Minutes - May 20, 2010




May 20, 2010


The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President James Calkins at 6:57 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 


James Calkins, Pamela Blixt, Brian Shekleton, Richard Miller, Jeff Casale and Mike Klingelhutz.


Lee Keeley.


Eric Evenson, District Administrator; Mark Ten Eyck, Land Conservation Program Manager; James Wisker, Planner/Program Coordinator; Renae Clark, Project Manager;  Michael Panzer, District Consulting Engineer; Michael Welch, Assistant District Counsel.


Jack Amdal, a member of the Wayzata City Council, and Kristen Eide Tollefson, a resident of the City of Wayzata, appeared before the Board. Mr. Amdal stated that he is chair and Ms. Tollefson is a member of the Bushaway Task Force, which is concerned with Hennepin County’s plans for reconstruction of County State Aid Highway 101.  Mr. Amdal stated that past conservations with District staff member Steve Christopher encouraged the task force to approach the District with a request for funding to help the county improve the stormwater-management performance of the highway redevelopment.  He said he is interested in establishing a working group with District staff and managers to work with the county on the project.  Mr. Amdal stated that the task force would welcome District participation in its next meeting, May 27.  Manager Miller moved, seconded by Manager Shekleton to appoint Managers Casale, Keeley if she is able, and Calkins to meet with the task force and District staff; Manager Miller will serve as the alternate.  Upon vote, the motion carried. 


Mr. Evenson requested removal of the 2010 educational events schedule and the board liaison assignments items.  Manager Miller moved, seconded by Manager Blixt, to approve the agenda as amended.  Upon vote, the motion carried.


Manager Calkins requested the removal of the draft minutes of the May 13 meeting from the consent agenda.  Mr. Evenson requested removal of the administrator’s report.  Mr. Evenson noted that a not-to-exceed amount of $20,750 was added to the resolution for authorization to purchase the equipment and implement monitoring at the Turner/Dutch Lake wetland.  Manager Casale moved, seconded by Manager Klingelhutz, to approve the consent agenda, consisting of the surety, petty cash and checking registers, including checks 29828 through 29904 for a total of $313,723.02, authorization for purchase of equipment for the Turner/Dutch Lake wetland monitoring, extension of the effective date of the adopted revised rules to September 1, 2010, and approval of the FEMA XP SWMM model review.  Upon vote, the motion carried.


Committees and Task Force Reports

Mr. Joel Carlson, the District’s legislative liaison, appeared before the Board to provide a summary and update on the legislative session.  Of particular interest to watershed districts, Mr. Carlson said the tax bill included new legislation authorizing the listing of special tax districts separately on county tax bills.  He said watershed district borrowing authority under Section 103 D had been increased to $2 million.  He noted some progress toward the idea of the Department of Agriculture ceding authority to watershed districts to regulate the management of vegetation in stormwater ponds, and that no legislation detrimental to watershed districts passed this year.  In response to Manager Casale, Mr. Carlson stated that administrative penalty order authority for watershed districts had no traction in the legislature this year.  But some progress was made toward the stormwater-incentive legislation promoted by the District.  Mr. Carlson also reviewed the status of the statewide basin legislation promoted by Representative Morrie Lanning, which received conceptual support but bogged down on the issue of funding. 

Mr. Evenson added that in a recent meeting, Department of Agriculture representatives indicated openness to District stormwater pond vegetation-control efforts as long as there is no attempt to regulate pesticides. 

Manager Shekleton reported that the Personnel Committee is working on the salary survey, staff budgeting guidelines and the administrator’s review.  He said the committee will soon bring forward a recommendation to continue performance-based pay and a 2 percent increase budget guidelines increase for salaries.  Manager Shekleton added that the committee is supporting the addition of part-time tech support for the District cost-share program as well.  The administrative review continues to focus on building accountability into the District’s system.

Manager Calkins reviewed upcoming committee meetings.  Mr. Evenson recommended that a Personnel Committee meeting be scheduled for 6 p.m. June 8 at Edina City Hall to review the salary survey and make a recommendation.

