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HomeMy WebLinkAbout9 - Donation to "Urban Wetland Management Coalition" AGENDA NUMBER: PREPARED BY: SUBJECT: DATE: INTRODUCTION: BACKGROUND: 9 DEB GARROSS, ASSISTANT CITY PLANNER CONSIDER $500.00 DONATION TO THE WETLAND MANAGEMENT COALITION JANUARY 4, 1993 "URBAN In November, staff attended a meeting sponsored by Linda Fisher of Larkin, Hoffman, Daly & Lindgren, Ltd. to discuss pending legislation for the conservation of wetlands. The purpose of the meeting was to determine interest from public and private sector agencies about creating a lobby group to influence the wetland rule making process. The Coalition membership is attached to this report and the cities of Chanhassen and Savage as well as Scott County are participating members. The Coalition requests members to contribute $500.00 to $1,000.00 dollars to ~ay for research, paperwork and pUblic speak1ng time relative to influencing the rulemaking process. A complete "statement of Issues" developed by the coalition is attached. It is the intent of the group to work to simplify administration of the Wetlands Conservation Act. They seek to coordinate administration with existin9 regulatory bodies such as the Corps of Eng1neers and DNR versus the eleven or so agencies proposed to be responsible for the regulation of wetlands. The group also seeks to equalize the protection of wetlands among rural and urban areas. The Wetlands Act contains several exemptions for rural areas but requires wetlands replacement of 2 to 1 and possibly up to 6 to 1 in urban areas. The Wetlands Act was significantly influenced by a strong farm lobbr which has resulted in legislation that perrn1ts wetlands alterations in rural areas but severely restricts alterations in urban areas. The problem is that the majority of 4629 Dakota St. S.E., Prior Lake, Minnesota 55372 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLDYER DISCUSSION: ALTERNATIVES: RECOMMENDATION: significant wetlands are located in rural areas. The Coalition seeks equality in the rules for both rural and urban areas and to accomplish regulations that will protect wetlands. Perhaps the most important issue as far as staff is concerned is the permitting and plan review ~rocess. There are several agencies respons1ble for wetland management, all of which have a different set of standards for mitigation and replacement. It is a very difficult and complex ~rocess for applicants to follow. The Coalit1on seeks to simplify the process and allow the LGU more authority to regulate wetlands under its jurisdiction. currently the City of Prior Lake is the LGU for wetlands regulation however, the PLSL Watershed District has expressed interest in becoming the LGU. In any event, staff feels that it is in the City's best interest to have the authority to review specific development plans for wetlands protection rather than the eleven or so agencies proposed in the current legislation. Paul Krauss, Plannin9 Director for the City of Chanhassen has been 1nstrumental in alerting communities to the potential pitfalls of the pending wetlands legislation. Mr. Krauss is a workin9 member of the Coalition. A copy of an art1cle which appeared in the Business Letter of MNAPA is attached to the agenda report and explains the potential impact of the act as written, on communities. 1. Approve a donation to the Coalition in the amount of $500.00 to $1,000.00 dollars. Deny the request for a donation to the efforts of the Coalition. Table consideration of the issue for further research. 2. 3 . The recommendation from staff is to approve a donation to the Urban Wetland Management Coalition for the amount of $500.00 dollars. l.i\RKIt\: I IOFF\L'u~ DALY & LI~DGREN Attcrncys at law LINDA H. FISHER Attorney at l.Jlw LARKIN, HOFFMAN, DALY" LINDGREN, Ltd. 1500 Norwest Y'mandal Center 7900 Xerxes Avenue South Bloomington, Minnesota 55431 (612) 835-3800 WETLAND RULEMAKING ALERT 1. The Minnesota Wetland Conservation Act of 1991: Board of Water and Soil Resources Permanent Proeram Rules In 1991, the Minnesota Legislature adopted a tough new wetland protection law, the WetIand Conservation Act ("WCA "). The WCA protects millions of acres of wetlands that were previously exempt from state regulation. The Board of Water and Soil Resources ("BWSR") is the lead state agency under the WCA, although local governmental units ("LOU") are also heavily involved. A replacement plan approved by a LGU is required to drain or fill a wetland. Wetlands must be replaced with created or restored wetlands of at least equal public value, as determined by BWSR. The WCA interim wetland regulation program began on January 1, 1992. It ends on July 1, 1993 when the permanent program begins. The interim program prescribes a moratorium on draining or filling wetlands. But it also gives LOUs discretion to tailor replacement plans to meet private and public goals, provided that one acre of wetland is created or restored for each acre of drained or filled wetland. This flexibility will be lareely lost on July 1. 1993. when the WCA's permanent wetland reeulation proeram beeins. BWSR's pl'QPOsed permanent proeram rules have been published in the State Reeister. A public hearinl will be hel4 in St. Paul on December 17. 1992. The proposed roles affect every local governmental unit in the state. For example: . Many public projects will be subject to 2: 1 wetland replacement requirements. Cities will lose valuable tax base if properties containing wetlands cannot be- developed. Cities may be unable to recover infrastrocture costs if property owners object to assessments of properties containing wetlands. Because most storm water ponds do not qualify as compensatory mitigation under the proposed roles, property owners may be less willing to provide on-site ponding shown on city or county comprehensive drainage plans. . . . 