MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

February 11, 2010

CALL TO ORDER

The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President Jim Calkins at 6:54 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 

MANAGERS PRESENT

James Calkins, Pamela Blixt, Lee Keeley, Richard Miller, Jeffery Casale, Brian Shekleton, Mike Klingelhutz.

MANAGERS ABSENT

None.

OTHERS PRESENT

Eric Evenson, District Administrator; James Wisker, Planner/Programs Coordinator; Udai Singh, Water Quality Program Manager; Mark Ten Eyck, Land Conservation Program Manager; Michael Panzer, District Consulting Engineer; Michael Welch, Assistant District Counsel.

MATTERS FROM THE FLOOR

Joe Fiedler, a resident of the City of Chaska, appeared before the Board on behalf of his church, which is located on Lake Wasserman.  He encouraged the Board to look into the possibility of removing carp from Lake Wasserman, stating that he thinks this will be a nice gesture of good will toward the City of Victoria.  Second, he stated that his church is in need of repaving its parking lot, which is currently red rock, and wishes to use pervious pavers to do the job and will be applying for a Cynthia Krieg grant.  The Board thanked Mr. Fiedler for his comments.

APPROVAL OF AGENDA

Mr. Evenson asked to replace the request for approval of an extension of the RMB Environmental Laboratory analytical services contract with a request for authorization to issue a request for proposals for laboratory services.  He also asked for the addition of a Board decision on a request from Hennepin County Community Works.  Finally, Mr. Evenson asked to add an update on the meeting with the City of Victoria.  Manager Klingelhutz moved, seconded by Manager Miller, to approve the agenda as amended.  Upon vote, the motion carried.

CONSENT AGENDA

Manager Calkins removed the minutes of the February 4, 2010, meeting from the Consent Agenda.  Manager Keeley moved, seconded by Manager Klingelhutz, to approve the Consent Agenda, consisting of the approval of a request to serve as the fiscal agent for a Clean Water Fund grant for the Friends of Diamond Lake, contingent on approval of the associated agreement by District counsel.  Upon vote, the motion carried.

REGULAR AGENDA

Committee and Task Force Reports

There were no committee or task force updates.  Mr. Evenson stated that the District’s building consultant is available to meet February 25 with the Building Task Force after the Personnel Committee meeting.  The members of the Building Task Force agreed to meet at 8 p.m., February 25, pending Manager Casale’s availability.

BOARD ACTION ITEMS

Minutes of February 4, 2010

Manager Calkins requested two corrections on page 2 of the February 4 minutes.  The Rulemaking Task Force discussion should state that Manager Calkins noted a recent article in the Lakeshore Weekly News, and that the Legislative Committee report was from Manger Calkins.  Manager Calkins moved, seconded by Manager Keeley, to approve the minutes so amended.  Upon vote, the motion carried.

Request for Proposals for Laboratory Services

Mr. Evenson explained that counsel advises that the District must issue a request for proposals for analytical services, rather than simply extending the existing contract with RMB Labs.  He said staff is seeking authorization via a revised request for Board action.  Manager Blixt moved, seconded by Manager Keeley, to approve Resolution 10-020, authorizing staff to issue a request for proposals for laboratory analytical services.  Upon vote, the motion carried.  

Minnehaha Corridor Collaboration Request

Mr. Evenson presented the item, stating that the District received a request from Hennepin County Community Works to participate in a collaborative effort to reduce toxic pollution in the Minnehaha Corridor.  He said the county plans to submit a request for a grant for the work to the Environment Protection Agency and is seeking a letter of support and willingness to participate in the project.  Mr. Evenson added that the proposal is to form a working group to develop a collaborative model for reducing toxics of all kinds in the corridor.  Manager Miller moved, seconded by Manager Keeley, to issue a letter of support to Hennepin County stating the District’s willingness to collaborate.  In response to a question from Manager Blixt, Mr. Evenson said no specific target toxins were identified.  The managers noted that the District should not participate unless the project addresses groundwater and surface water toxins.  Upon vote, the motion carried.

