(a)

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 in conjunction with the goals of the environmental protection plan within the community management plan. These functions include, but are not limited to, sediment control, pollution control, filtration, fish and wildlife habitat and aquifer recharge. The surface water management plan will provide guidance for stormwater treatment requirements and wetland restoration opportunities in order to protect the integrity of wetlands.

(b)

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. It also establishes a wetland overlay district. This overlay district further regulates the underlying land use as allowed by other districts or the WCA.

(Code 2003, § 78-1601; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 94(3rd series), § 8, 9-24-2012; Ord. No. 103(3rd series), § 1, 5-28-2013)

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, 1971 edition, United States Department of the Interior, unless the wetland is within a shoreland district in which case the more restrictive rules regarding setbacks would apply. Protected wetlands are further defined as follows:

(1)

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.

(2)

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.

(3)

Type 3—Inland shallow fresh marsh: Soil is usually water logged 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.

(4)

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, watermilfoils and other submergent aquatic vegetation.

(5)

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, watermilfoils and other submergent aquatic vegetation.

(6)

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.

(7)

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.

(8)

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. State bogs contain leatherleaf, Labrador tea, cranberries and pitcher plants. Scattered stunted black spruce and tamarack also are common features of bogs.

(Code 2003, § 78-1602; Ord. No. 28(3rd series), § 1, 8-22-2005)

This section establishes wetland overlay districts. These districts are subject to additional requirements beyond those required by the WCA. The boundaries of the wetland overlay districts are identified graphically on the official city wetland map (CWM) which is hereby adopted by reference, a copy of which shall be kept on file in the office of the city clerk and shall be available for public review during all normal office hours. Wetlands in addition to those shown on the city wetland map may exist, and may be identified by wetland delineations under WCA rules. If a specific wetland delineation has been done under WCA rules, then the boundaries of the wetland overlay district for that location will be as shown in the delineation. The city may require wetland delineations to determine compliance with WCA rules and to determine administrative wetland boundaries; however, property owners may have wetland delineations done for their properties on their own initiative. The delineation must be done by a qualified professional according to WCA rules and be acceptable to the city administrator, who may require review by city consultants or a technical evaluation panel if necessary. Approved WCA wetland delineations must be provided to the city in a hard copy format and a CAD or GIS format in county coordinates. The city administrator will have the approved WCA wetland delineations shown on the official city wetland map. Public waters are not included in the overlay district, unless a wetland is part of a public water.

(Code 2003, § 78-1603; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 196(3rd series), § 1, 5-22-2017)

Whenever a wetland boundary is disputed or uncertain, the city administrator may require the submission of a registered survey of the property and field staking showing the city-designated wetland contour or a delineation of the wetland, and such other information as the director may require in order to resolve the dispute or uncertainty. The city administrator may require review by city consultants or a technical evaluation panel if necessary. No boundary change may be authorized on the basis of fill that was placed on the site after the city designated the area as part of the wetland overlay district. Persons aggrieved by a decision of the city administrator may appeal such decision in accordance with the provisions of section 6.12.440 and the WCA rules.

(1)

Delineation types.

a.

A Tier 1 boundary determination is a review of known information to determine an understood boundary, and may be used when the proposed project is located on a lot where a wetland is believed to exist, but the project is not likely to impact the wetland due to project scope, distance, and/or topography. Known information may include aerial photography, third-party studies, and/or site visits. A Tier 1 boundary determination is not a delineation.

b.

A Tier 2 delineation is a delineation is conducted by a certified wetland delineator and verified by the local government unit. Tier 2 delineation information shall be provided on a certified certificate of survey.

(2)

Delineation required. The type of delineation shall be determined by the city administrator or their designee.

a.

Tier 1 boundary determinations may be required for accessory structures, accessory buildings, and other projects primarily outside the wetland or wetland buffer area.

b.

Tier 2 delineations shall be required for projects that include a new residential principal structure, a project that impacts the wetland, a subdivision, or a project that otherwise is regulated by the waterbody crossings and structures rule or stormwater management rule of the Minnehaha Creek Watershed District, unless waived by the watershed district. A Tier 2 delineation may also be required for a project proposed at or within five feet of the buffer/setback line.

c.

A Tier 1 boundary determination may be substituted for the Tier 2 delineation when the applicant can demonstrate the wetland boundary location to the satisfaction of the city and the watershed district, due to topography, distance of the project to the wetland, site specific features, and known information.

