(a)

Purpose and intent.

(1)

The purpose of this section is to recognize, preserve and protect the environmental, aesthetic, and hydrologic functions of the city's wetlands by regulating the use of wetlands and their adjacent properties. These functions include, but are not limited to, sediment control, pollution control, filtration, fish and wildlife habitat and aquifer recharge.

(2)

The intent of this section is to protect wetlands to the maximum extent possible while allowing a reasonable use of the property. This section adopts the regulations and standards of the Wetland Conservation Act of 1991 (WCA), Laws of Minnesota 1991, chapter 354, as amended, and the rules adopted pursuant to the WCA.

(b)

Designation of protected wetlands and exemptions.

(1)

The wetlands protected and regulated by this Section are types 1, 2, 3, 4, 5, 6, 7, and 8 wetlands, as defined in circular 39, "Wetlands of the United States", 1956 and 1971 editions, United States Department of the Interior. Protected wetlands are further generally defined as follows:

Type 1 Seasonally Flooded Basins or Floodplains: Type 1 wetlands are seasonally flooded basins or flats in which soil is covered with water or is waterlogged during variable seasonal periods but usually is well-drained during much of the growing season. Type 1 wetlands are located in depressions and in overflow bottom lands along water courses. Vegetation varies greatly according to the season and duration of the flooding, and includes bottom land hardwoods, as well as herbaceous plants.

Type 2 Inland Fresh Meadow: Occurs along the shallow edges of lakes, marshes, and floodplains, or in perched depressions. The soil is usually without standing water during much of the growing season but is waterlogged within at least a few inches of the surface. Vegetation includes grasses, sedges, rushes, and various herbaceous plants.

Type 3 Inland Shallow Fresh Marsh: Soil is usually waterlogged during the growing season, often covered with as much as six inches or more of water. Vegetation includes grasses, bulrushes, cattails, arrowheads, smartweeds, and other emergent aquatic vegetation.

Type 4 Inland Deep Fresh Marsh: Soil covered with six inches to three feet or more of water during growing season. Vegetation includes cattails, reeds, bulrushes, and wild rice. Open water areas may contain pondweeds, naiads, coontail, water milfoils and other submergent aquatic vegetation.

Type 5 Inland Open Fresh Water: Water is usually less than ten feet deep and is fringed by a border of emergent vegetation. Vegetation includes pondweeds, naiads, coontail, water milfoils and other submergent aquatic vegetation.

Type 6 Shrub Swamp: Occurs along sluggish streams or on floodplains. The soil is usually waterlogged during the growing season and is often covered with as much as six inches of water. Vegetation includes alder, willow, and dogwood.

Type 7 Wooded Swamp: Occurs along sluggish streams, on floodplains, on flat perched depressions and in shallow lake basins. The soil is waterlogged to within a few inches of its surface during the growing season and is often covered with as much as one foot of water. Vegetation typical to this wetland includes tamarack, white cedar, black spruce, balsam fir, red maple, and black ash.

Type 8 Bog: Occurs along sluggish streams, on flat perched depressions and shallow lake basins. The soil is waterlogged and supports a spongy covering of mosses. Vegetation typical to this wetland type includes sphagnum moss, heath shrubs and sedges. Minnesota bogs contain leatherleaf, labrador tea, cranberries, and pitcher plants. Scattered stunted black spruce and tamarack are also common features of bogs.

Other: Areas that exhibit wetland characteristics but were created for a purpose other than to create a wetland are exempt from this section. This includes areas such as storm water ponds, roadway ditches, or other areas that receive artificial hydrology. The landowner has the responsibility to prove by a preponderance of the evidence that an area is exempt under this paragraph.

The reconstruction and maintenance of existing public roads and associated public utilities are exempt from this section 30.1850 as long as they comply with the WCA as approved by city staff.

(c)

Interpretation of wetlands boundaries.

Whenever a delineated wetland boundary is disputed or uncertain, the city planner or designee may convene the technical evaluation panel according to the WCA rules. The owner must have the delineated wetland boundary staked in the field in order for the panel to evaluate the area. The technical evaluation panel and city planner or designee may require additional information to resolve the dispute or uncertainty. Persons aggrieved by a decision of the city planner, or designee may appeal the decision as provided in section 30-1893 of this division and the WCA rules as applicable.