Review of Comments on Proposed Changes to Rule D

In response to a request from Manager Calkins, the following persons indicated that they were in attendance to hear the discussion of Rule D: Laura Turgeon, Shorewood City Council; Paul Skrede, Mayor, Deephaven; Jim Johnston, Lyman Properties; Joel Settles, Hennepin County; Dave Poggi, engineer for Mound and Deephaven; Cara Geheren, Victoria; James Landini, Shorewood; Paul Robinson, Bancor. 

Mr. Wisker presented a summary of the comments on the District’s proposed wetlands rule amendments and his draft responses.  Mr. Wisker stated that his presentation will not address each of the comments received, but rather will address them by topic area.  He noted that the District also received comments from the Metropolitan Council and the cities of Woodland and Greenwood, for which responses have not been drafted. He said he will review the rulemaking process, then address some of the misconceptions about the proposed amendments and rules, then discuss the steps he proposes to address each of the comment topics.  He said his goal is to receive direction from the Board of Managers for the next steps in addressing the comments and drafting responsive revisions to the rules.  Mr. Wisker referred to a handout describing the extensive rulemaking and stakeholder involvement process.  At Manager Miller’s request, Mr. Wisker emphasized that the Rulemaking Task Force included members from the District’s Citizens Advisory Committee, representatives of developers, the Builders Association of the Twin Cities, engineers and representatives from the financial sector.  He stated task force members and their affiliations are listed on the District website, and added that members were appointed by the Board to represent a diversity of geographic areas as well as experience with the District rules.  He said that the Technical Advisory Committee had an open membership list that allowed the watershed cities and agencies to send the person best qualified to any particular meeting.  Mr. Wisker reviewed the process used to develop the wetland rule in particular, noting that eight meetings had focused on Rule D.

Misconceptions and misunderstandings

Mr. Wisker stated that there appears to be some misconceptions about the proposed rule.  He said considerable misinformation and misunderstanding has developed around the application of the Rule D buffer requirements to single-family homes, which has not yet been determined.  He stated that some think buffers will apply to lakes and streams, which is not the case.  He also said the District will not eliminate the standard Wetland Conservation Act (WCA) exemptions.  He said that the District rule would regulate excavation in type 1 and 2 wetlands, which WCA does not regulate.  He said that District staff developed these regulations to respond to Board interest in preventing the loss of such wetlands.  

(Manager Casale arrived at this time; 7:21 p.m.)

Mr. Wisker said there is a misconception that District monitoring and maintenance requirements will apply to undisturbed wetland and that dredging will be prevented by the rule.  Finally, Mr. Wisker added that the buffer triggers in the proposed rule are not new but are exactly the same as under the current Rule D and that the declaration required under the rule is longstanding District policy.  After discussion, the managers agreed that the Mr. Wisker should communicate with the stakeholder groups and use other routes available to clear up misunderstandings and misinterpretations of the amended Rule D provisions.

Mr. Wisker went through the comments received by topic area. He discussed the rule provisions to which the comments refer and the possible changes to the rule that could help resolve concerns.  In terms of process, Mr. Wisker stated that staff will revise the draft responses in accordance with direction from the Board, then will coordinate with stakeholders and District counsel and engineer to revise rule language where necessary.  Ultimately, the revised rules will be brought back to the Board and an additional public meeting held before finalization and adoption of the rule.  The managers expressed support for the process described by Mr. Wisker. 

The four areas in which Mr. Wisker grouped comments are: buffer widths, single-family homes, triggers and signage; excavation not regulated by WCA; monitoring and maintenance; and wetland mitigation and banking. 

Buffer widths, single-family homes, regulatory triggers and signage

Mr. Wisker said baseline buffer widths of 75, 40, 30 and 20 feet were proposed, with adjustments depending on soil type and slope.  Mr. Wisker stated that as it stands the rule provisions call for the buffer widths to be adjusted up based on these factors but could be switched to adjust down for certain characteristics to give developers more certainty at the outset of a project.  Regarding triggers, he said the rule is triggered by other rules that have their own triggers, including Rule N, for which triggers have not yet been determined, making the application of Rule D somewhat uncertain.  Some commenters maintain that the buffers widths are too great and in particular will be difficult for single-family homeowners, especially in communities that have a setback requirement from buffers in ordinance.  There were also comments regarding the possibility that Rule B, erosion control, would trigger buffers.  Mr. Wisker added that a number of comments requested greater flexibility for road projects, and there is concern about the requirement that buffers would be applied around the entirety of a wetland downgradient from an impact.  Finally, he said there were a number of comments on the requirement for signage and monuments around wetland buffers.

