MINUTES OF THE REGULAR MEETING OF

THE MINNEHAHA CREEK WATERSHED DISTRICT

BOARD OF MANAGERS

September 17, 2009

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, Pamela Blixt, Richard Miller, Lee Keeley, Jeffrey Casale, Michael Klingelhutz and Brian Shekleton.

MANAGERS ABSENT

None.

OTHERS PRESENT

Eric Evenson, District Administrator; Udai Singh, District Water Quality Specialist, Renae Clark, District Projects Manager; James Wisker, District Planner; Steve Christopher, Regulatory Program Manager; Natalie White, District Maintenance Technician; Michael Panzer, District Consulting Engineering; Chuck Holtman, District Counsel.

MATTERS FROM THE FLOOR

None.

APPROVAL OF AGENDA

It was moved by Manager Keeley, seconded by Manager Shekleton to add to Discussion Items an update on the Minnehaha Glen project and to correct the approval of minutes from August 10, 2009 to September 10, 2009.   Upon vote, the motion carried.

CONSENT AGENDA

It was moved by Manager Shekleton, seconded by Manager Keeley to approve the consent agenda with the exception of Permit 09-233 and authorization for public perception survey, consisting of the September 10, 2009 minute; checking register, consisting of checks 29276 through 29341 plus payroll and electronic withdrawals in the total amount of $339,449.36, petty cash and surety registers; authorization to solicit bids for basin sediment removal; Rule G public hearing scheduling, and authorization of site evaluation work in the Six Mile Creek subwatershed.  Upon vote, the motion carried.

REGULAR AGENDA

Committee and Taskforce Reports

 

Manager Casale reported that the Building Task Force met on September 15, 2009 and toured Malkim Hall at Macalester College.  The task force also reviewed preliminary plans prepared by the City of Minnetonka for the Minnehaha Creek building site.  The consultant is reviewing site qualification elements.

Manager Calkins advised that the IT Committee would meet on September 23 at 4:30 p.m. at the St. Louis Park City Hall, and that the Citizens’ Advisory Committee would meet on September 24 at 6:30 p.m. at the District offices.  A Legislative Committee meeting is scheduled for September 24, and meetings with Jim Brimeyer concerning a Board priority-setting workshop are scheduled for September 30 and tentatively for October 7.

Permit 09-075, Charles Maciosek

Mr. Christopher reviewed the application, which concerns proposed construction of a twin home on West Point Road in the City of Tonka Bay.  The proposed construction is subject to the District’s erosion control, stormwater management and wetland protection rules.  Due to the site layout the building and driveway footprint do not fit within the 35-foot buffer required by the rules.  The applicant proposes vegetation to enhance the buffer, a water quality swale and the diversion of site runoff to the enhanced buffer areas and requests a variance from the buffer requirement.  The rule requires 14,500 square feet of buffer and the applicant proposes 8,983 square feet.  Mr. Christopher noted that the Technical Evaluation Panel did not comment on the wetland delineation.  Staff recommends that the variance be granted and the permit approved with the indicated conditions and an additional condition requiring a recorded maintenance declaration for the wetland buffer and rain garden as well as a buffer establishment, maintenance and signage plan. 

Rose Langer, a planner representing Mr. Maciosek, stated that the lot was platted in 1976 and that the plan has gone through several iterations working with staff to provide for the best possible treatment of stormwater.  Responding to a question from Manager Blixt, Mr. Holtman advised that one requirement for a variance is a demonstration of hardship, which typically is defined as the inability to put the property to a reasonable use.  Mr. Holtman noted that the inability to place a dwelling on a property in a residentially zoned area typically is treated as meeting this standard, but the inability to make a more intensive use of a residential lot presented a more challenging application of the criterion.  Manager Casale stated that he disagreed, noting that the area is zoned to permit multi-family residential development and there is a prevalence of lot-line development.  Ms. Langer stated that the site, once developed, would be a measurable improvement over the present condition with respect to stormwater management.

