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July 26, 2018 Board Minutes





July 26, 2018




The regular meeting of the Minnehaha Creek Watershed District Board of Managers was called to order by President Sherry White at 7:01 p.m. at the District office, 15320 Minnetonka Boulevard, Minnetonka, Minnesota.




Sherry White, Brian Shekleton, Richard Miller, Kurt Rogness, William Olson, Jessica Loftus, William Becker.








James Wisker, Administrator; Renae Clark, Policy and Grants Coordinator; Michael Hayman, Senior Project Planner; Telly Mamayek, Communications and Education Director; Tiffany Schaufler; Senior Project Manager; Elizabeth Showalter, Permitting Technician; Chris Meehan, Consulting Engineer; Michael Welch, Counsel.








Manager Miller moved and Manager Rogness seconded approval of the agenda as presented. Manager White noted that she wanted to move the administrator’s report ahead of the administrator’s review because the review will be conducted in closed session. Upon vote, the motion carried 6-0.


(Manager Shekleton arrived at 7:04 p.m.)




James Wisker introduced Tom Dietrich as the new permitting program manager, returning to the District after a three-year absence, during which he worked for the City of Minnetonka. Mr. Dietrich appeared before the board and expressed his excitement at coming back to the District. The managers welcomed Mr. Dietrich.




Manager Olson moved and Manager Rogness seconded approval of the consent agenda, consisting of approval of the minutes of the July 12, 2018, meeting of the board of managers; approval of the general checking and surety account check registers and acceptance of the 325 Blake Road checking register – the general checking account register consisting of checks 39152 through 39210 totaling $542,578.78, payroll direct deposits totaling $139,287.65, and electronic fund withdrawals totaling $56,208.05, for total expenses of $728,074.48; and adoption of:


Resolution 18-068, Authorization to Execute Contracts for Professional Services (Government Relations, Managed Services Provider)


NOW, THEREFORE, BE IT RESOLVED, the Minnehaha Creek Watershed District, Board of Managers hereby authorizes the District Administrator to execute the contracts as negotiated with Joel Carlson and Corporate Technologies, with any final non-material changes and on advice of counsel.


Resolution 18-069, Authorization to Transfer $17,558.33 from the 325 Blake Road Capital Account to the 325 Blake Road Operations Account


 NOW, THEREFORE, BE IT RESOLVED that the Minnehaha Creek Watershed District Board of Managers authorizes the transfer of $17,558.33 from the 325 Blake Road Capital Account (fund ending 017) to the 325 Blake Road Operations Account (fund ending 025) to uphold standard operating expenses.


Resolution 18-070, Authorization to Enter into Contract for Utility Design Services for Six Mile Creek Halsted Bay


NOW, THEREFORE, BE IT RESOLVED that the Minnehaha Creek Watershed District Board of Managers authorizes the District Administrator to execute a contract for utility design services in the Six Mile Creek-Halsted Bay Subwatershed consistent with the Lessard-Sams Outdoor Heritage Council Grant Accomplishment Plan, with Telecom Construction, Inc. in the amount of $6,720.00, and that the Board establishes a utility design budget in the not to exceed amount of $7,392.00, and authorizes the District Administrator, in his judgment, to authorize change order obligating the District up to that amount.


 Upon vote, the motion carried 7-0.




Board, Committee and Task Force Reports


Manager White stated that she would be discussing retreat topics later in the meeting tonight.


Manager Miller reported from the Policy and Planning Committee, stating that the committee discussed the responsive policy program development and the workplan.


Manager Shekleton added a report from the most recent meeting of the Minneapolis Parks and Recreation Board, which addressed the future of the Hiawatha Golf Course in south Minneapolis. He stated that the MPRB meeting this past week unfortunately included disheartening statements on information that had been provided by Minnehaha Creek Watershed District. It was reported that generally there is a desire for the United States Geological Survey to conduct a study of the groundwater levels in the vicinity of the course. In response to a question from Manager Miller, Mr. Wisker stated that the USGS often is a partner with the District, and that it provides a certain perceived credibility to research projects. The managers thanked Manager Shekleton for his diligence in following the Hiawatha issue.


Manager White noted that the upcoming meeting and event schedule is as listed in the agenda.




Permit 18-248: Sanctuary at Oak Ridge, Hopkins


Elizabeth Showalter presented the regulatory review of the application for a four-lot subdivision in Hopkins. She reviewed the report analyzing the requirements under the District rules applicable to the project and noted the conditions on approval recommended by staff. She explained that the permit is before the board at the request of a member of the public.