Mr. Wisker stated that some possible areas of revision included clarification of the triggers for the wetland buffer requirements under which full buffers would apply to new development and redevelopment projects, where additional land could be dedicated to buffers, while a single-family home buffer requirement could be triggered by an increase in impervious surface for redevelopment project, and the buffer width could be based on a percentage of open space between the structure and the wetland.  He said buffers for bridges and wetland disturbance also could be required.  He stated that other possible revisions could include additional flexibility for buffer widths on road projects, removal of the requirement of buffers around an entire wetland downgradient from a disturbance, and flexibility for roads and parks projects with regard to the signage requirements. 

In response to a question from Manager Blixt, Mr. Wisker stated that the number of projects affected by the change in triggers is difficult to tell and that the staff is not proposing to change the triggers but rather clarify them.  He also said that staff will keep the fact that Rule N triggers buffer requirements in mind when finalizing the proposed amendments to Rule N.  He added that as written, buffers would not routinely apply to single-family home sites but the Board had expressed the desire to leave the framework open to do so while leaving flexibility with regard to the widths that may be required. Mr. Wisker said some commenters questioned the need for buffers downgradient from impacts, which is the current requirement.  Mr. Wisker also clarified that the District currently asks for signage around wetland buffers but does not require it by rule.  Manager Blixt stated her willingness to consider flexibility for road authorities if they have established buffer maintenance programs.  Mr. Wisker stated that the District has agreements with Hennepin County and the Minnesota Department of Transportation (MnDOT) covering their buffer maintenance issues, and provisions from these agreements could be incorporated into the rule.  Manager Blixt stated that the flexibility could be extended to homeowners associations as well if they have such programs in place.  Manager Blixt stated that with regard to the downward adjustment, she agreed that certainty would help developers as long as scientifically supported buffers are required.  Mr. Wisker said it is important to balance science with pragmatism, but that the District found that buffers under 50 feet in width are sufficient for removing total suspended solids, but buffers of 50 to 75 feet in width are required for other water-quality improvement purposes.  He stated that a switch to a process whereby buffers are adjusted downward from a capped width would not be a monumental change.  Manager Casale stated that he supported such a revision, because the ability to adjust downward would more clearly serve as an incentive for developers to improve the quality of buffers.  Manager Calkins stated that he finds the proposed buffers to be at the low end of what he considers sufficient, but he believes the widths are reasonable.  He has no problem with setting buffer width caps and adjusting down.  He added, though, that buffers are not just for water quality but also provide vital ecological benefits and the District should maintain all of those benefits.  The managers concurred that Mr. Wisker should work with stakeholders, counsel and the engineer to develop revisions effecting the changes discussed.

(Manager Shekleton arrived at this time; 8:01 p.m.)

Excavation

Mr. Wisker discussed the issue of excavation in wetlands.  He said WCA regulates only excavation in types 3, 4 and 5 wetlands, and the District wants to discourage unnecessary excavation in unregulated wetlands.  The current proposal allows excavation only for public benefit or for invasive-species control in an effort to avoid a loss of wetland diversity.  Mr. Wisker said comments express concern that these exemptions only apply to public agencies.  Mr. Wisker said the District staff is considering a revision that would extend the public benefit exemption to apply to everyone proposing to provide a regional water quality benefit, habitat or ecological improvement.  He proposed that sequencing could be applied to other excavation projects, along with type-for-type mitigation.  Manager Blixt stated her support for Mr. Wisker’s proposed revisions, to general agreement of the managers.  In response to a question from Manager Klingelhutz, Mr. Wisker stated that the excavation depth necessary to eliminate invasive species depends on the site.

