Mississippi River Corridor Critical Area (MRCCA) Rulemaking Project

The 2009 Legislature directed the DNR to adopt rules for the MRCCA in Laws of Minnesota 2009, Chapter 172, Art. 2, Section 5(e) and Section 27. See Minnesota Statutes Section 116G.15.

Districts are sections or segments of the MRCCA. The DNR is trying to identify parts of the MRCCA that have similar characteristics - and is grouping them into common districts. Each district will have a combination of unique and MRCCA-wide standards.

There have been a number of decisions and designations for the river corridor. In 1976 Governor Wendell Anderson first designated the corridor as a state Critical Area with Executive Order 130. Governor Al Quie renewed the designation in 1979, with Executive Order 79-19. The Metropolitan Council extended the Critical Area designation indefinitely in 1979, with Resolution 79-84. Congress designated the Critical Area a National Recreation Area in 1988, and the Minnesota Legislature made the Critical Area designation permanent in 1991.

The original designation order determined the corridor met all the requirements in the State's Critical Areas Act (Minnesota Statutes 116G) for designation, that unregulated development and uncoordinated planning would threaten the public interest, and that the coordinated planning required by the Critical Areas Act would achieve development as a multi-purpose resource, resolve conflicts of use of land and water, preserve and enhance the area's natural, aesthetic, cultural and historic value for the public use, and protect the corridor's environmentally sensitive areas.

The MRCCA currently has four districts (Rural Open, Urban Open, Urban Developed, Urban Diversified). The boundaries of the districts are established in Executive Order 79-19 which has provided standards and guidelines for MRCCA development since 1979. The 2009 legislature directed the DNR to establish new districts for the MRCCA. While the DNR is required to consider the existing districts from Executive Order 79-19 when developing the new districts, we expect the existing districts will be eliminated when the new rules are adopted.

Yes. The rules will provide minimum guidelines and standards for local governments to use in their comprehensive plans, land use plans and regulations. The local controls must meet or exceed the standards established in rule.

The state rules will include an adoption schedule. The DNR expects local government units (LGUs) will need to adopt new ordinances within one to two years after the rules go into effect.

There are a number of opportunities for interested parties to comment on the draft rules.

• The first opportunity was from December 14, 2009 to March 22, 2010, after the DNR published a Request for Comments (RFC) in the State Register. The DNR notified all communities in the MRCCA about the RFC, sent a News Release to all newspapers in potentially affected communities, and notified all parties on our mailing list.
• The DNR is posting all preliminary rule content on the project website and welcomes public comment at any time. We have a dedicated e-mail address to accept comments during rule development.
• The DNR held 2 public information meetings in September where interested parties asked questions, discussed concerns with DNR staff involved with the rulemaking, and submitted comments. The DNR expects to hold additional public meetings after a draft rule is developed.
• Finally, after we develop a draft rule and required supporting materials, we will issue a Notice of Intent to adopt a rule, which will begin the formal public comment period. All comments received during this period will be part of the record reviewed by the Administrative Law Judge assigned to the rulemaking.

No. The new MRCCA rules will not change the level of local control. Currently, local government units must (LGUs) adopt and administer MRCCA plans and ordinances that are consistent with the guidelines and standards in Executive Order 79-19. This will not change except that LGUs will need to adopt updated MRCCA plans and ordinances that are consistent with the guidelines and standards in the new rules. The authority of LGUs to oversee and enforce their MRCCA plans and ordinances will not change. The DNR does not have the authority to veto LGU decisions.

Generally not, but it is possible they will in some cases. When establishing new districts and standards, the DNR must consider many factors identified in Minnesota Statutes 116G.15, including existing development, community plans, and the intent of Executive Order 79-19. We met with each community and are working to reflect community plans, however, there may be areas where there are conflicting objectives and mandates and the new rules will not be identical to community plans.

No. Water surface use is regulated under Minnesota Statutes 86B.205, and Minnesota Rules parts 6110.3000-3800. Counties adopt their own ordinances to control water surface use, unless they specifically ask the DNR to adopt a rule instead. The MRCCA rules will be land use rules and will not affect water surface use.

No. The rules will not involve boating restrictions anywhere in the MRCCA, including the Coon Rapids pool.

No. The MRCCA rules will comply with the current state statutes regarding non-conformities. The non-conformity laws for cities are in Minnesota Statutes Section 462.357, and in Minnesota Statutes Section 394.36 for unincorporated areas.

