MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

August 25, 2011

CALL TO ORDER

The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President James Calkins at 6:45 p.m. in Council Chambers, Minnetonka City Hall, Minnetonka Minnesota. 

MANAGERS PRESENT

James Calkins, Richard Miller, Lee Keeley, Pamela Blixt, Jeffrey Casale, William Olson.  

MANAGERS ABSENT

Brian Shekleton. 

OTHERS PRESENT

Eric Evenson, District Administrator; James Wisker, District Planner; Becky Houdek, District Planner Specialist; Renae Clark, District Projects Manager;  Mark Ten Eyck, District Land Conservation and Restoration Manager; Yvette Christianson, District Water Quality Specialist; Telly Mamayek, District Communications Manager; Steven Christopher, District Regulatory Program Manager;  Mallory Anderson, District Education Assistant; Michael Panzer, District Consulting Engineer; Chuck Holtman, District Counsel.

MATTERS FROM THE FLOOR

Christine Lizee, Mayor, City of Shorewood, read a resolution adopted by the city council supporting empowering the District to manage aquatic invasive species (AIS) on behalf of regional interests.  She stated that the city council applauds District leadership in taking on the AIS issue.

Dick Osgood, Executive Director, Lake Minnetonka Association (LMA) stated that it is important for a single organization to assume a comprehensive AIS management role.  The LMA’s preference is a statewide effort, but until an adequate effort is mounted, the LMA supports District leadership in a regional approach.

APPROVAL OF AGENDA

It was moved by Manager Keeley, seconded by Manager Miller to approve the agenda with the addition of a letter supporting the Save our Summers Program as an informational item and letters of support for the Long Lake Creek project from the Cities of Orono and Long Lake to agenda item 11.  Upon vote, the motion carried 6-0.

CONSENT AGENDA 

It was moved by Manager Keeley, seconded by Manager Olson to approve the consent agenda, consisting of the August 11, 2011 minutes; the checking, petty cash and surety registers, the first consisting of checks 30983 through 31061 in the total amount of $369,845.24; adoption of resolution 11-064, as follows:

BE IT RESOLVED that Minnetonka can continue to make revisions to it ordinances and has until December 31, 2011 to gain MCWD approval of the ordinances without losing permitting authority;

adoption of resolution 11-065, as follows:

BE IT RESOLVED that the Minnehaha Creek Watershed District Board of Managers has no objection to GGP’s retaining Wenck Engineering for a limited term to perform feasibility work related to the Knollwood Mall property.

BE IT FURTHER RESOLVED that the MCWD reserves all rights to require any subsequent design plans to be reviewed by the MCWD under its regulatory or other capacity to be prepared and signed by a third-party engineer other than Wenck on behalf of the applicant.

adoption of resolution 11-066, as follows:

BE IT RESOLVED, by the Board of Managers (the “Board”) of the Minnehaha Creek Watershed District, Minnesota, as follows:

1. The Board hereby declares  it necessary and desirable to certify to the County Board capital improvement program costs in the aggregate amount of up to $5,000,000 to achieve the purposes set forth in the District’s Land Conservation Program, and hereby requests that the County (a) issue its general obligation bonds pursuant to the Loan Agreement to provide permanent financing for the unpaid balances of the Notes, and (b) levy a tax on property within the District as a special taxing district levy of the District.  The District shall include the amount necessary to pay debt service on the County’s bonds in its annual levy certification.

2. The Board delegates to the District Administrator and Treasurer authority to sign the necessary certifications relating to the maintenance of the tax-exempt status of any such bonds issued by the County and all other documents as necessary in connection with the issuance of said bonds.

3. The District acknowledges that it will pay a pro rata portion of the issuance costs of the County’s bonds requested hereby. 

 adoption of resolution 11-067, as follows:

BE IT RESOLVED that the Board of Managers approves a grant to the applicant 50 percent of the total costs associated with stormwater improvements not to exceed $20,288 under the MCWD’s Low Impact Development Program in accordance with the terms of the proposed final funding agreement, for the incorporation of a stormwater quality treatment structure for stormwater management benefits in excess of District regulatory requirements; authorizes the Board President, on advice of counsel, to sign the funding agreement and all other documentation required to implement the grant award; and authorizes the MCWD administrator to take all other steps necessary to implement the funding agreement in accordance with its terms.

approval of permit application 11-140, Woodland Cove, Minnetrista with conditions recommended by staff; and information items and correspondence.  Upon vote, the motion carried 6-0.