It was moved by Manager Casale, seconded by Manager Keeley to grant the variance and approve the permit in accordance with the staff recommendation.  Manager Blixt questioned whether the proposed construction would be an improvement over a single-family house constructed pursuant to District rules.  Mr. Christopher suggested that the impact would be about the same due to the proposed vegetation enhancements and redirection of flow.

Jim Krenik identified himself as an adjoining property owner to Mr. Maciosek’s west.  He stated that he does not mow to the water’s edge and is working to establish buffer.   He pointed to a condominium building nearby that does mow to the water.  He observed that Mr. Maciosek’s property is zoned for duplexes and single-family houses, and observed that both he and his other neighbor are single-family houses.  Mr. Krenik stated that he offered to enter into a shared-use driveway arrangement with Mr. Maciosek to serve a single-family house on Mr. Maciosek’s property, but that he will not do so for a duplex.  He stated that he observes much wildlife on the eastern corner of Mr. Maciosek’s property and that the water adjacent to the property is a site of bass nests and a large fish population in the channel.  He said that the area is a spawning bed with spring restrictions.

Manager Miller stated that he is concerned about a hardship claim that rests on the owner’s inability simply to do precisely what he wants with the property.  Manager Blixt stated that she likes the proposed plan but believes there would be less impact with a single-family home and just one driveway and garage access.  Such a development would include buffer as well. 

Manager Shekleton asked whether Mr. Krenik and Mr. Maciosek have discussed paving the gravel driveway.  Mr. Krenik responded that the conversation did not get that far.   

Ms. Langer emphasized that Mr. Maciosek’s property is a legal lot of record and that Mr. Krenik received a variance for his driveway and built a part of it on Mr. Maciosek’s land.  She again emphasized that the proposed design would be an improvement.  She also noted that if Mr. Maciosek sought to build a single-family residence, he would have a legal right to build.  She suggested that the proposal is small for a twin-home project and would not be dissimilar in footprint to a single-family residence.

Manager Calkins asked counsel whether it was relevant that Mr. Maciosek bought the property in the 1970s, when there was less regulation of wetland.  Mr. Holtman replied that landowners generally are charged with the knowledge that land use regulations will evolve over time, and that the basic question generally continues to be whether a reasonable use remains. 

Manager Calkins asked whether there are calculations to demonstrate the benefits of the proposed design versus a design that complies with the buffer rules.  Mr. Christopher replied that there are none.  Manager Calkins asked whether infiltration will function on this filled land and whether the rain garden is designed to retain flow.  Mr. Christopher replied that a part of the driveway will flow north to the rain garden, but the flows have not been calculated. 

Manager Casale asked whether a single-family home would need a variance.  Mr. Christopher replied that it would depend on the footprint.  Mr. Holtman noted that in this case, the buffer requirement is triggered by the fact that the proposed development is subject to the District’s floodplain rule and if the property can be developed without floodplain disturbance, the buffer rule would not apply.  He also noted that for the purpose of considering a Rule I exception, the proposal could be compared to a single-family development not triggering either the floodplain or the buffer rule.

Mr. Evenson emphasized that the District does not regulate building type and therefore is not concerned as to whether the proposal is single-family or duplex.  The District’s concern solely is the footprint of the hardscape.  Manager Casale stated that he cannot assess the impact of the proposal or make a decision without knowing the water quality impact of the proposal or the alternative.  Manager Calkins stated that he appreciates the property owner’s difficulties, but he is concerned about two separate driveways and also noted that buffer functions include not just water quality management but also wildlife habitat.  He suggested that if a design could capture on-site volume he would favor it.  Mr. Panzer suggested that this would be a difficult criterion to meet given the site elevation and probable groundwater level.

It was moved by Manager Miller, seconded by Manager Casale to table the main motion.  Upon vote, the motion carried.