Non-conformity relates to whether a structure or use complies with existing local official controls. For example, if a home does not meet the required setback in a city's zoning regulations, it is non-conforming. This applies to all zoning regulations, not only the MRCCA regulations. If a conforming property becomes non-conforming due to a new zoning regulation, the property is "grandfathered in." Use of land that lawfully existed before enactment of a zoning ordinance may be maintained after the effective date of the ordinance even though it no longer complies with use restrictions newly applicable to the area.

The rules will not prohibit uses (residential, commercial, industrial, etc.) so no uses will become non-conforming. The rules will, however, regulate the placement and height of structures. To minimize the number of new non-conforming structures, the DNR is considering current community plans and ordinances while developing the districts and standards. However, it is possible some currently conforming structures may become legal non-conformities ("grandfathered in") when new rules and local regulations are adopted.

State law does not restrict the sale of non-conforming properties or require any type of deed restriction if a property is non-conforming. In general, the law allows non-conformities to continue, including through repair, replacement, improvement, restoration, and maintenance, even if the structure is extensively damaged (MS Sec. 462.357), with some exceptions for when properties must be brought into conformance, and legal advice should be obtained. For example, if the structure is in a designated floodplain, it will need to satisfy state and FEMA floodplain requirements. Also, if a structure is destroyed and a building permit is not applied for within 180 days, conformance may be required. The DNR is not aware of any limitations on the ability to obtain a mortgage or loan due to a property's legal non-conforming status.

No. The August version of the preliminary standards mentions a deed-recorded "notice of restriction" in two areas: vegetation standards, and subdivision standards:

1. vegetation and buffer standards - a notice of restriction would be recorded for new development to alert future property owners of shoreline buffer requirements, and also if remedial vegetation was required due to a violation of cutting restrictions - this would notify new owners that the vegetation must be maintained.
2. subdivisions - LGUs may require that a notice of restriction or conservation easement be placed on open space protected in a new subdivision, depending on the type and design of the subdivision.

The rules are in a very preliminary stage, so the provisions are subject to change in future drafts.

The DNR hopes to minimize the number of new non-conformities created by the new rules, but there will inevitably be some. In general, if a structure does not conform to the new standards after new ordinances take effect, the structure may be maintained, restored, replaced, repaired and improved, but not expanded (Minnesota Statutes 462.357, subd. 1e.) Under current law, a variance would be required to expand a non-conforming structure.

No. The MRCCA rules will not apply to dams on the Mississippi River.

Advisory committees are identified by the Administrative Procedures Act (Chapter 14) as a way for state agencies to receive input on the content of draft rules. The four "work groups" are our advisory committees for rule development. We selected work group members to represent broad but balanced public and private interests. The work groups have met 3 times so far and will likely have one more meeting. We have asked work group members to share information with and get feedback from the groups and constituencies they represent.

The public information meetings are an additional opportunity for all members of the public to ask questions, discuss preliminary proposals with DNR staff, and submit comment. Anyone may attend and participate. The DNR held two public information meetings in September 2010, and expects to hold additional meetings after a draft rule is developed. The public information meetings are an opportunity for all members of the public to submit comments, ask questions, and discuss preliminary proposals with DNR staff. Anyone may attend and participate.

DNR staff is considering all comments received from work group members and the public while developing a draft rule.

Each work group has 16 to 20 self-nominated members, who were selected to represent business/development, citizen/resident, government, and environmental interests. The DNR solicited applications for work group membership in January and February 2010 and publicized the application process through the Request for Comments, through the DNR?s mailing list and the rulemaking website, and in meetings with all government units in the MRCCA. DNR reviewed all applications received, and selected members based on the above criteria.

No. The DNR has not given the Friends of the Mississippi River (FMR) any funds for activities associated with this rulemaking. If FMR has developed its own proposal for MRCCA rules, the DNR did not provide funds to do so.

Yes. In 2007, the legislature ordered the DNR to prepare a report on MRCCA management and to make recommendations for improving the program. To help with the report, the DNR paid FMR $5,000 to convene stakeholder meetings to collect input on MRCCA management and problems. FMR held 4 stakeholder meetings: one each of business/development, environmental/citizen, government agency, and one combined meeting, and prepared a summary report of the stakeholder process. FMR's report is included as an appendix to the DNR's larger report to the legislature.

On a number of occasions, the state legislature has provided funding to FMR for projects unrelated to this rulemaking. In these cases, the legislature has directed the DNR to "pass through" the funds to FMR for projects like buckthorn removal, habitat improvement, land acquisition, and other activities in the MRCCA.