(Code 2003, § 78-1604; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 196(3rd series), § 2, 5-22-2017)

(a)

This section establishes authority for wetland buffer areas around protected 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.

(b)

All wetlands within the city are within the Minnehaha Creek Watershed District (MCWD), which has rules and regulations for the establishment and maintenance of wetland buffers. In an effort to avoid overlapping or conflicting regulations, the city defers jurisdiction for the establishment and maintenance of wetland buffers to the Minnehaha Creek Watershed District. If application of MCWD buffer regulations is in conflict with city regulations, the watershed district requirements shall apply.

(c)

Setbacks. Where the MCWD has established or requires a wetland buffer, the wetland buffer rules shall apply.

(1)

Where the MCWD does not require a buffer, a 25-foot setback shall be required between the edge of all wetlands from any building (principal or accessory) or other structure, septic systems, or wells. The wetland edge shall be determined as required in section 6.12.8130.

(2)

Setback revegetation. Areas within the required setback area subject to filling, grading or excavation as part of a construction project shall be revegetated immediately upon completion of such earthwork.

(d)

The city has established wetland protection strategies in the city's surface water management plan (SWMP) (January 2011). The protection classification for each wetland will be found on the Wetland Management Classification Map and List, which is hereby adopted by reference, a copy of which shall be kept on file in the office of the city clerk and shall be available for public review during all normal office hours. The Minnehaha Creek Watershed District required buffer area widths are based on the four protection classifications.

(Code 2003, § 78-1605; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 2, 5-28-2013; Ord. No. 196(3rd series), § 3, 5-22-2017; Ord. No. 205(3rd series), § 1, 4-9-2018)

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

(1)

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

(2)

Wildlife and nature preserves;

(3)

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

(4)

Docks which provide reasonable access to the lakeshore and do not exceed eight feet in width;

(5)

Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances as approved by the city; or

(6)

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

(Code 2003, § 78-1606; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 3, 5-28-2013)

(a)

Within the wetland overlay districts no land may be used for the following except by conditional use permit and except in conformance with the standards specified in section 6.12.8410:

(1)

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

(2)

Public utilities, 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 section or by section 6.12.8310 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;

(5)

Unpaved hiking, skiing and horseback riding trails which comply with WCA standards.

(b)

No conditional use permit will be granted unless its approval will not adversely impact wetlands, wetland buffer areas where they exist or are required, and surrounding properties, the intent of this article or the goals and policies of the community management plan. If applicable, granting of a conditional use permit will be conditioned upon approval of the request by all other appropriate regulatory governmental agencies, including, but not limited to, the Minnehaha Creek Watershed District (MCWD), the Lake Minnetonka Conservation District (LMCD), or the state department of natural resources.

(Code 2003, § 78-1607; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 4, 5-28-2013)

The following standards apply to all land within the wetland overlay districts, existing and MCWD-required wetland buffer areas, and to neighboring lands:

(1)

Protection of wetlands.

a.

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

b.

No structures are allowed in the wetland overlay districts except those allowed as of right or by conditional use permit by division 4 of this article.

c.

Activities including, but not limited to, building (other than a boardwalk or dock), paving, mowing, vegetation removal, filling, dumping, yard waste disposal or fertilizer application are prohibited. Invasive non-native vegetation, such as European buckthorn and noxious weeds, may be removed by obtaining a vegetation removal permit from the city.

d.

Before grading or construction near a wetland, the owner or contractor must place erosion control fencing on the upland side of the perimeter of the wetland, or as required by the city. This fencing must remain in place until all development activities that may affect the wetland have been finished and adequate vegetative cover has been established at which time the fencing must be removed.

e.

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

f.

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 or sedimentation ponds of appropriate scale. Structures and ponds serving this purpose must be properly maintained and serviced by the property owner.

g.

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

(2)

Protection of wetland buffer areas. Existing and MCWD-required wetland buffers shall be maintained and protected per the requirements of existing covenants as well as MCWD regulations as administered by MCWD.

(3)

Nonconformities.

a.

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

b.

Existing nonconformities. An existing structure, driveway or parking area that does not meet the required setback from a city-designated wetland boundary or buffer area, is considered a legal nonconforming development.

(Code 2003, § 78-1608; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 5, 5-28-2013; Ord. No. 196(3rd series), § 4, 5-22-2017)

(a)

Removal of wetlands from a wetland overlay district (i.e. by filling, etc.) requires a zoning amendment and an amendment of the official city wetland map. The amendments must be made pursuant to the provisions of section 6.12.230 and WCA replacement rules. These amendments must be consistent with the purpose of this article, the city's surface water management plan and the goals and policies of the community management plan. In determining the appropriateness of a rezoning request, the city council will consider the size of the wetland overlay district, the magnitude of the area proposed for removal, hydrological and ecological effects and the type and function of wetlands involved in order to provide the maximum feasible protection.

