Regulation of land use through zoning and subdivision codes traditionally has been the dominion of cities, towns and counties.  Although watershed districts within the metropolitan area are authorized to “regulate the use and development of land,” the District has deferred to the local land use authority to regulate the uses to which land is put and how those uses are sited.  The focus of the District rules is not on how the land is used, but on ensuring that however it is used, water resources are protected from the impacts of that use.  The District recognizes the most efficient way to achieve measurable benefits to water resources is to collaborate with Cities and Townships, in the exercise of their land use planning and zoning authority

There is overlap in District and local land use regulation in areas such as erosion control requirements during construction; limiting stormwater pollution or flow increases from development; floodplain protection; and wetland setbacks or vegetated buffers.  But there is a growing recognition that the most effective and least costly way to protect water resources is during land use planning and siting.

This recognition can create a tendency for watershed districts to extend regulatory authority further into the land use realm.  Rather than doing so, the District prefers to work with, and provide technical resources to, traditional land use authorities to assist in their integrating water resource considerations prominently into land use planning activities and development codes.

Under the Metropolitan Land Planning Act (MLPA), land use authorities within the watershed are required by December 31, 2008 to complete revisions of their local land use comprehensive plans.  The law requires that once a comprehensive plan is approved by the Metropolitan Council and adopted by a land use authority, the land use authority must amend its development code to be consistent with its plan.  Further, the MLPA requires that in order for the Metropolitan Council to approve a local comprehensive land use plan for a land use authority wholly or partly within the Minnehaha Creek watershed, the land use plan must contain a local water plan approved by the District.

Accordingly, it is very timely for local government units (LGUs) within the watershed to carefully examine how water resource management and protection can be integrated into their land use planning and development functions.  As a part of local water plan development, LGUs should engage in review of their land use activities from a water resource perspective and identify opportunities to enhance water resource protection without compromising other local development goals.  The District will look for each local plan to do the following:

Examine city- or township-wide land use needs, both within the planning period and beyond, in the context of resource maps and inventories; and describe how land use and regional water resource needs are being reconciled to secure the greatest degree of long-term water resource protection.

1. Describe efforts to integrate Safe Drinking Water Act and other wellhead protection plans, as well as the protection of sensitive surface- and groundwater resources, into the local zoning code.
2. Describe how water resource protection priorities have been integrated into local parks, open space, recreation and land acquisition plans;
3. Describe how local authority to require land or easement dedication or protective covenants as a part of subdivision regulation is being used for water resource protection purposes;
4. Consult with District staff on approaches to low-impact site design that preserve natural hydrological systems and capability to assimilate development impacts; examine how those approaches can be integrated into local land use regulations; describe constraints or competing concerns that prevent further integration; and describe how the  LGU will integrate such approaches into its development code;
5. Identify how conflicts between (i) development code setbacks and (ii) water resource requirements in local ordinances or District rules will be reconciled to give due weight to water resource protection goals;
6. Show that the local development code requires stormwater facilities and wetlands in residential subdivisions that are subject to future maintenance obligations under local ordinance or District rule to be located entirely on outlots, and justify exceptions to this requirement; and

State that the local subdivision ordinance requires, or within 180 days will be amended to require, that a copy of each proposed preliminary plat, and iterations thereof, be provided to the District for informational purposes at the time it is submitted to the locality.

Application of the District’s rules and permit requirements is governed by Minnesota Statutes §103B.211, subdivision 1(a)(3), which authorizes the District to:

Regulate the use and development of land in the watershed when one or more of the following conditions exists:

1. the local government unit exercising planning and zoning authority over the land … does not have a local water management plan approved and adopted in accordance with the requirements of section 103B.235 or has not adopted the implementation program described in the plan;
2. an application to the local government unit for a permit for the use and development of land requires an amendment to or variance from the adopted local water management plan or implementation program of the local unit; or
3. the local government unit has authorized the organization to require permits for the use and development of land;

In accordance with this statute, on the request of a city or township, the District will cease to apply its rules and permit requirements within the boundaries of that LGU on its approval of the local water plan.  To approve a local plan, however, the District must find that the local permit program is at least as protective of water resources as the District rules.   An LGU may meet this standard, in accordance with §103B.211, subdivision 1(a)(3)(iii), by stating in the plan that it is authorizing the District to continue to apply its rules within the locality.  Alternatively, if an LGU wishes to assume the sole regulatory role, the District will evaluate its plan according to the following:

1. The local plan must identify those District rules for which it wishes to assume sole regulatory authority.  This includes some or all of District Rules B (Erosion Control), C (Floodplain Alteration), D (Wetland Protection), G (Waterbody Crossings) and N (Stormwater Management).  The District in all cases will continue to apply Rules E (Dredging) and F (Shoreline and Streambank Improvements) within the locality as they concern interjurisdictional resources that cities and townships have limited authority to regulate.
2. For those District rules, the local plan must include existing or proposed ordinances for a District determination that they are at least as protective of water resources as the District rules.  District staff will provide checklists of substantive requirements and other guidance to LGUs for their use in understanding the standards that must be met.  A proposed ordinance need not be submitted in final form provided there is adequate detail for a District determination.  In its plan or its ordinances, the LGU must confirm that work of the LGU will be subject to the same substantive permitting standards as other work.
3. Procedural details of local ordinances (relating to, for example, permit processing, hearings or public notice) may differ from District rules provided they do not compromise water resource protection.
4. The local plan must describe a compliance monitoring and enforcement program in adequate detail, relating to (i) work without a permit; (ii) active work under permit; (iii) maintenance of vegetated waterbody buffer; and (iv) maintenance of stormwater basins and other stormwater facilities.
5. For those areas for which the LGU wishes to assume sole authority, it must describe the technical expertise it has or will acquire to implement its ordinances, describe how it will monitor and enforce compliance, and present an estimate of its annual cost to implement its program.  
6. The local plan must state whether the  LGU intends to assume the role of “local government unit” responsible to implement the Minnesota Wetlands Conservation Act within that part of the  LGU that lies within the watershed, or whether it chooses for the District to assume that role.  If the former, it must describe the technical expertise it has or will acquire to implement WCA, describe how it will monitor and enforce WCA compliance, and present an estimate of its annual cost to implement and enforce WCA.
7. The local plan must state that within one year after the District provides notice that it has significantly revised a District rule, the LGU will submit for District approval, adopt and put into effect a revised ordinance consistent with the District rule change (the LGU should allow 60 days for District review).  If the LGU chooses not to make the revision, it can simply authorize the District to apply its revised rule within LGU boundaries.   
8. If an LGU chooses to exercise sole regulatory authority with respect to one or more District rules, the District’s approval of the local plan will be given effect through a memorandum of understanding (MOU) executed by the District and the LGU.  The MOU will:
   1. Describe the regulatory roles of each party;
   2. State, in accordance with §103B.211, subdivision 1(a)(3)(ii), that the District must approve the granting of any variance to a water resource ordinance by the  LGU;
   3. Specify ongoing or periodic communication between the District and the  LGU to allow for District awareness of the  LGU’s water resource permitting activity; and
   4. Reserve the District’s ability to exercise its regulatory authority within  LGU boundaries if the  LGU is not implementing its regulatory program in accordance with its local plan.  

The land management and housekeeping practices of the LGU include activities such as street sweeping, snow plowing, salt and snow storage, road and utility right-of-way maintenance, stormwater management facility maintenance, and public land and park maintenance.

Unlike the District’s preceding plan, this Plan does not obligate LGUs to specific land management and housekeeping practices.  Rather, an LGU is to consider changes in these practices as one set of tools to achieve the water resource performance goals established in this Plan and the local plan.  The District will seek to assist LGUs by providing technical guidance on land management and housekeeping practices that are beneficial for water quality and other water resource performance objectives.  The local plan should:

1. Describe current practices;
2. Examine potential improvements in these practices;
3. Identify any barriers to implementing these improvements;
4. Indicate what changes the LGU will make; and
5. Describe, with appropriate quantification, the impact these changes are expected to have toward achieving water quality and other water resource goals.      

Each LGU must provide a written report to the District by June 30 annually, describing how the LGU has implemented the local plan over the past calendar year.  The annual report date coincides with the submittal date for municipal separate storm sewer system (MS4) annual reports as set by the Minnesota Pollution Control Agency (MPCA).  If the MPCA should change that date, the District would adjust its annual reporting date administratively. 

An LGU may submit its MS4 report to the District as its annual report, with supplementation as needed to provide all of the information listed below.  For efficiency, the District has developed a standard report form and may adjust it from time to time to help communicate clearly to LGUs the reporting data that are needed and avoid placing unnecessary reporting burdens on LGUs.  LGUs are encouraged to use this form.  In the future, the District may determine that the standard report format should be mandatory.    Until that time, an LGU may prepare a separate report using a format of its choosing.