The law ordering the rulemaking took effect in July 2009. The DNR started work on the mandatory preliminary bluff map in August 2009. In November 2009, the DNR sent letters to all government units in the MRCCA, notifying them that the rulemaking would commence in December. On December 14, 2009, the DNR published a Request for Comments on the subject matter of the rules in the State Register, and distributed the Request for Comments to everyone on mailing lists we had from prior MRCCA-related activities. The DNR issued a news release to all newspapers in the vicinity of the MRCCA. In January and February 2010, the DNR met with staff from all government units in the MRCCA and asked them to help notify their citizens of the rulemaking and to provide us names of potentially interested parties. We also asked community staff to publicize the opportunity to apply for the work groups. The DNR has established a rulemaking webpage, including a form for interested parties to subscribe to a electronic mailing list to receive rulemaking information, and continues to build its mailing list.

No. Executive Order 79-19 and the 2009 legislation directing the rulemaking both recognize that much of the MRCCA is developed and that the area must be managed for multiple uses and purposes including commercial, industrial, and residential development. The National Park Service?s plan for managing the Mississippi River National River and Recreation Area (MNRRA), which has the same boundaries as the MRCCA, recognizes the uniquely urban qualities of the area, including cultural and historic features. Its highly urbanized setting makes the MRCCA/MNRRA unusual among National Park System units. Minnesota Statutes 116G.15 clearly states the MRCCA should be is managed as a multipurpose resource that conserves the scenic, environmental, recreational, mineral, economic, cultural and historic resources and functions.

The rules will not result in a "taking" of private property. As with all land use regulation and zoning, there will be regulations for future development on private as well as public property. The regulations will limit how a property can be developed but will not prohibit development or use. Critical Area statutes section 116G.13 specifically addresses protection of property rights.

Generally yes. Under the draft rules, restrictions against clearing or planting vegetation apply only in specified areas that have existing vegetation in a "natural state." "Natural state" means plant communities that are substantially unaltered by humans or that have been restored according to a state or locally-approved plan. It does not include ornamental trees and shrubs.

No.

No. The draft rules protect existing vegetation in a natural state within specified areas (Shore Impact Zone (SIZ), Bluff Impact Zone (BIZ), and Slope Preservation Zone (SPZ)). Restoration will be encouraged, but not be required on lots that do not have existing vegetation within these areas on the effective date of the local MRCCA ordinance.

No, not if the deck or addition complies with the dimensional standards in the local MRCCA ordinance. Restoration is only required to replace vegetation removed in violation of the local MRCCA ordinance, or may be required as mitigation for an approved variance or CUP/IUP if determined necessary by the LGU, in which case restoration would be proportionate to the impact of the development.

No. The rules will apply to new development as of the effective date of the local MRCCA ordinance. Existing development that does not comply can continue as provided under Minnesota Statutes, chapters 394 and 462.

The legislature appropriated $250,000 for each of two years to fund the rulemaking ($500,000 total). The money was appropriated from the "Clean Water Fund", and was generated through constitutionally dedicated sales tax revenues.

The 2009 Legislature specifically identified the National Park Service (NPS) as one of the agencies the DNR must coordinate with during the rulemaking. The NPS manages the Mississippi River National River and Recreation Area (MNRRA), which has the same boundaries as the MRCCA.

The DNR hired to NPS to develop recommendations for new draft districts and district descriptions. The NPS used many data sources and Geographic Information System (GIS) layers to develop preliminary draft districts, including existing districts in Executive Order 79-19, community land use plans and zoning, existing use and land cover types, the MNRRA Management Plan, existing vegetation and natural resources, endangered species, parcel and ownership data, existing recreational facilities, soils, scenic value assessments and cultural resources. The NPS completed the work under contract in August 2010.

The 2009 legislation ordering the rulemaking and Executive Order 79-19 both include, among other things, direction to preserve and enhance aesthetic values of the Mississippi River and adjacent lands for public use and benefit. Additionally the statutes specifically say that the rules must protect or enhance scenic views and vistas. There is clear direction for the rules to limit the impacts of development on scenic resources in the MRCCA.

Local governments will continue to administer and enforce the new rules through local ordinances. The new rules will not take effect immediately. The DNR will notify LGUs that they must update their plans and ordinances to comply with the new rules, and LGUs will be given adequate time to do so. Once completed, the updated plans and ordinances must be reviewed by the Met Council, and reviewed and approved by the DNR, and then adopted by the LGU before they take effect.

The DNR does not anticipate any "takings" based on the new rules. However, compensation would always be required if a regulatory "takings" occurred. These rules will establish land use regulations that protect the resources and features of the river corridor, but do not deprive property owners of their rights to develop and use their property.

