Minutes - Feb. 18, 2010

MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

February 18, 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 7:05 p.m. in the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 

MANAGERS PRESENT

James Calkins, Brian Shekleton, Lee Keeley, Richard Miller, Jeff Casale, and Mike Klingelhutz.

MANAGER ABSENT

Pamela Blixt.

OTHERS PRESENT

Eric Evenson, District Administrator; James Wisker, District Planner/Program Manager; Mark Ten Eyck, District Land Conservation Program Manager; Natalie White, Maintenance Technician; Becky Houdek, Wetland Technician; Michael Panzer, District Consulting Engineer; and Louis Smith, District Counsel.

MATTERS FROM THE FLOOD

None

APPROVAL OF AGENDA

Mr. Evenson recommended adding a flood potential evaluation by the District Engineer as Item 11.3, and discussion of Board Liaisons as Item 11.4.  It was moved by Manager Keeley, seconded by Manager Miller to approve the agenda with these changes.  Upon vote, the motion carried.

CONSENT AGENDA

Manager Casale requested pulling the minutes of February 11 from the Consent Agenda.  Mr. Evenson requested pulling Permit 09-367 from the Consent Agenda for discussion.  It was moved by Manager Keeley, seconded by Manager Miller to approve the remaining items on the Consent Agenda, including approval of the check register with check numbers 29627 through 29704.   Upon vote, the motion carried.

COMMITTEE AND TASK FORCE REPORTS

IT Committee

Manager Casale reported that the IT Committee reviewed web site development proposals and will be recommending three for presentation to the Board of Managers. 

Permits

09-367 – Three Rivers Park District, Lake Town Township

Ms. Becky Houdek appeared before the Board of Managers and reviewed the permit application and variance request for sand blanket maintenance.  At the request of Manager Klingelhutz, Ms. Houdek reviewed the District’s policy to allow maintenance of sand blankets every four years.  Following discussion, it was moved by Manager Keeley, seconded by Manager Klingelhutz to approve the permit application and variance request as recommended by staff.  Upon vote, the motion carried.

Minutes of February 11, 2010

It was moved by Manager Casale, seconded by Manager Keeley to table the minutes of February 11.  Upon vote, the motion carried.

Mr. Evenson noted that the review of Rule F comments is not an item for board action, but should be substituted as Item 11.1 for Board discussion. 

Applied Ecological Services Contract to Develop Monitoring Plan

Ms. Natalie White appeared before the Board of Managers and reviewed the request for board action to authorize a contract with Applied Ecological Services for development of a monitoring plan for the Dutch Lake Wetland.  Following discussion, it was moved by Manager Casale, seconded by Manager Miller to approve Resolution 10-017 authorizing the District Administrator to execute a contract with Applied Ecological Services for an amount not to exceed $7400.00.  Upon vote, the motion carried.

Rule F:  Shoreline and Streambank Improvements Comments Review

Mr. James Wisker appeared before the Board of Managers and reviewed the rulemaking process, some misconceptions about the proposed amendments to Rule F, and the comments received on the proposed amendments.  Mr. Wisker explained that contrary to some of the  misconceptions reflected in some comments, the District is not seeking to “outlaw” the use of riprap; the District is not proposing to require removal of existing riprap and replacement with cattails; the proposed rule amendments do not consider all riprap to be fill in a wetland requiring mitigation; the District currently regulates shoreline and streambank improvements under the existing Rule F; and installation of riprap under the proposed amendments will not require wetland mitigation at a ratio of 16:1.

Manager Shekleton arrived at this point in the meeting (7:22 p.m.).  Mr. Wisker then turned to review the primary concerns raised by comments on the proposed amendments to Rule F. 

Public Beaches

Mr. Wisker noted that commentors are seeking greater flexibility concerning the installation of sand blankets.    Mr. Wisker noted that the DNR reviews each individual request for sand blanket installation on public beaches, rather than allow them under the general permit.  He noted that the District could either develop more detailed guidance for public beaches or leave regulation of public beach sand blankets entirely to the Department of Natural Resources.  Manager Klingelhutz asked why the District should be involved in this issue.  Mr. Wisker noted that the District has historically regulated the installation of all sand blankets including both public and private beaches.  Mr. Panzer noted that in the past there were examples where the District has required more detailed conditions on sand blanket permits, such as use of geotextile fabric.   Following discussion, the managers recommended no further changes concerning the public beaches issue.