Minutes of the May 13 Meeting

Manager Casale requested that review and approval of the minutes be deferred to the next meeting.  Manager Casale moved, seconded by Manager Miller, to defer action on the minutes.  Upon vote, the motion carried.

Administrator’s Report

Mr. Evenson stated that Jeff Storm of the Hennepin County sheriff’s office reacted positively to Mr. Evenson’s suggestion that the District fund increased patrols for boats transporting invasive species.  He said patrols cost $55.00 an hour.  Mr. Evenson suggested an invasive species summit with key legislators and county commissioners in lieu of the individual meetings with commissioners recommended in January.  Manager Klingelhutz moved, seconded by Manager Blixt, to direct staff to prepare as soon as possible a potential agenda for an invasive species summit and to identify dates and potential invitees.  Upon vote, the motion carried.  In response to a question from Manager Klingelhutz, Mr. Evenson stated that District staff is working with Emmons Olivier Resources on the repair of the weir at Highway 26. 

Painter Creek Partnership With U.S. Army Corps of Engineers

Mr. James Wisker appeared and stated that staff is seeking Board direction on two items: Whether the District should work with the Corps of Engineers (USACE) to develop a collaborative project to restore wetlands and improve natural resources in the Painter Creek watershed, and whether the District should work with the USACE to conduct a number of feasibility studies. 

Mr. Wisker stated that Emmons and Olivier Resources conducted a feasibility study for the District in 2007 and identified a number of projects, which were included in the capital improvements program of the District’s 2007 watershed plan.  Mr. Wisker said the plan identifies $6 million in projects in the watershed.  The USACE also conducted a feasibility study, focused on ecosystem restoration, as opposed to the District’s focus water quality improvement and reduction of phosphorus loading to Jennings Bay.  Nonetheless, he said, there is much overlap between the projects recommended by the study. Mr. Wisker explained that the USACE contribution to a collaborative project would be roughly $2.4 million in federal funds.  The District would be responsible for the remainder of the funds, constituting a minimum of 35 percent of the project costs of which land acquisition cost would be a part.  Mr. Michael Welch stated that the 35 percent cost-share responsibility for the nonfederal partner is a statutory requirement attached to the funding identified by Mr. Wyatt for the project.  In response to a question from Manager Blixt, Mr. Wisker stated that the District could work on Painter Creek projects either in cooperation with the USACE or on its own.  In response to a question from Manager Klingelhutz, Mr. Wisker stated that the District either needs to conduct all of the projects in the Painter Creek watershed in cooperation with the USACE or none.

Mr. Wyatt approached the Board and presented the results of the USACE feasibility study.  He noted there are time constraints on the USACE funding, after it will have to be reallocated to another project.  Mr. Wyatt acknowledged that the PPA is the sole binding legal document governing the partnership, but he has been working with District staff and counsel to address concerns related to the District’s inability to make changes to the project as it develops.  He described the phased approach the USACE would take to construction, and stated that at each point of this the District would have to authorize the USACE in writing before the next step is taken.  Mr. Wyatt stated that the Districts contribution to the project must take the form of the land rights necessary to conduct the project and the authority to enter to do so. 

In response to a question from Manager Blixt, Mr. Wisker said that if it proceeded without the USACE funding, the District would then pay all costs of design and construction.  Mr. Wyatt stated that if the District wishes to proceed on its own it could use the USACE feasibility study. 

The managers discussed the merits and costs of the project as affected by the presence of a ditch through the area and the potential need for ditch proceedings. In response to Manager Blixt about the ultimate costs of the Minnehaha Glen project in light of the USACE’s $1 million contribution, Mr. Evenson stated he believes the District probably broke even. 

Manager Miller stated that he believes ultimately the Glen project would not have happened without state and USACE participation and that ultimately the project is one the District will be proud of.  Manger Shekleton stated that he does not have a problem doing another project with the USACE, but he has some concern about the lack of binding legal commitment to how the project will be conducted.  Manager Casale stated that the partnership sounds great but that the Glen project sounded great at the outset as well and he has no doubt that there will be some difficulty encountered in this project as there was with the embankment walls in the Glen project.  He stated that he also believes that the land cost in the pro forma presented for the Painter Creek project are underestimated.  He said he would want District counsel to work with staff on the stages of the project development where the District could cancel its involvement. 