In response to Manager White’s request for comments, Dr. Paul Silversteen, a resident of the Oak Ridge Place townhomes adjacent to the project, came forward and noted that he has been speaking with staff regarding to concerns about drainage into the Oak Ridge Place garage. He reported that District engineer Eric Megow agreed with another resident of the townhomes that there was a concern with regard to stormwater drainage to the garage. He also noted a concern about the planned border wall fronting Highway 7 draining additional water onto the property. In response to a question from Manager Miller, Ms. Showalter stated that District staff’s review of plans and existing conditions drawings for this site discovered riser pipes on the northern border of the site adjacent to the Oak Ridge Place townhomes and noted that clean out of the structures is required and that a condition on the permit is location of those structures and avoidance of them to ensure that they continue to function. But with regard to drainage to the garage, she said that there will be no change in the volume or rate of water directed to the garage from the project and that the stormwater management plan complied with District requirements. The managers engaged staff and District engineer and Chris Meehan in further discussion on changes to the flow of stormwater from the project. Roger Anderson, the applicant and engineer for the application for the subdivision, came forward and stated there has been confusion with regard to the garage because of arrows on some of the drawings, which indicated drainage direction but as Ms. Showalter reported the drainage volume would actually be smaller than it is now. With regard to the city well that is located on the northeast corner of the development properties there is deficiency in the system, and he is working with the city to fix the problem.


In response to a question from Michael Welch, Ms. Showalter stated that there will be no creation of impervious surface on the existing parcel that is separate from the parcel to be subdivided for the homes so there is no need for drainage rights to be dedicated as part of the permitting process. Manager Shekleton moved and Manager Rogness seconded approval of permit 18-248 with conditions recommended by staff. Upon vote, the motion carried 7-0.


Permit 18-153: 5525 Cedar Lake Road St. Louis Park


Ms. Showalter presented a request for a variance and recommendation to delegate authority to issue a permit if the variance is approved by the board of managers for Life Time Fitness on Cedar Lake Road in St. Louis Park. Ms. Showalter explained that prior permits for work on the property were issued in 2008, 2009 and 2013. Though the District’s rules include a common scheme of development framework that requires stormwater-management requirements to be considered in the aggregate and should have triggered required stormwater treatment for the entire property, staff incorrectly advised the applicant on those occasions and that for the 2013 permit only best management practices were required because the particular project – a parking-lot reconstruction – resulted in decreased imperviousness on the site. Because of this, the property is now fully built out, and this new project involves only a 5,627-square foot addition that requires only 490 cubic feet of abstraction, which would remove approximately 0.2 pounds of phosphorus per year from stormwater flowing offsite. However the applicant would need to provide 29,950 cubic feet of abstraction, which would remove approximately 7.5 pounds of phosphorus per year, under the common scheme of development. Meeting this requirement  would require an extensive stormwater retrofit that would significantly disrupt the applicant’s operations. The applicant is seeking a variance, which is why the matter is before the managers.


Ms. Showalter explained that staff has worked with the applicant and staff at the City of St. Louis Park to try to find alternative opportunities to make up the stormwater-treatment shortfall elsewhere in the subwatershed. She reviewed the several potential projects to create or enhance stormwater treatment in the region, which drains to the city’s Twin Lakes Park, then to Cedar Lake. Ms. Showalter noted the review of opportunities in the report to the managers, which found no opportunities deemed cost-effective by the District engineer. The managers discussed a number of different opportunities and questioned staff as to other possible avenues for compensatory stormwater management in the subwatershed, which is quite built-out and has significant excess-flow issues that have presented challenges for some properties. Ms. Showalter reiterated that staff is asking for the board to make a determination on approval of the variance tonight, and if the managers approve the variance, staff recommends that the managers delegate the authority to make a determination on the permit for the project. Ms. Showalter stated that staff also commends to the managers’ consideration the idea that the District could enter into a memorandum of understanding with Life Time Fitness to explore opportunities to create and implement off-setting stormwater management.


Manager White called for comments from the public. Aaron Koehler, 2902 Corporate Place, Chanhassen, came before the managers and stated that he represents the Life Time Fitness organization. He stated that when Life Time initially scoped out the proposed project, it was believed to be a fairly small and focused bit of work, however it has ballooned into a much greater issue given the stormwater treatment that is required under the District rules that was not provided under the 2013 permit. He stated that staff has worked diligently with Life Time and the parties have endeavored in earnest and good faith to explore opportunities for offsetting storage without success. He said the variance is brought forward as a last resort option and that Life Time has proposed to provide stormwater management beyond what is required, but could not find enough on site to make up for the past shortfall.


