetland buffer, the owner or contractor must place and maintain appropriate erosion control practices on the upland side of the wetland buffer. These practices must remain in place until all development activities that may affect the wetland and the wetland buffer area have been finished and adequate vegetative cover has been established.

E.

Where acceptable to adjacent property owners, leaving dead trees and branches in the wetland buffer is encouraged to support the native natural environment by providing habitat to birds and wildlife.

F.

The property owner or homeowner association that is responsible for the maintenance of a wetland buffer must:

1.

Maintain and repair damage to wetland buffers from such activities as mowing, cutting, grading or other prohibited activities, unless mowing is approved by the city as a wetland buffer management strategy. Permission must be obtained from the city before implementing wetland buffer management strategies, which may include mowing, burning, and the use of herbicides.

2.

Ensure that all soil surfaces in the wetland buffer are planted with the permitted vegetation and that there is no open soil surface that may result in erosion.

Subd. 9.

Wetland buffer markers. When a land-use application requires a wetland buffer, the applicant and/or landowner must place markers at the upland edge of the wetland buffer at least every 75 feet (or a minimum of one per lot). Wetland buffer markers will be provided by the city.

Subd. 10.

Wetland setbacks.

A.

Wetland setbacks.

1.

All structures (principal and other), must be set back at least 25 feet from the outer wetland buffer line.

Structure exceptions to the 25-foot setbacks include: Play structures, uncovered porches, decks, patio slabs, open terraces, stairways, walkway areas may extend up to ten feet into the required wetland buffer line setbacks.

2.

Parking or driveway areas must be setback at least ten feet from the outer wetland buffer line.

3.

A setback from the wetland buffer line is not required for overhead utility poles and lines that are less than two feet in diameter, underground utility lines and distribution equipment, light poles, traffic signals, traffic regulatory signs, mailboxes, and other equipment that provides an essential public service.

4.

A setback is not required for fences or retaining walls. However, they may not be located within the wetland buffer.

5.

An existing structure, driveway or parking area meeting the required setback from a city-designated wetland boundary or wetland buffer is considered a legal nonconforming development if a later WCA delineation or implementation of a wetland buffer shows that the wetland or its wetland buffer is closer than the required setback.

Subd. 11.

Wetland submittal requirements.

A.

Applicants planning to conduct wetland alteration activities as described herein shall also ensure the following are provided as part of the submittals for city approval:

1.

Grading plan with locations and sizes of any stormwater pipes.

2.

Existing and proposed drainage areas to wetlands.

3.

Wetland delineation report prepared within the last three years by a certified wetland delineator.

4.

Exhibit showing wetland boundaries and labeling wetland classifications according to city's wetland map.

Wetlands unclassified at the time of submittal shall be addressed as described herein.

5.

Wetland buffer landscaping plan that meets the requirements herein.

6.

All other submittals required by the WCA if wetland impacts are proposed.

B.

City staff shall verify that wetland submittal requirements have been met before consideration of approval.

Subd. 12.

Variances. Variances from the requirements of this section may be granted in accordance with provisions of zoning chapter as regulated by the City Code, so long as the variances do not violate WCA rules.

Subd. 13.

Violations. Violation of the provisions of this ordinance or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of variances or conditional uses) shall constitute a misdemeanor and shall be punishable as defined by law.

Subd. 14.

Authority/enforcement actions. Nothing herein contained shall prevent the City of Eagan from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include but are not limited to:

1.

In responding to a suspected ordinance violation, the City of Eagan may utilize the full array of enforcement actions available to it including but not limited to prosecution and fines, injunctions, after-the-fact permits, and/or orders for corrective measures to the guilty party.

2.

When an ordinance violation is either discovered by or brought to the attention of the city, the city can immediately investigate the situation and document the nature and extent of the violation of the official control.

3.

The city shall notify the suspected party of the requirements of this ordinance and all other official controls and the nature and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the city may order the construction or development immediately halted until a proper permit or approval is granted by the community. If the construction or development is already completed, then the city may either: (1) Issue an order identifying the corrective actions that must be made within a specified time period to bring the use or structure into compliance with the official controls; or (2) notify the responsible party to apply for an after-the-fact permit/development approval within a specified period of time not to exceed 30 days.

(Ord. No. 414, 2nd series, § 1, eff. 7-28-07)