Minutes - April 15, 2010

 MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

April 15, 2010

CALL TO ORDER

The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by Vice President Brian Shekleton at 6:52 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 

MANAGERS PRESENT

Brian Shekleton, Lee Keeley, Pam Blixt, Jeff Casale, Mike Klingelhutz.

MANAGER ABSENT

Jim Calkins, Richard Miller.

OTHERS PRESENT

Eric Evenson, Administrator; Renae Clark, Project Manager; Nate Kale, Planning and GIS Specialist; Mark Ten Eyck, Land Conservation Program Manager; Steve Christopher, Regulatory Program Manager; Michael Panzer, District Consulting Engineer; Michael Welch, Assistant District Counsel.

MATTERS FROM THE FLOOR

None.

APPROVAL OF AGENDA

Manager Keeley requested the removal of the minutes of April 8, 2010, from the consent agenda.  The managers agreed to move the approval of the letters responding to inquiries from the City of Victoria to the consent agenda.  Manager Shekleton moved, seconded by Manager Keeley, to approve the agenda as so amended.  Upon vote, the motion carried.

CONSENT AGENDA

Manager Keeley moved, seconded by Manager Klingelhutz, to approve the consent agenda, consisting of the approval of the letters of response to the City of Victoria; the approval of a contract with Bonestroo for not to exceed $20,000 for development review services; the petty cash, surety and checking registers, the last totaling $157,246.27 for checks 29769 through 29827.  Upon vote, the motion carried.

REGULAR AGENDA

Committees and Task Force Reports

Manager Shekleton reported that the Information Technology Committee interviewed three candidates last Saturday and directed staff to follow up with reference checks.  A recommendation will come forward at the May 13 meeting. 

Mr. Wisker stated that Manager Blixt will be the liaison for the next Citizens Advisory Committee meeting, Thursday, April 22, at 6:45 at the District offices.  The meeting will address Clean Water Act enforcement in the watershed.

Manager Shekleton stated that the IT Committee will meet at 5:00 p.m. on April 28, in St. Louis Park City Hall.  Manager Shekleton continued, stating that the Personnel Committee will be meeting on April 29, location to be determined.

(Manager Casale arrived at this time, 7:00 p.m.). 

The managers discussed the District tour planned for May 6.  The managers discussed possible sites to include and Mr. Evenson encouraged them to email him ideas.

Manager Casale reported that at the Land Conservation urban corridors meeting last Wednesday Mr. Wisker presented a high level plan describing the District’s vision for the urban corridor in Hopkins.  Manager Casale stated that negotiations to form a partnership with the City of Hopkins can begin, and Mr. Ten Eyck added that consultants have been hired and are moving ahead with putting the project together. 

Mr. Evenson suggested that the Audit Committee, which consists of Managers Klingelhutz, Calkins and Keeley, meet the first Wednesday in May.  He will follow up with details by email. 

April 8, 2010 Minutes

Manager Keeley noted a need for the minutes to reflect the description she offered at the meeting of the focused, not general, public outreach the District needs to undertake.  Manager Casale requested that consideration of the April 8, 2010 minutes be reserved for the next meeting.  The managers agreed.

Bonestroo Presentation

John Uban, Bonestroo, appeared before the Board of Managers, and announced that he is pulling a team together pursuant to the agreement with his firm approved this evening for the Woodland Cove project.   Mr. Uban noted that the team will include an ecologist, engineers and scientists to address unique opportunities presented at the Woodland Cove property.  Mr. Uban noted his experience with the proposed developers of the site as well as similar low-impact development and conservation design projects.  He thanked the Board for the opportunity to work with the District, the City of Minnetrista and the developer.

Public Hearing for Wasserman Marsh Capital Improvement Project

Manager Shekleton opened the public hearing.  Mr. Wisker presented background on the proposed project.  He stated that the project consists of two phases: Phase I entails wetland restoration on the Lennar parcel north of the farm road dividing the project area, and phase II, south of the farm road, includes replacement of a collapsed culvert running under the farm road, replacement of a culvert under Marsh Lake road to eliminate head-cutting through the Hesse wetland and prairie restoration.  Mr. Wisker stated that the Board ordered the Phase I project and the District has levied for it.  Mr. Wisker noted that the Hesse wetland is partially ditched but functions well as wildlife habitat despite the presence of cattails. 