In response to question from Manager Blixt, Mr. Ten Eyck stated that the land conservation staff has some concerns about the land costs and the USACE preference for fee title acquisition.  But he noted that the Painter Creek project is in District priority conservation areas. 

In response to questions from managers, Mr. Wisker said staff is divided on whether the District should form another partnership with the USACE.  In response to a question from the managers, Mr. Wyatt confirmed that the project could be constructed in phases but that the District would have to expend the 35 percent cost share to secure the federal funding.  Mr. Evenson said he is concerned about ditch issues in the area and noted that the project would require a significant devotion of staff resources

Mr. Wisker restated that District staff is requesting direction from the Board on whether to move ahead with the development of a PPA or not and is also request authorization to work with the USACE with separately available funding, available for feasibility studies and comprehensive regional planning.  Manager Miller moved, seconded by Manager Shekleton to authorize staff to work with the USACE and District counsel to develop additional details on a potential partnership for conduct of projects in Painter Creek subwatershed.  Upon vote, the motion carried, 4-0-2, Manager Blixt and Manger Klingelhutz abstaining. 

Manager Calkins moved, seconded by Manager Shekleton, to authorize staff to work with the USACE on feasibility studies work including dam operations and stream assessment.  Upon vote, the motion carried. 

The managers elected to delay discussion of the Urban Creek Corridor Plan and Gray’s Bay Dam operations.

Manager Blixt left at this time.

Carver County Soil and Water Conservation District Partnership

Mr. Wisker provider an overview of the partnership with the Carver County Soil and Water Conservation District (CCSWCD). Mr. Wisker said the partnership is designed to promote construction and implementation of best management practices (BMPs) on agricultural properties.  The District has contributed $25,000 toward the program to cover staff time, along with another $20,000 for BMPs.  He introduced Mr. Mike Wanous of the CCSWCD to present the update on the program.  Mr. Wanous said land owners have responded positively and he described property owners with whom the CCSWCD is pursuing BMP projects, most replacing open tile intakes with rock inlets and getting lands into the conservation and buffer.  Mr. Wanous also discussed the Carver County effort to eliminate straight discharge septic systems. Mr. Evenson added that staff will be asking for a continued support for the partnership in the District budgeting for next year. 

At the conclusion of the presentation, Manager Calkins noted the need to add a closed session on to the agenda to discuss an option agreement.

Review Draft Shoreline and Wetland Rules

Mr. Wisker presented revisions made to the shoreline and wetland protection rules made in response to comments received in the second comment period.  He stated that legal counsel will work with staff on language to implement any Board direction on the rules. 

On the shoreline rule, Mr. Wisker noted the fine tuning of the scoring system and worksheet in response to analysis conducted by District staff on 50 recent permit applications.  In response to a question from Manager Casale, Mr. Welch and Mr. Wisker discussed whether clear-cutting of vegetation on a shoreline, without actual construction, would trigger the District rule.  Manager Calkins stated that he thinks the District should be proactive in regulating clear cutting on shorelines.  Mr. Wisker stated that staff removed the required addition of vegetation for maintenance projects. He stated staff is proposing a recommendation of planting among the riprap boulders as part of maintenance projects, against counsel’s advice that a recommendation should not appear in the rule.  Manager Calkins observed that since it is just a recommendation, it will not be complied with. Mr. Wisker noted that other changes are designed to clarify exhibits requirements.  He said staff also added a definition of native vegetative in keeping with the Department of Natural Resources’ definition.  Mr. Wisker noted that commentors expressed objection to the use of the word of “declaration” as pertains to the maintenance document that must be recorded on the deed to a permitted property. Manager Casale said that if the objection is merely to the word, why not simply require “a recordable instrument”? Mr. Welch explained that the document is a declaration and the rule should be plain about that. 