2. Minnesota PoUution Control Aeency: Rulemakine to Establish State Water Duality Standards for Wetlands The Minnesota Pollution Control Agency ("MPCA ") Water Quality Division is working on state water quality standards for wetlands. Public hearings on the proposed role amendments are expected to occur in early 1993. The proposed MPCA rules will affect DNR public waters permits, approval of wetland replacement plans under the WCA, U.S. Anny COtps of Engineers permits, and city and watershed district water resource plans and policies. As part of the rulemaking, MPCA intends to: · Clarify the definition of wetlands. · Establish wetland mitigation requirements to maintain water quality. · Develop narrative wetland water quality standards. · Designate use classes for wetlands. What can you do? How can your concerns be e~ressed most effectively in the mlemakine process? Join with other concerned property owners, developers, cities, counties and watershed districts to participate in BWSR and MPCA mlemaking. A public-private sector coalition with a reasonable wetland regulatory platform can be an effective actor in the process. An example is the agricultural community. It convinced the legislature to adopt special exemptions and a .1: I wetland replacement ratio for wetlands on agricultural land. How do we eo about it? Come to a wetland nalfm;aking orpnizational meetiq on Thursday, November 19, 1992, at 8:00 a.m. at Larkin, Hoffman, Daly & Lindgren., Ltd., 1500 Norwest Financial Center, Suite 1500, Bloomington, Minnesota 55431. I have asked Ron Peterson, a wildlife biologist with Peterson Environmental Consulting and Steve PeDinen, an engineer with Hansen, Thotp, Pellinen & Olson to co-chair the wetland mlemaking meeting with me. Collectively we have 45 years of experience in obtaining DNR and Anny COtps of En~eers permits for public and private clients. We will share our ideas for a wetland regulatory platform with you and discuss how you may be involved in the process. Please call me or my secretary, Marilyn Hilliard, at 835-3800 ~ you plan to attend or want further information about BWSR and MPCA mlemaking. Let your voice be heard! There's no time to lose! LHF:FY2s 2. L\~I\I:\' H()!- 1- ~1.\r\ DAlY & Lll'\I)(;RE~ f\~tc.rn.. ',,\ ..'1 I ,'W LINDA H. FISHER AnOT1.ey at Law LARKIN, HOFFMAN, DALY Ie LIM)GRE~, t td. 1500 Norwat Financial Center 7900 Xenes A venue South Bloominzton, Minnesota 55431 (612) 135.3800 MEMORANDUM TO~ Anend~s at November 19, 1992 Wetland Rulemaking Organizational Meeting and Other Interested Parties FROM: Linda Fisher - larkin. Hoffman, Daly & Lindgren, Ltd. DATE: November 24, 1992 RE: *Urban Wetland Management Coalition Mission Statement and Wetland Rulemaking Update As many of you know, public and private sector representatives met in our office on November 19. 1992 to discuss the (onnation of a wetland rulemaking coalition. There was considerable interest in the concept. A working group was foamed 1:0 prepare a coalition mission statement and working p,;"dpt".~. id~"tify and prioritize issues, establish a rulemaking strategy and critical path, and assign work tasks for a December 17, 1992 public hearing. The working group met on November 23. It fonnulated the enclosed mission statement and principles for your review. The next meeting of the working group is scheduled for~._~._~. on Thursday, December 3, 1992 at Larkin. Hoffman offices, 1500 Norwest Financial Center, 7900 Xetxes Avenue South. Bloomington, Minnesota. Anyone who is interested is encouraged to attend. On December 3, we plan to prioritize identit1ed rulemaking issues. establish broad themes, and work on the nuts and bolts of the rulemaking effort. such as a critical path and alternatives to the proposed roles. The working group believes that a broad.based mix of public and private members is essential to the ruJemaking effort. It distinguishes the group from other individual or single-purpose organizations that may have participated in ,he past. Accordingly, please advise me of your interest and that of other potential contributing members. We will report to you after the December 3 working group meeting. Thanks for your suppon! ..------------------------------------------------------------- . The working group's fIrst shot at the name of the public-private sector wetland rulemaking coalition. We're open, however, to other suggestions. .: -~:-:-.-:...~.",: " ~ ,. :.. -.. J--." -^.. ,,-"'" '" '....~._- "T.~~','.'. ..,.... ....:.:....~- .,_J'~_ ..",,,__'__.. ........._.. :~ . . :.: . ..... URBAN WETLAND MANAGEMENT COALITION MISSION ST A'fEMENT AND WORKING PRINCIPLES Mission Statement It is tbe mission of the Urban Wetland Management Coalition to represent the interests of local governmental units and urban property owners. developers and businesses in meaningfully. reasonably. and economically pursuing no net loss of wetlands. W orkini- Principles . Minimize duplicative wetland regulatory processes. . Maximize the ability of local govemmental units to carry out long-tenn land use and water resource planning. . Ensure that the regulatory burden and cost borne by pennit applicants and local g(wemmental units bears some relation to the magnitude of anticipated impacts. . Ensure that wetland roles are consistent with the authority provided in the Wetland Conservation Act. . Ensure that the technical aspects of the wetland roles are based on sound scientific principles. . Ensure that all regulated parties are treated equally and fairly under the roles. ... ...':: :; -; . - : .. - . -".',' ....___.... ~..... .~.a.~ _ T . ..., ...... ...' -' .. :. ...., -' ;;. '-;... -,.... X~~:'.:~: ~'~7r:t-:~.:::: \ ~ :.:T:T.{~ :~::::~ L.:\HKTN. HOt"F}[AN. DALY &: Ll~nGR:CN. LTO. "."C'A co l&.a'fIII .O'~.T L "C'rr...... .JAC.. ~ "'_.." o -1(."1('" LINo.._e.. Gte_LID" r_'COELI. .'.",A" ( _U,",'.AM .J..~. C; (_I-:'_SI':'N [r.,,,.o.J "_IS'=OI..L or"l[ .. rWL lc'_ I,:)..... 0 rlJ,.....ca .n",[.T I( ~"LE I'll.... I ...CO"'"(,T c.........C.. "'''OCLL C;~GI;;'TO"''''C..J ['\,~T.E(.'" ..If:"..,.. .CA""IE. 1..'''0&'' rl~~ca THt:\".S. S''-'L'...... _le'.ACL ~ _'.e.......... JO"". ':'III[,""L .JOtll" :;_~".rlt.,.,~.' ',.0.... oJ "LTIIII... ~I."