Placement of Riprap in Wetland

Mr. Wisker noted that some comments seemed to reflect a concern that all riprap will be considered fill in a wetland and require mitigation.  In fact, riprap is considered fill in a wetland only when it is placed in a wetland.  The managers requested that the text to the rule be reviewed to assure that this is clear to all parties.  Manager Klingelhutz asked about fringe wetlands on lake shores and how access to the lake can be facilitated without the use of riprap.  Mr. Wisker explained that docking out would be the preferred alternative. 

Riprap as Floodplain Fill

Mr. Wisker noted that the proposed amendment to Rule F requiring floodplain mitigation for placement of riprap within the floodplain received extensive comments, including the point that it would require excavation in the shoreland zone and vegetation removal, which would seem counter productive.  He noted further that the DNR does not consider riprap to be fill in the floodplain.  Local units of government have conflicting ordinances that limit excavation within the shoreland zone.  Mr. Wisker noted that if riprap is confined to placement in areas of erosion, there will be minimal impact to the floodplain.  Mr. Panzer noted further that the extent of riprap placement on Lake Minnetonka in total does not amount to a significant amount of fill in the floodplain. 

The managers discussed a desire to have more detailed information about the extent of the use of riprap on Lake Minnetonka.  It was moved by Manager Casale, seconded by Manager Miller to direct the staff to prepare an assessment of the extent of riprap on Lake Minnetonka.  Manager Klingelhutz asked why this analysis would be confined to Lake Minnetonka and not cover all lakes in the District.  Following discussion, the motion was deemed amended by unanimous consent to include all lakes within the District.  Upon vote, the motion carried by a vote of 4-1, with Manager Miller voting against the motion.

Manager Calkins noted that this issue of fill in the floodplain with riprap had been a concern for him, and that with the history of flooding on Lake Minnetonka and within the watershed, we should generally seek to avoid exacerbating the situation by allowing any fill, however minimal.  Nevertheless, the comments received on the proposed amendment show many complicating factors, and therefore Manager Calkins stated that he agreed with removing this language from the proposed amendment.  He stated that he felt it would be important to track the amount of fill placed in the floodplain by riprap, so that the District could identify mitigation opportunities through District projects in the future.  Following discussion, the Board of Managers concurred with the recommendation to remove the provision of the proposed amendment to Rule F identifying placement of riprap in the floodplain as floodplain fill. 

Erosion Calculation

Mr. Wisker reviewed the comments stating that the proposed erosion calculation worksheet does not actually predict erosion conditions on Lake Minnetonka.  He noted that the intention is for the worksheet to provide for design flexibility and avoid a process whereby the calculation is overly prescriptive.  Manager Casale stated that he felt the comments on this issue were well reasoned from knowledgeable sources.  Proposed shoreline improvements should not require an individual engineering study, he stated, especially because most erosion problems are obvious and discoverable through routine site inspections.  Mr. Wisker noted that the staff had taken fifty examples of riprap installation on Lake Minnetonka and analyzed the accuracy of the erosion calculation worksheet.  The staff found that it under-predicted erosion problems and is developing proposed changes to this calculation by altering the weight given various factors.   Mr. Wisker noted that the staff is proposing to change the ranges of scores to increase accuracy, and provide further detail on the boat wake category.  With these changes, the staff believes that the worksheet can still be a valuable tool to evaluate shoreline conditions in conjunction with mapping and site visits. The Board of Managers concurred wit this recommendation.

The managers discussed the ideal of developing a cost-share program to create incentives for use of vegetation as an alternative to riprap installation where appropriate.  Manager Miller stated that he felt that this would be a very positive development to address these issues.  Managers Klingelhutz stated that he felt that the cost-share resources should focus on design assistance.  Mr. Wisker noted that a review of municipal shoreland ordinances reflected a similar commitment to protecting vegetation.   

Natural Shorelines and Maintenance Projects

Mr. Wisker noted that there had been support expressed for preservation of existing natural shorelines, but also concerns about the ability to maintain current uses of riprap for County projects, as well as other concerns about retrofitting riprap shorelines with vegetation and bioengineering.  Other comments reflected a high level of concern over intrusion onto property rights, as well as concerns with the increased cost involved in design planning and maintenance of bioengineered shorelines.

Manager Casale noted the comment from David Newman concerning removal of an individual tree prohibited as vegetation removal.  Mr. Wisker stated that there is a need to develop more specific language to address this issue, and that the same issues arise with interpretation of the DNR model shoreline ordinance and municipal shoreline ordinances.  The Managers requested the staff and legal counsel to develop language to clarify this issue in harmony with reasonable interpretation of local ordinances.

