Minutes - April 8, 2010

MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

April 8, 2010

CALL TO ORDER

The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President James Calkins at 7:00 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 

MANAGERS PRESENT

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

MANAGERS ABSENT

Richard Miller.

OTHERS PRESENT

Eric Evenson, District Administrator; Udai Singh, District Water Quality Specialist; Julie Westerlund, District Education/Communications Manager; Nat Kale, District Planner; Ellen Heine, District Land Conservation Specialist; Natalie White, District Maintenance Technician; Michael Panzer, District Consulting Engineer; Chuck Holtman, District Counsel.

MATTERS FROM THE FLOOR

None.

APPROVAL OF AGENDA

It was moved by Manager Keeley, seconded by Manager Blixt to approve the agenda with addition of a discussion of the shoreland improvement rule as agenda item 11.6.  Upon vote, the motion carried 5-0.

CONSENT AGENDA

It was moved by Manager Blixt, seconded by Manager Keeley to approve the consent agenda with the exception of authorization to contract with Applied Ecological Services for vegetation maintenance, consisting of the April 1, 2010 minutes as revised and redistributed, partial waiver of liability limits, award of property search and management contract to the LaSalle Group, authorization to contract with Blue Water Science for aquatic vegetation surveys and authorization of funds and contract award for Lake Nokomis biomanipulation.   Upon vote, the motion carried 5-0.

REGULAR AGENDA

Committee Reports

Manager Casale reported that on Tuesday District staff met with LaSalle Group representatives and Larry Blackstad to review prospective efforts involving the Minnehaha Creek corridor through Hopkins and St. Louis Park.  Manager Casale is confident that the choice of the LaSalle Group is a good one.  Mr. Ten Eyck added that he attended the Hopkins City Council meeting on Tuesday evening with Tom and Brent LaSalle and Mr. Blackstad.  Mr. Ten Eyck stressed opportunities along the creek and introduced team members to the city council. 

Mr. Ten Eyck said that he will inform the other two proposers of the Board’s decision.  He is impressed by the LaSalle Group and believes that they can evaluate property assembly opportunities in order to determine how the District can reach its goals consistent with the interests of property owners.  He noted that the company also is involved directly in construction activity and understands development issues.

Manager Calkins noted a letter received from the Gleason Lake Association thanking the District for assistance in the curlyleaf pondweed study.

Manager Calkins reviewed the schedule of upcoming committee meetings as noted on the written agenda.  Mr. Evenson advised that the personnel committee meeting scheduled for 7:00 p.m. on April 29, 2010 has been rescheduled to begin at 7:30 p.m.

Vegetation Maintenance Contract with Applied Ecological Services

Manager Klingelhutz asked whether the work to be done under this contract would rest on the foundation of the conservation plan for the Waldera properties.  Ms. White replied that it would and that a plan for the Barkus property is being incorporated into that conservation plan.

It was moved by Manager Klingelhutz, seconded by Manager Blixt to adopt proposed Resolution 10-034 authorizing the administrator to enter into a contract with Applied Ecological Services on advice of counsel in the amount of $29,628.65, with further authority not to exceed $34,072.95.

Manager Calkins asked why AES’s price is significantly lower then the other proposers.  Ms. White replied that it will mow rather than burn the large sedge meadow wetland complex and also that it is currently working on the Johnson property and therefore has cost efficiencies. 

Manager Shekleton arrived at this time.

Manger Calkins asked whether mowing would compact the soils and whether it would be as effective as a burn for site vegetation goals.  Ms White replied that staff will need to monitor carefully to ensure that mowing does not occur when the ground is too wet.  Ms. White, responding to Manager Calkins, also indicated that the work will address the bare soils along the new Painter Creek diversion channel.

Responding to a question from Manager Klingelhutz, Ms. White clarified that both the Barkus and Johnson plans will be integrated with the Waldera conservation plan.

Manager Keeley inquired whether there is support in the literature for mowing.  Ms. White replied that there is, under certain circumstances.  Manager Calkins asked that staff review the site after one year to assess its condition.  Responding to Manager Calkins, Mr. Holtman advised that the District will have the prerogative to adjust the contract after a year, although it could be subject to a price adjustment.  Ms. White cautioned that one year may not be sufficient to fully assess the vegetation condition.  Mr. Panzer suggested that the contract could specify a performance measure.  Mr. Evenson also suggested that the agreement could provide for sanctions if mowing causing damages. 

It was moved by Manager Calkins, seconded by Manager Klingelhutz to amend the main motion to direct that the agreement contain a performance standard and a term addressing damage as suggested by Mr. Evenson.  Upon vote, the motion carried 6-0.  Upon vote, the main motion as amended carried 6-0.