(b)

Wetlands within an overlay district may only be removed according to WCA rules and if at least an equal area of wetland replacement is created to compensate for the wetland being filled. Unless otherwise approved by the city council, compensatory wetland area must be provided within the city and within the same subwatershed (Painter's Creek, Long Lake Creek, Classen Creek, Lake Minnetonka) as the wetland being altered, if available.

(c)

In addition to application requirements, the city may require submission and approval of the following information:

(1)

A copy of the wetland replacement plan application submitted to the MCWD;

(2)

A concept plan showing the ultimate use of the property;

(3)

A grading plan, in hard copy format and a CAD or GIS format in the county coordinates, with appropriate drainage calculations and erosion controls prepared by a registered engineer;

(4)

A landscaping or revegetation plan;

(5)

Such other information as may be necessary or convenient to evaluate the proposed permit; and

(6)

A MnRAM assessment approved by the MCWD.

(Code 2003, § 78-1609; Ord. No. 28(3rd series), § 1, 8-22-2005)

(a)

No alteration of land within a wetland overlay district or an existing established wetland buffer is allowed without a wetlands alteration permit, subject to recommendation by the planning commission and approval of the city council. The planning commission must hold a public hearing per section 6.12.280. Activities that constitute an alteration regulated by this section include changes to the size, depth or contour of the wetlands or its existing established buffer, dredging, or alterations of wetlands or buffer vegetation. Alterations do not include wetland planting or the selective clearing or pruning of trees or vegetation that are dead, diseased, noxious weeds or similar hazards. A wetland alteration permit is not required when a wetland district is rezoned to another zoning classification.

(b)

Alteration of land within a wetland overlay district will only be allowed if water storage is provided in an amount compensatory to that removed. Unless otherwise approved by the city council, compensatory wetland area must be provided within the same subwatershed district as the wetland being altered. In determining the appropriateness of an alteration request, the city council will consider the size of the total wetland district, the magnitude of the area proposed for alteration, the aesthetic, hydrological and ecological effect, the type and function of wetlands involved, and such other factors as may be appropriate in order to provide the maximum feasible protection to the wetlands. Application for a wetlands alteration permit must be accompanied by such information as required by the city, including:

(1)

A copy of the wetland replacement plan application submitted to the MCWD;

(2)

A concept plan showing the ultimate use of the property;

(3)

A grading plan, in hard copy format and a CAD or GIS format in the county coordinates, with appropriate drainage calculations and erosion controls prepared by a registered engineer;

(4)

A landscaping or revegetation plan;

(5)

Such other information as may be necessary or convenient to evaluate the proposed permit; and

(6)

A MnRAM assessment approved by the MCWD.

(Code 2003, § 78-1610; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 6, 5-28-2013; Ord. No. 210(3rd series), § 16, 6-25-2018)

(a)

The city council may require that the owner of any property affected by this article must establish wetland easements or restrictive covenants to be recorded within the property's chain of title. These easements or covenants must describe the boundaries of the wetland; and prohibit any building, paving, mowing, cutting, filling, dumping, yard waste disposal or fertilizer application within the wetland. 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.

(b)

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

(Code 2003, § 78-1611; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 103(3rd series), § 7, 5-28-2013)

Violation of the provisions of this article 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.

(Code 2003, § 78-1613; Ord. No. 28(3rd series), § 1, 8-22-2005)

Nothing herein contained shall prevent the city 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 article violation, the city administrator and the city 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 article violation is either discovered by or brought to the attention of the city administrator, the city administrator shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, this information will be submitted to the MCWD along with the community's plan of action to correct the violation to the degree possible.

(3)

The city administrator shall notify the suspected party of the requirements of this article 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 administrator 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 administrator may either:

a.

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

b.

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.

(4)

If the responsible party does not appropriately respond to the city administrator within the specified period of time, each additional day that lapses shall constitute an additional violation of this article and shall be prosecuted accordingly. The city administrator shall also upon the lapse of the specified response period notify the landowner to restore the land to the condition which existed prior to the violation of this article.

(Code 2003, § 78-1614; Ord. No. 28(3rd series), § 1, 8-22-2005; Ord. No. 196(3rd series), § 5, 5-22-2017)