LGUs are encouraged to use a concise format for the annual report.  At the same time, LGUs need to provide information that is sufficient for District staff to be fully apprised of activities by, and within the boundaries of, the LGU that affect water resources and further water resource programming.  At a minimum, the annual report must cover the following for the reporting year: 

1. The status of capital projects identified in the local water plan and any other water resource projects under LGU development or consideration, and identification of any project on which the LGU is interested in partnering with the District.
2. Progress on each water resource issue identified in the implementation section of the local plan.
3. The status of each action identified in the local plan as a means to contribute to the LGU’s allocated phosphorus/nutrient load reduction, the cause of any failures or delays, and any proposed changes to the LGU’s strategy for meeting the load reduction.
4. A summary of LGU land use activity as it may affect water resources, including: (a) permit applications for land disturbance received; (b) actions taken, including any variances granted; (c) pending development or redevelopment activity not yet the subject of an application; (d) zoning changes made or requested.
5. Additional water quality, hydrologic, wetland and floodplain data developed within the LGU.
6. A description of stormwater conveyance/management facility construction, inspection, maintenance and repair activity, including identification of any structural changes within the conveyance system affecting hydrologic/hydraulic modeling on greater than a parcel basis.
7. A summary of LGU housekeeping activities including salt/sand storage and use, hard surface sweeping and other public facility management activities to protect water resources.
8. An inventory of riparian, buffer, corridor, open space and other conservation land rights acquired through dedication, gift, purchase or any other means.
9. A summary of the LGU’s budget as it pertains to local plan implementation.

Following District staff review of an LGU’s annual report, a meeting between staff may be arranged to complete the review, bring each party up to date on the other party’s activities, and coordinate activity for the next year.

1. District staff may have questions or need further information about matters contained in or omitted from the LGU report.  If the District perceives that LGU implementation has lagged, this would be an opportunity to discuss this, identify causes of any failures or delays, and mutually consider adjustments.  As well, LGU staff may require more information about District activities over the past year as they affect the LGU.
2. This meeting is an opportunity for the two parties to anticipate the next year’s activity.  A mutual briefing can be provided concerning programmed or potential capital projects, land conservation interests, cost-sharing or grant opportunities, development activity and other matters that would benefit from coordination. 
3. Pending or necessary plan amendment can be reviewed.  Minnesota Statutes §103B.235, subdivision 1, and Minnesota Rules 8410.0160 requires that each local plan be revised and approved by the District within two years of a District plan amendment that affects an LGU, or as otherwise specified in the District implementation program.  The District has adopted the two-year standard of 8410.0160, except where the plan specifically states otherwise.  Where an LGU lies partly within the District and partly within one or more other watershed management organizations, the District will require local plan revision and approval within two years for at least that part of the plan that concerns land within District boundaries.

The District will endeavor to maintain communication and flow of information between itself and its LGUs on an ongoing basis.  The Board of Managers encourages opportunities for joint meetings with city councils on specific matters or for the purpose of general communication.

The District will maintain awareness of LGU plan implementation largely through the annual reporting and meeting framework.  However, this will be supplemented through ongoing communication with LGUs and knowledge of developments within the watershed gained through other usual channels.

It is possible, then, that the District at any time may perceive that an LGU is not fully implementing its local water plan or meeting its commitments.  In this case, the District will follow the course outlined here.  This process is intended to ensure that the District has a full understanding of the LGU’s water resource program, that the District respects the LGU’s control of its own programs and its role in overseeing activity within its boundaries,  and that the parties work collaboratively to ensure progress on mutual goals.  At the same time, it is the District’s responsibility under watershed law to maintain oversight of local water plan implementation and to take steps as necessary so that water resource goals are met.

The following is a list of criteria that the District will consider when assessing LGU plan implementation.  The approved local plan will contain the water resource management commitments the LGU has made.  The District will review the progress the LGU has made in fulfilling those commitments, as follows:

Water Resource Permitting

(this subject will be relevant primarily when the LGU, through the local planning process, has elected to assume sole authority for water resource permitting in one or more areas covered by District rules and/or has elected to serve as the Wetland Conservation Act (WCA) implementing authority):

1. Have ordinances been adopted as described in the approved local plan and in response to any subsequent District rule revisions?
2. Do they conform to MCWD-approved standards?
3. Have the ordinances been applied as written?
4. Where there is room for interpretation, has LGU discretion been exercised in a way that is sensitive to water resource protection?
5. Has the MCWD been notified of variance requests per Minnesota Statutes §103B.211?
6. Have technical expertise and program resources been maintained at levels described in the approved local plan?
7. Has regulated activity been diligently monitored and have LGU ordinances and permits been diligently enforced?
8. The same considerations, as applied to the LGU’s actions as WCA-implementing agency.