Education/Communication Audit, Himle Horner Proposal

John Himle reviewed the proposal for an audit and review of the District’s education/communications program in the packet. 

The Board discussed the extent of consensus around the District’s goals and whether a review of these goals and the more specific goals of the education/communications program is needed before an audit can be done.  Manager Calkins noted that the District’s existing communications program and education plan do rest on stated goals.  Manager Keeley also observed that the District should distinguish between communications and marketing/branding, which are two different activities.  Manager Blixt questioned whether managers should be interviewed separately or together.  Mr. Himle replied that it can be done either way.

Manager Casale suggested that the District does have a well developed plan and articulated goals but may not be effectively communicating those goals.  He suggested that Himle Horner’s work could help the Board narrow its goals in order to focus its education and marketing programs.  Manager Shekleton observed that the District is meeting some goals more then others and believes the proposed audit will be useful.

It was moved by Manager Keeley, seconded by Manager Shekleton to authorize the administrator to enter into an agreement with Himle Horner for the two elements of the audit referred to as the internal program review and the external communications audit. 

Manager Blixt said that she supports the motion but she still believes that there is not sufficient Board consensus as to District goals.  Mr. Himle replied that after internal review, the firm will come back to the Board with strategic choices and options to allocate resources.  A part of this would be a Board workshop utilizing inputs from both the internal and external parts of the work. 

Manager Klingelhutz asked about the District’s previous work in this area.  Mr. Evenson replied that several years ago, Richardson Richter performed a survey and convened a focus group and prepared a plan on that basis.  However, said Mr. Evenson, this was focused more on what the District should do and not on evaluating whether the District is being effective.

Manager Calkins stated that the general public is the District’s most important constituency and that he does not see that they will be a part of the survey.  Mr. Himle replied that general public views are generally addressed through a random quantitative survey.  The proposal is based on Himle Horner’s perception that the current primary issues for the District involve relations with other governmental bodies and organizations.  Manager Calkins replied that he would like to see a description of a work element to address the general public.

Manager Shekleton suggested that the two constituencies are linked.  He believes that if the District’s communication is effective as to city council members and other local officials, that will flow down to the general public.  Manager Calkins agreed in part but believes that public officials are not the single route to reach residents.

Mr. Himle suggested that the primary question for a given audience is what will motivate those folks and cause them to take action.  He cautioned that judged by that standard, effective communications with ordinary residents are challenging.  Individuals are subject to thousands of messages each day and a heavy resource commitment is needed to move general public perception.  Manager Keeley emphasized that the “general public” consists of a number of different groups and that it is important for the District to identify those groups it is seeking to reach and focus its programs to do so.  Manager Shekleton observed that when resources are limited, it makes sense to focus on the “thought leaders” in the community.  This would include, in his view, planning commission members.  Manager Calkins noted that communication also involves maintaining opportunities for the public to communicate to the District to help in development of its programs. 

Upon vote, the motion carried 6-0.

Manager Casale asked why the proposal element referenced as tactical plan development is offered as optional.  Mr. Himle replied that the first two work elements may produce recommendations for other work to be done before a tactical plan is created. 

Manager Blixt asked that staff provide the previous survey to the managers.  She suggested that if there is a general survey, there should be questions about awareness of the District.  Manager Shekleton suggested the importance of assessing whether the District is using the right tools to education the general public.  Mr. Himle suggested that with respect to the general public, efforts would focus on tracking changes in perception by using some of the questions from the previous survey; determining where folks are on the most important District policies; and assessing present behaviors.  Manager Calkins noted the importance of measuring the effectiveness of the District’s program.

As to funding, Mr. Evenson suggested that there is money in the budget for consultant outreach work in the education fund.  Manager Blixt suggested that the work shouldn’t be funded entirely from education, as there are other reasons why the Board has asked Himle Horner to provide assistance.

DISCUSSION ITEMS

Proposed Wetland Buffer Width

Manager Klingelhutz explained his concern about the maximum 75-foot buffer in the proposed rule.  He does not see great support for that within the comments and believes that the polling conducted among rules committee members does not support it.  He also referenced Manager Casale’s earlier observation that the purpose of the new rules is not to restore wetland resources, but to prevent further degradation.  He suggested that a 50-foot maximum width would seem to be better supported.  He also noted that in light of the many federal and state programs that offer payment for maintaining buffers, he would favor a District program in which buffers wider than 50 feet are supported by payments to landowners. 

Manager Casale observed that through three years of committee meetings, this has been a contentious question.  He said that he has read the comment letters and that cities supportive of the District and good practices, including Minnetonka and Shorewood, are asking for a 50-foot buffer.  He also noted that in many cases where buffer requirements are being applied, stormwater BMPs will apply as well.  He is uncertain that a benefit-cost assessment supports a 75-foot maximum buffer. 

