MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

September 9, 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 6:50 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota. 

MANAGERS PRESENT

James Calkins, Brian Shekleton, Richard Miller, Lee Keeley, Pam Blixt, Jeff Casale.   

MANAGERS ABSENT

None.

OTHERS PRESENT

Eric Evenson, Administrator; Mark Ten Eyck, Land Conservation Program Manager; James Wisker, Planner; Matt Norton, Land Conservation Specialist; Michael Panzer, District 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.  Upon vote, the motion carried 5-0.

CONSENT AGENDA

It was moved by Manager Miller, seconded by Manager Keeley to approve the consent agenda, consisting of the September 2, 2010 minutes; the check register encompassing checks 30111 through 30169, payroll direct deposits and electronic fund withdrawals in the total amount of $807,271.65; petty cash and surety registers; and the administrator’s report.   Upon vote, the motion carried 5-0.

REGULAR AGENDA

Committee and Task Force Reports

Mr. Evenson advised that there has been no Personnel Committee meeting since the last report.  Manager Calkins reported that the Legislative Committee met last night, reviewing the Metropolitan Association of Watershed Districts (MAWD) legislative agenda and four potential resolution proposals by the District.  The committee will come before the Board on October 7 to recommend three of the resolutions for forwarding to MAWD. 

Manager Miller reported that he and Mr. Ten Eyck attended the Hopkins City Council meeting on Tuesday evening at which the cooperative agreement and memorandum of understanding concerning the Blake Road area were approved.  He reported that Mr. Ten Eyck has a very good working relationship with the city council and city staff, and that the council strongly supports the District acquisitions.  He further reported that he went with Manager Casale and Larry Blackstad to the Southwest Rail Corridor planning meeting.  (Manager Shekleton arrived at this time.) He said that the District is not a member of the Planning Committee, but that the members recognize the District’s role.  He reported also that the Metropolitan Council is quite involved and ready to be proactive in integrating the built and natural environments.

Manager Casale noted that Hennepin County Commissioners Dorfman, Callison and McLaughlin all are on the committee, Commissioner McLaughlin as chair of the rail authority.  He believes it is key that the committee is involving relevant parties up front and anticipating further development activity.  Commissioner McLaughlin observed that public authorities are still catching up on the Hiawatha LRT, are acting just in time on the Central Corridor and are being proactive here.  Manager Casale noted also that he met new Metropolitan Council planning staff and talked with Commissioner Callison’s assistant, Dave Nuckols, both of whom are very interested in what the District is doing in Hopkins.

Manager Blixt asked if there will be a zoning overlay addressing pedestrian orientation.  Manager Miller replied that there is no master plan, but that the land use plan of individual cities will be incorporated.  He observed that the public authorities are approaching this in the right sequence for the economic environment, to prepare for and guide the development that ultimately will happen.

Manager Casale added that the committee has hired Dan Shardlow and that both Mr. Shardlow and Pat Kinnoy, Hennepin County Works, made presentations of corridor concepts and what can be drawn from prior corridor activities.  Manager Miller noted that the committee also has hired Caren Dewar and the Urban Land Institute, which will provide a national connection.

Manager Keeley informed the Board that the zebra mussel dive is scheduled for September 13-14.

Manager Calkins reviewed the schedule of upcoming meetings as presented in the agenda.  Mr. Evenson noted that the Personnel Committee meeting will be at the St. Louis Park City Hall. 

Manager Calkins informed the Board that the amendment to the Minnehaha Glen joint powers agreement with the Minneapolis Park and Recreation Board (MPRB) is signed as of today.  There will be a meeting on September 22 to work out differences on the revegatation plan.  Manager Calkins will be there and has asked MPRB Board members Erwin and Kummer to be there as well.

Mr. Evenson said that the Building Steering Committee will have several meetings over the next six weeks, with the first on September 23.