Manager Keeley suggested that Mr. Maciosek further explore a shared driveway.  Mr. Holtman cautioned that the Board could not require a shared driveway.  Mr. Langer indicated they would look at the driveway surfacing material.  Manager Calkins asked for metrics as to the water quality outcome of the proposal and alternatives.  Manager Miller emphasized the need to allow Mr. Krenik to stay informed of further discussions.  Mr. Evenson summarized that staff will work with Mr. Maciosek to explore the variance and exception possibilities and will ensure that Mr. Krenik stays informed.

BOARD ACTION ITEMS

Permit 09-233, City of Edina

Mr. Christopher presented the application for proposed construction of a sidewalk on the west side of France Avenue from 48^th Street to Sunnyside Road.  The project would result in an increase of 0.17 acres of impervious surface.  The City states that it is not feasible to provide Best Management Practices (BMPs) for this additional hard surface in light of space limitations within the project area.  The City proposes to add the acreage to its existing commitment to provide BMPs for several small-scale infrastructure projects as a part of its work under the municipal capital improvement schedule. 

It was moved by Manager Miller, seconded by Manager Shekleton to approve the permit in accordance with staff recommendations.  Upon vote, the motion carried.

Public Perception Survey

Mr. Evenson advised that the Board request would authorize staff to obtain a proposal to do the survey.  Manager Keeley noted that the District previously did a similar survey and would like to know what value it has had and how what is proposed would help to change behavior.  Mr. Evenson explained that the present survey was a 2008 work plan item and that funds have been carried over.  Manager Miller believes the idea is a good one but the time is not right.  Managers Shekleton and Blixt agreed and noted that the survey should be consistent with the communication techniques prioritized in the District’s education plan. 

Manager Calkins indicated that he raised the issue because the survey is in the education plan and the Board has discussed it several times.  He believes it would be useful to the Board’s upcoming priority-setting efforts.  Manager Klingelhutz believes it could help develop support for the District’s capital program.

It was moved by Manager Klingelhutz to approve the Request for Board Action but leave the time line for the work open.  There was no second.

It was moved by Manager Keeley, seconded by Manager Casale to take no present action on the manner.  Upon vote, the motion carried.

Maintenance of Natural Land Cover and Authorization to seek Long-Term County Financing, Waldera Property

Ms. White described the property and management framework that staff has developed.  Mr. Ten Eyck noted that the District presently owes the County $539,963 as principal on a short-term note.  The note would be converted to a permanent obligation payable over perhaps twenty years.  Repayment terms would be brought to the Board for approval.

It was moved by Manager Miller, seconded by Manager Blixt to adopt proposed Resolution 09-090 authorizing the administrator to spend up to $10,000 in 2010 for vegetation management on the Waldera parcel.  Upon vote, the motion carried.

Distribution of Rule F for Public Comment

Mr. Wisker reviewed changes to Rule F in the last round of review.  The rule bases the choice of shoreline stabilization practice on the intensity of erosive forces at the individual property.  Under a framework borrowed from the Wisconsin Department of Natural Resources (DNR), a site would be classified as high, medium or low intensity and the burden to use vegetative methods would depend on the ranking.  The rule would allow an access corridor of up to 30 percent of the property width but no greater than 50 feet.  Some restriction would be placed on plant removal for access purposes.  Mr. Wisker clarified that staff has not yet finalized the scoring system but is talking with the Wisconsin DNR and would resolve that.

It was moved by Manager Shekleton, seconded by Manager Klingelhutz to authorize distribution of the proposed rule for public comment with completion of technical details as indicated by Mr. Wisker.

Responding to Manager Calkins, Mr. Wisker indicated that the access width was selected based on reasonable technical judgment.  Mr. Calkins replied that other ordinances limit access to 30 feet and that the District should have a justification.  He asked whether fabric filter will impede bioengineering methods.  Mr. Panzer indicated that certain material such as geonets would be indicated and the rule allows for them.  Upon vote, the motion carried.

