Critical Area Rulemaking
Photo: Minnesota DNR
The Minnesota Department of Natural Resources (DNR) has been charged by the state legislature with writing new rules for the Mississippi River Critical Area, a protected corridor from Dayton to Hastings that is also a National Park. The new rules will delineate and define new districts within the critical area corridor and establish minimum guidelines and standards for development within these districts.
The rulemaking process is an administrative process undertaken by the DNR Commissioner to develop rules that govern and guide development in the Mississippi River Corridor. The rules established by the DNR will serve as minimum guidelines for local municipalities to write local zoning ordinances for areas within the river corridor. Municipalities are required to get DNR approval for all revisions to their zoning ordinances in the Mississippi River Corridor and to notify DNR in advance of any project proposals with variances to the local ordinance, so the DNR can weigh in on the decision. Final approval for variances and other discretionary actions remains the responsibility of the local municipality.
The legislation adopted in the 2009 session requires the DNR to do several things:
- Commence the rulemaking process by January 15th, 2010
- Through the rulemaking process, define new districts that consider the intent of the existing districts from Executive Order 79-19, and protect:
- major natural river features, including scenic, ecological, and geologic resources
- improvements such as parks, trails, natural areas, recreation areas, and interpretive centers
- use of the Mississippi River as a source of drinking water
- resources identified in the National Park Services' Comprehensive Management Plan for the corridor
- resources identified in the comprehensive plans of local municipalities
- Identify standards and guidelines for the corridor that take into consideration existing plans and ordinances, and protect the following features:
- floodplains, wetlands, gorges, areas of confluence with key tributaries, natural drainage routes, shorelines and riverbanks, bluffs, steep slopes and very steep slopes, unstable soils and bedrock, significant existing vegetative stands, tree canopies, and native plant communities, scenic views and vistas, publicly owned parks, trails, and open spaces, cultural and historic sites and structures, and water quality.
- Create a map of bluffs (natural topographic features of >18% slope and 10 foot rise), and steep slopes (natural topographic features of between 12% and 18% slope over 50 feet in length or more.) Then, stakeholders should review those maps for accuracy and reasonableness, and the DNR should adjust them as appropriate. The resulting adjusted map would be finalized, and would itself serve as the bluff definition in rule.
To kick-off the rulemaking process, DNR published an official request for comments and organized four stakeholder advisory groups to participate in drafting the rules. FMR staff were appointed to all four geographically determined stakeholder advisory committees: Northwest Ramsey and Dayton to the Minneapolis border; Urban West Minneapolis to Ft. Snelling; Urban East St Paul, Mendota Heights and Lilydale; and Southeast Maplewood and South St. Paul to Ravenna Township.These stakeholder groups met several times in 2010 to provide feedback on draft rules. More information on these groups can be found on the DNRs website.
The DNR had initially expected to have a draft rule available for public comment by the beginning of 2011. Although extensive work was completed to draft the new rules, the DNR was not able to meet the statutory deadline for filing the notice in January 2011. Now, a shift in the political landscape a new governor, a new DNR commissioner and a new legislature has combined to create a foggy picture of what the next steps will be in the rule-making process.
A draft of new Mississippi River Critical Area rules is close to complete, but with a changed political landscape it is uncertain if and when the important new rules will be published for formal public review. FMR staff will be closely monitoring the situation as the new administration and new legislature move forward.
Should the process continue, an administrative law judge will then preside over a formal review and hearing process, which could in theory be held later in 2011.
FMR's Continued Work on Rulemaking
FMR has actively participated in the process in a variety of ways. In addition to providing verbal input at the stakeholder meetings, FMR created extensive research and comments on the DNR's proposed districts and standards that are available below. Nearly 500 people reinforced this effort by signing FMR's petition to the DNR in support of strong rules to protect the unique and significant natural, scenic, cultural and recreational assets of the river corridor. To review our comments or learn more about the rulemaking process, visit FMR's Critical Area web fact sheet and the DNR's website via the links below.
We are reaching out to other members of the stakeholder groups and environmental and civic organizations to discuss shared goals and coordinate our advocacy efforts. FMR is also staying in close touch with members of the legislature that authored the legislation to keep them apprised of the rulemaking effort. If you would like to learn more or get involved, please see our contact information below.
FMR Research and Comment Documents:
- FMR Proposed Revised River Districts (1/2010)
- FMR Initial Comments on Critical Area Rulemaking (3/22/2010)
- FMR River Resources & Rules Report (5/2010)
- FMR Comments on Draft Districts (6/30/2010)
- FMR Preliminary Comments on Standards (7/23/2010)
- FMR Comments on Draft Standards (8/13/2010)
Here is a sampling of the most important recommendations from our comments:
- Base the new districts on the unique ecological, cultural and geomorphic reaches of the river. Rather than divide the Critical Area into small districts based on land use, the districts instead should respond to the broad-based geomorphic, cultural, and ecological systems in each portion of the river corridor, and vary standards accordingly.
- Pursue parkland dedication. FMR has urged the DNR work to develop a robust mechanism to achieve parkland dedication and open space protection in the corridor. Local municipalities often require new subdivisions to dedicate a portion of their land (or cash in lieu of land) to create new parkland, and we hope the rules can refine similar rules to protect the river corridors key assets. The areas we are particularly concerned with are riverfront areas and areas of particular scenic or ecological value. The Mississippi River Critical Area boundaries are the identical boundaries shared by the Mississsippi National River and Recration Area (MNRRA). In this context, protecting the National Park becomes especially important.