[' . ':>\.11... TOOt' I r_r.c...", .eTC.. Blti('l'l ~r."-~ "" ..........1[' tlWe..ILL" 0...... ~CD.L..., L ~ft:,. "'n..... . \.'.'''OO...I~T O-TL.C NOLaN CILI~["TO" TwO_.'. ...IJ.....""[. ."I" ..1('''.('' T lie II '''' .JO..... . COT'TE.... .-=.T.t(:!t. .OTl'''-~ILE. IrA'JL. "ll,'''C(TT ....M. L. -LOO" ..'''Lll...... ...'-''''...N -.c,,_e.1.. . L[........,IN G~(G('., (" "0".""0 0.." .. y... Cl!"l,. O....uCL. ... 80-LI!:" 10"0" ...L.r...O...I{,..... T...OT.....,. J ...':.......Il.c TIMet.." .1 .(.......[ "ON"'. ~. .oear._ .'C""CL'" S'''''.[ Y M'C".I:L '" .I).[~'.C'. Lt.. '" 12."" G.."" ..I......E"E ..........".... ..CC........1C.'.!t C...I'ST"",,,[fl oJ .....tI,~,...., .1f.LI"~ ~. 6.'....'T.. .... .."..... J &T[~r[NI'...aE..... t'....~L .. "O~lIJ 'II,...... .'JII." ...0..... "ILL ..,.",cs.. .....,."... TWt:''''''''5 ~I !'I::'''OUII M''="At,-.), ft"'IT'" r_c,:\f,.'''C'' III ".U~CII I I ......, ( "O~ L.....""" .......TI.. "'TTO~'" CYS AT L.....W I~OO NOPWI:ST FINANC'AI. ':ENTEFt 7111)0 "EC"'C$ A"I:NVE 'OUT" l'~OOI'lI"GTON, I'l,NHtSOTA ~!-4~" Te,-C"..""I: ;I!"~l 835-380" 'All 161Z' ~!'(\-~3~3 01' C"\.llIlI'[\. -~..OCLL . A"I>( liS',"'" ..lOSE..... f'JIT'~ .,(;......0... N"l"D~"( MULTIPLE MESSAGE COVER SHEBT -.'.40 ...O_tTTCD ... ....,c.o..,.... . ~=;:. ,...:'..... -"'-': ... '. - - - - . ..... .. - '-.\ ',,...... . , : - : . ...- .. ~. ,. , " ~ PAGES:~(INCLUDING COVER SHEET) FILE NO: 19,596-00 NUMBER: 476-8532 NUMBER: 476-8532 NUMBER: 932-4528 NUMBER: 490-2150 NUMBBR: 779-0832 NUMBER: 739-9124 NUMBER: 447-4245 NUMBER: 861-9749 NUMBER: 942-8075 NUMBER: 937-7411 NUMBER: 937-7411 NUMBER: 890-3815 NUMBER: 646-2860 NUMBER: 431-8884 NUMBER: 475-3686 '. ~ .. ".~r-:: ....._4t ._ ~ "'...;rO.I: . . "'.... ..... .\_- --.. " .. ..~.,~- . - "" ... .. 4. ... ~ . NAME: David Jessup NUMBER: 731-5791 NAME: Barry Johnson NUMBER: 731-5791 NAME: Ron Peterson NUMBER: 921-3268 NAME: Mark parranto NUMBER: 454-8943 NAME: Jeff Oliver NUMBER: 469-3815 NAME: Don Rye NUMBER: 924-2663 NAME: Rick Sathre NUMBER: 476-0104 NAME: Terry r1. Forbord NUMBER: 473-7401 NAME: Rick Brasch NUMBER: 681-4612 NAME; Charles Pfeffer NUMBER: 425-2324 NAME: JoAnn Olsen NUMBER: 937-5739 NAME: Ann Perry NUMBER: 939-8244 NAME: ChlJ.ck Dillerud NUMBER: 550-5060 NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: ---- NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: NAME: NUMBER: .. .~:~~~::~~.~.::\ ~. -' ..... ~:.:.:.:, -;; ~;... -".. ',' .. .\;....:- ':'-...;"''':':':.'"':; ':.. ':..:......- ",".._J\.._ ....~"__.__.... .,..._; Urban Wetland Management Coalition Statement of Issues This is :l dr:lft of the priority issues of the Coalition. Each issue includes :1 short statement of me primary concern of the Coalition and the proposed remedy. The issues are not in any order of priority. At the Dec. 15 meeting of the.Coalition (8:00 AM at Larkin. Hoffman. Dnly &. Lindgren) we will review this list and refine rhe content and strate2Y of the Coalition testimony. at the Dec. 17 Public Hearings. Issue Concern Remedy I. Technical Evaluation Panel. The roles require use of the TEP for all wetland delineation and restoration plan approvals. The Coalition supportS the position that the TEP be used only if needed by the LGU. Modify the rules to reference use of the TEP only if requested by the LGU. Onerous nature of the rules. a. Onerous sequencing requirements. b. Replacement Plan requirements. The rules micro manage the issue and. should be modified [0 only provide guidance to the LGU. The rules are written to give the impression that the drafters thought LOU's could not be trUsted to make good decisions. The roles do not provide for the necessary trade-off! needed to provide "integrated natural resource management." The coalition's major conccrns are identified in thc sub- issues below. Funher. the rulcs do not help coordinate wetland pennitting. :u requested by the legislature. rather they funher complicate the permitting process. The rules currently require nn extremely rigorous sequcncing determination on all proposed wetland impacts. The roles also n-cat every fill activity in every wetland the S&lme. The rules require an exhaustive analysis of the wetland. the area surrounding the wetland, and adjaccnt resources. alternatives and impactS in order to apply for a permit. The replacement plan requirements are unreasonable and exr:n:mely costly. These requ~ments also apply to every wetland impact proposal irrespecti ve of the project size, impact :rre8. or type and condition of the wetland. Some of this information is not used in the decision process. ... ::-::::- -; , - .. ..., - . '" ~. . . . ~. ..... ............ -... ....- T ..'''' " .., - "-' ..,' \::..:~.:: ~~:.:-:~~.i~ ': ~-~:-~::~-~~=:-:;~:..:~ Modify me rules to provide a framework of policies and guidelines for performance rather than dictate ever)' decision step and process that must be followed. The Coalition supports modifying the sequencing determination to allow more realistic evaluation of proposed activities and to allow exemption from sequencing procedures for minor wetland impacts. We believe the minor impacts should be consistent with size standards used by the MPCA and the Corps of Engineers. The rules should be modified to reduce the level of analysis and detail involved in initial replacement plan applications. There needs to be more latitude provided to the LOU to allow for proper negotiations and trade-offs that are required in the process of reviewing and approving projects. '3ge 2 (ssue Con(~m December 14, 1992 Remedy c. The rules are fund~mentally disnlPtive to the local c:omp~hensi ve planning process. The rules do not allow the LOU to incorporate the wetland m~nllgement issue into its local comp~hensive planning process. The rules mention the preparation of a Wetland Management Plan, but they do not provide any benefits to the prel'nrnrlon of such il plan. The rules should allow for some relaxation or exemption from some provisions if a proper plan is prepared and approved. 