Mr. Wisker also said that he has received clarification from the Minnesota Board of Water and Soil Resources concerning the District’s potential ability to require wetland replacement to be within the watershed and to offer bank credits from District restoration as an option. Brad Wozney of BSWR noted that there is not and has not been a transportation bank moratorium on qualifying projects.  He believes the District could require non-qualifying projects to look first at replacement opportunities within the watershed.  District staff and legal counsel are continuing to review the issues.

Minnehaha Glen Update

Ms. Clark noted several developments since the August 11 public hearing.  The District has just received a letter from the U.S. Army Corps of Engineers (USACE) District Engineer stating that the District’s Letter of Permission will be reinstated when the cultural resource coordination process is completed.  In addition, the District has submitted an after-the-fact permit application for what the USACE says are jurisdictional wetland impacts on the lower trail and at certain creek access points.  Ms. Clark also advised that a meeting among District and USACE staff occurred today, in which there was agreement on a Section 106 road map.  The District will submit information to the USACE identifying areas within the project site that have been or will be disturbed, reviewing cultural resource work to date and proposing additional work.  The USACE will review those materials when it meets with the State Historic Preservation Officer next week.  Finally, the USACE has informed the District that it will not consider the District’s grade control permit application under its emergency authority but will process it in the normal course.

Manager Miller asked as to the status of the gravels that the USACE contractor left in the channel.  Manager Calkins replied that the District decided to seek an emergency permit, which has now been rejected by the USACE.   The District has not decided what additional action it will take, but has evaluated possible legal remedies.  Ms. Clark added that staff presently is evaluating the ecological impact of the sediment.

Mr. Evenson, following up on Ms. Clark’s report, noted that staff is reviewing project elements and intends to remove certain items that are not necessary for the District’s ecological goals.  This may include some bank stabilization work directed at protection of the historical dam structure as well as certain rain gardens.

Responding to Manager Miller’s question regarding the status of the upper trail, Mr. Evenson reviewed the communications between the Minneapolis Park and Recreation Board (MPRB) and District staff in which MPRB staff has provided inconsistent messages.  He noted also that the USACE may be in a position to perform cultural resource investigation work within the glen under its own project authority.

Ms. Clark also noted that the District is preparing to proceed with installation of stormwater BMPs on the Minnesota Veterans Home property, outside of USACE jurisdiction.  The District commissioned cultural resource work indicating no potential impact and has advised the USACE, which is comfortable with the District’s proceeding.  Ms. Clark hopes that work will start in September.

Mr. Evenson noted an upcoming congressional tour of the site on September 30.  Michael Kimble of the MPRB will lead and Mr. Evenson will attend. 

DISCUSSION ITEMS

Literature Review, Aquatic Herbicide Use

Mr. Wisker stated that the Citizens’ Advisory Committee has requested a literature review of the cost and benefits of aquatic herbicide use.  Mr. Wisker obtained several proposals, but these in his view are not sufficient for a recommendation.  He is looking for Board guidance on the project scope and whether to specify a not-to-exceed amount.

Manager Calkins suggested that the review should be comprehensive and that there are not that many herbicide choices.  He believes that one purpose is to seek facilitating legislation, and therefore there is a need to know benefits and costs.

Managers Klingelhutz and Calkins both believe that the review should go beyond herbicides to look at other methods of invasive vegetation control.  With respect to a contract price, Manager Calkins believes that the request for proposals should give a basic scope and allow proposers to go beyond that if they wish.  Manager Casale emphasized the importance of specifying the expected deliverable.  Mr. Wisker summarized by stating that the District will provide a specific scope but not specify a contract price limit.

Invasive Species Policy Discussion:  Lake Access Management

 

Mr. Evenson introduced the subject and directed the Board to spreadsheets prepared by Dr. Singh.  He noted that if the District undertakes a lake access management and inspection program, there will be additional program cost and the numbers presented will increase substantially.  He noted that the cost estimates assume coverage of ten public accesses on Lake Minnetonka and eleven additional public accesses on other upper watershed lakes. 