There are tens of thousands of property owners in the MRCCA, all potentially affected by the rules. In addition, because the MRCCA is a state and federally designated area, there are many legitimate stakeholders who do not own property in the MRCCA. Rather than trying to survey all possible stakeholders, the DNR is using advisory work groups (as recommended by state law), public information meetings, the project website, and meetings with LGUs to obtain feedback.

Maybe. The rules will change in the MRCCA. Conforming structures will not be affected, existing non-conforming structures may remain non-conforming or might become conforming, newly non-conforming structures will be legally non-conforming (grandfathered in); new construction must conform to the new standards.

The DNR is reviewing and considering all comments received. Eventually, an Administrative Law Judge (ALJ) will review the proposed rules and determine whether they are needed and reasonable. We have tried to make certain that citizens understand that if they want their comments on the draft rules to be considered by the ALJ, they must submit them to the ALJ during the hearing process. Under the Administrative Procedures Act (Chapter 14) the ALJ will determine when "the record" is open, and when it closes. Only comments submitted to the ALJ during this period are officially "on the record". Comments submitted now, while the DNR is developing a preliminary rule are not part of the official record that the ALJ will consider.

The DNR has heard from many stakeholders that areas in the MRCCA with similar characteristics should have similar development standards. This is one form of "consistency". The DNR will propose districts to comprise areas with similar attributes. There also may be some standards that apply across all districts, another form of "consistency".

The DNR believes that overlapping and/or contradictory regulatory programs create confusion for landowners and local units of government. The DNR is trying to minimize this overlap. In the new rules, DNR will try to use common definitions, existing terminology, and will defer to existing regulations where practical and where existing programs will satisfy the mandates of the law ordering the rulemaking.

This is currently how the program is administered under Executive Order 79-19, which provides broad performance guidelines for local plans and regulations, but no specific standards. As a result, standards for the MRCCA vary from one local ordinance to another. The Legislature directed the DNR to establish new districts and standards that local ordinances will have to comply with. The DNR is considering the guidelines in the Executive Order as it develops the standards, as well as the standards already in place in local ordinances. The DNR is considering putting provisions in the new rules to allow for some flexibility to deal with special circumstances, provided the level of protection is at least that of the new rules.

The DNR has developed charts comparing the preliminary proposed standards to the standards in Executive Order 79-19. The comparisons are on the MRCCA rulemaking page.

In May 2010, the National Park Service (NPS) held a one day workshop to quickly assess the scenic characteristics of the entire MRCCA corridor. The participants evaluated 21 segments of the MRCCA based on characteristics such as distinctiveness, capacity to absorb change, intactness, potential for drawing visitors, preference, and opportunities for protection or enhancement.

The NPS held the workshop to rapidly collect scenic resource information to help develop draft districts. As background, the DNR hired the NPS, our partner in managing the MRCCA/Mississippi National River Recreation Area (MNRRA), to help us develop the first draft of the new districts required by law. To do so, the NPS collected data and information on a number of factors identified by the 2009 legislation, one of which was scenic resources. The NPS already had most of the information for all factors identified, except scenic resources.

The Park Service asked 24 people familiar with the entire corridor to help with the assessment: 9 NPS/MNRRA staff, 4 DNR staff, 3 Friends of the Mississippi River staff, 2 Metropolitan Council staff, 2 private sector urban planning consultants, a river pilot, 2 University of Minnesota staff, and a natural resource manager from the Audubon Society.

The Park Service found that most of the river segments ranked high for "distinctiveness" for "capacity to absorb change," 7 segments were ranked "high capacity", 8 were ranked "low capacity" with the remainder in the middle; the ratings for "intactness" were mixed; for "drawing power" 10 segments were ranked high, and 2 segments ranked low; for "preference" more than half the segments were ranked high with 2 scoring low; and for "opportunity for protection", 13 segments scored high, with 5 scoring low. The results are summarized in a "memorandum to file". The memorandum and other materials and notes from the workshop are available upon request.

MS 116G.15 is the section of Minnesota Statutes that governs the MRCCA and directs the DNR to adopt rules for managing the MRCCA. The DNR is developing rules consistent with this section of statute and is not in violation. A key consideration for the Administrative Law Judge (ALJ) who reviews the proposed rules will be whether the DNR followed the law in developing the rules. Interested parties will have the opportunity to advise the ALJ (either in writing or at a hearing) regarding the "legality" of the rules during the public hearing process.

The current preliminary standards propose that current levels of vegetation be maintained, and require a vegetative buffer along the river when lots are newly developed. The rules also will require some level of mitigation when variances are granted, but the form and level of mitigation would be left to the LGU to determine.