See also: Critical Area overview | Critical Area history | Critical Area rulemaking | Defending the Critical Area

Stakeholders and DNR assess the Effectiveness of Mississippi River Critical Area

The DNR Report to the Legislature.

The 2007 Minnesota Legislature requested that the Minnesota DNR lead a review of the Critical Area program and its effectiveness. The DNR surveyed local municiaplities and assessed how the Critical Area program was being implemented.

The DNR also contracted with the Friends of the Mississippi River to engage stakeholders in an analysis of the strengths and weaknesses of the Critical Area Program. FMR held three workshops with a total of 60 attendees, including a significant number of government, developer and citizen representatives.

In the spring of 2008, the DNR combined their assessment with the stakeholder feedback into the Mississippi River Corridor Critical Area Report to the Minnesota Legislature. The report identified and assessed several key options (found on pages 57-59 of the report) on how improve the Critical Area program, gauging whether the improvement could be accomplished through statute change, rule change, whether the improvement had notable costs associated with it, and the degree to which the improvement was supported by stakeholders.

Several key findings emerged. There was broad support for retaining the Critical Area program, and most felt it should continue to be housed with the DNR. There was strong support for clarifying and prioritizing key features to be protected along the corridor, and strong support for providing a mechanism to redraw the four zoning districts that make up the Critical Area. There was strong support for more coordination between the DNR and MNNRA, along with support for more coordination between local governments and the DNR. There was also strong support for providing greater DNR oversight in the granting discretionary land use actions such as zoning variances.

The 2009 Mississippi River Critical Area Reform Legislation

The DNR assessment and stakeholder feedback directly informed the creation of legislation which has been introduced in the 2009 legislative session. A subgroup of stakeholders from all sectors worked with Representative Rick Hansen and Senator Katie Sieben over several months to turn several of the directions that arose from the DNR report and stakeholder outreach into legislative action.

Minn. Statutes §116G.15 changes critical area law in several ways. A full comparison of changes is available, but there are four major changes of consequence:

• Calls for a DNR rulemaking process.

  The legislation calls for the Minnesota DNR to begin a state rulemaking process to address key areas of reform (which follow). The legislation calls for the process to begin no later than January 10th, 2010, is available for just one rulemaking process, and does not expire until the rules are adopted.

• Revises Critical Area Zoning Districts and Statewide Standards through rulemaking.

  Most significantly, the legislation uses the rulemaking process to overhaul the heart of the critical area program standards. This responds to core stakeholder concern over the lack of clarity and inadequacy of some of the current standards

  Currently critical area law divides the corridor has been divided into just four zoning districts: Rural Open Space, Urban Developed, Urban Diversified, and Urban Open Space (these are indicated on the maps above). Existing law lays out certain expectations for each district, and local municipalities refine district standards through Critical Area zoning codes. The DNR believes the only way to change district boundaries is through legislative change, leaving cities effectively stuck for better or worse with the districts they have.

  But as the districts have been applied, it is clear that the way some boundaries were drawn was somewhat arbitrary. Moreover, many cities found that having just four districts created a set of tools that were too boilerplate in nature to respond to the unique conditions of each segment of the river corridor.

  

  New districts could more neatly respond to the natural, scenic, and cultural changes along the corridor. For example, one district might follow the boundaries of the Fort Snelling National Historic Landmark at the confluence of the Minnesota and Mississippi Rivers.

  Further, local regulations often treated the same portions of the resource very differently. So although two cities may be in the same zoning district, one city might allow (for example) buildings of 40 feet or less on their side of the river, while the other city could have no height limits on their side of the river. The result is that there is a patchwork of inconsistent protections for what was intended to be protected as a regional and national resource.

  As a result, the new state rulemaking process is designed to overhaul these zoning districts. Boundaries are to be redrawn in a way that takes greater account of the river corridor's unique geomorphic features, ecology, cultural features, as well as land uses. The rulemaking process would not be constrained to use just four districts, allowing them to define unique districts tied to distinct parts of the River. For example, the boundaries of the Fort Snelling National Historic Landmark might provide the natural basis for defining the boundaries of a Fort Snelling district.

  Rulemaking would establish shared baseline standards for each new zoning district along the river that in turn each municipality would incorporate and potentially expand upon in their local Critical Area zoning codes.

  We expect the DNR rulemaking process to engage and communicate directly and often with local communities and other stakeholders. For municipalities that have recently updated their Critical Area zoning code, and have been in strong consultation with the DNR and local stakeholders in updating that zoning code, we expect that work will be substantially incorporated into the recommendations that come out of the rulemaking process. For municipalities that have not updated their critical area zoning code in the last decade, more change may be possible. Municipalities will be allowed to update their Critical Area zoning code up until the time rulemaking is completed, which could be several years after passage of the legislation.

• Refines bluff-related definitions.

  Given experiences with the existing Critical Area law, and converstations that came out of the stakeholder process, it became clear the law needed to refine the definitions of bluff-related features.

  The DNR will come to a definitive, corridor-wide map of bluffs through rulemaking. Using the existing bluff-related definitions, along with the revised definitions below, the DNR will map all bluffs and blufflines in the Critical Area using these definitions, contour data, and modern tools like GIS that are readily available today.

  

  The owner of this bluffside in Mendota clearcut long-established vegetation in 2008, which is likely to accelerate erosion of the bluffside. The clearcut was possibly legal because - despite the city's best intentions - the City lacked clarity in its definition of bluff features.

  Once established, municipalities will be able to suggest refinements to the definition of bluffs and blufflines. For example, municipalities might rightly argue that one area defined as a bluff is in fact a mandmade pile of fill, and thus should not be included. If there is sufficient reason provided to alter the standardized map the DNR creates, alterations will be made through the rulemaking process.

  The five new definitions are:

  • Base of Bluff - "Base of bluff" means a line delineating the bottom of a slope connecting the points at which the slope bottom becomes 18 percent or greater. More than one bluff face may be encountered when proceeding landward from the water.
  • Bluffline - "Bluffline" means a line delinating the top of a slope connecting points at which the top of a slope becomes less than 18 percent. More than one slope may be encountered proceeding upslope from the river valley.
  • Bluff face or bluff - "Bluff face" or "Bluff" means the area between the bluffline and the bluff base.
  • Steep slopes - "Steep slopes" means 12 to 18 percent slopes. Steep slopes are natural topographic features with an average slope of 12 to 18 percent measured over a horizontal distance of 50 feet or more.
  • Very steep slope - "Very steep slopes" means slopes 18 percent and greater. Very steep slopes are natural topographic features with an average slope of 18 percent or greater, measured over a horizontal distance of 50 feet or more.
  
  
• Clarifies enforcement responsibilities of local municipalities and DNR.

  One of the key directions to come from the stakeholder process was to strengthen the relationship between the DNR and local municipalities in putting the Critical Area law into practice. Two key changes are designed to strengthen this relationship.

  As as existed previsously, the legislation contains a provision that the DNR should be notified ten days before a municipality takes any discretionary action on a Critical Area zoning-related application. Read more…