Monitoring and maintenance

Mr. Wisker discussed comments on monitoring and maintenance of wetlands.  He reviewed the rule requirements, then noted that some commenters argued that the vegetative cover requirements are too prescriptive and difficult, that monitoring and maintenance is expensive, and that road right-of-way has specific maintenance needs.  He said commenters also expressed concern over reporting required for entities that have very large areas of buffer and that there was concern expressed about monitoring and maintenance applying to all buffers, not just those planted to create new buffer.  Mr. Wisker said potential clarifying revisions include inclusion of field flexibility in the implementation of the performance standards, adding flexibility for very large buffer areas with regard to reporting, and the integration of the right-of-way maintenance requirements from the District’s agreements with MnDOT and Hennepin County.  Manager Calkins commented that catching invasive species early through monitoring is helpful to landowners as well because they are easier to control at that stage.  Mr. Wisker added that the Board of Water and Soil Resources (BWSR) has expressed support for the District’s native-species percentage requirement, and that staff believes that the monitoring and maintenance amendments are particularly sound and necessary. Following the discussion, the managers concurred with Mr. Wisker’s proposed process for developing language adding flexibility where appropriate to the monitoring and maintenance provisions.

Mitigation ratios and wetland banking

Mr. Wisker addressed mitigation and banking, noting that this is a particularly complicated area.  He said District counsel and staff have been working on and discussing these rule provisions with BWSR and continue to do so.  The purpose of the District’s mitigation and banking provisions is to create a disincentive for mitigation in a different subwatershed from where the impact occurs.  The District’s proposed rule requirements increase the mitigation ratios as the mitigation site gets further and further away from the impact. 

Mr. Wisker said the comments indicate a need to clarify that District requirements do not apply to qualifying road projects, which do not need to be reviewed by the WCA Local Government Unit (LGU), and projects where the District is not the LGU.  Mr. Wisker also said that commenters stated that that the mitigation ratios are excessive and punitive, and that the ratios usurp LGU authority to apply WCA.  He also noted that commenters observed that MnDOT has its own wetland bank separate from the state road bank.  He said other comments included that the District rules would add expense to nonqualifying road projects. 

As to possible revisions, Mr. Wisker said that the District could change the mitigation siting requirements to a sequencing-type process, whereby mitigation would be required on site first, then within the same subwatershed, then within the District, then within a District bank, or could be mitigated by a contribution of funds to the District for banking purposes.  He also added that the District could potentially explore offsets from prior wetlands created under another project by the same developer.  Mr. Wisker stated that the enhanced mitigation ratios in the rule would not be needed if sequencing is applied correctly.  Mr. Wisker explained that to facilitate the Board’s interest in ensuring that mitigation occur within the District, a bank could be established.  But, he said, the establishment of a wetland bank and application of mitigation ratios when the District is not the LGU would require a major plan amendment.  Mr. Wisker also said that using the District bank for qualifying road projects would require an unprecedented and complex agreement with BWSR.  He stated that staff recommends against pursuing such an arrangement as overly complicated and not sufficiently beneficial to District wetlands.  Rather, he said, the District could use its capital-project capacity to create wetlands to offset qualifying road projects’ impacts.  Manager Casale stated the Board’s initial idea was to make the bank available and allow developers to create extra wetland to deposit.  He said an overly complex arrangement would not be valuable to the District.  Mr. Welch added that there are wetland replacement ratios in WCA that would apply even if there are no such ratios in the District rule.  In response to a question from Manager Keeley, Mr. Wisker said that while the District replacement requirements would not often be triggered, it is important to create a rule that ensures mitigation will not be taken outside the watershed.  The managers stated no further direction for Mr. Wisker, concurring with his suggestions for revising the rule as discussed.

Mr. Wisker summarized again the proposed process for finalizing the rule amendments. Manager Klingelhutz indicated that half the wetlands in the District are classified as Preserve wetlands, which means a significant number of the wetlands in the District would require the maximum-width buffers.  Manager Calkins said the District, in clarifying the rule, should not abandon its wetland-protection goals.  Mr. Wisker stated that the District has clear reasons for increasing the buffer widths under the rule and that these policies were discussed by both the Technical Advisory Committee and the Rulemaking Task Force.  He said that refining language and clarifying requirements will not take away from the District’s ability to achieve its goals.  In response to Manager Calkins, Mr. Wisker said he does not plan to send the revised language out to the rulemaking committees, and that he does not think additional meetings of the stakeholder groups are necessary.  Manager Calkins said it is important to inform the stakeholders of the changes that are made.  The managers made no further changes to Mr. Wisker’s plan, as described, to clarify the applicability thresholds in the rule.