(d)

Wetland buffer areas.

(1)

This subsection establishes requirements for wetland buffer areas around protected Type 1 through 8 wetlands. Buffer areas are necessary and beneficial to maintain the health of wetlands. Buffer areas protect the edge of wetlands from erosion while filtering sediment, chemicals and other nutrients from runoff that drains into wetlands. Buffer areas can improve the biological diversity and health of a wetland environment while reducing the adverse impacts of human activities.

(2)

Buffer areas regulated by this section are areas of vegetative cover that are upland of the wetland edge, and that occur in a natural condition or through restoration. Buffer areas consist of shrubbery and trees, and native grasses or forbs or both that are not mowed, fertilized, or manicured in any manner.

(3)

With the exception of Type 1 wetlands that are manicured turf and not part of a proposed development, wetland buffer areas must be created, or existing buffer areas must be maintained around all protected Type 1 through 8 wetlands in the following situations:

a.

When wetlands are required to be replaced or restored;

b.

When new development occurs. For purposes of this subsection, new development means:

1.

Any subdivision that creates a new lot that has no principal use on it;

2.

Construction of a principal use on an existing vacant parcel of land;

c.

When redevelopment occurs. For purposes of this section redevelopment means the reconstruction of the principal structure if it includes the removal of the principal structure by more than 50 percent of the square footage of the building footprint or an increase of the square footage of the building footprint by more than 50 percent. This requirement does not apply if construction is the result of more than 50 percent of the building being damaged by an involuntary force, such as fire, wind, or vandalism.

d.

When the city requires a buffer as part of a variance, expansion permit, conditional use permit, or a site plan review; or

e.

On any preserve wetland when grading or construction is proposed that requires a city permit and the proposed activity could potentially impact the quality of the wetland by increasing hard surface run off, altering existing drainage, or impacting an existing buffer.

(e)

Permitted uses.

(1)

Within the wetland no land may be used except for one or more of the following uses:

a.

Native wetland vegetation, provided that no change is made to the ground elevation;

b.

Wildlife and nature preserves;

c.

Public overhead utility lines and poles that are less than two feet in diameter;

d.

Pervious hiking and skiing trails that comply with WCA standards. Pervious will mean an area where water is able to infiltrate into the ground;

e.

Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances if the city determines that there is no other viable alternative and as approved by the city engineer;

f.

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

g.

In wetlands where impervious, public trails exist, maintenance of the trail will be allowed as long as there is not an increased impact to the wetland.

h.

Within wetland buffer areas no land may be used except for one or more of the following uses:

1.

Native vegetation, provided that no change is made to the ground elevation;

2.

Wildlife and nature preserves;

3.

Pervious hiking and skiing trails. Pervious will mean an area where water is able to infiltrate into the ground;

4.

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

5.

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

6.

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

7.

Fences;

8.

Retaining walls if the city determines that the retaining wall will protect the wetland from existing conditions of erosion;

9.

In wetland buffer areas where impervious, public trails exist, maintenance of the trail will be allowed as long as there is not any additional impact to the wetland buffer area.

(f)

Conditional uses.

Within the wetland buffer areas, no land may be used for the following except by conditional use permit and except in conformance with the standards specified in subsection 8 of this section:

(1)

Private and public recreational uses, including golf courses, impervious trails, picnic grounds and boat ramps;

(2)

Public utilities not permitted under subdivision 6 of this section, including necessary structures;

(3)

Other non-structural facilities similar to those permitted by this section which also meet the intent of this section, as determined by the city; or

(4)

Public structures associated with recreational uses permitted by this subsection or by subsection 6 of this section that are designed in an environmentally sensitive manner and will withstand periodic flooding, except for structures designed or used for habitation or the storage of equipment.

(g)

Standards for wetlands, buffer areas, and neighboring lands.

The following standards apply to all land within wetlands, wetland buffer areas, and to neighboring lands:

(1)

Protection of wetlands and wetland buffer areas.

a.

Except as modified or regulated by the standards of this subsection, all requirements of the underlying zoning district apply.

b.

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

c.

Before grading or construction near a wetland overlay district, the owner or contractor must place erosion control fencing on the upland side of the perimeter of the wetland overlay district, whichever is more restrictive, or as required by the city. This fencing 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.

d.