- Open space dedication. In new development at the exurban ends of the corridor, we recommend a robust standard for open space dedication, such as the 50% standard that already exists in cities like Ramsey.
- Trail easements. We hope the new rules will require new subdivisions to dedicate easements for all new trails.
- Riverfront access. FMR would like the rules will require new subdivisions to provide enhanced and/or expanded riverfront access.
- Density and lot size requirements. The rules should set density and lot size requirements appropriate to the surrounding context, and in a way that maximizes the protection of resources along the river corridor. Lower density areas are appropriate at the ends of the corridor.
- Lot frontage requirements. Requirements for minimum lot widths along the riverfront are needed to protect and enhance existing scenic and open character.
- Use of LIDAR-quality data to identify topographic elements throughout the corridor. Based on the DNRs cost estimate for rulemaking, FMR worked with the legislature to secure the DNR a $500,000 appropriation for the process, which included acquisition of LIDAR-quality data on the topography of the river corridor. LIDAR is a much better quality data set than the existing data, allowing more detail and refinement, and the ability to rely on a more robust data set to create credible topographic maps.
- Identification of bluff-related features on map. With support from the League of Minnesota Cities and others, FMR helped pass the legislation that sets the rulemaking process in motion in 2009 (see above). That legislation describes a two-stage bluff-identification process that FMR worked closely with the League to develop. The first step creates a preliminary bluff map based on stock definitions identified in law. Stakeholders can then comment on the merit of that definition, and the DNR can adjust the preliminary map accordingly to create a final bluff map. That final bluff map (rather than a set of verbal standards) is adopted as the bluff definition in rule.
- Setback from the blufftop, bluff toe, and steep slopes. These setbacks should be set to respond to the unique conditions on each part of the river, and be substantial enough to protect the key natural and scenic features in each part of the river.
- Height limits. Height limits are a key protection in critical area law to protect scenic quality. In places like St. Pauls West Side Flats, a few extra feet of height can make the difference between protecting an expansive seven-mile-long view of the river valley on the one hand, or losing that view permanently to poorly-planned development. In the two downtowns and other mixed use areas of the corridor, building heights should step down as they get closer to the river.
- Scenic quality analysis. FMR has asked that the DNR look specifically to identify areas and viewsheds of particularly high scenic quality, and take steps as appropriate toward protecting those views from poorly-planned development decisions.
- Water quality protection. The legislation specifically directs the DNR to protect water quality, and FMR has urged DNR to establish a strong set of water quality standards for the corridor. Our recommendation is to model the standards after those developed by one of the local Watershed Districts, such Ramsey-Washington Metro WD or Rice Creek WD* Historic and Cultural Resources. Historic districts and sites in the corridor need to be identified and standards and guidelines should protect historical and cultural resources in many of the corridor districts. Where possible, these guidelines should support and enhance local and national guidelines.
- Notification and administration requirements. Local units of government are required to submit applications for discretionary zoning actions (variances, conditional use permits and the like) to the DNR 10 days before a final decision is made. FMR has proposed the DNR set up a repository of all applications for variances and conditional use permits online, that would permit applicants to easily submit such information online, allowing for a more transparent reporting of deviations from the Critical Area requirements. Local municipalities would retain the ability to approve variances and conditional use permits without a process of DNR approval.
Dispelling the Myths
Stakeholders and other interested parties bring a variety of perspectives to the prospect of new rules for the corridor. They also bring many questions and some confusion. Below is a brief list of issues and statements designed to clear up some of the mis-information.
- The Mississippi River Corridor Critical Area is not a new program of land use regulation. The MRCCA was established in 1976 and local ordinances have been guided by state standards for more than 30 years. New rules will update and modernize these decades-old standards.
- Local government units will remain the vehicle by which land use, zoning and discretionary actions will be decided. The authority of the DNR under new rules will remain exactly the same as it is now.
- The new rules will apply to all land within the corridor, however, many provisions such as open space dedication and requirements for public river access will only apply to subdivisions and new development.
- The new rules will allow for non-conforming uses and standards to continue in the corridor according to Minnesota state law.
- The new rules allow for hydropower and other river-dependent utilities and uses.
- FMR played a central and integral role in passing the Critical Area reform legislation in 2009. Now that the rulemaking process is underway, however, FMR is simply a stakeholder with no greater access to the process than any other stakeholder.
- To date, FMR has not studied the issue of the future of the Coon Rapids Dam and does not have an official position on whether or not to keep the dam in place, what it should be operated for, or who should operate it.
Stay on track - follow the process through FMR news articles in Mississippi Messages:
- January 2010: DNR begins river rulemaking process public comments and committee applicants sought
- March 2010: Critical area rulemaking update
- April 2010: Stakeholders weigh in on Mississippi River Critical Area Reform
- May 2010: Stakeholder rulemaking comments summarized
- June 2010: New Districts for the Mississippi River Critical Area
- July 2010: Critical Area rulemaking update: Newly drafted river districts get cool response
- August 2010: Critical area rulemaking heats up
We welcome questions and comments! Please contact Executive Director Whitney Clark or River Corridor Program Director Irene Jones at 651-222-2193 or by using our contact form.