Mr. Wisker stated that the phase II feasibility study determined that restoration of 4.5  acres of prairie, stream channel stabilization and the addition of rock vanes and riffles, along with the replacement of the crushed culvert would cost roughly $77,385, for a total phase II project cost of $167,000.  Mr. Wisker cautioned, however, that replacement of the farm road culvert may alter the hydrology and allow invasion of invasive species.  Mr. Wisker added that in completing the Phase II feasibility study, staff and the engineer for the project discovered some problems with the modeling in the phase I.  Based on these results, Mr. Wisker noted that the project is cost prohibitive, in terms of reduction of phosphorus loading to Wasserman Lake, and staff’s recommendation is to not move forward to the phase I work and not to order the phase II work.

In response to a question from Manager Blixt, Mr. Wisker stated that the staff recommendation accounts for future conditions and assumes that implementation of the new District rules will ensure no net increase in phosphorus loading.   Mr. Wisker added that the City of Victoria has approached the District and proposed that as this area develops, the city will ensure maintenance of existing conditions, including restoration of the wetlands and the stream, as it annexes this area in coming years. He also noted that the District also can explore projects on the parcel north of the phase II project area or internal load reductions for Wasserman Lake, which are in the capital improvement plan for 2015. 

Manager Blixt asked what assurance the District would have that the City of Victoria would follow through on its offer.  Mr. Wisker stated that the District and city would memorialize their understanding in an agreement, and that the city staff has indicated willingness to entertain that idea.  In response to a question from Manager Casale, Mr. Wisker stated that further degradation of the already collapsed culvert is unlikely and the current conditions are likely to remain indefinitely.  He said the District could approach the property owner with a request to fix the culvert.  He added that the culvert on the south is owned by the county and if it fails the county would be obligated to replace it.  At the same time, Mr. Wisker stated, the District could explore the acquisition of the prairie restoration area as described in the project.  In response to a question from Manager Keeley, Mr. Wisker indicated that the Laketown Township currently has jurisdiction over the area and does not have funds available for any of these project components.  Manager Klingelhutz moved, seconded by Manager Shekleton,  to direct staff to pursue an agreement with the City of Victoria as described by Mr. Wisker and to discuss with the county the repair of the culvert under Marsh Lake Road, as well as ensuring that the collapsed culvert is maintained in its existing position to maintain hydrologic conditions.  Manager Shekleton seconded the motion.    

In response to inquires by Manager Blixt, Mr. Evenson stated that the context for the discussion is that the District could purchase these properties and restore ecological functions, but the City of Victoria is opposed to District purchase of land in the area.  Mr. Evenson added that the city has displayed a willingness to work with the District to achieve the water resources and broader environmental goals if the District agrees not to purchase the property.  He added that staff’s recommendation not to pursue the phase II Wasserman project is solely related to the justification for the project being reduction in phosphorus loading.  Manager Blixt stated that it would be important for her to see how the agreement with the City of Victoria ensured that the District’s interests would be met.  Manager Keeley moved to table the motion.  Upon vote the motion failed, 1- 4, Managers Blixt, Casale, Klingelhutz and Shekleton voting against.   

Manager Blixt clarified that under Manager Klingelhutz’s motion all elements that had been discussed as part of the project would be achieved, including the streambed restoration using rock vanes and the prairie and buffer restoration in the adjacent crop land. 

Kara Gehren, engineer for the City of Victoria, approached the Board and noted that Victoria staff is excited to work with District staff on the recommended path forward.  Upon vote, the motion carried, 4-0, Manager Keeley abstaining. 