REGULAR AGENDA

Committee and Task Force Reports

Manager Casale reported that the Citizens’ Advisory Committee (CAC) meeting featured Mr. Wisker and Mr. Christopher and was well attended, with good discussion.  Manager Calkins reviewed the upcoming meeting schedule on the agenda.  Manager Miller added that the Finance and Budget Committee will meet at 6:00 p.m. on September 7 to review proposals for a District bond placement agent. 

Mr. Evenson said he will attempt to move the Personnel Committee meeting that evening to 7:00 p.m. and will advise Board members of the location.  The Hydrodata Committee will meet on September 20, 4:30 p.m., at the District offices.

BOARD ACTION ITEMS

Long Lake Creek Improvement Project

Ms. Houdek presented a revised resolution ordering four elements of the project.  Ms. Houdek reported that staff recently met with Metropolitan Council Environmental Services (MCES) and will be working with MCES staff to address the sewage lagoon.  Mr. Wisker added that MCES suggested it would endeavor to dredge the lagoon in 2012 and would like to see a District concept for restoration of the wetland and creek meandering.  Mr. Wisker advised the Board that the District will work with Emmons and Olivier Resources on a conceptual design. 

It was moved by Manager Blixt, seconded by Manager Miller to approve revised resolution 11-071 as follows: 

BE IT RESOLVED that pursuant to Minnesota Statutes §103B.251 and the WMP, the MCWD Board of Managers orders the Projects, with total estimated cost (including design, construction, and construction oversight) of $511,044 and authorizes the solicitation of design services. 

Upon vote, the motion carried 6-0.

Contract with St. Anthony Falls Laboratory

Ms. Clark presented a proposed resolution concerning rain gardens installed by the Mound Harbor Renaissance Group (MHRG) under a 2005 funding agreement with the District.  These facilities do not appear to be functioning properly.  The MHRG has agreed that funding for an investigation by the St. Anthony Falls Laboratory (SAFL) can be taken from remaining withheld reimbursement funds.  On study completion, staff will return to the Board to recommend disposition.  It was moved by Manager Casale, seconded by Manager Keeley to adopt resolution 11-072 as follows:

BE IT RESOLVED that the Minnehaha Creek Watershed District Board of Managers authorize[s] the District Administrator, upon review by counsel, to enter into a contract with the University of Minnesota, St. Anthony Falls Laboratory (SAFL) to conduct a collaborative site investigation of the rain gardens and drainage characteristics located in Mound, downtown redevelopment phase 1 for the amount of $7,875 and authorize[s] the District Administrator to approve expenditures for this purpose for the not to exceed amount of $9,261.60. 

Upon vote, the motion carried 6-0.

Hiring Waterfront Restorations for Non-Chemical Program to Control Flowering Rush

Ms. Christianson introduced Tom Suerth of Waterfront Restoration.  Staff is seeking to hire the firm to do a pilot control project on two bays in Lake Minnetonka and on Minnehaha Creek.  Ms. Christenson reviewed the characteristics of flowering rush and locations where it has been observed on Lake Minnetonka and Minnehaha Creek. 

Mr. Suerth introduced his colleague Derek Lee and they explained the proposed pilot study.

Responding to Manager Miller, Mr. Suerth said that the firm does shallow commercial diving and that they are not scientists.  He explained that the work will extend to 80 feet from shore as that is the waterward extent of flowering rush growth based on their survey.  Mr. Suerth said that they will use floating nets to harvest in 50-by-50-foot areas.  All parts of the plant float and the soft sediments will allow removals to be done carefully and without dispersing rhizomes.  He added that they will do a more thorough survey before removal using one-meter by one-meter quadrats that will allow year-to-year comparison.  The survey will include an inventory of native species as well. 

Mr. Suerth said that the plant materials will be disposed of on a raspberry farm in Edina away from any waterbody.  The study will provide data on the needed frequency of treatment. 

Manager Blixt asked how the data will support the Board’s ability to develop a long-term plan.  Ms. Christianson replied that the pilot study will include high- and low-traffic areas as well as hard and soft lake substrates to assess treatment success under different conditions.  It is hoped that this can answer the question of whether this type of harvesting is feasible.  