3. Wetland Banking The specific concerns of the Coalition See recommend.:uions below. regnrding the proposed Wetland Banking provisions are identified below. :l. Created Wetlands b. Banking Process The rules :J.S proposed do not allow created wetlands to be deposited in the wetland bank. The proposed roles provide only for a State run Wetland Bank. There is no expressed 3uthority provided to LGU's to establish their own bank. It appears that local wetland management c()uld be undennined with only a Statewide Bank. The urban areas of the state do not have the c:hoice of restoring wetlands. since the lost wetlands have been filled or permanently destrOyed. Wetland creation is often the only alternative for mitigation. Wi~h proper monitoring (required by the rules) to insure wetland success. there appe:us to be no reason for not allowing created wetl:1l\ds if certified by the LGU. Include clarifying language in the rules to allow the establishment of a local wetland banking system as well as a statewide bank for those situations [hat can not be handled locally. 4. Functions & Values Matrix. The functions and values element of the roles is torally represented by the matrix. The coalition position is that the matrix is not founded in good scienc:e and represents the value system of unknown state employees. The SONAR docs not provide the required substantiation for the matrix and misrepresents the development of the ch:llt. The chart is value laden and represents a strong duck habitat bias. This value system is contr.lry to the value positions of the Fedenl regulatory agencies. The Coalition believes that the proposed maaix would result in additional pennitting conflicts between agencies and further confuse the re&ulatory and permitting process. ;~ :;7'''' ~~ -J.. --.. - __"'__ ... .' .v.. - . . ...... . .... ....i-..... ",' .., ...1.... ,".... 7.: ,-' .-. The Co:1lition members have been developin& an altern:nive proposal. This proposed alternative is not completed. Conceptually, the rules should be revised to present the matrix in il sep:mlte guidance dcx:ument and not as a requirement for all LOU's. The concept of in-kindlon.site replacement should be represented. with the opportunity for LGlJ preparation of local Wetland Managemenl Plans that can prescribe the function ilnd value assessment method for the LGU The plan would be approved by some agency. If no plan were prepared. the LGU would follow the guidance document This approach would allow some local management of the wetland sysrcm and incorporation of the wedand issues into the comprehensive planning process. This would also allow the revision of the guidance document a! the science matures without going through rule maleing. '.-. .~r_-: .. ~~..::~::..::~~:-:~.:1~:;;~ Page 3 December 14, 1992 Issue Concern Remedy 5. Wetland Values. The rules presenr the position that all The rules should allow for the wetlnnds are the same and should be development of LGU Wetland regulated identically ~g:u'dless of location, Management Plans that cle:l11y present (he size, type, or condition (pristine vs. management approach of the LOU and degraded). the long rnnge plan for wetland management of the LGU. The rules mention the possibility of prep:uing a plan, but provides no guidance on the content and provide no benefit for the LOU to give careful thought to the management of it's wetland functions and values. 6. Permit Process. The process stipulated in the proposed The pennit process should be amended to rules aIe onerous in their information include only necessMY infonnation requirements for sequencing ~quirements to make a good decision. dcterminations, permit applications and The amount of information required pennit review~. These requirements apply should nlso be relative to the proposed to all wetland impacts with no respect to impnct. e.g., small impacts should be size or type of impact. The cost exempted form the sequencing implications of these requirementS will detenninations and some of the expensive seven:ly impact LOU's, private developers, engineering requin:menlS. The Coalition and individual homeowners that rmd it is proposing the rules follow similar size necessary to impact a wetland with more guidelines to those recently agreed upon than 101 square feet of fill. There is also a between the Corps of Engineers and the significant concern about LGU liability for MN peA. This would provide some private property takings imposed by the degree of coordination in the permit rules. The pennit public notification process. n:quiremcnts also unduly delays an LGU decision. 7. Appenl Process. The appeal process is too convenient for The appeal process requires chan ge to any individual to appeal a LGU decision limit the chance of obstructionist appeals without any standing 01' claim of WTOne of all LGU decisions in the guise of doing on the part of the LGU. Under the protecting wetland impacts. proposed rules any neighbor or environmental group can appeal a decision without any knowledge of the projcct or the approval process. The appeal automatically causes an additional delay of 30 to 60 days. The appeal also resultS in a State level review of the wetland decision. 8. uck of The rules result in less coordination among The rules need substantive revision in coordination the pennitting agencies. The rules actually severali1I'eas to saive to achieve the nmong pennitring result in sevenl conflicts. with existing legislativc desire of increased permit agencies. Federal wetland regulations and coordination. procedures. The time lines stipulated in the rules will often result in the wetland decision causing the greatest delny in the entire development review process. ... --:-... "''''7"'7' .......... -",,' . '" ~, , , . . .., . '- I _.... .........l.... - ~ .. 1 .-. /.,. ," -". ~.... -,1.'-.: .__11_ "":.}.~": :."".._. ,." ,..,.tt- .1........... ';. ~L _.:_~:.