All structures must have a minimum basement floor elevation not less than two feet above the 100-year flood elevation.

e.

All hard surface runoff must be treated in accordance with the requirements of the city and the appropriate watershed district. Treatment may include site retention, skimmers, weirs, bioretention or infiltration basins, or sedimentation ponds of appropriate scale. Structures and ponds serving this purpose must be properly maintained and serviced by the property owner.

f.

Discharge into the wetlands must occur at a rate no greater than allowed by the city engineer in accordance with the city's water resources management plan.

(h)

Public control of wetlands.

(1)

The city council may require that the owner of any property affected by this division must record wetland and buffer area easements or restrictive covenants within the property's chain of title. These easements or covenants must describe the boundaries of the wetland and buffer area and prohibit any building, paving, mowing (unless approved as a management strategy), cutting, filling, dumping, yard waste disposal or fertilizer application within the wetland and the buffer area. The owner or developer must record these easements or covenants with the final plat, with deeds from a lot division or, if no subdivision is involved, before the city issues a grading permit or building permit for an affected property. The applicant must submit evidence that the easement or covenant has been submitted to the county for recording.

(2)

If the city council does not require an easement or covenant, the city may record a notice of the wetland and buffer area requirements against the property. The property owner must still comply with the requirements of this section.

(i)

Wetland buffer markers.

When new development or redevelopment results in multifamily residential or business use, the developer may be required to place markers at the upland boundary of the wetland buffer edge at least every 200 feet. The developer must use uniform markers provided by the city. The city will charge a reasonable cost for the markers.

(Ord. No. 06-07, § 2, 6-19-2006); Ord. No. 23-27, § 1, 12-18-2023)

Editor's note— Ord. No. 23-27, § 1, adopted December 18, 2023, repealed the former § 30-1850, and enacted a new § 30-1850 as set out herein. The former section pertained to similar subject matter and derived from Ord. No. 06-07, § 2, adopted June 19, 2006.

(a)

The Minnesota Wetland Conservation Act and Minnesota Rules, Chapter 8420, as amended from time to time, are hereby incorporated by reference. In case of a conflict between this division and the requirements of state law the more restrictive provision shall apply.

(b)

No property owner or other person shall make any alteration to a wetland or wetland buffer strip unless and until the provisions of this division have been complied with.

(c)

Unless determined otherwise by the city or the technical evaluation panel (TEP), a property owner, applicant for building permit, or applicant proposing work in or around wetlands shall submit to the city prior to making any alteration to a wetland or wetland buffer strip the following information:

(1)

Wetland delineation plan and written report,

(2)

Wetland impact plan,

(3)

Wetland mitigation plan, and

(4)

Any other information deemed necessary under this division or the WCA as determined by the city or TEP.

(d)

A determination regarding wetland impacts must be made by the city or TEP prior to any wetland alteration, issuance of a building permit, or approval of a subdivision by the planning commission. Any conditions required by the city or the TEP will become conditions of building permit issuance or subdivision approval.

(Ord. No. 06-07, § 2, 6-19-2006; Ord. No. 23-27, 12-18-2023)

(a)

Wetland buffer strip. A minimum 25-foot buffer strip from the delineated boundary of a wetland or ordinary highwater level of a stormwater pond is hereby established. Wetland buffer strips shall meet the following standards:

i.

No principle or accessory structures, patios, paving, or other impervious surfaces shall be permitted within the wetland buffer strip.

ii.

Alterations are prohibited within the wetland and wetland buffer strip unless a vegetation management plan or other approval is granted by the city.

iii.

The applicant shall establish and maintain wetland and wetland buffer strip vegetation in accordance with the requirements found in section 30-1853.

iv.

The applicant shall maintain the required wetland buffer strip monuments at each lot line where it crosses a wetland buffer strip and at 200-foot intervals along the edge of the wetland buffer strip. Each monument shall state "Wetland Buffer: Under the city code, no mowing, clearing or removal of vegetation in the buffer area is allowed. Call the City of Elk River for more information." The city reserves the right to eliminate this requirement if it deems it impractical.

v.

The city, at its sole discretion, following the city's master park trail plan, may allow nature trails comprised of natural materials, to be located within the wetland buffer strip.

vi.

Leisure activities such as hiking, nature studies, canoeing, boating and horseback riding, including facilities such as nature trails and docks which allow for such activities are permitted in the wetland buffer strip.

vii.