Responding to Manager Shekleton, Mr. Wisker reviewed how buffer requirements would be triggered under the proposed rule.  Primarily, they would apply to large scale development but also could apply to smaller subdivisions and redevelopment.  New single-family construction and tear down-rebuilds would be subject to special provisions insuring that the buffer requirement does not preclude construction or rebuilding.

Manger Shekleton suggested that the rule might impose a wider buffer but provide a payment for incremental buffer above 50 feet.  Manager Casale observed that valuation on a property-specific basis would be challenging.  He also suggested it would be unorthodox to pay a property owner for complying with the rules. 

Mr. Wisker reviewed the rationale for the 75-foot standard.  First of all, he explained that the scientific literature largely supports this width.  He noted that Emmons and Olivier Resources reviewed some 300 items of scientific literature several years ago and that its review was presented to the rulemaking task force.  While there is naturally variation in the literature, there is a strong basis for conclusion that while a 50-foot buffer may be effective for nutrient and sediment removal, treatment of soluble pollutants requires a buffer wider then 50 feet. 

Mr. Wisker also reviewed the flexibility in the rule that allows buffer width to be adjusted downward, including soil/slope conditions, use of plantings, infiltration and buffer averaging.  Manager Casale observed that the application of these involves discretion and judgment on the District’s part and that a potential buyer of property will need more certainty as to buildable area in order to make acquisition decisions.  He would like the rule to be more specific in how landowners can comply and would like the authority to approve permits to rest at a staff level.  He noted that staff generally reaches sound decisions based on coordination with applicants and would not want this process to be susceptible to frustration by subsequent Board review.  He also noted that a program in which landowners are paid for excess buffer may create a disincentive to use buffer averaging and other approaches that may be more cost-effective and better for the resource.

Responding to Manager Klingelhutz, Mr. Wisker remarked that most cities do have a 50-foot maximum buffer, and therefore this represents a change to them.  Mr. Panzer also noted that buffer area increases geometrically as buffer width increases, which may underlie some of the expressed concerns.  He also noted that pollutant removal based on buffer width is not linear, and that a “break point” for optimal removal can be seen at about 75 feet.

Mr. Wisker explained another concern of some cities, which is that they have established structure setbacks from buffers so that vegetation is not directly against a structure.  If the District applies a wider buffer, cities may feel the need to apply their setback from the edge of the District’s buffer.

 

Manager Calkins asked counsel to address the takings question.  Mr. Holtman replied that comments alleging takings should be understood more as a rhetorical comment on public acceptability and less as raising a legal concern.  Mr. Holtman explained that there is a “taking” only if the rule deprives a landowner essentially of all reasonable use of his property, and with the several means that the rule proposes to address unique circumstances, it is unlikely that a true takings issue would arise.  Mr. Holtman advised that if the record shows that there are potential impacts from land-disturbing activities that would trigger the buffer requirement, and that the required buffer would mitigate these impacts in a proportionate way, there is not a strong concern that the rule would effect a taking.     

Manager Casale concurred in Mr. Holtman’s remarks, suggesting that the rule does a good job of preserving buildability in difficult cases.  Manager Calkins stated that he supports property rights, but concurs that takings is not a viable issue in this case.  He observed that wetlands are a diminishing resource and agreed that preventing their future degradation is the primary goal of regulation.  Manager Calkins concurred that the task force spent a lot of time discussing the buffer rule, but he perceived a wide range of discussion with some members clearly supporting a buffer wider then 50 feet.  He also emphasized the need for the rules to be science-based and concurred in Mr. Wisker’s conclusions drawn from the literature. 

Manager Calkins also emphasized that he is very opposed to focusing only on phosphorus.  Nitrates are very important, and for buffers to remove nitrates effectively, a wider buffer is required.  He also emphasized that riparian habitat is critical and central to watershed district purposes and goals.  As to paying landowners, he is concerned about precedent and would urge the need for great care before proceeding in that direction.  He is open to other ways of introducing flexibility but believes a minimum width must be stated.  He believes that the 75-foot standard has very strong support in the literature and that the rule already contains substantial flexibility.

Manager Casale responded that he can support a 75-foot width if the discretion involved in the flexibility elements can be limited and the outcome made adequately predictable.  He also suggested the District consider a two-stage approach, for example prohibiting structures within the buffer but allowing turf grass between 50 and 75 feet.  Manager Keeley concurred in the extensive flexibility that the rule provides and in Manager Calkins’ concern that any use of payment be very well thought out.  Manager Blixt also said she was persuaded by Manager Calkins remarks.  She thinks that a payment program is probably more complex than is worthwhile. 