Mr. Evenson then introduced Matt Norton, recently hired to work with Mr. Ten Eyck on the Land Conservation Program.  Mr. Norton introduced himself and the Board welcomed him.

Public Hearing:  2011 Budget and Levy

Manager Calkins opened the public hearing.  Mr. Evenson presented the recommended final budget, which reflects differences from the preliminary budget resulting from a Finance Committee meeting.  He noted that the budgeting process has gone smoothly because of the time Board members have invested dating back to January.  Mr. Evenson stated that the combined 2011 budget is $11,779,411 and the 2011 combined levy is $7,742,006.  This represents a 0.02 percent levy decrease. 

Mr. Evenson reviewed the changes from the preliminary levy:  reduction of the Turbid Lake Phase I project budget from $1,507,414 to $778,624; addition of the aquatic invasive species program in the amount of $179,660 for an additional employee, water quality sampling and analysis, and equipment; an additional $19,575 resulting from changing the intended communications hire from an entry-level to a mid-level position; and, on the revenue side, increasing the projected interest earnings from $70,000 to $100,000.  The resulting budget change is a reduction of $560,455. 

No member of the public wished to speak.  Manager Calkins closed the public hearing.

2011 Budget and Levy

It was moved by Manager Shekleton, seconded by Manager Keeley to approve proposed Resolution 10-078 adopting a 2011 operations budget of $1,773,283.  Upon vote, the motion carried.

It was moved by Manager Shekleton, seconded by Manager Casale to adopt Resolution 10-079 certifying a 2011 operations tax levy in the total amount of $1,770,591.  Upon vote, the motion carried.

It was moved by Manager Shekleton, seconded by Manager Casale to adopt proposed Resolution 10-080 adopting a 2011 project/programs budget in the amount of $10,600,128.  Upon vote, the motion carried.

Mr. Evenson distributed a revised proposed resolution 10-081 adding a levy contingency in the total amount of $1,597,798 for five District capital projects that currently are the subject of plan amendments.  Manager Calkins noted that a final levy hearing to affirm these projects is scheduled for November 18, 2010.  It was moved by Manager Miller, seconded by Manager Keeley to adopt revised Resolution 10-081 certifying a 2011 projects and programs tax levy in the total amount $5,971,415.  Upon vote, the motion carried.

Manager Miller commended Mr. Evenson for the clarity of the budget. 

Public Hearing:  Purchase of 427-429 Blake Road, 415 Blake Road North, 1303 Lake Street NE, 1305 Lake Street NE, Hopkins

Manager Calkins opened the public hearing.

Mr. Ten Eyck reviewed the two transactions being considered by the Board.  With respect to 427-429 Blake Road, Mr. Ten Eyck advised that the District intends to make the purchase with levy funds and possibly later to refinance the transaction with Hennepin County bond proceeds.  He advised that all contingencies of the option agreement have been met, including Hopkins approval of the cooperative agreement between the District and the city.  He noted that the cooperative agreement was reviewed and approved by the Board previously, and that it provides among other things for Hopkins to build stormwater facilities and park improvements on land that encompasses the property the District will be acquiring.

Manager Shekleton asked if the city is working on acquiring the two properties to the north where the Metropolitan Council Environmental Services (MCES) lift station might go.  Manager Miller replied that under the cooperative agreement, the city agrees to use its land use authority to help direct the lift station toward one of those properties or another acceptable location.   Mr. Ten Eyck confirmed for Manager Shekleton that the lift station would not be located on District property.  Mr. Ten Eyck reported that the MCES is not making progress on the lift station issue.  Manager Miller diagnosed the MCES as an effectively autonomous entity run by engineers and that the District and city may wish to go to the policymakers on the Council to move the matter forward. 

Mr. Ten Eyck reiterated that last night the Hopkins City Council approved the cooperative agreement and a broader memorandum of understanding for continued collaboration. 