Dr. Singh reviewed the cost figures, noting that the figures were developed in conjunction with his review of the Lake Minnetonka Conservation District (LMCD) program.  He noted that other pathways for introduction of invasive species would not be covered, including private and municipal accesses; special events; commercial transport; and dock and landscaping materials.  Mr. Evenson added that boat washing also will drain to storm sewers which themselves will outlet into the lake. 

Manager Casale asked for data on boat launches.  He observed that these figures will allow a basic determination of the range of fees that must be charged per launch to cover the program and thus reflect on program feasibility.  Dr. Singh remarked that he has not yet gathered such data.  Manager Shekleton believes that staff should continue to refine the analysis. 

Dick Osgood addressed the Board.  He suggested that the District scenarios are excessive and will not be feasible.  He noted that in general he has found marina owners eager to train staff and take responsibility for inspection, which could amount to a measurable part of the effort.  He also noted that the LMCD, along with the Lake Minnetonka Association and the Minnesota Department of Natural Resources, in consultation with a technical committee including Dr. Singh, is preparing a prevention plan for Lake Minnetonka.  The plan will be produced in draft in about December, and will combine inspections with other measures such as a legal requirement to drain boats before transport and educational efforts.  He observed that a very minimal increase in enforcement can change behavior.  He suggested that the District not move forward until it has a chance to review this draft.  He also noted that the DNR has done usage surveys and that these data can be made available to Dr. Singh.

Manager Calkins stated that the District should lead in this area.  He said that efforts may not be successful but they need to be made.  Mr. Osgood suggested that even if an infestation of a given species is not prevented, the program will help to limit other threats as well.  Manager Shekleton suggested that a program with a fee would raise the District’s profile and provide more transparency for the work that it does.  Manager Casale again emphasized the need to look at actual lake usage numbers.  Manager Blixt noted the complexity of different launch numbers for different lakes without a difference in the cost of staffing inspection points.  Manager Casale suggested that figures be reduced for Lake Minnetonka which, with the most users, would present the greatest likelihood of feasibility.  If feasibility is suggested, he concurs that the District should be prepared to lead on this effort and that if it determines not to proceed, it should publicly communicate why not. 

Manager Calkins summarized the discussion.  Dr. Singh will obtain launch numbers for Lake Minnetonka and refine the overall framework for managing accesses.  He will weigh the potential for introduction of invasive species through other means and consider what that suggests for the District’s effort.  Finally he will obtain information regarding the Lake Tahoe program and certain Michigan programs mentioned in his materials.

Administrator’s Report

Mr. Evenson referred the Board to the written report in the packet.  He noted that last week, Dave Mandt, Nat Kale and Mr. Evenson attended a Minnesota Association of Watershed District conference on watershed district administration.  It appears that the District is doing a good job but staff will be refining some internal policies.  Review of the District’s investment policy, accident drug testing policy, record retention policy and background check policy is underway.

Mr. Evenson also noted that staff is communicating with the City of Hopkins concerning the Blake Road/Lake Road intersection redevelopment and that there may be water quality opportunities there.  He is thinking of a Hopkins tour as part of the October 8, 2009 meeting agenda and potentially a discussion on creek community efforts.   Finally, Mr. Evenson noted the District’s land conservation/clean water summit will take place on September 24 and 25. 

CLOSED SESSION

The Board convened in closed session to discuss a potential offer for the acquisition of property at 6525 County Road 26, City of Minnetrista.

The Board reconvened in open session.

Manager Miller departed at this time.

REGULAR AGENDA (Continued)

Lower Watershed Carp Assessment

Dr. Singh reported briefly on fish survey work at four sites in the lower watershed.  It was moved by Manager Calkins, seconded by Manager Klingelhutz to authorize the administrator to obtain trap net surveys in Gray Bay Dam Pool, Meadowbrook Lake, Utley Park Pool and Lake Hiawatha at a cost of $6,800.  Upon vote, the motion carried 6-0.  

ADJOURNMENT

There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 11:05 p.m.

Respectfully submitted,

Lee Keeley, Secretary