Manager Calkins agreed that a buffer does not need to be all native vegetation, however he noted that while turf can contribute to water quality performance, it provides nothing for habitat.  He also emphasized maintenance needs are significant and turf condition would be difficult for the District to monitor and enforce. 

Mr. Evenson advised the Board that Mr. Panzer previously prepared a memorandum on quantifying benefits of Best Management Practices, and he will distribute that to Board members.  Manager Calkins stated that those asking for narrower buffer must support their argument by describing how rulemaking goals still can be achieved.  Managers Casale and Klingelhutz emphasized that they would like staff to develop language quantifying Best Management Practices that could be converted into rulemaking language if the Board so decides.

Invasive Species Report

Dr. Singh made a presentation to the Board reviewing updated costs of inspections at public accesses and marinas as well as cost for a proposed monitoring program to assess water chemistry in Lake Minnetonka to determine the susceptibility of the lake as zebra mussel habitat.  He also described for the Board communications with the Department of Natural Resources in which DNR suggests that it is more effective and cheaper to inspect lake structures for adult zebra mussels than to monitor for veligers. 

Manager Calkins suggested that unless and until zebra mussels are identified in the lake, it makes sense both to inspect for mussels and to assess water chemistry.  Manager Casale noted his desire to hear from legal counsel on the previously raised question of legal authority to close public boat accesses at certain times of day. 

Mr. Evenson suggested inquiring about the use of off-duty police officers to provide a ticketing authority at boat ramps during busy periods.  Manager Shekleton suggested that movie theater ads are inexpensive and provide good exposure.  Dr. Singh noted that some are looking at voice-activated messages at boat launches.

Manager Calkins observed that there is not time for three years of monitoring to provide a basis for water chemistry assessment.  He suggested that Lake Minnetonka water chemistry is not likely to fluctuate greatly.  He also reiterated prior discussion about the District consulting with its county commissioners and state elected officials to gauge their reaction to aggressive measures to combat invasives.  Mr. Evenson replied that he is in the process of setting up meetings between managers and county commissioners.

It was moved by Manager Casale, seconded by Manager Keeley to authorize staff to perform water chemistry testing in Lake Minnetonka as soon as possible.  Mr. Panzer commented that there may be alkalinity data in the historical record which could assist in judging the stability of the water chemistry.  Upon vote, the motion carried 6-0.

Mr. Evenson indicated that in the meantime staff would use calcium blocks as suggested by the DNR to survey for adult zebra mussels, will further assess the notion of hiring police officers and will refine concepts for press releases and other local media use.  Manager Casale cautioned that the District not use volunteers to search for zebra mussels, to maintain control and ensure that results are very reliable.

Stormwater Infiltration/Storage Programs

Mr. Wisker reviewed the workplan in the Board packet.  The Board directed staff to proceed vigorously in accordance with the workplan.

Communications with City of Victoria  

Mr. Evenson reported that staff has developed a draft response to Victoria’s questions and that Himle Horner is reviewing those responses.  Mr. Evenson indicated that legal counsel will forward the proposed responses to the Manager, who should provide any comments back to counsel.  A proposed final response will be presented to the Board for discussion next Thursday.

Proposed Shoreland Improvement Rule

Manager Casale remarked that at the last meeting, he reported a request from the Cities of Shorewood and Deephaven to clarify that maintenance of existing riprap does not trigger the proposed rule requirement.  He suggested that the public informational materials now are not consistent with the rule and the District should clarify its position. 

Mr. Wisker reviewed the application of the rule.  He noted that riprap can be maintained in place without triggering the shoreland improvement requirements.  He suggested that some of the existing confusing language is residual from a previous draft and can be removed.  He also noted that the mandatory language under paragraph 6 (2) (ii) could be changed simply to “encourage” bioengineering.

It was moved by Manager Casale, seconded by Manager Shekleton to direct these changes to be made.  Manager Calkins stated that language simply “encouraging” bioengineering should not be included in the rule.  Mr. Wisker agreed that the suggested changes make sense but suggested that all changes await completion of the public comment process so that the Board can deal with them together.  Upon vote, the motion failed 1-5 (Managers Calkins, Shekleton, Keeley, Blixt, Klingelhutz opposed).

Board members opposing the motion indicated that the changes are acceptable but that it is preferable to wait and formally direct changes all at once.  Mr. Wisker noted that the comment period ends on April 12 and that staff will return to the Board with responses to comments and a final proposed rule at the May 13 meeting.

It was moved by Manager Blixt, seconded by Manager Calkins to direct all final rule changes after the public comment period has ended.  Upon vote, the motion carried 5-1 (Manager Klingelhutz opposed)

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 11:05 p.m.

Respectfully submitted,

Lee Keeley, Secretary