Mr. Ten Eyck then reviewed three other properties proposed to be acquired from Ugorets Properties LLC, including the triangular commercial property just south of the creek and two single-family properties to the north.  The District would pay $1.35 million for a closing this year with removal of tenants.  He added that the District has obligations to relocate residential tenants from the 427-429 Blake Road apartment building and possibly commercial tenants from the Ugorets property.  The District’s consultant, LaSalle Group, has retained Dan Wilson, a relocation specialist, as a subcontractor.  Manager Calkins asked if any apartment tenants have complained.  Mr. Ten Eyck replied that the District has done all required notifications and that there have been no complaints.  He indicated that the total relocation cost likely would exceed $200,000.  Manager Miller commended Mr. Ten Eyck for his sound management of the consultant team and the progress that has been made.  Mr. Ten Eyck recognized important contributions from Managers Casale and Miller.

No member of the public wished to speak.  Manager Calkins closed the public hearing.

Property Purchase, 415 Blake Road North, 1303 Lake Street NE, 1305 Lake Street NE

It was moved by Manager Casale, seconded by Manager Keeley to adopt proposed Resolution 10-082 authorizing the administrator to finalize and sign a purchase agreement with Ugorets Properties LLC and to exercise other authorities as necessary to complete the transaction.  Upon vote, the motion carried.

(Manager Blixt left the meeting at this time)

Property Purchase, 427-429 Blake Road Hopkins

It was moved by Manager Keeley, seconded by Manager Casale to adopt proposed Resolution 10-083 authorizing the administrator to exercise the District’s option with Nemar Properties LLC to purchase the property and to exercise other authorities as necessary to complete the transaction.  Upon vote, the motion carried 5-0.

(Manager Blixt returned at this time)

BOARD DISCUSSION ITEMS

Stormwater Management Rule

Mr. Wisker reviewed the present rule draft and asked for Board input on any other matters that should be included in the rule.  He reported that last week he met with both the Technical Advisory Committee and the Rulemaking Advisory Committee to reacquaint them with the draft rule and move forward.  The TAC meeting was very well attended with several new faces.  On September 30, staff plans to go back to both committees with reworked language.  A revised draft would be brought before the Board on October 14; on October 21, the Board would be asked to authorize release of a proposed rule for public review. 

Mr. Wisker then reviewed the basic structure of the draft rule.  He reviewed volume control, phosphorus loading and rate control standards, noting that the TAC prefers a single one-inch volume control standard that can be reduced on the basis of infiltration feasibility and can be sequenced to meet the water quality standard.  The phosphorus standard remains “no increase in net loading,” and the rate control standard continues to be maintenance of existing conditions at the site boundary on a catchment basis.

Mr. Wisker also reviewed the rule structure specifying standards for development, redevelopment and linear projects.  The TAC discussed the one-acre threshold for single-family residential and advocated that construction on a single-family parcel less than one acre be required to use Best Management Practices.

Presently, staff is working with the TAC on how the framework will be applied and plays out in practice.  This includes attention to developing a process by which the feasibility of meeting the one-inch standard through the use of infiltration can be evaluated.  Mr. Wisker also has met with the Minnesota Department of Transportation and county/city Road Authorities and they are generally comfortable with the linear project framework.

Mr. Wisker listed topics for TAC attention as including the sequencing process for the volume standard; volume control as the preferred means to meet the water quality standard; incorporating flexibility in infiltration requirements for wellhead protection, contamination and other site circumstances; defining geotechnical assessment needs and refining other regulatory definitions; and a process for early District review so that stormwater and zoning concerns are well integrated.

Manager Blixt asked how much of the District lies within a wellhead protection zone.  Mr. Wisker replied that staff is reviewing that.  He suggested that there will be areas in the watershed where it will be important to have provisions for reasonable and feasible treatment alternatives.  Mr. Evenson commented that the well aquifers in the District tend to be deep and that stormwater infiltration may be acceptable even in certain wellhead areas. 