->J-:.......... o. . ~. .. P:agc 4 December 14, 1992 Issue Concern Remedy 9. Taking Issues. The specific sequencing detennination The sequencing determination provision~ provisions will result in forcing denials of need to be reviewed and amended to limit projects and LGU exposure to tnkings exposure to takings claims and to allow claims. needed flexibility for the LGU [0 meet other needs of the communirv. 10. Differential Although this is :l concern with the Wetland protection and management is treatment of Wetland Conservation Act, as well as the impor-.ant to all Minnesotans, however. it agriculroral and rules, the coalition mission statement is not true that urban areas have destroyed non-agricultural promotes equality of treatment in the or converted more wetlands than wetlands. ~gularion of wetland resources. agricultural m:Q.S. Therefore, it does not follow that urban areas should be penalized to provide ~placement Ilt a 2: 1 ratio when agricultural areas are allowed to replace at 1: 1. Also. the number of exemptions provided for agricultumlland cle::U'ly treat the ag and non-ag land differently. It is a long range goal of the Coalition to seek changes in staNte and rule to achieve equality in wetland regubrion. 11. Inadequacy of Sevenl statements in the SONAR are The SONAR needs to be e~panded to the SONAR untrue or misleading. The financial incorporate justification for sevenl document. analysis of the impact of the rules is also sections of the rules. The Coalition lacking and essentiaL maintains that missing or inadequate sections of the SONAR indicate the lack of justification for the provisions of the roles and the lack of needed proven reasonableness. On this basis, and for other reasons described. the Coalition will challenge severnl of'ovisions of the rules. 12. The Rules go The Stntute provided for the development Specific examples will be identified and beyond the of rules to implement the provisions of the discussed. An example is the inclusion of ~uthority granred WCA. However. the proposed rules the replacement ratios of up to S: 1 in the Starote. include provisions that are well beyond the depending on lcx:ation. type. and . principles called for in the legislation. hydrology of the replacement wetlands. The penalty beyond the 2: 1 ratio is not called for in the Statute and not justified in the SONAR. ... - ',' ........ . .... .. ....' .--:..... -' . . ; _.. ,'" I .-. ,~ , .... - '-' - '.: . ..It- : ~.. .. ~ . ~. '. .~ L~..:."::-:~:":~~~':~~;:':~- '" '7:: -; -; . ... "'. ...... '!".,- .. . . .. I ....... _ ..l.... Page 5 Concern December 14, 1992 Issue Remed 13. S[ormw~[er detention ponds are inndequ:\tely considered. The rules allow stonnwn.ter ponds to be used for replacement credit if they are designed ns two~cell systems in which only the second stage cell receives credit. provided rhilt both stages meet cert::rin ilJ"bitrary and inadequ:nely defined hydraulic standards. The SONAR does not adequately justify this wetland valuation or hydr.l.Ulic criteria from :l scientific bnsis. The SONAR scateS that stormwater ponds "do not provide a. full range of wetland benefits... even though they may technically be called wetlands." This is true of virtually all wetlilllds. The f~t that stormwater ponds may provide somewhat greater flood control and water quality functions than habitat functions should not be a penalty. particularly in urban areas where the impacted wetlands are often already providing those SJme functions. . ~ . - -1"\,' ., . The rules should be modified to allow LGU's to accept stonnwater ponds for replacement c~dit when consistent with the local wetland management plan. The rules should funher recognize the wetland functions and values provided by properly designed stonnwBter ponds. If a pond is technically a wetland it should receive credit as i wetland. The SON AR either needs to e;(pand and justify its design criteria or simply n:cognize that stonnwater ponds that meet the definition of a wetland should be m:ated as any other wetland. ,.,. ",'- -:- ,...:-,":: ,..'": t'" ':-::"4-- '.'-'"'' .. ,"''--_ ..--.-.-. .-er;j.-.-,--.- -.-:: .--_-: -.-. .. ::--:-..:..- Minnesota Chapter/American Planning ,Association-Minnesota Planning ,Association December 1992 Vol. 9 No. 12 Action Alert! Minnesota Wetland Conservation Act Rules by Paul Krauss, Planning Director, City of Chanhassen I have had the good fortune to work for communities that had an early understanding of the importance of wet- lands and the will to protect them. Minnetonka has protected them since the mid 1970's while Chanhassen has had what is probably the State's first no- net-loss program that dates back to the mid-1980's. These early attempts may not have been perfect, but both have recently been updated to account for the current state of the art and knowledge. Although it is diffICUlt to generalize, I know that many other cities, watershed districts and even some counties have attempted to deal responsibly with wet. lands long before the adoption of the new state law. The Law: Minnesota Wetland Conservation Act (WCA) It was in my role as Chanhassen's Planning Director that I became involved with the state wetland law. Having read an early draft and finding it posed sev- eral signifICant problems for local govern- ment and development, I contacted Representative Willard Munger. Representative Munger was one of the primary sponsors of the House bill. He graciously gave the Chanhassen delega- tion a chance to raise our concerns and we were able to obtain some changes. We strongly supported the concept of a no-net-loss state law beUeving it to be environmentally responsible and that it would level the playing field between my community and others. Due to my involvement with the biI~ I was asked to serve as the representative cA the MN. League of Cities on the Wetlands Rule Work Group that was assemblecl by the Board of Water and Soil Resources to help develop the rules. Our position has been and remains that the Law should primarily mandate the goal of no net loss. Local govern- ment should then be able to develop wetland protection plans for approval and there should