Mr. Wisker reviewed the changes to the wetland protection rule.  He noted that the definition of linear project and the applicable provisions have been changed to underscore that resurfacing of roadways that does not add impervious surface is not subject to the rule’s buffer requirement.  He stated that the replacement requirements have been clarified to state that District bank credits will be available only when neither a replacement opportunity in a priority area nor privately banked credits are unavailable, to avoid altering the market for creation of replacement credits.  Manager Casale confirmed with staff and counsel that the provision should be clear that both conditions must exist before District credits are available. 

Mr. Wisker stated that the rule’s buffer requirements were revised to make it clear that tear-downs trigger the buffer requirement only when impervious surface will be added.  Manager Casale asked about decapitation, whereby the house above the foundation is removed and a new house is built on the existing foundation.  Mr. Wisker confirmed that such circumstances would not trigger the buffer requirement unless additional impervious surface were added.  With regard to the option for applicants to reduce total buffer area to only the as much as the area of the wetland to be protected, Mr. Wisker noted that a staff very recently discovered through GIS analysis that of the 700 “preserve” wetlands in the District, 500 would be affected by this provision.  Mr. Wisker stated that in response, staff suggests that a proposed solution be brought to the meeting on June 3, prior to release of the revised proposed rule.  Manager Klingelhutz noted that a number of stakeholders are counting on flexibility provided by the provision.  Manager Casale observed that his understanding is that stakeholders are only asking that 75-foot buffers not be required around very small wetlands.  He said reasonableness standard should be established for buffers around small wetlands. 

Mr. Wisker stated that the buffer width section also was revised to require applicants to add the area of any path through a buffer to the buffer, with an exception for paths providing riparian access.  Manager Calkins stated that the width of such paths should be 4 feet to match standard docks, rather than 3 feet. 

Mr. Wisker stated that redlined and clean versions of the rules along with guidance will be provided on June 3 for Board approval prior to issuance in advance of the July 8 public hearing on the two rules.  He added that the District also will also come forward with a policy allowing staff to reduce wetland buffer width based on BMPs added to improve the function and value of buffers.

Minneapolis Park and Recreation Board Resolution on the Minnehaha Glen Project

Ms. Renae Clark appeared and presented an update on the negotiations with the Minneapolis Park and Recreation Board (MPRB) on completion of the work in the Minnehaha Glen.  Ms. Clark noted that the MPRB met on May 19 and passed a resolution in response to the District’s submission of project goals and guidelines to the MPRB.  She said that the MPRB resolution does not reference the goals and guidelines, but rather provides for modification of the joint powers agreement (JPA) with the District to remove the upper trail, reimbursement to the District of $162,000 for the materials for the upper trail, completion of phase II construction by the District, and repair by the District of scoured areas in the creek.  It also directs revision of the JPA to allow the MPRB to take over responsibility for the phase III revegetation work, with a design reviewed and approved by both the District and MPRB. 

Manager Calkins observed that the riprap and grade control the District wants to complete in the creek was not approved by the MPRB and that while it is not included in the resolution, the MPRB also accepted a staff recommendation that only local rock be used to repair the scour areas.  Manager Calkins noted that the MPRB resolution really does not change anything from what had been previously agreed to. 

The managers discussed possible responses to the resolution.  The managers agreed that if the MPRB does not allow complete repair of the creek bed now as the District believes is necessary, the District should not come back and fix it later.  Manager Calkins suggested that the District send a letter to the MPRB outlining the District’s position and restating its required elements for resolution.  After further discussion, the managers requested that Manager Calkins proceed with a verbal communication to MPRB chair John Erwin, stating that the District goals must be addressed more completely by the MPRB or the District will cease all project work and will cancel scheduled work on MPRB property elsewhere.

Blake Road, Hopkins, Option Agreement

Mr. Mark Ten Eyck appeared before the Board and requested that the a closed meeting to discuss a modification to the option agreement for 427-429 Blake Road in Hopkins.  The managers convened in closed session.

Upon reconvening in open session, it was confirmed that the managers approved the execution of an extension of the option agreement for purchase of 427-429 Blake Road in Hopkins to December 15, 2010, for $40,000.


There being no further business, the meeting of the Board of Managers adjourned at 12:15 a.m.

Respectfully submitted,

Lee Keeley, Secretary