It was moved by Manager Keeley, seconded by Manager Olson to adopt proposed resolution 11-068 as follows:

BE IT RESOLVED, [the Board of Managers] authorizes the District Administrator to hire Waterfront Restorations to pilot a non-chemical program to control flowering rush in portions of Smiths Bay and Crystal Bay in Lake Minnetonka.  The amount expended shall not exceed $20,000 and is contingent upon the MCWD or its contractor receiving a permit to do the work from the DNR.

Dick Osgood communicated LMA support.  He said that about 100 acres of Lake Minnetonka is now infested with flowering rush and it is not known how quickly it spreads.  If the rate of spread is slow, this approach may be useful.

Upon vote, the motion carried 6-0. 

Contract with Insight Technologies for RFID Technology Prototype

Mr. Evenson introduced Don Fisk and Rick Davis from Insight Technologies.  He noted the need for a comprehensive, statewide approach to AIS management and noted that manual inspection is cost-prohibitive on a statewide basis.  The radio-frequency identification (RFID) technology that Insight proposes to evaluate is off-the-shelf but would be used in a new application.  He further noted that there has been discussion with Insight to resolve intellectual property issues and that the proposal would avoid use of global positioning technology so as not to implicate privacy concerns.

Mr. Davis introduced himself and Mr. Fisk as principals of Insight.  Mr. Fisk reviewed the system and proposal.  He emphasized that one benefit of a system based on RFID technology would be to minimize the inconvenience for compliant users. 

 

Responding to Manager Miller, Mr. Fisk stated that the focus of the prototype effort is to resolve questions regarding the range and limitations of the technology and the nature of the keypad interface in the proposed application.  Manager Miller replied that if there is not a system in place to gather and hold information statewide, it is uncertain what this prototype can demonstrate.  In Manager Miller’s view, the proposal should be held until the Minnesota Department of Natural Resources (DNR) is ready to participate. 

Manager Olson countered that developing information about feasibility and cost is an important step to proceed to the DNR to engage it in efforts toward a statewide system.  Manager Olson wishes to determine if this may be a durable approach consistent with the three principles of cooperating with the DNR, aggressively addressing AIS and maintaining lake access.  Manager Casale added that the technology is tested but the question remains of its application in this context.  This deliverable will involve testing in the actual environment.  Manager Miller replied that this is commercial testing that the vendor itself should do in order to market its product.  Manager Calkins suggested that there are many unknowns and that this work would help answer some of those questions.

Manager Calkins invited audience members to speak to the proposal.

Vern Wagner, Vice President, Anglers for Habitat expressed his organization’s concern about the spread of AIS and its desire to work with the District on a feasible pilot project.  The organization probably is not inclined toward RFID.  He questioned the presumption that once a boat is in infested waters, it is permanently contaminated.  He also noted that there are some 5,500 fishable lakes and 2,800 public access in Minnesota and asked how other, private accesses would be addressed.  Finally, he emphasized the importance of education.  His organization would like to work with the District on a process to certify folks as a part of boat licensing through coordination with County watercraft departments.

Doug Babcock, Chair, Lake Minnetonka Conservation District (LMCD) expressed support for the proposal, stating it is important to learn how to construct a sustainable system but also important to ask what level of protection such a system would provide.  He also noted data protection concerns, questions as to how a tag would be affixed to private boats and the fact that on Lake Minnetonka there are wide boat ramps that may take boats out of the range of an RFID reader. 

Manager Olson noted an advantage of an RFID system in being able to manage information as to multiple AIS species. 

Michael Bosanko, LMA Board Member, supports the proposal and an exploration of workable management systems.

Jill Crafton, Izaak Walton League, said that her organization has a priority to address impacts from ballast water.  She said that the District has shown leadership and she supports the District’s further efforts to explore potential systems.

Tom From said that the LMA has advocated for some time as to the need to control access and encourages the District to proceed.  He also supports higher fines. 

Jay Green, Anglers for Habitat and LMCD Task Force, emphasized the need for an automated system to have high availability and to have inspectors associated to address problems that arise.  Mr. Green launches in the range of 100 times a year and feels that he and others like him are well-educated and responsible.  He suggested that education needs to be directed primarily to those who launch infrequently.  He seconded the need to review data privacy issues.

Mark Wausha, CAC and Plymouth resident, noted that many “clean” lakes still have invasives.  He said that education is essential so that everyone is careful and there is not sole reliance on an imperfect technology system. 

Dave Hedlund lives on Lake Minnewashta and supports the proposal as a first step.

