Minutes: January 18, 2007





January 18, 2007


The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President James Calkins at 6:55 p.m. at the District offices, 18202 Minnetonka Boulevard, Deephaven, Minnesota.




Pamela Blixt, Lee Keeley, Lance Fisher, Ethel Smith, Jeffrey Casale, James Calkins and Richard Miller.








Eric Evenson, District Administrator; James Wisker, District Permitting Officer; Michael Wyatt, District Planner; Julie Westerlund, District Education/Communications Specialist; Michael Panzer, District Consulting Engineer; Chuck Holtman and Michael Welch, District Counsel.








Mr. Evenson requested that agenda item 12.1, presentation of groundwater-related issues in the Lower Glen, be removed from the agenda.  It was moved by Manager Fisher, seconded by Manager Keeley, to approve the agenda as amended.  Upon vote, the motion carried.




It was moved by Manager Fisher, seconded by Manager Keeley, to approve the consent agenda, consisting of the Checking, Petty Cash and Surety check registers, including Check register check numbers 27012 through 27084 totaling $145,494.77 .  Upon vote, the motion carried.



Amber Woods Office Center, Permit 06-441, Erosion Control, Stormwater Management (Orono)


Mr. Wisker discussed a request for an exemption from stormwater management Rule N for this office complex to allow for use of a downgradient MnDOT stormwater pond.  After discussion of this request at the January 11, 2007, meeting, staff was directed to discuss with the City of Orono why it had directed the permittee to use a downstream pond instead of the underground storage option that had been proposed.  Mr. Wisker reviewed the history of the permitting of the project at the City and explained that the City was concerned primarily about maintenance issues and cost, based on a review by the City engineer.


Manager Fisher asked whether alternative underground storage systems had been considered.  Mr. Wisker said no alternative systems had been considered in light of City resistance to an underground system.  The exception before the Board was a last attempt to get the project moving.  Manager Fisher asked why underground storage had been proposed in the first place.  Mr. Wisker explained that it had been proposed to meet District and City stormwater management requirements.  There was further discussion of the location of the pond, and the fact that it would be expanded in conjunction with the proposed project.  Mr. Wisker explained that the proposal with the exception before the Board meets District and City stormwater requirements.  It was moved by Manager Blixt, seconded by Manager Keeley, to approve the permit in accordance with staff recommendations.  Upon vote, the motion carried.


Watershed Management Plan Update Public Hearing


Manager Calkins announced that the public hearing was still open from the December 21, 2006, meeting.  Mr. Wyatt reviewed the process to date and explained that the comment period for the plan had closed on November 21, 2006.  Responses had been issued to all commentors, and on December 21 the public hearing had been extended to this evening.  Mr. Wyatt noted that staff recommended approval of the plan with the changes he passed out in an ?Errata? sheet.


Mr. Evenson reviewed the key issues for commentors to date.  He explained that staff had revised the language on the preliminary plat review to clarified that it was a review of concept plans, not an approval process.  The landlocked basins policy had been clarified to explain that no outlet would be allowed unless needed for flood control.  He noted that ?infiltration? had been changed to ?abstraction? throughout the draft, and that it had been noted that absratction will be required only to the extent feasible. 


Manager Fisher asked if there were new issues to discuss. Mr. Evenson noted that there were people in the audience who would speak to that, but that staff had met with City of Minneapolis representatives to discuss plans to integrate stormwater capital improvement programs and develop a comprehensive systems approach to city flooding issues, combined sewer overflows and rain leader disconnects.  Mr. Evenson noted that the District's CIP would remain the same, but a feasibility study with regard to these issues would be conducted, then a minor plan amendment would be undertaken as necessary.


Manager Calkins asked for comments from the audience.


Michael Schmidt, Minneapolis Park and Recreation Board, referenced a January 18, 2007 letter he sent to the District with further comments.  He noted that in the MPRB's initial comments to the District, it had erred in stating that it is not a ?local government unit? under the watershed law.  He noted that the MPRB is a unique LGU, with fee title to 6,400 acres of land, and powers of taxation, condemnation, and regulation.  He noted that the MPRB owns land outside the City.  He added that the MPRB was created in 1883 by an act of the Legislature and the Minneapolis Charter.  Mr. Schmidt noted that as an LGU the MPRB worked closely with the City of Minneapolis on its local surface water management plan.  He also stated that the MPRB will prepare its own surface water management plan by the end of 2008.