Land Use

1. Has good progress been made to integrate Safe Drinking Water Act and other protections for wellheads and sensitive groundwater resources into the development code, as described in the approved local plan?
2. Has the LGU worked carefully to integrate low-impact development concepts into the development code and development review process?
3. Has the LGU met local plan commitments to reconcile development code setbacks and water resource protection goals?
4. Has the LGU revised its development code as necessary to require stormwater facilities and wetlands in residential subdivisions to be located on outlots?
5. Has the LGU ensured that the District timely receives proposed preliminary plats and revisions, in accordance with the approved local plan?
6. Are local plan commitments otherwise being met?  

Capital Program

1. Does the capital improvement program (CIP) continue to reflect the level of commitment toward water resource goals of the approved local plan?
2. Is CIP implementation on schedule?
3. Is the LGU making adequate progress toward achievement of phosphorus load reductions identified in the approved local plan?
4. If issues have arisen that were unexpected or are beyond LGU control, has the LGU identified, and is the LGU pursuing, alternative strategies?
5. Is the LGU diligently maintaining stormwater management facilities for which it is responsible?

Land Conservation

1. Have water resource protection priorities been integrated into parks, open space, recreation and land acquisition plans, and are those tools being diligently implemented?
2. Are dedication and fee in lieu requirements under the development code being used to support water resource protection consistent with commitments in the approved local plan?
3. Is the LGU diligently monitoring municipal open space lands, protected lands and vegetated buffer areas under its control?

Housekeeping Practices

Is the LGU meeting local plan commitments for street sweeping, snow plowing, salt and snow storage, right-of-way maintenance, stormwater management facility and vegetated buffer maintenance, public land management and other housekeeping matters with water resource impacts?

Other Commitments

Is the LGU otherwise meeting commitments assumed under the approved local plan?

If District staff, at the direction of the Board of Managers or on the basis of its own review, has concerns about local plan implementation, the District will generally follow a process that emphasizes communication and collaboration to assess these concerns and identify approaches to addressing any deficiencies.  Presuming the LGU has a similar interest in this approach, initially the process will involve staff-to-staff communication and a process of staff collaboration.  District staff will report back to the Board of Managers and the District will seek to memorialize any agreed outcomes in appropriate fashion.

If District or LGU staff believes that, for any reason, adequate progress in resolving concerns is not being made, the Board of Managers and city council may be asked to convene an informal joint meeting.

Ultimately, if the Board of Managers is not satisfied with a resolution of concerns, it may schedule the matter for formal consideration on its agenda.  LGU representatives will be invited to attend; District staff, LGU representatives and interested members of the public will have an opportunity to address the issues; and the Board will make a finding as to whether it believes the LGU is failing to implement its plan in an important way.

If the Board makes such a finding, it may take further steps within its authority as it judges will foster improved local plan implementation or allow resources to be focused on areas where they are more likely to leverage effective efforts.  Examples of such steps would be:      

1. Requesting that the LGU engage in further discussions or provide written commitments.
2. Reasserting District regulatory authority in a city that has assumed sole regulatory authority for any of the District’s rules.
3. Establishment of one or more water management districts encompassing the LGU or parts thereof to fund District implementation of local plan commitments not being met.
4. An action under Minnesota Statutes §103B.235, subdivision 4, requesting that the LGU be directed to implement its local plan.

At any time, an LGU may advise the District of further implementation steps taken and allow the Board of Managers to determine that the local plan is again being adequately implemented.

The Board also may take steps as outlined above where an LGU has not submitted or has not received approval of a local water plan in a timely way.

Most LGUs wholly or partly within the District have completed and approved local plans responding to the District’s 2007 plan.  BWSR rules require these plans to be revised within two years of a District plan revision to maintain consistency.  The reporting responsibility and procedures outlined in this revised Section 7.2 do not trigger this revision requirement, in that they merely fulfill the statement in the 2007 plan that the District would provide further reporting guidance to LGUs.

This amendment is effective on adoption.  The District will assist LGUs in conforming annual reports to this guidance beginning June 30, 2011.