The managers engaged staff and the District engineer in additional of the discussion of the possibilities for offsetting stormwater management. The managers discussed ownership of various parcels and opportunities to expand the stormwater-treatment capacity of the Twin Lakes pond. Ms. Showalter explained that the park is very heavily used and that the city is loath to take up any more of the park with stormwater treatment. In response to a question from Manager Shekleton, Ms. Showalter confirmed that the wetland to the west of the Life Time facility is classified Manage 3, and that the engineer did not find opportunity to enhance treatment in the pond that wouldn’t require significant wetland mitigation or replacement. In response to further questions from Manager Shekleton, Ms. Showalter clarified that the Twin Lakes stormwater pond is very substantially undersized for the subwatershed in which sits; it would need to be three times larger to manage the stormwater flow it receives.


Mr. Wisker stated that the difficulty of the present situation emanates directly from incorrect advice staff provided in 2013. He stated that Life Time has been a good partner for the District, and staff has engaged in extensive conversation with the city to try to find a solution. He stated that Life Time and staff remain open to other options. Manager Olson moved and Manager Shekleton seconded approval of the variance and delegation of regulatory authority to decide the permitting matter on permit 18-153 to staff, with direction to develop a memorandum of understanding with Life Time Fitness to explore compensatory stormwater treatment options in the subwatershed. Manager Miller stated that he would not vote to approve the motion because he believes that the problem in this subwatershed is only getting worse and the District in the past approved a variances for the Benilde-St. Margaret athletic field redevelopment and now is asked to approve another variance, but the problems in the subwatershed are getting worse. In response to a question from Manager Loftus, Mr. Welch stated that it is not standard practice that the terms of a variance would be recorded on the deed to the property, however in seeking to balance the shortfall from compliance with reasonable conditions on approval of a variance, the managers could require that the variance be recorded.


The managers further discussed options for projects in the area that could provide stormwater treatment. With regard to making the pond in the Twin Lakes Park more efficient and effective, Manager Shekleton turned to Mr. Wisker, who stated that he was not able to produce a feasibility study on the fly and staff could come back with a big-picture look at the subwatershed, but as reported, staff has already undertaken an intensive look for alternative regional treatment options. Manager Shekleton noted his support for the District redoubling its efforts to find an opportunity to create an improvement in the area. Manager Olson confirmed that his motion includes the memorandum of understanding as a condition of approval related to future activity on the property. On a roll call vote, the motion failed 3-4, Manager Loft, Manager Rogness, Manager Miller and Manager Becker voting against.


In response to further discussion among the managers on how to accommodate the request for the variance and deal with the excess stormwater flow in the subwatershed, Mr. Wisker stated that Life Time is willing to continue to partner with the District. Mr. Koehler noted that he understands the managers’ comments and frustration. He pointed out that the proposal put forward by his organization would be an improvement in the subwatershed albeit an incremental one. He stated that approval of the variance is a small win for all parties. He stated that the secondary piece or the second step in the process would be to get to the improvement that everyone is looking for, and that his organization is willing to make a contribution to finding that solution. However, Life Time is not a watershed manager and does not know the best way to spend such funding, but the offer was made in discussions with staff and still stands.


In response to an inquiry from Mr. Welch, Ms. Showalter noted that the variance application was submitted in complete form on June 25. Mr. Welch said the managers could make the decision at either of its meetings in August, but the managers must make a decision on it within the statutory timeframe of 60 days. In response to a question from Manager White, Mr. Welch noted that if a decision is not timely made, the application would be approved as a matter of law.


Manager Loftus and Manager Becker discussed their concerns with the idea of a memorandum of understanding as a relatively soft and nonspecific solution to the present problem. Escrowed funds from Life Time could provide the District with the ability to undertake a project in the area, but Mr. Wisker noted that this puts the onus of finding stormwater-management opportunities on the District, when research and review has already shown that there are no efficient stormwater-improvement opportunities in the subwatershed. The managers expressed a disinterest in a pay-to-play approach to regulation. Manager Shekleton noted that he was unsure what the cost per pound of phosphorous treatment should be and what treatment methods could be implemented to achieve a result that was commensurate with a payment that would be made by Life Time. Manager White noted that she could entertain a motion from any of the managers to simply approve the variance. Manager Becker moved and Manager Loftus seconded reconsideration of the prior motion. Mr. Wisker stated that if the managers so direct, staff can reconsider subwatershed options and bring back additional information at a future meeting. On vote, the motion carried 7-0. Mr. Wisker stated that staff could push Life Time to find additional resources or opportunities to improve stormwater management on its site, and that the managers could require the applicant to take that on itself or could require it to work in conjunction with the District and city. The third option is for the District to take on the responsibility itself. The managers agreed that the option of working together with Life Time and the city was most advisable. Manager Shekleton moved to table the motion to the August 9 meeting of the board of managers, seconded by Manager Becker. Upon vote, the motion carried 7-0.