Mr. Schmidt stated that the MPRB does not agree with the rationale in the draft plan or the technical basis for the District's water quality goals.  He stated that the MPRB wishes to participate on the rulemaking task force.  He stated that the difference between lakes in undeveloped and developed areas is not adequately reflected in the plan.   He noted that, with regard to the load allocations in the plan, internal loading is not fully understood, and that credit for work done in the 1970's, 1980's, and 1990's needs to be more fully developed in the plan.  He also noted that the MPRB needs to fully integrate recreational values and that the plan does not reflect this integrated approach.  He added that the MPRB does not recognize District authority to require, in the permitting process, the dedication of MPRB land for the land conservation program.


Mr. Schmidt noted that the MPRB comments do not indicate a change in its desire to work cooperatively with the District; the MPRB supports the intent of the plan but has concerns about its implementation.  He noted the risk of spending public money on policies without achieving results.  He also noted a need for better communication and cooperation, and asked that until these issues are resolved, the Board not adopt the plan.


Manager Blixt asked whether the significant change in policy, with the MPRB requesting to be recognized as an LGU and the financial commitment that accompanies that, was shared with the MPRB Commissioners.  Mr. Schmidt noted that the MPRB has been an LGU for a long time.  He said the decision has not been adopted by the Board, but it is a policy board, not an operations board. 


Mr. Holtman asked Mr. Schmidt whether the question of the LGU status of the MPRB is of consequence to the District Board's adoption of the plan.  Mr. Schmidt noted that he wanted to correct the earlier mistake, and that in terms of the adoption of the plan whether or not the MPRB is an LGU, its reasons for asking the Board not to adopt the plan are the same.


Mr. Wyatt clarified that the MPRB's comments regarding dedications to the land conservation program as a permit requirement misunderstands a comment in his response letter to the MPRB.  He noted that the land conservation program is separate from the permit and regulatory work of the District, and that all land dedications in the program are voluntary.  Mr. Evenson added that there is no requirement that any developer dedicate land for conservation and that the only time land is required to be set aside in the permitting process is for stormwater management facilities such as buffers.  Mr. Schmidt said he appreciated the clarification, and would like it in writing.


Manager Miller noted that the MPRB representative was before the Board tonight without a resolution from the MPRB commissioners.  Mr. Schmidt replied that he does not doubt that he is within his authority.  Manager Miller asked if the City of Minneapolis recognizes the MPRB's independent status.  Mr. Schmidt noted that the MPRB is an independent entity.  He added that the MPRB was not attacking the District, but has its concerns, though with time he believes these concerns can be worked out.  He added that with regard to the MPRB relationship with the City, specifically regarding sewage and stormwater, the MPRB has an agreement that stormwater systems are a responsibility of the City. 


Manager Fisher asked whether or not the MPRB is an LGU has an impact on the Board's decision tonight to approve the draft plan.  Mr. Holtman answered that he did not believe so.  The approval of the plan, he added, depends on whether the policies in the plan are scientifically sound and consistent with the Board's policy goals.  He added that the MPRB's status is a narrow legal question that would depend, in part, on interpretations under the watershed law and the Metropolitan Land Planning Act, and therefore would involve the Board of Water and Soil Resources and the Metropolitan Council.  Manager Fisher asked whether the plan identified all of the LGUs in the watershed and excluded the MPRB.  Mr. Holtman suggested that the plan could indicate that the MPRB had raised the issue of its status.  Manager Fisher asked whether, if another municipality came into existence, that would need to be accounted for in the plan.  Mr. Holtman noted that the District had no legal obligation to make a change, but that it could be in the Board's interest to assess the impact on achieving the substantive goals in the plan.  Mr. Schmidt suggested that the District had, in the past, recognized the MPRB as an LGU.


Manager Casale suggested that the differentiation on water quality issues between developed and undeveloped areas was addressed by the plan's subwatershed approach.  Mr. Wyatt noted that the subwatershed approach is a fundamental outgrowth of the District's H&H study, noting that what was feasible for water quality depends on subwatershed characteristics.


Manager Blixt noted that the issues that had been raised would not be resolved that evening, but would require ongoing efforts.  Manager Keeley commented that the District had been through a long process to develop its plan, and she is surprised that there is a new level of concern coming forward.  Mr. Schmidt replied that the MPRB has been working with staff throughout the plan development process, but that issues have not been resolved to the MPRB's satisfaction. 


Rhonda Rae, on behalf of the City of Minnepolis Department of Public Works and Engineering, thanked District staff for working with City staff on a number of issues, and noted that she had not seen the final revision to the plan.  Ms. Rae noted that under Chapter 103B one of the goals is to minimize public capital expenditures to control flooding and improve water quality.  She said that the comments in the City's letter had not been fully addressed except for capital programming.  Ms. Rae noted that the MPRB and the District had collaborated with the City on a project at Lake Nokomis, but that water quality goals still were not being reached.  She indicated that a great deal of money could be spent, and still the District's goals would not be reached.  Ms. Rae submitted for the record a copy of a letter from Steve Kottke, DPWE Director. 