be some form regular oversighL However, having provided these requirements other units of gov- ernment should essentially get out of our (Continued on Page 3) Citizen Participation and Education: A Critical Element to the Success of the City of Spokane Wetland Protection Program, Phase I by Fred Dayharsh The City of Spokane received an AP A Award at the Joint Spring Conference for this innovative Citizen ParticipationlEducation Program. "Public information is wonderful. Impressed with the education efforts, . praised the judges. This article dis- cusses the approach behind this award- winning program. A suc::cessful planning process and program must include citizen participa- tion. In January 1990, the City of Spokane, supported by a grant from WA State Department of Ecology, embarked on an active citizen participation pro- gram to further citizens' awareness of wetland issues and to prevent future conflicts and misunderstandings during the formal Wetland Protection Program adoption process. At the time, wetlands were a relatively new topic in the Spokane areL City plans and regula- tions lacked specifics for comprehensive wetland protection. Moreover, the City's wetlands had not even been inventoried. A wetlands inventory was carried out concurrently with the Citizen Participation and Policy Development elements of the program to comply with grant deadlines and to accommodate the late winter weather. Aa part of the citizen participation process, city plan- ning staff, consultants, and a Wetlands (Continued on page 2) k December 1 9 9 2 2 Wetland Progam (Confd from Page 1) Task Force appointed by the City Plan Commission learned about W8tIand issues together. The group developed a common understanding of a commitment to wetland protection that proved to be advantageous over the long run. The 12-member Wetlands Citizens Task Force is charged with (1) develop- ing and implementing a detailed Citizen ParticipationlEducation element; and 2) drafting Wetland Goals and Policies ele- ment for submittal to the City Plan Commission. Members of the Task Force include a wetlands specialist, and representatives from public agencies, citi- zens and special interest groups. A City Plan Commission member chairs the Task Force, which is a subcommittee of the City Plan Commission. Before embarking upon its charge, the Task Force first developed intemal oper- ating procedures; established general Wetlands Protection Program goals; and designed a wetland self-education pr0- gram. Theself-education program included discussion of project tasks. drafting the Wetlands Status Report, a review m wetlands literature, and a wet- lands field~. During the field ~, Task Force members identified wetland issues, education and policy needs and major stakeholders. This information provided a basis for the Citizen Participation! Education Program and the first Draft of the Wetlands GoaJs and Policies. In three subsequent meetings, the Task Force created a vision and set goals for the Citizen Participation! Education Program. The Task Force also set short ~ long-term objectives to implement the program. Short Term Cltlz8n Participation Strategy The short term citizen participation strategy was designed to reach as many people and interest groups as possible within two months. The strategy included four major activities. Wetland News Conference To kick off the Citizen Participationl Education activities, the Spokane mayor chaired a news conference and intro- duc:ecl the Wetlands program to the media. Subsequent television and radio spots followed and KXL Y TV included a wetlands spot in their evening news pr0- gram in May 1991. Since then, other TV spots have aired. Wetland. VIdeo Channel 5 worked with city staff and Task Force members to develop a 15-20 minute wetlands video. The video aired in May 1991 and received positive com- ments from viewers. Later, the video was supplemented with the 6-minute "Fabulous Wetlands. video developed by the State Department m Ecology. The video has been shown to community wet- lands workshops, school groups, and community organizations, the City Plan Commission and City CoUncil. Wetland. "Non-aclentlflc" Questionnaire About 2000 questionnaires-designed to raise citizens' awareness of wetlands and to provide an opportunity to com- ment on the draft Wetlands Protection Goals and Poncies-were produced and distributed to a variety of interest groups. Results overwhelmingly supported wet. lands protection. No individuals or groups strongly opposed wetlands protection. Community Wetland. Workshop. Three community workshops were hekl at locations near major wetlands. Open to the general public, the workshops were designed to educate participants about wetlands issues and to solicit feed- back on the first draft of the Wetlands Goals and Policies. The first draft of the Wetlands Goals and Policies were revised after the com- munity wetland workshops. The revised Draft Wetlands Protection Goals and porleies establish a compre- hensive and balanced wetlands protec- tion program for the City of Spokane, emphasizing: · Education of citizens, land owners and developers about wetlands values, functions and good management principles. · Wetlands regulations to ensure their protection while permitting land develop- ment and protecting landowners' rights. . A positive program of wetlands management, rehabilitation and restoration. . A public1)rivate partnership for wet. lands monitoring, protection and improvement. Conclu8lon All of the Task Force products are pub- lished in the report, "Wetlands Protection Program, Phase I Report,. adopted by City Council in early April The Task Force will remain active until Phase 2: Wetlands Regulations are com- pleted. The Task Force continues to carry out the short and long term objec- tives of the Citizen Participationl Education Program. The intensity and pace of future efforts WIll depend on the availability of funds. Fred Dayharsh, A/CP, is a Wetland Planner with the City of Spokane. A large measure of