Minnehaha Falls and Glen Joint Powers Agreement and Memorandum of Agreement

Ms. Clark presented the request for Board action, stating that the proposed resolution includes approval of a memorandum of agreement with the State Historic Preservation Office (SHPO) and the U.S. Army Corps of Engineers (USACE), describing the cultural resources survey work that will be performed by the District for the project.  It also includes the amendment of the joint powers agreement with the MPRB, under which the Districts and the Minneapolis Park and Recreation Board (MPRB) roles would be reversed for the final phase of the restoration project in the glen, and an amendment of the design for the upper trail.  Ms. Clark said the upper trail design has been altered in response to concerns voiced by the MPRB regarding public safety hazards associated with falling rocks.  She stated that under the redesign, the public would be routed to stairs to lookout areas but the upper walkway would be eliminated.  A fence will be added above the lower trail as well.

The managers discussed whether the revised design would encourage people to scramble up and down the slope in the area, causing the same erosion and stability problems that prompted the project in the first place.  Mr. Evenson confirmed that the fence along the trail would be a deterrent but would not stop people from accessing the slope.  He added that the MPRB staff is very adamant in not wanting the upper trail.

Manager Casale stated that this revised design idea is not appearing before the Board for the first time.  He stated that in prior reviews of the project, the Board had indicated that if the MPRB would bear the cost of changing the design it could do so.  He stated that the volunteer paths would be eliminated by the two stairways with overlooks, and that the project will still achieve the District’s original goals.  He said the Board indicated in prior meetings that it would support such design changes.  Mr. Evenson added that an important part of the proposed change is that if approved, the MPRB will buy the materials the District has purchased for the project that will not be used if the revised design is approved.  Manager Blixt questioned whether the MPRB will bear the cost of the change to the design and whether the state bond funds can be used to reimburse the cost of the materials.  Mr. Panzer said that the District’s contractor costs would be lower because the trail will not be built.  He added that the value of the pre-purchased material that would be reimbursed by the MPRB is roughly $70,000.  Mr. Evenson added that the Metropolitan Council is charged with disbursement of the state bonding funds to the MPRB for project costs, and if Met Council determines that it will not reimburse the MPRB, MPRB would still be obligated to reimburse the District for its materials costs. 

Manager Blixt noted again that it is her understanding that the contractor will have to be paid to undo some of the work that has been done.  Mr. Welch clarified that the proposed amendment to the joint powers agreement with MPRB does not change the funding structure for the project. 

Manager Shekleton stated that he believes the revised design will encourage volunteer access of the slopes.  He stated that the fence appears to be a decorative and will not prevent people from accessing the slopes, and rocks falling from the upper trail area will collect along the fence and need to be clean out at regular intervals.  In response, Manager Casale stated that while he did not necessarily agree with the MPRB’s proposed design changes, he believes that District goals are still achieved.  More important, he said, it is MPRB’s park and if the MPRB will reimburse the District’s costs he sees no reason not to allow them to change the design.  Manager Klingelhutz moved, seconded by Manager Casale, to approve the revised design for the upper trail, conditioned on repayment of materials cost incurred by the District by the MPRB.  Upon vote, the motion failed, 2-3, Managers Blixt, Keeley and Shekleton voting against.

Ms. Clark reviewed the proposed revision to the joint powers agreement, under which the District’s and the MPRB’s roles would be reversed for the vegetative restoration in phase III of the project.  Specifically, the MPRB would produce designs that would be subject to approval by the District.  Then the MPRB would construct the project.  In response to a question from Manager Klingelhutz, Ms. Clark stated that the plans for the vegetative restoration are 75 percent designed already and there is roughly $1 million to allocate to the vegetative restoration.  Manager Blixt moved to retain the existing joint powers agreement language and reject the proposed revisions. 