Mr. Wisker stated that staff will do its upmost to bring fresh information to the managers on August 9.


Resolution 18-071: Approval of Design of Minnehaha Creek FEMA Repairs Project and Authorization to Solicit Bids


Tiffany Schaufler presented the final staff recommendation on projects to undertake along Minnehaha Creek and in the Minnehaha Glen utilizing Federal Emergency Management Agency flood-repair funds. She noted that staff recommends deferring projects 28 and 31 because of the complexities associated with Works Progress Administration walls located at each site, which reduces expected project expenditures by roughly $500,000. All told, she noted, there are 11 projects totaling $301,360, approximately $173,600 of which will be paid through the FEMA grant – a correction from the $248,576 stated in the request for board action. She said that this is considerably under the cost estimate at the time that the project was ordered of $1.2 million because of the removal of projects 28 and 31. Manager Rogness moved and Manager Becker seconded adoption of Resolution 18-071. Manager Shekleton asked whether vegetated reinforced soil stabilization would be used instead of hard armoring. Ms. Schaufler noted that in some of the example photos she had shown there are places where riprap and toe boulders were exposed because of low water levels. VRSS will be used above the toe boulders and in most circumstances the riprap will not be exposed. Upon vote, the motion carried 7-0.


Resolution 18-072: Approval of Edina Local Water Management Plan


Renae Clark appeared before the Board of Managers and presented staff’s report on the draft Edina local water management plan. Ms. Clark explained the relationship between the implementation of the local water management plan and the District’s implementation of the Balanced Urban Ecology policy framework. She provided general background on the local water management plan review and stated that the District has identified a number of partnership opportunities with the City of Edina and that the city and District will collaborate on best management practice inspection and maintenance. Manager Miller moved and Manager Rogness seconded adoption of Resolution 18-072. With regard to a question from Manager Miller, Ms. Clark stated that while Edina will be regulating stormwater management on single-family home projects, which are not subject to the District’s rule, the District will exercise regulatory authority for all other areas. Upon vote, the motion carried, 7-0.


Resolution 18-073: Approval of Excelsior Local Water Management Plan


Ms. Clark presented staff’s report on the Excelsior local water management plan. She said that there are fewer opportunities for partnership in the City of Excelsior, however the city will be undertaking road improvements and a small area plan, as well as capital projects, while deferring exercise of regulatory authority to the District. Manager Rogness moved and Manager Shekleton seconded adoption of Resolution 18-073. Manager Olson noted that several of the bays mentioned in Ms. Clark’s report including Harrison, Jennings, Halsted and Stubbs are actually far away from the City of Excelsior. Ms. Clark said that the city drains to Lake Minnetonka, which has water-quality issues that the city will help to address as part of its partnership with the District to improve the overall quality of the resource. With regard to a question from Manager White, Ms. Clark noted that Galpin Lake in Excelsior does not have a grade but it is not impaired. Upon vote, the motion carried, 7-0.


Resolution 18-074: Awarding Contract for Demolition of Facilities at 325 Blake Road


Michael Hayman appeared before the board of managers and presented the bidding results for demolition of the building at 325 Blake Road. He said the District issued bids for the main portion of the project, which is the northwest area closest to Blake Road and will be redeveloped soon, and four bid alternates for demolition of the remainder of the building, storage of rubble on site, crushing of rubble, and hauling rubble away. He said staff’s recommendation is to award a contract for the base bid and alternates 1 and 3 for storage of rubble and removing it from the site. He said that design costs from Wenck Engineering have actually come in $15,000 under budget and explained that Transit-Orientated Development, Metropolitan Council and Department of Employment and Economic Development grant funding would contribute to the work, as well as right-of-way acquisition funds. He stated that staff wanted to complete the bidding process before developing an oversight scope to determine actually what the District would be looking for oversight on. Manager Shekleton moved and Manager Becker seconded adoption of Resolution 18-074. Upon vote, the motion carried, 7-0.