Manager Calkins noted that redevelopment with more than 50 percent site disturbance will not be subject to standards that will produce an overall phosphorus load improvement.  Mr. Wisker confirmed that and responded that the TAC approach is to focus on gaining substantial improvements from larger opportunities.

Manager Miller expressed concern about how well some cities enforce their own ordinances.  Manager Calkins suggested that this implicates the question of whether the District should in fact regulate single-family residential development, but noted that the Board already had that discussion.  Manager Miller said that he does not wish to revisit it. 

Manager Casale cautioned against rules for redevelopment that may be onerous but provide little benefit.  Manager Calkins noted that he will not favor a one-acre redevelopment threshold, and that in the urban environment, most redevelopment is on sites smaller than an acre.  He urged that the policy state not only a non-degradation standard but also that redevelopment will secure improvements.  He also questions why the new development threshold is 20 percent impervious surface, since the science indicates that water resource damage occurs at 10 percent hard surface.  Mr. Wisker responded that this should not make a difference, in that it would be very unusual for a development larger than one acre to fall below the 20 percent impervious threshold.  Manager Calkins replied that the rule nevertheless should be tied to the science. 

Manager Calkins asked whether fountains in stormwater basins should be prohibited if they are detrimental to water quality function.  Mr. Panzer replied that most basins are designed to work through sediment settling and therefore aerators, which stir up sediments, should be prohibited or the basin should be designed for a larger capacity to compensate.  Manager Calkins said that he had participated in discussions about requiring pond oversizing because of delayed maintenance and because rainfall events are becoming larger.      

Manager Calkins also asked about regulating herbicide and algaecide use in stormwater basins.  He noted that there is a variety of practices occurring that may be detrimental to water quality but beneath the present radar of regulation.  Mr. Evenson noted that there are preemption issues related to regulating herbicide use.  Manager Calkins replied that he does not know if vegetation is good or bad for stormwater basins and is not certain that the District should be involved in that form of regulation.  Manager Calkins asked about alternatives for folks who want clear water in their stormwater basins.  Mr. Evenson suggested harvesting of the aquatic plant life.  Manager Calkins suggested that educating homeowners about the function and aesthetic of their stormwater facilities would be a topic for District education efforts. 

Mr. Evenson asked how soil amendment is considered.  Mr. Wisker replied that it is included in the erosion control rule and also is offered as a volume control alternative.

Responding to Manager Casale, Mr. Holtman advised that the District does have the ability to include in its facility maintenance agreements a District right to enter property and perform maintenance if the landowner is not meeting his obligations.

Board Liaisons and Per Diems

Manager Calkins indicated that he has reviewed the Board’s prior discussions about Board liaisons to other units of government and stakeholders.  He noted that in past actions, the Board designated Manager Casale as the Board liaison for the Lake Minnetonka Conservation District; Lake Minnetonka Association; Mayors of Orono, Excelsior and Independence; and Hennepin County Commissioner Jeff Johnson.  The Board also named Manager Miller as the Board liaison to the City of Edina and Hennepin County Commissioner Dorfman.  He noted that Himle-Horner thinks that liaisons are important and he proposed that Himle-Horner work with a Board task force to prepare recommendations on how to use liaisons.  He suggested that Managers Blixt, Keeley and Casale constitute the task force.  Managers Keeley and Blixt said they think that involving Himle-Horner is a good idea.  The Board concurred in proceeding this way.  Manager Calkins noted that public notice would be provided for these meetings in accordance with the Open Meeting Law. 

Turning to per diem policy, Manager Calkins observed that the present policy places the administrator in a difficult position of making decisions as to managers’ per diems.  He believes that the Board should review and refine its policy on what activity qualifies for a per diem and what the approval process should be, including the treatment of after-the-fact applications.

Manager Miller said it is appropriate to be concerned, because per diems can become a political issue.  But he noted that with the managers engaged in a wide variety of extensive activity on behalf of the District, it is important that the per diem process not be an obstruction to effective use of managers.  He suggested possibly having each manager file a notice of meeting and similar activities that he or she intends to attend in the coming month.