In response to Manager Casale, Manager Blixt said she is uncomfortable with the District turning over control of the project to the MPRB.  In response to a question from Manager Casale, Mr. Evenson stated failure to approve the recommended amendment would likely lead to additional delays in constructing the project.  In response to another question from Manager Casale, Mr. Welch stated that District counsel has been working with staff to draft the proposed amendment.  Mr. Evenson stated that he believes the reversal of the roles for the phase III portion of the project will help speed the conclusion of the work in the glen.  In response to a question from Manager Shekleton, Mr. Evenson stated that he is OK with the MPRB taking that lead role in constructing phase III of the project.  He acknowledged that changes to the design in the project could cause the SHPO to become involved in the project again.  Mr. Panzer added that he is confident in the role reversal being a sound direction for the conclusion of the project, if there is a good description of the project objectives in the amendment and the District retains approval authority.  The managers discussed maintenance of the vegetation in the glen and Manager Blixt restated her concern that less funding will be available for plantings.  Mr. Panzer stated that the grading work is completed and that the contractor been instructed to pull back off the slope and will do so at his cost.  He stated that this restoration in accordance with the revised design would not add costs.

With regard to maintenance. Mr. Evenson stated that there is a three-year vegetation guarantee in the construction contract for the glen and noted the opportunity for the District to take over maintenance remains in the agreement.  Manager Shekleton seconded Manager Blixt’s motion.  In response to questions from the managers, Ms. Clark clarified that the obligation under the proposed memorandum of agreement with the USACE and SHPO will be not be affected by the District’s refusal to approve the change in the MPRB joint powers agreement.  In response to a question from Manager Keeley, Ms. Clark said that the next step would be to complete construction as previously authorized. Upon vote, the motion carried, 4-1, Manager Klingelhutz voting against. 

Manager Blixt moved, seconded by Manager Keeley, to approve the Memorandum of Agreement with the USACE and SHPO.  Upon vote, the motion carried.

After further discussion, the managers directed staff to discuss options for other ways to address the MPRB’s liability concerns in consultation with staff, the District engineer and counsel.  Manager Blixt stated that staff should come up with creative alternatives, then set up a meeting of three District managers and three MPRB board members, along with staff to develop a solution.  Manager Blixt moved the aforementioned direction, seconded by Manager Klingelhutz.  Upon vote, the motion carried.  Manager Shekleton clarified that the representatives from the District will be Managers Calkins, Blixt and Shekleton.

Approval of Local Water Management Plans and Memoranda of Understanding

Mr. Kale presented the agenda item, stating that a critical issue in approving local water management plans and entering memoranda of understanding is whether the District will administer its rules in a given municipality or the municipality will exercise its option to retain sole regulatory authority by adopting and enforcing ordinances that provide protection of water resources equivalent to that provided by the District rules.  Mr. Evenson provided additional background on the agenda item.  He stated that some cities object to entering a memorandum of understanding with the District.  He said one of the District’s options is to do no projects in cities that refuse to enter an MOU.  He identified Edina, Victoria, Plymouth and Minneapolis as objecting to the concept of the MOU.  In response to questions from the managers, Mr. Welch indicated that an alternative to the MOU is adoption of a very specific resolution by the Board, outlining the terms of and requirements for the approval of a city’s local water management plan. 

Manager Blixt said she sees no reason that the District should not continue to require MOUs.  Manager Blixt moved to continue to require MOUs for all local plan approvals.  In response to Manger Klingelhutz’s inquiry about the status of the Laketown Township local water management plan, Mr. Kale stated that he has spoken with the City of Victoria about its annexation of the township in the coming decades.  Mr. Kale said Laketown Township has been assigned a phosphorus load reduction allocation of 220 pounds and the long-term annexation plan by Victoria and Waconia means that it is unlikely that that reduction will be met during the term of the District’s current plan.  Manager Klingelhutz seconded the motion.  In response to the managers’ further inquiries, Mr. Welch explained that the primary purpose of the MOU is to memorialize the terms of the District’s approval of the local plan.  Mr. Kale added that a signed MOU has more weight when it comes to enforcing the city’s obligations.  Mr. Evenson added that the MOUs are signed by the council, and therefore get the attention of the mayor and councilmembers.  Manager Casale moved to amend Manager Blixt’s motion, directing District staff send a firm memo to a city that does not wish to execute an MOU, indicating that the city plan will not be approved until it includes all elements required by the District.  Manager Klingelhutz seconded the amendment.  Upon vote, the motion to amend was approved.  Upon vote, the main motion carried.