Resolution 18-075: Authorization to Reimburse City of Orono for the Casco Point Shoreline Improvement Project


Telly Mamayek presented a request for action on the Casco Point cost-share project with the City of Orono. Ms. Mamayek explained the work on Casco Point and the history of the cost-share agreement between the District and the city. She said that the project work has been completed and that the city engineer submitted a certification of substantial completion last summer. The city submitted a request for reimbursement under the agreement, which was entered in 2013, in December, but staff was not able to visit the site because of weather conditions until May. Laura Domyancich of the District staff discovered that the work had been completed and the shoreline stabilization was functioning per the plans. Ms. Mamayek stated that while the contract requirements had not been completed in a timely manner before expiration and the original contract provided for a cost share amount of not-to-exceed $34,500 as opposed to the managers’ authorization of 50 percent of project cost not-to-exceed $34,500, staff is recommending that the District pay the full amount of the committed cost share funds per the contract of $34,500 even though the actual construction cost for the project was $68,597.58, meaning a $201 ‘overpayment’ by the District. Manager Miller moved and Manager Rogness seconded adoption of Resolution 18-075. Upon vote, the motion carried 7-0.


President’s Report


Manager White asked the managers to consider topics for a retreat to be conducted sometime in the next several weeks. She stated that the managers could do one long retreat covering a number of topics or a two-part retreat. She stated that topics to be considered included roles and responsibilities; review of information-flow between managers and staff; governance policies, which the District is obligated to review each year; committee and other manager assignments; meeting structure; brainstorming on the regulatory program; and flexible grant opportunities; or further integration of the Balanced Urban Ecology policy framework into the District’s work. She is looking for input from managers on whether any of those should be excluded or all should be pursued. There was a general consensus that the managers should consider short-term goals related to the topics in an initial session, followed by a second session focusing on more long-term elements of the topics. Manager White directed Mr. Wisker to poll the managers for availability in the coming weeks. The managers considered review of Kraus-Anderson’s work to date, however it is expected that the work will not be far enough along for review.


Administrator’s Report


Mr. Wisker provided updates on media appearances for the District in recent weeks including an article in MinnPost on the Six-Mile subwatershed work the District is undertaking paired with a critique of how Lessard-Sams Outdoor Heritage Council funds have been used to pay off debt. He also noted that the Star Tribune did an article on aquatic invasive species boat-design issues that have be raised by Gabe Jabbour that the District has been involved with. Mr. Wisker stated that Darren Lochner of District staff worked with Target staff to undertake a cleanup at the Minnehaha Creek Preserve. He reported that the Minnesota Pollution Control Agency has issued the new construction stormwater permit and it shows that comments put together by Becky Christopher and Elizabeth Showalter resulted in some changes to the permit for the better. Regarding water-level updates, the dry weather that the District has been enjoying in recent days is good news. Lake Nokomis is at 815.2 feet, which is 2 inches below the weir, which is currently open. He stated that Lake Minnetonka is at 929.3 feet, which is very good for this time of year and staff will soon reduce flow through the dam to 20 cubic feet per second.


He handed out a mockup of a quarterly update for the manager’s review and stated that any comments could be passed along before the update is printed. He stated that he and Manager White met with Hennepin County Commissioner Peter McLaughlin and Representative Jean Wagenius to discuss groundwater issues in south Minneapolis and around Lake Hiawatha. He stated that some disgruntlement was expressed with regard to some of the data that the District has been providing inasmuch as it shows that the several recent years of high rainfall amounts have led to significant groundwater recharge in the area and that groundwater levels are up to a point where they are creating some challenges for residential areas. They had questions about the creek and Lake Nokomis and the District’s management thereof, notwithstanding Mr. Wisker’s providing them with the information that Lake Nokomis is 30 feet below the area where groundwater is affecting homes.


He stated that staff will continue to provide information and maintain flow of communication on these issues. He stated that Tiffany Schaufler has been spending a great deal of time on the issue – sometimes as much as half her work week. Finally, he stated that he and Manager Olson are going to have a check-in meeting with Carver County Commissioner Randy Maluchnik on August 6.


Second Quarter Review of District Administrator


Manager Loftus moved and Manager Shekleton seconded to convene in closed session to review the administrator’s second-quarter performance. Upon vote, the motion carried 7-0. The managers convened in closed session.


The managers reconvened in open session at 10:42 p.m.




There being no further business, the meeting of the board of managers was adjourned at 10:43 p.m.


Respectfully submitted,


Kurt Rogness, Secretary

Minutes Type: 
Board of Managers