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10. 2017Dec07_Letter to Chan_Avienda WCA Applications Binder_SignedRILEY 18681 Lake Drive East PURGATORY Chanhassen, MN 55317 BLUFF CREEK 952-607-6512 WATERSHED DISTRICT www.rpbcwd.org December 7, 2017 Andrea Moffatt, WSB & Associates, Inc. c/o Kate Aanenson, Community Development Director 7700 Market Boulevard Chanhassen, MN 55317 RE: Avienda Wetland Sequencing, Sequencing Flexibility, and Replacement Plan Comments Dear Ms. Moffatt, This letter is in response to the request for comment on the pending Wetland Conservation Act applications scheduled for consideration and resolution at the December 18, 2017 Chanhassen City Council Meeting. The District appreciates the opportunity to comment on the applications submitted. Upon review of the submitted materials, we offer the following comments. GENERAL COMMENTS The District does not agree with many of the assumptions used in developing the model. The District therefore, does not agree with the supposition that the development will not result in secondary impacts to the MNDOT wetland replacement areas on adjoining properties. SEQUENCING APPLICATION The District feels that the application is not in compliance with the sequencing requirements set forth in MN Rules part 8420.520. It does not appear that the proposed development avoids or minimizes wetland impacts in a manner consistent with the intent nor requirements of the Minnesota Wetland Conservation Act. MN Rules 8420.0520, subp. 3 para. C(1) "...The alternatives must be judged by the local government unit as good faith efforts, or the local government unit may require the applicant to redraft for consideration." The applicant states, as recapped in paragraph 3 on Page 4 of the Memorandum dated July 21, 2017 as revised August 1, 2017 that the "center wetland" cannot be avoided with an expectation that a "ring road connection" can be constructed. The application presented impacts to wetlands 1 and 2 (which are the some basin) as a zero-sum process where the impact is either avoided in its entirety or filled in its entirety. To the District's knowledge, no alternative site layouts have been provided to demonstrate that the ring road cannot be constructed such that significant minimization of impacts to the "center wetland" can be realized. This was brought up in the TEP findings of fact for the February 9, 2017 TEP meeting. The plan included in the October 26, 2017 Revised Joint Application Form demonstrates that the "ring road I&ILnection" can be made without completely filling wetland WL1/WL2. 2 The primary argument posited for the amount a commercial is that it must be enough to provide "synergy" and that there is a ratio of commercial to office to residential that would be most beneficial. However, there is no justification as to minimum area of each land use type. Further, no end users are identified therefor the District fails to see how it can be concluded that one layout is preferable to another. 2. MN Rules 8420.0520, subp. 3, para. C(2) requires that the LGU determine if any "feasible and prudent alternatives are available." It clearly defines what is considered "feasible and prudent." As indicated under comment 1, the District does not feel that the applicant has fully demonstrated that a feasible and prudent alternative does not exist. See attached example. At the February TEP, several TEP members inquired as to why a parking ramp was not an option. No satisfactory explanation was given even though by all appearances it would be a 'feasible and prudent alternative." 3. MN Rules 8420.0520, subp. 3 para. C(3) clearly identifies what considerations the LGU must make when "evaluating avoidance alternatives." The argument made by the applicant is that the City has guided the area as a Regional Lifestyle Center. While that may be true, that is not a valid sequencing argument under MN Rules 8420.0520. Further, as demonstrated by 2007 City actions, guidance and zoning of an area is not immutable. SEQUENCING FLEXIBILITY "Questions concerning the public value ... of a wetlands shall be submitted to and determined by a Technical Evaluation Panel after an on-site inspection." Minn. Stat. § 103G.2242, subd. 2, para. (a). (Shall, when used in statutory text, designates a "mandatory" action. Minn. Stat. § 645.44, subd. 16.) This is particularly significant under the circumstances because sequencing flexibility "must not be implemented unless ... the proposed replacement wetland is certain to provide equal or greater public value as determined based on a functional assessment reviewed by