Manager Blixt moved that the District adopt a policy to reassert its permitting authority in cities that do not have an approved local water management plan two years after the District watershed plan has been approved.  Mr. Evenson stated the motion will apply only to the City of Chanhassen at this time.  Manager Keeley seconded the motion.  Upon vote, the motion carried, 4-1, Manager Klingelhutz voting against.  

Manager Blixt moved, seconded by Manager Shekleton, to direct staff to develop a recommendation on how to work with the City of Minneapolis on approval of a local water management plan.  Manager Blixt noted that the City of Minneapolis needs District assistance to meet its water-quality goals.  Mr. Evenson added that the Board of Water and Soil Resources is working with the City of Minneapolis and the District to address local plan approval issues.  Upon vote, the motion carried.

Woodland Cove

Mr. Tony DeMars, Cross River Consulting, appeared before the Board and presented the results of his regulatory gap analysis for the Woodland Cove development in Minnetrista.  Mr. DeMars also provided copies of a draft conservation development framework, based on the regulatory gap analysis and natural resources inventory he completed earlier.  Mr. DeMars explained that his gap analysis identified risk from stormwater bounce in hardwood swamps, wetland drainage from ravine headcutting, sediment deposition into Halsted’s Bay and Six Mile Marsh, impacts of mooring facilities, forest fragmentation and boat prop turbulence resuspending sediment as important unregulated potential impacts.

He stated that the conservation framework identifies natural shoreline areas to be protected, high quality conservation upland areas and other areas where there is low or no ecological value that could be ideal for concentrating development.  Mr. DeMars stated that the developer is already thinking about a conservation structure for the project, but the District’s work will provide a framework within which to assess the development concepts that may be presented.  Mr. DeMars stated that his next step will be to work with District staff to complete the conservation framework and seek feedback from the planner for the developer. 

The managers discussed the relationship between the conservation development framework and the density requirements as imposed by the Metropolitan Council on the City of Minnetrista and on this development in particular.  Mr. Ten Eyck said there if the frame proposed to cut a number of units out of the development a density requirement problem may develop but nothing in the materials presented to the Board will prompt any kind of back and forth with the Met Council.  Mr. Evenson stated that District counsel is reviewing the Minnetrista comprehensive plan amendment and will present the range of options relating to conservation development and density requirements at a future meeting.  Mr. Evenson added that the Department of Natural Resources also would like to review the planned unit development to be proposed for the property.  Manager Casale stated that the Met Council density requirements and the number of docks to be proposed as part of the project are highly unlikely to change, and that the District should take an approach that best works with these realities and attempts to add conservation value. 

Mr. DeMars stated that the question is, what beyond-regulation goals does the District want and what cost it is willing to bear to achieve them? The exercise he is completing will identify the benefits available, but will not set a cost.  

Mr. Ten Eyck stated that the Met Council density requirement could be met through denser lots to maximize natural resources benefits in the design.  He added that while removing some of the docks may not be feasible, preserving the hydrology of the poorest wetlands maybe more realistic.  He stated that the ongoing work with Mr. DeMars will clarify the options.  Mr. Evenson added that Mr. DeMars will work closely with John Uban and his partner John Shardlow on the project.  Mr. Evenson also noted that a Metropolitan Council representative will attend the District’s June 10 meeting to discuss density requirements and conservation goals.

Following the discussion, Manager Blixt asked about recent media stories about new stormwater management requirements for business.  Mr. Christopher stated that the new statewide industrial stormwater permit was approved by the Minnesota Pollution Control Agency.  Businesses have 60 to 180 days to apply and will assess their runoff during the first two years under the permit, and implement best management practices starting in the second year.  The District is assisting in the implementation of the program.

The managers agreed to postpone consideration of the remaining items on the agenda.  Mr. Evenson stated that the Dutch Lake project will come before the Board as an action item on May 13 and that with regard to the Highway 26 wetland restoration, staff has prepared a letter to the consultant on the project, Emmons Olivier Resources, asking it to restore the structure that has failed. 

ADJOURNMENT

There being no further business, the meeting of the Board of Managers adjourned at 10:45 p.m.

Respectfully submitted,

Lee Keeley, Secretary