Ms. Rae addressed the requirement that the City update its local plan within two years of District plan adoption.  She stated that in the City's view, it is required to update its plan only when the plans of all four watershed management organizations affecting the City have been adopted.


Ms. Rae suggested that watershed districts do not have authority to conduct or enforce TMDLs, and that the NPDES authority is the Minnesota Pollution Control Agency.  She asked that the standards set for urban lakes be removed from the Plan.


Ms. Rae noted that the plan sets goals and strategies that would strongly involve the District in local land use planning.  She added that the District's insistence on reviewing land use plans is constitutionally questionable.  She suggested that the District does not have the authority to impose land use regulation on local government units.  She asked that the District remove the requirement that LGUs enter into a memorandum of understanding with the District regarding allocation of regulatory roles.  She offered that watershed districts lack general police powers and must achieve their goals through enumerated powers.


Ms. Rae noted that the DPWE supports the District's plan, but asked that the District adopt the changes that the City requested, or not adopt the plan and work with the City to achieve resolution.


Manager Fisher said that the District does not intend to dictate land use.  Mr. Evenson explained that Ms. Rae's comment concerns the provision for early District engagement in stormwater plan review, which, as he noted earlier, is being clarified.


Manager Casale asked the purpose of reviewing plans for development early in the process.  Mr. Wyatt explained that the intention is to work with developers and cities early to identify potential problems.  Mr. Evenson noted that the District has proposed this process to streamline the review process and save time and money for all parties.  Manager Casale asked if the intent was to educate and consult with developers.  Mr. Evenson noted that it was and that the District wished to bring low impact development techniques to the attention of developers.  Manager Fisher asked that staff clarify the District's intent, and make it clear that it is not dictating land use. 


Manager Smith asked if the District should just request, rather than require, early review.  Ms. Rae noted that the City already was conducting an early review process with its ?One-Stop? program, and that it has been working well.  Manager Keeley noted that the District has the capability not just to review plans but to make suggestions regarding specific techniques and assist developers.


Manager Fisher asked whether the plan language needs to be modified to clarify that the District is not dictating land use.  Mr. Holtman concurred that the plan language should be clarified.  Mr. Evenson read the proposed change to the language.  Manager Fisher indicated that he favored to some degree a voluntary early review provision.


Nancy Gibson, St. Louis Park, a biologist and LCCMR member, noted that she had seen the story in the Star Tribune about the District's plan and had reviewed the plan.  She commended the plan and urged the Board to 'stay the course.? 


Dick Osgood, Lake Minnetonka Association, referenced his organization's clear and consistent message that the lake needs to be managed holistically.  He noted the organization's concern with Eurasian water milfoil, and its effect on recreation and lake ecology.  He is impressed that the plan addresses the ecology of the lake.  He requested, in a cooperative spirit, that the Lake Minnetonka Association, the Lake Minnetonka Conservation District, and the District begin to develop a management plan for Lake Minnetonka.  He noted that the last plan is 20 years old.  His principal concern is aquatic plant management, especially Eurasian water milfoil.  He requested that the first step be taken toward development of a plan by conducting an aquatic vegetation survey this season. 


Mr. Evenson noted that the District is undertaking activities along the lines Mr. Osgood is suggesting, including a bathymetric survey of Lake Minnetonka.  He added that there would be more detailed discussion of vegetation issues at the first or second meeting in February, and that curly leaf pondweed and an overall lake management approach would be discussed.  Finally, Mr. Evenson noted that there is strong support from the Lake Minnetonka Conservation District Board for a lake management plan.  Manager Fisher asked if the watershed plan calls for lake management plans.  Mr. Evenson replied that it does and that these would include aquatic vegetation surveys.  Mr. Wyatt added that the Lake Minnetonka vegetation survey is scheduled for 2008.


Richard Curry Smith, Minneapolis, also commended the plan.  He is an environmental anthropologist who works in the Minnesota River watershed.  He noted that he has worked in the Minneapolis Chain of Lakes with the MPRB and the City of Minneapolis.  Mr. Curry Smith advised that the efforts around the Chain of Lakes encountered significant and strong resistance, which he attributed to a lack of education.  He noted that the District's plan is an ecologically based one, and that he hops there will be education efforts conducted in association with it.  Manager Keeley replied that education is a strong part of the District's focus.  Mr. Curry Smith suggested that if people understand what the plan is trying to achieve, they will support it.  He suggested that economics are on the side of the plan, because property values are increased by better conservation. 