Dan Fields resides on Christmas Lake and supports the pilot project.  He noted that Lake Tahoe has controlled access. 

Manager Blixt stated that she is prepared to support the proposal.  To her, the purpose is to answer questions that can help the Board decide later if this is a system that the Board chooses to promote. 

Manager Miller replied that he is not prepared to support the proposal.  He strongly supports AIS management efforts but feels there is a primary need for the DNR to support a system such as this.  Then, it could seek competitive proposals nationwide and the full range of approaches can be examined. 

It was moved by Manager Keeley, seconded by Manager Olson to adopt resolution 11-069 as follows:

BE IT RESOLVED, [the Board of Managers] authorizes the District Administrator to Authorization [sic] to hire Insight Technologies for development of a prototype RFID based lake-access system to assist in controlling the spread of aquatic invasive species pending final approval as to form and execution by District Counsel and not to exceed $25,000.  

Manager Calkins stated to the Insight representatives that the District is expecting an all-inclusive prototype with information on how it would function in the real world, and how effective, efficient and user-friendly it would be.  He added that it also will need to address concerns raised in the discussion including system design and vandalism potential. 

Mr. Fisk replied that Insight will discover as many of the operating parameters as possible and that the results will help to dictate the parameters of a subsequent request for proposals for a statewide system.

Upon vote, the motion carried 5-1 (Manager Miller opposed).

Investigation into Zequanox Testing in Open-Water Environment

Mr. Wisker described a collaboration of the United States Army Corps of Engineers, Geological Survey and Fish & Wildlife Service to examine the use of Pseudomonas fluorescens bacteria (Zequanox) to target zebra mussels.  It was moved by Manager Miller, seconded by Manager Olson to adopt resolution 11-070 as follow:

BE IT RESOLVED that the Minnehaha Creek Watershed District Board of Managers hereby authorizes the District Administrator to apply for grant and partnership opportunities with NYSME, USGS/UMESC and USFWS/GNFH to field test application of Pf-CL145 A for dreissenid mussel control.

Upon vote, the motion carried 6-0.

BOARD DISCUSSION ITEMS

Preliminary Draft AIS Plan Amendment and Rule

Mr. Holtman reviewed a preliminary draft of a District plan amendment and rule to address AIS.  He explained the purpose of a plan amendment as a foundation for a rule is to articulate how managing AIS furthers District goals as well as the District’s technical and policy assessments that AIS is an issue that warrants action and that a regulatory program is an essential part of that action.  Mr. Holtman noted that the plan amendment is detailed in order to communicate clearly to stakeholders the course that the District would propose to follow and engage the stakeholders fully in assessing that course of action.  He suggested that the level of detail in the plan amendment could be reduced and that a rulemaking process would be the place where many of the details could be developed in conjunction with stakeholder review. 

Mr. Holtman noted that the preliminary draft rule largely mirrors the DNR statute and that this consistency both strengthens the basis of the District’s authority and allows for integration of the District’s regulatory efforts into a broader statewide effort.  Mr. Holtman also noted that once adopted, a rule could be phased in as the Board might choose.

Mr. Holtman added that pursuant to Board direction, staff and counsel were communicating with the City of Shorewood to develop a joint powers agreement under which the parties and the DNR might pursue the Christmas Lake pilot project.

Mr. Evenson recommended reconvening the rulemaking task force at the time the Board wishes to proceed with a rulemaking process.  Manager Miller returned to the importance of having the support of the District’s cities.  Manager Casale strongly agreed.  He noted that some six months ago the Board concurred in the need for city council resolutions from a sufficient number of District cities before a rulemaking process starts.  Manager Olson emphasized to the audience that the present document is not a rule, but a preliminary document, and that as the draft plan amendment states, any rulemaking would engage all interested parties.

Responding to a question from Manager Casale, Mr. Holtman explained how the District’s ordinary regulatory procedures and permitting would need to be adjusted in the present context to allow for the issuance of permits in a way that would not unduly impede use of the state’s waters by boats not harboring AIS.

Manager Keeley stated that she understands the need for full process but also emphasized the need to make progress.  Manager Casale concurred but emphasized that the process needs to be supported by the District’s communities.  He urged folks in the audience to take this message back to their constituencies.  Manager Blixt suggested that the plan amendment process could begin at this time.  Manager Casale concurred.  Mr. Evenson stated that staff will review the preliminary draft with counsel and bring a proposed draft plan amendment to the Board’s September 8 meeting.  He noted that a plan amendment process may take about four months. 

