Agenda - Council - 09/22/1981 - Laserfiche WebLink

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I I I I ! I I I I ,I I I I I I ! I -4- The MPCA's definition of the term "wetland" in Minn. Rule SW-l(39) does not include a specific size limitation. However, the statutory definition of the term in Minn. Stat. §105.37, subd. 15 (1980), provides a size limitation: "Wetlands" includes, and shall be limited to all types 3, 4 and 5 wetlands, as defined in U.S. Fish and Wildlife Service Circular No. 39 (1971 edition), not included within the definition of public waters, which are ten or more acres in size in unincorporated areas or 2-~ or more acres in incorporated areas. (Emphasis added.) Minn. Stat. §105.391, subd. 3 (1980) prohibits the draining of wetlands. There is no prohibition on draining natural marshes which do not meet the size limitations of Minn. Stat. §105.37, subd. 15. Minn. Rule SW-6(1)(d) prohibits the trench and fill area of a landfill from being in a wetland. The reason for this prohibition is the potential environmental problems which may be caused by the disposal of solid waste in standing water. If a natural marsh of less than the statutory minimum were to be located in a proposed trench and fill area, it could be drained without restriction. If it is drained prior to commencement of operation, the site would be permittable. Therefore, for the purpose of intrinsic suitability certification, it is reasonable to apply the statutoty size limitation to wetlands. In addition, the MPCA staff proposes' to rely upon the DNR's inventory of wetlands, since the management of wetlands falls within DNR's jurisdiction. You have also asked us to address the question of whether there is a "burden of proof" in this hearing, and, if so, who must carry that burden of proof. It is the MPCA staff's opinion that, because of the structure established by the Waste Management Act for intrinsic suitability certifications, the term "burden of proof" is inapplicable to this proceeding. The term "burden of proof" is usually applied to contested cases, where there are formal parties and where formal rules must be applied to resolve disputes among them. The Minnesota Legislature has in enacting Minn. Laws 1981, ch. 352, §41, specifically provided: "The rulemaking and contested case procedures of chapter 15 shall not apply to this hearing." The Legislature has charged the MPCA with reviewing the data submitted to it by the county on the sites proposed by the county as solid waste disposal facilities. The Legislature has also provided for a public forum in which any member of the public may submit additional information or comments'