Final plats for all subdivisions shall provide an easement over all wetlands and wetland buffer strips for the purposes of identification and protection.

viii.

Properties platted prior to June 19, 2006, shall be exempt from the vegetation management requirements described in subsections ii—iv above.

(b)

Wetland buffer strip setback. A minimum 20-foot setback from wetland buffer strips is hereby established by the city.

i.

No principle or accessory structures, patios, paving, or other impervious surface shall be located within this setback.

ii.

Nature trails, at the city's approval, may be located within the wetland buffer strip setback.

iii.

On property that was platted prior to June 19, 2006, uncovered decks and permeable pavement can be located within this setback.

(c)

Exceptions. Properties platted prior to adoption of the wetland buffer strip and Wetland buffer strip setback performance standards set forth in this section may not be configured to accommodate the required performance standards. For this reason, exceptions to the performance standards for properties platted prior to June 19, 2006, may be approved by the planning manager pursuant to the site plan review process. Applicants for site plan review shall pay the fee specified in the city's fee schedule. Site plan approvals and required conditions shall be made by the planning manager on a case-by-case basis, with the goal of maintaining consistency with the performance standards to the maximum extent reasonably possible. Appeals from staff determinations and conditions may be made pursuant to the appeal procedures set forth in section 30-634.

(d)

Fences. Fences may encroach into the wetland buffer strip setback, but at no time shall they be allowed within the wetland buffer strip or in delineated wetlands. Properties platted prior to June 19, 2006, shall be exempt from this requirement.

(Ord. No. 06-07, § 2, 6-19-2006; Ord. No. 16-24, § 1, 11-21-2016; Ord. No. 17-07, § 1, 4-17-2017; Ord. No. 18-12, § 1, 7-16-2018; Ord. No. 23-27, 12-18-2023)

(a)

Where acceptable natural vegetation exists in wetland and wetland buffer strip areas, the retention of such vegetation in an undisturbed state is required unless an applicant receives approval to replace such vegetation. A wetland or wetland buffer strip has acceptable natural vegetation if it:

(1)

Has a continuous, dense layer of perennial grasses that have been uncultivated or unbroken for at least five consecutive years, or

(2)

Has an overstory of trees and/or shrubs with at least 80 percent canopy closure that have been uncultivated or unbroken for at least five consecutive years, or

(3)

Contains a mixture of the plant communities described in subsections (1) and (2) above that have been uncultivated or unbroken for at least five consecutive years.

(b)

Notwithstanding the performance standards set forth above in subsection (a) the city environmental administrator and/or his/her designee may determine existing wetland or wetland buffer strip vegetation to be unacceptable if it:

(1)

Is composed of weeds, or

(2)

Has topography that tends to channelize the flow of surface runoff, resulting in erosion issues, or

(3)

Is unlikely to retain nutrients and sediment.

(c)

Where wetlands or wetland buffer strips, or a portion thereof, are not vegetated or have unacceptable vegetation or have been cultivated or otherwise disturbed within five years of the permit application, such areas shall be re-planted and maintained. The wetland and wetland buffer strip landscaping shall be planted according to the city's planting guidelines, or the applicant shall submit a planting plan for approval by the city.

(d)

In cases of new development or redevelopment the city may require that vegetation in the wetland buffer be installed prior to the issuance of the certificate of occupancy. To ensure installation of the buffer the city may require a cash escrow or letter of credit equal to 150 percent of the cost to install the required buffer.

(e)

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

(f)

The city may require buffer area planting and maintenance when the city determines that there is inadequate vegetation in the buffer area to meet the intent of this section. 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.

(g)

The affected property owner or homeowner association that is responsible for the maintenance must:

(1)

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

(2)

Be responsible for maintaining only the permitted vegetation in the buffer area and must remove all noxious weeds and invasive, non-native species such as European buckthorn;

(3)

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

(Ord. No. 06-07, § 2, 6-19-2006); Ord. No. 23-27, 12-18-2023)

Variances may be considered for deviations from the strict application of the standards set forth in sections 30-1850 to 30-1853, pursuant to the procedures and requirements of section 30-633 of this Code.

(Ord. No. 06-07, § 2, 6-19-2006; Ord. No. 23-27, 12-18-2023)