Ron Sternal, a Minneapolis resident who lives near Cedar Lake, commended the District on its plan and objected to a developer's comment in the Star Tribune article that the cost to achieve zero discharge ought to be borne by the public as a whole. 


Holly Kraft, planner with the City of Victoria, said that the City had provided comments and received a response from the District.  She said the City still has some concern about infiltration as applied to tight clay soils in the City.  The City wishes to be involved in the rulemaking process.  She also raised a concern about the feasibility of meeting the targeted phosphorus load reduction for East Auburn Lake, and noted that Hennepin Parks needs to be involved.  Ms. Kraft urged that the technical committee work with the citizen's committee on rulemaking so that there are not late conflicts.


Susu Jeffrey, Friends of Coldwater, asked the managers not to forget Camp Coldwater Springs.  She reported erosion of the hill behind the spring that is in urgent need of repair.


There being no further public comments, it was moved by Manager Miller, seconded by Manager Smith, to close the public hearing.  Upon vote, the motion carried.


The public hearing was closed at 8:50 p.m.


Mr. Wyatt noted that staff has met with interested cities, and has resolved issues with Hennepin County and the City of Minnetonka.  He noted that many comments have been incorporated into the plan, but that more comments and new comments were received today from Minnetonka concerning TMDLs and water quality goals.  He said that the rulemaking and landlocked basins issues had been resolved.  He also noted comments from the City of Victoria and the City of Minneapolis.  Mr. Wyatt said that staff has done its due diligence in reviewing and responding to comments and that many policy issues have been discussed.  He noted that the goals and objectives of the plan are based on sound science, and that significant time and effort has been spent listening to and working with state resource agencies.  He asked that the Board adopt the proposed resolution authorizing that the plan, with recommended changes, be forwarded for final agency review.


Manager Keeley commended staff and the consultants on the plan, and moved adoption of the proposed resolution, seconded by Manager Smith.  Manager Blixt said that she also wanted to acknowledge staff, and especially Mr. Wyatt.  She also wanted to note that the plan is not an end, but a beginning; a number of issues will continue to be addressed by the District in a cooperative manner.  Manager Fisher said that he favors approval, but asked that staff continue to tweak the language regarding preliminary plan review. 


Manager Fisher asked about the local update timeline as raised by the City of Minneapolis.  Mr. Evenson replied that the update of local surface water management plans is a state statutory requirement, and that the argument is a legal one.  Manager Fisher said that all comments have been considered.  Mr. Evenson emphasized that the plan gives flexibility to cities to reach the goals set.  Manager Smith requested a grammatical correction on page 6 from ?effect? to ?affect.? 


Manager Fisher asked if the Board had an opinion on whether preliminary plat submittal for early District review should be required or voluntary.  Manager Casale said that if it is not required, it will not happen.  Manager Blixt concurred that the District has been requesting early review with developers with only limited success; therefore the requirement is appropriate.  Manager Smith said that it is important that the plan be clear why the review is being conducted.  Mr. Evenson replied that staff would clarify that language.  Upon vote, the motion carried.


Manager Miller left at this time.


Manager Calkins announced a break at 9:05 p.m.


The meeting reconvened at 9:20 p.m.


Watershed Customer Satisfaction Survey


Ms. Westerlund discussed a Request for Board Action to hire Richardson, Richter and Associates, Inc., to conduct a ?customer satisfaction survey? for the District.  Ms. Westerlund explained that the $24,440 cost of the survey is addressed by $20,000 from the education and communications budget and $4,400 from permitting.  Mr. Evenson explained that the survey idea came out of his last performance review with the Board.  He noted that a survey of general water awareness is being deferred to seek a joint effort with other organizations.  He remarked that the proposal before the Board is somewhat more expensive than had been anticipated, but that the District does have the funds in its budget.  He also opined that the focus group work could be coordinated with the rulemaking process.


It was moved by Manager Casale to approve the Request for Board Action, seconded by Manager Blixt. 


Manager Fisher suggested that the third component of the proposed survey, interviews with the managers, is redundant.  Manager Smith agreed, noting that managers were interviewed in conjunction with Mr. Evenson's performance review.  Manager Fisher asked if the third component of the survey could be deleted without affecting the other parts of the survey.  He also asked if City staff would participate in focus groups.  Mr. Evenson answered that he did not know if staff would participate, but that previous efforts to engage City staff had drawn good attendance.  Ms. Westerlund advised that the third component of the survey could be removed without affecting the quality of the results. 