Mr. Wisker reviewed the conditions of sample shorelines where there is evident erosion and where natural vegetation exists and should be preserved.  Mr. Evenson noted that there are plans that have been considered for a long time to improve the Highway 101 Causeway, and that the District is continuing to communicate its interest in cooperating with Hennepin County and municipalities to approach this project in a cooperative manner as previously planned.

Manager Calkins noted examples where it may be desirable to relocate access corridors through shoreline vegetation, and in such cases the District should consider requiring restoration of the old access area. 

Mr. Wisker described further details to develop an incentive program that would build the knowledge base for contractors and the District and develop further experience in maintenance of riprap projects.  The managers concurred with this direction.

Public Education

Manager Keeley expressed her concern with the level of misunderstanding about the proposed rule amendments.  She asked what could be done to address these misunderstandings. 

Manager Miller stated that he agreed with this concern and that further there seemed to be an organized effort at misinformation that is leading to further public confusion about the rules.  He recommended that the District retain a communications consultant experienced in advising public agencies to assist in addressing these issues.  He stated that he was familiar with the Tunheim and Himle Horner firms.  Manager Miller suggested that a Board Taskforce consider this issue further and develop a recommendation to the Board of Managers.  Manager Casale stated that he shared these concerns and felt that it was urgent to address these issues.  Manager Shekleton agreed and felt that the communications issues may also extend beyond the proposed rules.  Manager Calkins noted that throughout this rulemaking process, there have also been strong statements of support for the overall direction to protect water resources, and that it is important to keep this perspective in mind.  Following discussion, it was moved by Manager Calkins, seconded by Manager Shekleton to designate Managers Calkins, Casale, Miller, and Shekleton as a Taskforce to seek and review a proposal from the Himle Horner firm and report to the Board of Managers on February 25.  Upon vote, the motion carried.

Cost-Share Grant Program Development

It was moved by Manager Casale, seconded by Manager Keeley to direct the staff to develop a proposal for cost-share incentive grants for shoreline improvement projects.  Upon vote, the motion carried.

Audience Comments

Manager Calkins invited anyone in the audience who wished to comment on this discussion.  Mr. Paul Robinson appeared before the Board of Managers on behalf of Bancor.  He requested further clarification from the staff about the analysis of shoreline conditions.  Mr. Wisker explained that the intent of the process is to maintain existing uses and if possible to accommodate installation of vegetation, also utilizing an incentive program.  Mr. Robinson stated further that the rules are very complex and it is easy to get confused, but the level of deep misunderstanding or misinformation may not be as great as perceived.  The managers thanked Mr. Robinson for his comments.

Administrator’s Report

Mr. Evenson reviewed the Administrator’s Report and noted his discussions with the Minneapolis Park and Recreation Board concerning the Minnehaha Glen project. 

Spring Flood Potential

Mr. Panzer reviewed a memorandum dated February 17, 2010 concerning the prediction of Lake Minnetonka’s levels and flooding potential on Minnehaha Creek.  He characterized the risk of flooding as moderate to low, because Lake Minnetonka is relatively low and snowfall has been relatively normal.

Board Liaisons

Manager Casale stated that he felt it was important to have more proactive arrangement of Board Liaisons to other units of government.  He requested that he be designated as liaison to the Lake Minnetonka Conservation District, the Lake Minnetonka Association, Mayor Jim White of Orono, Mayor Nick Ruehl of Excelsior, Mayor Marvin Johnson of Independence, and Hennepin County Commissioner Jeff Johnson.  Managers Keeley and Calkins questioned whether such actions were necessary and noted that the board policy on liaisons should be considered.  Mr. Smith provided an overview of the policy.  It was moved by Manger Klingelhutz, seconded by Manager Miller to designate Manager Casale as the Board Liaison to the entities that he requested.  Upon vote, the motion carried by a vote of 4-2, with Managers Calkins and Keeley voting against the motion. 

It was moved by Manager Shekleton, seconded by Manager Klingelhutz to designate Manager Keeley as the Board Liaison to the City of Plymouth.  Upon the request of Manager Keeley, this motion was withdrawn. 

It was moved by Manager Miller, seconded by Manager Casale to designate Manager Miller as the Board Liaison to the Mayor of Edina and Hennepin County Commissioner Gail Dorfman.  Upon vote, the motion carried by a vote of 4-2, with Managers Calkins and Keeley voting against the motion.  

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers adjourned at 11:03 p.m.

Respectfully submitted,

Lee Keeley, Secretary