the technical evaluation panel using a methodology approved by the board." Minn. R. 8420.0520, subp. 7a.B (emphasis added). The District disagrees that a wetland outside of the Bluff Creek and Lake Susan Watershed can replace the functions and values of wetlands within the previously mentioned watersheds. Any flood attenuation, downstream water quality benefits, low flow augmentation, and social benefits are unique to the area where the current wetland is located. A wetland in Blue Earth, Stevens, or Rice County is inherently limited in the ability to replace functions and values provided by these wetlands within the affected watersheds. This is even more evident when considering the two receiving waters of the impacted wetlands are both impaired. Finally, 19% of the replacement credits are upland. It is not clear how this would replace the public value of the proposed wetland loss. In short, sequencing flexibility cannot be applied as it cannot be stated that the replacement wetlands are "certain to provide equal or greater public value." 3 REPLACEMENT PLAN MN Rules 8420.0522 Subpart 1 states that "Wetland replacement must replace the public value of wetlands lost as a result of an impact." The District does not concur that wetland replacement outside of the affected watershed areas would replace the public values lost by the proposed impacts. It appears that while most impacts are to type 1 and type 2 wetlands, the replacement credits are type 4 and type 5. Further, the District does not concur that 1.7158 acres of upland credit would replace the public values lost regardless of the watershed within which the replacement credits are located. In other words, none of the replacement wetlands meet the in-kind criteria set forth in 8420.0522, subpart 3. While projects within the watershed may replace some of the lost public value, neither the project scope or location of said projects are identified. Because of this missing information, no conclusion can be drawn in support of the ability of these projects to replace lost public value. In summary, the District does not concur with the applicant that they have met the sequencing requirements for the project. The District does not concur that sequencing flexibility applies as the applicant has not demonstrated that "the proposed replacement wetland is certain to provide equal or greater public value." It is also for this reason that the District does not concur that the proposed replacement credits and methods will replace the lost public value resulting from the proposed impacts. Therefore, the replacement plan should not be approved. Dr. Claire Bleser, Administrator Riley -Purgatory -Bluff Creek Watershed District Enc. cc. Aaron Finke, Carver County SWCD Ben Carlson, MN Board of Water and Soil Resources Ben Meyer, MN Board of Water and Soil Resources (electronic copy only) Paul Oehme, City of Chanhassen (electronic copy only) Ryan Malterud, United States Army Corps of Engineers Terry Jeffery, RPBCWD (electronic copy only) Todd Gerhardt, City of Chanhassen (electronic copy only) Legend I. — pxi*Q TrafFc Sko X� 91ek Cama dDw PuhkfthtOfWey ® CDrAQ ' © rsengtion J - f Wedffw and Buser Int Cavia 111fL 1+2 AW Oensky Pasiden6al _ :"� . � � lYl�um Qeasky Resideu9al Notes WaiNn eat plan slwan Ar Q � � f�+�� aclaerna`�Wxposasanlyand L sub eet tz of an0e" WLS Q Or �- -D 0 " 11 off " H Development Data Anna Ikta Ca"Am: itMAaes Nee Arae: S11H R01M �.82Aaes Parking 5.71 A=% GrossDmbp" W dngArea Parking UAW Retro' Section Arm Araa f$.F.} 81aft ads Slab per 1,0W S : or Per Unit) 4 &.67 - _ 6,0 90.004 357. 4.0 1-�s 1.55 13,0DD' 51 148 0.4 5.63 5.43 26,00D 77 75' 1,7 9 2g 6.39. 7fi,O00 ala. 38 1 $.2$ 140 12,504 144' 11.5 0 1.ss 1.06 6,000 35 5.9 4.72 472 _ 50,00 359 7.2 0 4.14 414 5D 000 334 6 7 14,25 3.44 50,000 213 43 0 1.93 193 7.OD0 IU 0 14.18 12-& 58300 W. 40,9 8.29 431. 18,00D 270, 15.0 4.23 356: 13.DW 117 9-0 14.31 0.00! we Ala a 23.13 0:00 Ala n1a Anna Ikta Ca"Am: itMAaes Nee Arae: S11H R01M �.82Aaes Wet[anx 5.71 A=% (' powma5on {excA40 sst3wh* 21.$1 Acres VNeeandBulfad5etbeck 9;4SAuas Slotrnw a U2Azm Nd DlwTToppiile AM SMACM Ana Of Watd 0 Ages Legend Property Boundary Waterway —m—' Retaining Wall Drainage Areas Sub Drainage Areas Bluff Creek Overlay District Figure 7 - Complete Direct Avoidance Alternative With Post -Development Wetland Drainage Areas N Avienda Mixed Use Regional/Lifestyle Center (KE5 2015-130) •0 500 Chanhassen, MN Feet Note: Boundaries indicated T uArr KioLHAUG ENVIRONMENTAL SERVICES COMPANY on this notfigconst approximate and do not constitute an official survey product. +err