Mr. Wisker noted that the District is developing a scope of services for conducting a new function and values assessment of District wetlands. 

Manager Calkins called for comments from the audience.  Paul Robinson, Bancor stated that some wetlands are rated Preserve just because they are near a lake or stream.  He noted that a two or three feet of cattails near a lake should not need a 75-foot buffer.  He said people will be shocked when these provisions are applied to specific properties.

Manager Miller observed that it is very important in responding to comments to clarify that the District’s buffer rule does not effect takings, and that comments appear to be using that term too loosely.

Hydro Data Annual Report

Dr. Singh summarized the past year’s activities of the District sampling and analysis department and introduced the staff members and interns who contributed to the effort.  Dr. Singh discussed the various parameters for which the District samples and the sampling protocols and program.  In response to a question from Manager Blixt, Dr. Singh stated that the District will assessing whether to add sampling sites on Six Mile Creek in the upcoming season.  Dr. Singh stated that 26 sites on Lake Minnetonka were sampled, along with 15 limited access lakes.  In response to a question from Manager Blixt, Dr. Singh stated that the District goes through a two-year rotation of upper watershed lakes, though this year it will pilot a project under which five additional lakes will be sampled.  He said that beyond phosphorus, nitrogen and Secchi depth, staff also is sampling for phytoplankton and zooplankton. 

Dr. Singh discussed the District’s sampling for zebra mussel veligers in 11 bays on Lake Minnetonka.  He stated that the District took over this sampling from the Lake Minnetonka Association and found no veligers last year.  In response to a question from Manager Blixt, Dr. Singh stated that currently the District is underwriting this effort.  Manager Blixt suggested that additional lakes other then Lake Minnetonka should be assessed for invasive species.  Dr. Sighn agreed, but noted that he is short of resources to conduct additional sampling, though the District will sample upper watershed lakes for zebra mussels this year.  Mr. Evenson stated that staff will also be coming back to the Board to continue the discussion of invasive species–control efforts in the spring.  Dr. Singh reviewed the lake monitoring conducted by the Minneapolis Park and Recreation Board, as well as the Citizen Assisted Monitoring Program.  Dr. Sighn reviewed the bathymetric analysis conducted last year for Lake Hiawatha and Lake Nokomis in association with the TMDL studies of those lakes, and he reviewed the RiverWatch program results.  In response to a question from Manager Shekleton, Dr. Singh stated that the students in the RiverWatch program are from area high schools.  Dr. Sighn reminded the managers that in the coming year the District will be looking at revising its lake-grading system.

It response to a question from Manager Keeley on road salt, Dr. Singh discussed the difficulties and options for sampling for chloride in District lakes and creeks.  At the conclusion of Dr. Singh’s presentation, Manager Blixt offered her compliments to Dr. Singh and his staff, noting the huge amount of research that they undertake each year.  Manager Calkins asked about criticism of the District’s biomanipulation project in Lake Nokomis, observing that some have questioned whether the channel catfish proposed to be added to the lake in fact pose a potential problem.  Dr. Singh stated that the criticism came from the U.S. Fish and Wildlife Service, but it has been resolved by Steve McComas, the contractor on the project. 

City of Victoria Meeting

The managers discussed the comments attributed to City of Victoria staff and council members in the Victoria Gazette recently.  The managers also discussed the options for conducting a March 3 meeting with the Victoria City Council.  The managers expressed a strong desire to have the meeting conducted by a facilitator, in contrast to the city’s suggestion that a facilitator was not needed.  Mr. Evenson reported on a recent discussion between District and city staff, which cleared up some misinformation and misconceptions, though additional areas of disagreement remain to be resolved.  The managers noted that a misunderstanding about how the District’s land conservation program works is at the root of the disagreement with Victoria.  Mr. Mark Ten Eyck appeared and suggested that a recent consultant report unfortunately labeled as a “plan” created much of the misunderstanding and consternation in the city.  The managers agreed to have Manager Calkins work with Mayor Mary Thun of Victoria to develop an agenda for the meeting.  The managers also agreed to notice a Board meeting for February 25 at 8 p.m. to discuss the proposed agenda for the March 3 meeting.

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers adjourned at 10:25 p.m.

Respectfully submitted,

Lee Keeley, Secretary