The motion was amended by unanimous consent to remove the third component of the survey.  Upon vote, the main motion carried.




Long Lake Downtown Redevelopment Feasibility Study


Mr. Wyatt presented the final report by the Howard R. Green Company.  Mr. Wyatt noted that the plan had been put together over the summer, after the City approached the District about participating financially in the expansion of stormwater ponds for its downtown area redevelopment.  The District declined to participate in the pond expansion, but pursued the option of the water quality improvement project that was now before the Board.


At this time, Manager Fisher left.


Mr. Wyatt discussed opportunities to implement best management practices to achieve pollutant removal at the Pioneer Museum site.  Mr. Wyatt noted that the total cost of all proposed best management practices would be $63,750.  Manager Casale asked if those costs were for treatment above and beyond District requirements.  Mr. Wyatt indicated that analysis would have to be completed to answer that question, but that the plan provided treatment for not just the Pioneer Museum site but adjacent sites as well.  Manager Casale said that if the project came forward for funding, he would want to focus on the increment of treatment beyond what is required for compliance, and the cost of that increment.  Manager Keeley asked if a diatom study has been conducted for Long Lake.  Mr. Wyatt indicated that he did not know, but would respond to Manager Keeley.


Mr. Wyatt next discussed the Lakeside Mews development.  The concept plan calls for a green roof and underground retention to treat stormwater.  The cost for Lakeside Mews best management practices is $690,000.


Mr. Wyatt discussed the Lakeview Commons development.  Best management practices proposed are underground detention with porous pavement and a rain garden with swales.  Total cost for the proposed BMPs is $138,000.


Finally, Mr. Wyatt discussed the Rettingers development.  He reported that the developer has moved ahead with this project.  Best management practices identified in the feasibility report include porous pavement and bioretention.


Mr. Wyatt said that there are other opportunities to demonstrate low impact development techniques in the area, including the Burger King site.


Mr. Wyatt summarized that the total phosphorus reduction achieved by implementation of the BMPs proposed would be 3.7 pounds per year, at a cost of $960,000, but that there would be education benefits to the project as well.  He is not asking for any Board action at this time, just a sense of how to proceed.


Manager Casale asked what phosphorus loading reduction had been achieved from the Mound project.  Mr. Wyatt replied that phosphorus would be reduced from 27 pounds per year to 9 pounds per year if the Mound plan is fully implemented. 


Mr. Wyatt noted that the concept plan would be presented to the City.  Manager Blixt feels that some of the alternative ideas Mr. Wyatt presented, including the shopping center site and Burger King, represent the more interesting opportunities.  Manager Blixt also said that she would like more information on all sources of subwatershed phosphorus loadings before making any decision to fund work.


Discussion Concerning MPRB Status


Manager Blixt asked whether the District should pursue further information about the MPRB's status as an LGU and follow up with the MPRB.  Mr. Wyatt said that staff had just received the MPRB's letter yesterday and that staff was consulting legal counsel on the issue.  Manager Blixt wondered whether the MPRB Commissioners had seen Mr. Schmidt's letter to the District. 


Manager Casale believes the District should respond, especially to clarify that the land conservation program rests on purely voluntary landowner involvement.  He noted that three of the issues brought up by Mr. Schmidt are misunderstandings of the plan that need to be addressed. 


Manager Keeley asked whether there should be clarification of the LGU issue.  Manager Blixt said that the District's letter should outline the obligations of an LGU under the watershed law, to ensure the MPRB understands those responsibilities.  Mr. Holtman added that the MPRB also would assume responsibilities under the Metropolitan Land Planning Act.


It was moved by Manager Casale, seconded by Manager Blixt that staff send a response letter to the MPRB.  Mr. Holtman advised that the District had not yet evaluated the MPRB's claim to be an LGU.  He recommended that rather than take a position on the question, the response letter could simply indicate that the District would review the question and could describe the MPRB's responsibilities under the watershed and metropolitan planning laws.


The Board concurred.  Manager Calkins asked whether the MPRB or City of Minneapolis had raised any new questions of District authority.  Mr. Holtman replied that in counsel's view, the plan and its elements are within the District's legal authority provided the technical basis is sound.


By unanimous consent, the motion was amended to direct staff to directly copy the letter to all MPRB Commissioners and to all others copied on Mr. Schmidt's letter. Upon vote, the main motion carried.




There being no further business, the regular meeting of the Minnehaha Creek Watershed District Board of Managers was adjourned at 10:30 p.m.


Respectfully submitted,




Lee Keeley, Secretary