the Wetlands Planning Program's success is attrbutab/e to the consultant team of Abby Byme and Judy Patterson who cItIsigned the Citizen ParticipationlEducation PIOCBSS and assisted the Task Force in carrying it out Reprinted from PlanninalNortheast. May, 1992. k December 1 sa sa 2 3 Action Alert (Cont'd from PlGe 1) way and let us do our jobs. In so doing, the Law should simplify the wetlands reg- ulatory process, not complicate it further. I firmly believe that local govemment is in the best position to fairly administer wetland protection. We are directly responsible to our residents who will be impacted by wetland decisions. We are the only agency able to comprehensively developawet~dsprotedknp~~ that meets the needs of the community. We are also in a position of negotiating with a developer for months during the project review and approval process. No outside state, regional or federal agency is in a position to understand a complex development proposal in its entirety, where roads need to go, minimum lot standards, what is economically viable, what needs to be done to resolve neigh- bors concerns, which wetlands are important to the community and which are not These and other issues concerning a development proposal can only be effec- tively dealt with at the local level. As soon as the wetland issue is taken out of context by an outside agency with no understanding of the development pr0po- sal as a package, whoae only concem is what is happening to the particular wet- land in question and nothing else, we have severely compromised our ability to plan for our future. We have then created a wetlands protection bureau- cracy that will ultimately be destrudive to achieving the no-n.t-loss goal. I am sorry to report that w. have thus far failed in achieving our vision of obtaining a reasonabl. and simple to enforce no-net-Ioss wetland protection program. We have a law that t...ats developers and communities as second class citizens who are not to be trusted. Special status is accorded to the agricul- tural community through the exceptions and environmental groups are given sig- nificant leverage to disrupt the precess. The law itself is somewhat confusing since it is a result of the last minute mer- ger of two very different bills and there was little opportunity to work out the kinks. Many aspects of the law repre- sent compromises that were struck between agricultural and environmental groups. local governments and devel- opers were not invited to participate and seem to have been considered as the "bad guy's. by both groups. Generally speaking the agricultural groups interest was to insure that the wetland law did not apply to them even though agricultural operations are responsible for moat of the wetland loss in the state. The environ- mental groups purpose was to insu... that a wetland law was passed and that it bal- ance the compromise with everyone else in the state (...ad you and m.). The Draft WCA Rules The draft wetland rules compound the problem. They we... drafted by a 23 member committee. All of the CitIes and all of the developers in Minnesota were represented by two people. Virtually eve- ryone else represented agna,ltural or environmental interests or state agencies. This generally reflects the groups that were active in the early drafting ~ the bills but does not reflect those who will most often be impacted by it. Space permits me to touch on only a few of the major concerns. 1. Rather than simplify the review pre- cess it is made signiflC8ntly more com- pl.. In addition to the MnOHR, watershed districts, Army Corps of Engineers, US Fish and Wildlife Service and local governments that have been involved in wetland protection, we now have BOWSR, the SoH ConsefYatlon Service and MnPCA having review authority. each agency has a different s.t of standards, different staff, diff....nt time lines and a different opinion of what you and I should be doing. local government is very likely to find many of their wetland decisions overruled or modified by outside ag.ncies. Thus our abiUty to negotiate fairly with developers win be diminished. A great deal of time and money win be spent without any appreciable improv. ment in wetland protection. Multiple reviews of a single proposal guarantees confusion. Can we do b8tter? I think one has only to look at how the MoOHR administers the Shoreland Protection law to find a good model. 2. Any time a wetland is being impacted it must be published in the EaB monitor. The authors clearly do not understand the large number of generally minor actions that win trip a review. the primary purpose ~ this requirement is to allow the environmental groups to review proposals. They do not have any faith in govemmental enforcement without having to get their blessing. I feel odd being placed in a position contrary to these organizations, since I have contributed to many of them over the years. Their posi- tion is out of line. 3. Mitigation plans (Replacement Plans) must be reviewed by a three per- son technical committee. Only one repr. sentatlve is from the City. Also, the plan must contain at least two a1ternativ.. including the no-build. Conceivably you may be asked to demonstrate how you could develop that plat. business or school on another site or even in another commu-bnity. To my way of thinking this require- ment is both unreasonable and represents a major "taking. issue, since land may be viewed as having no economic value. 4. Anybody, anywhere, anytime can appeaJ IocaJ wetland decisions to BOWSR. You need no standing or even an under- standing of the proposal to file an appeal. These ...vIews will 01 course take additional time and decision making is placed in the hands ~ an outside ag.ncy. This is the mechanism that will be used by environ- mental groups, any; angry neighbor or any- one else to stall a project and increase related costs. It ignores the fact that IocaJ governments already work in a very public precess and that oversight reviews by MnONR or BOWSR could be handled in a much more straight forward manner. At the very least there should be a credibility check of the appeal so that it can be erlS- missed in short order if found to be groundless. 