Manager Calkins emphasized that it is important for the administrator to be able to call on managers to assist.  He noted that other organizations have set rules such as establishing per diems for regular meetings only or setting a monthly per diem limit.

Manager Shekleton said that the present policy and interpretation seem adequate.  He asked whether the issue is broader and concerns the role of managers and the number of meetings that they should be attending.

Manager Calkins reiterated that he does not want the administrator to be in a position of saying yes or no on a manager’s per diem claim.  Manager Keeley observed that matters are dynamic and that it is not always possible at the beginning of a month to enumerate that month’s meetings.  Manager Calkins clarified that nothing prevents a manager from going to a meeting; the question is simply whether the manager is eligible for a per diem. 

Manager Shekleton suggested that the solution to placing the administrator in a difficult position is for managers to recognize that they have chosen to empower the administrator and the administrator gets to make the decisions in his best judgment.  Manager Calkins noted that the prospective establishment of a more extensive liaison framework will only accentuate any issues by increasing the number and types of manager activities.

Manager Casale suggested that the criterion allowing the administrator to authorize manager involvement be expanded to any staff member.  This conforms more closely to the working arrangement by which he is involved in activities on the District’s behalf.  Manager Casale also related that he is troubled in any circumstance that becomes too prescriptive in order to address a concern for abuse.  He noted that everyone on the Board does a tremendous amount of work and that the per diems are a very small part of the District budget.  He suggests that the Board trust the judgment of individual managers and if there are abuses, it will be obvious.  He reviewed the many nuances involved in judging whether a per diem is appropriate and suggested that this necessitates that some judgment be left to individual managers.

Manager Keeley suggested including this issue in the liaison work that Himle-Horner will be participating in.  Manager Calkins suggested, to the converse, that per diem policy is centrally a Board governance issue.

Manager Blixt expressed interest in a maximum monthly per diem.  She concurred in Manager Shekleton’s earlier observations that Board members are “managers” and that the Board should be circumspect as to manager involvements in District activities on the ground.  Manager Shekleton replied that a ceiling does not make sense to him.  He believes there is a “politically imposed” ceiling.  He further suggested that any abuses would be the responsibility of the Board president, not the administrator.  But he reiterated that he believes the policy functions adequately and does not need to be revised.

Manager Casale raised the question of whether an authorized per diem for a manager presumes further authorization for additional meetings involving the same matter.  He also suggested the need to clarify when teleconferences qualify for the per diem.  He again noted his recommendation that staff other than the administrator also be permitted to authorize per diems.  Manager Blixt agreed with the last comment. 

Manager Keeley asked if a manager should be eligible for a per diem pursuant to a consultant request to meet.  Mr. Evenson replied that under the present policy there will be no per diem.  He concurred in providing for more flexibility within program budgets, noting that he does not want to judge how managers may evaluate their appropriate participation and per diem eligibility. 

Manager Shekleton said he would be interested to see how other organizations address this.  He also suggested a bigger picture review of how many hours managers spend on District business, suggesting for example that committees might be more empowered and that the Board would meet to ratify committee work.

Manager Calkins summarized a consensus to retain the present policy but to let staff other than the administrator also authorize a per diem.  He believes the Board should review per diem claims and not the administrator.  Manager Casale suggested that the Board president and treasurer should perform that review. 

Responding to Manager Calkins, Mr. Holtman advised that a teleconference is eligible for a per diem pursuant to the policy if it falls under one of the three criteria, namely a publicly noticed meeting, an official or project meeting that involves more than one manager, or a meeting or activity authorized by the Board president or the administrator.  Mr. Evenson expressed a concern about empowering staff to authorize per diems, in that it encourages direct staff-to-manager communications that would forego the preferred structuring of the administrator as the point of contact with managers.

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 10:40 p.m.

Respectfully submitted,

Lee Keeley, Secretary