Manager Calkins asked counsel whether the plan amendment would be needed for the Christmas Lake pilot to go forward.  Mr. Holtman replied that the answer depends on the authorities on which the pilot program would rest.  He said that staff will examine alternatives as it develops the proposed pilot framework and that counsel would seek to ensure that the recommended framework to the Board would allow the pilot to go forward without delay due to plan amendment or rulemaking procedure.  Manager Casale stated that he would like the project to proceed without waiting for a plan amendment and would like counsel to find a way that can occur if possible. 

Responding to Manager Keeley’s question, Mr. Evenson suggested that there is a challenge to getting resolutions from cities.  According to Mr. Evenson, city administrators ask that the District provide a proposed rule before a city council can be asked if it is supportive. 

Manager Miller would like resolutions at least from all cities on Lake Minnetonka.  Manager Calkins said that he wants to see support but a deadline also is needed.  He agrees with Manager Keeley as to the need to move forward.  Manager Calkins believes that the District needs to ask for support and then see what it gets.

Mr. Evenson noted that work will follow a dual track and the District will continue to coordinate with the DNR to explore use of DNR regulatory authority.  Manager Calkins again emphasized to the audience that both documents are preliminary drafts. 

It was moved by Manager Miller, seconded by Manager Keeley to direct staff to use all necessary resources to seek support from cities by November 30, 2011.  Upon vote, the motion carried 6-0.

Economic Impacts of AIS

Ms. Mamayek introduced Mallory Anderson, who made a presentation on the some of the economic impacts of AIS.

Christmas Lake AIS Control Pilot Project Update

Eric Evenson introduced the pilot project discussion and said that his recent work with the Christmas Lake, Lake Minnewashta and Lotus Lake Associations has shown him three organizations extremely energized to provide local solutions to public problems.  Mr. Evenson introduced Steve Jencks, Lotus Lake Association; Steve Gunther, Minnewashta Lake Association; Steve Hirsch, Director, DNR Division of Ecological and Water Resources; and Jim Japs, Section Manager, DNR Environmental Management and Protection Services. 

Mr. Evenson described the pilot as seeking alternatives to what is an infeasible approach of inspector coverage of boat accesses.  He emphasized the need to work closely with the DNR and Shorewood and noted a new idea from sportsmen’s groups to certify folks so that they don’t need to go through the process each time they launch.  Pilot project characteristics include the use of regional inspection site; quick response to technological or mechanical problems; and initial reliance on DNR decontamination stations. 

Mr. Wagner addressed the Board a second time, stating that Anglers for Habitat supports a pilot program.  It would like to sit down with staff and refine the program, including for example urging the District to purchase a mobile decontamination station and possibly to retain a private vendor for 24-hour inspection.  He noted that the DNR task force, of which he is a member, took recommendations to the legislature that would apply here.

Mr. Gunther stated that he also is on the DNR task force.  He said that education is necessary but not sufficient and that in the short term, inspection of 100 percent of boats is needed; therefore there is a need to consolidate inspection stations and install gates. 

Mr. Jencks said that the DNR is becoming more engaged to go beyond education but further action is needed.  Critically, the DNR needs to recognize that local folks can help greatly.  Finally, he said that “unfettered access” is an aspiration but that the lakes have to be protected.  He said that the District has the support of the Lotus Lake Association.

Mr. Hirsch said that the DNR indeed is strained for resources but stated emphatically the the DNR is committed to progress on this matter.  He emphasized that the DNR does value local resources and applauded the District for its work.  He concurred in Manager Olson’s description of the three principles that should guide efforts. 

Mr. Hirsch agreed that a statewide approach is best but said this also increases complexity and cost.  The DNR is excited by the pilot and the ability to learn how a system might be scaled.  He stated as well that the DNR Commissioner wrote last winter to commit to working with the District and that commitment remains today.  To the DNR, the issue is authority.  He is not certain that the DNR can undertake all that is in the plan.  He also emphasized the need to manage access issues carefully, because access is extremely important to people.  If this issue is not addressed properly, it could impede success.   Finally, Mr. Hirsch noted that there is internal discussion at the DNR about going back to legislature to further address the authorities extended in the recent-year legislation. 

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 10:05 p.m.

Respectfully submitted,

Lee Keeley, Secretary