5. The rules provide for a micro- managed approach detailing how you and I must go about our businesS. The 2:1 replacem.nt ratio is only just the start. There is a highly detailed and confusing table that can jaek the ratio up to 5:1. Yet there is no substantive refer:ence to main- taining the value and function of wetlands as outlined in the law. There is no incentive to make investments to produce higher quallty wetlands as replacements. I caU this approach the stick without the canol In summary, I stDl strongly support the no-net-Ioss concept. My community and many others wiD deal. with this issue in a responsible mann.r. I strongly encourage other communities to get out in front of this issue. But the law and rules must be revised and simplified or wetland protec- tion, Minnesota's economy and the abirrty of local govemment to manage themselves responsibly, will suff.r. We recommend that there be a two track approach established. local units of gov- emment willing to accept responsibility for wetland management should be allowed to do so. They would be obligated to develop plans and ordinances for approval by BOWSR or the MnONR. Once these have been approved, outside agencies should relinquish their review authority except for a centralized oversight responsibility to insure compnance. local governments who are unwinlng or unable to accept this responsi- (Continued on Page 5) I" December 1 992 5 Action Alert conl from page 3 bility could be regulated as outlined in the draft rules through another unit of government It is my hope that this and other issues concerning the law and the rules can be responsibly dealt with before the rules become effective. However, the active partici- pation of all of us will be required. I strongly urge you or a representative of your city. county. or Water Management Organization review the rules and present testimony at the upcoming public hearings. The dates. times and places are listed below. PUBLIC HEARING DATES AND LOCATIONS All hearings will be held at both 1:00 p.m. and 7:00 p.m. December 7 Alexandria Park In. 1-94 and Hwy. 29 December 9 Thief Riv.r As NWTec:h College. Aviation Center 747 Airport Ad December 10 Grand Rapids Rainbow Inn. 1300 E. Hwy 169 December 14 Marshall SSU. Business Adm. Bldg. Rm. BA 102 December 15 Mankato MN Valley Reg. library. 100 E Main St December 17 Sl Paul State office Bldg., Basement Hearing Rm. Any further questions on the hearings or a request for a copy of the rules should be directed to BWSR, John Jaschke or Lynette Morrisett. (612) 296-2840. Where Will The Money Come From for Infrastructure Financing Bill Anderson you may soon be hearing a lot more about a n.w form of financing, effective since 1 991, called "infrastructur. financing districts- (IFD). An IFD uses property tax increm.nt gen.rated by new d.velopment in the district to fund community-serving infrastructure improvements. Thes. improvements may be off-site. i.... outside the distrid itself serving the broader community. A strict nexus need not apply. Although appealing. this financing method may also be unconstitutional. according to the State Attorney General's offICe. An infrastructure financing district is formed with a two-thirds affirmative vote of district voters. If the infrastructure financing district has twelve or fewer PfOperty owners. the vote is according to acreage (one acr. equals on. vote). ilke a Mello-Roos district. Since it is intended that the district be placed on substantially undev.1oped land. significant tax increment can be gen.rated. An infrastructure financing district cannot incIud. red.velopm.nt project ares. the other vehicle that uses tax increment financing. Other taxing jurisdictions that currently receiv. at least 15 percent of the property tax rev.nue gen.rated by the land in the district must be included in the district's formation. otherwise they can be excluded from the district and retain their share of Mure taxes. School districts are automatically excluded from the district and also retain th.ir original share of tax revenue. Du. to this exclusion of other large taxing agencies and school districts, most of the tax increment collected ov.r time Wll' probably be revenue that would have gone to the city or county gen.ral fund anywrtf. So why would anyone be interested in an IFD? One r.ason may b. that it commits tax revenue to the particular use, rather than leaving it up to future councils or boards to fund implementation through the general fund. Another reason is that a bond supported by the tax increment may be issued to raise the capital upfront. if (Continued on Page 6) Top 20 Responses to "I'm a Planner." 1. An herbal planter? I have this problem with knowing when to plant bulbs... 2. Is that engineering or architecture? 3. Could you get the potholes in my street fIXed? Is it true what they say about the mayor? And there's this rooster next door... 4. Your parents must be so proud-<enfused. but proud. 5. Finally I The person in chargel 6. Mine eyes glaze over. 7. Your martini-shaken. not stirred. 8. ,om sorry. We still need some 1.0. 9. Pierre. the finest table in the house I And be quick about itl 10. Welcome to Fantasy Islandl 11. Sir! Women and children in the lifeboats first. 12. Please come in. Th. President. Premier, and Pope have been expecting you. 13. Of course you ar.. dear. Enjoy your stay with us. Mr. and Mrs. Smith. 14. 00 you wear black bathrobes, have secret milt shakes. recite municipal incantations. sacrific photooopiers...? 15. Oh...Say. how'bout them Dodgers? 16. The markers and color pencils are on aisle 6 near the safety scissors and modelUng clay. 17. Win the IIIlOoctor report to surgery. 18. Tell it to the judge. 19. That guarantees a spot on the remake of "The Gong Show.. 20. We11 have security clear a path through the crowds to the Umousines.