Loading...
CorrespondenceCorrespondence • StarTribune article "Pollution Control Agency's Stormwater Rules Roil Minnesota Cities" — June 21, 2013 • Minnesota Cities article "City Dilemma: Granting Shoreland Variances" — May /June issue StarTribune - Print Page StarTribune Pollution Control Agency's stormwater rules roil Minnesota cities Article by: Josephine Marcotty Star Tribune May 21, 2013 - 10:25 PM Page 1 of 2 More than 200 Minnesota cities, from tiny Lauderdale to wealthy Rochester, will have to devise ways to keep the rain v it falls as part of a controversial new mandate designed to protect urban streams and lakes from the dirt and pollutants wash off streets and yards along with the stormwater. The cities, for the first time, will be required to maintain or reduce the volume of runoff leaving their systems, under a stormwater management plan approved Tuesday by the Minnesota Pollution Control Agency governing board. The plat requires the cities to account for their share of pollutants such as phosphorus and sediment that foul many urban lakes streams. Although it's been in the works for years, the proposal triggered fierce objections Tuesday from local officials, who say i are doing all they can to to improve water quality and that the new rules will add unknown millions of dollars in costs an responsibilities to cities that are already financially strapped and unable to ask residents for more fees. "This is a huge undertaking," said Nancy Burke, an attorney for the Minnesota League of Cities. Asking cities to control stormwater volume not just pollutants is "stepping way out into new territory for the state," she said. But after listening to hours of testimony, the board approved the plan unanimously, along with a promise by Commissio John Link Stine to provide the cities with all the assistance and support possible. "This is one of the questions of our time," said board member Kathryn Draeger, a farmer and agronomist at the Univers Minnesota. "How to balance declining resources with increasing pressure on our water resources." The new stormwater permitting process essentially requires each city to adopt the best way to hold water on the land techniques that could range from rain gardens to holding ponds to pervious pavements to new sediment - collecting baffi storm sewers. The idea is to mimic the natural hydrology of each place in the most effective way to control pollution, the agency said. It can reduce phosphorus, a nutrient that causes explosions of green algae in lakes, by 90 percent, comps with the 50 percent that is typical of current water treatment systems, according to PCA officials. That's a sharp contrast to the way that most urban areas are designed today. Pavement, lawns, concrete driveways an rooftops are, for the most part, all designed to rush water off the surface and into sewers as fast as possible carrying dii chemicals, oils toxins, yard chemicals and nutrients that end up in lakes and streams, along with too much water that ei banks. Rapid runoff also robs groundwater and the aquifers that supply industry and most homes with drinking water, an incres urgent concern in Minnesota. The mandate will apply to 234 cities and other government entities, such as watershed districts, colleges, the Minnesota Department of Transportation and the Metropolitan Airports Commission. The first such stormwater permits were enacted in 2003 under federal pollution laws. The cities of Minneapolis and St. I are the only two in the state that are large enough to be regulated under a different permitting system. http : / /www.startribune.com/pri... http: / /www.startribune.com/pri... 6/13/2013 StarTribune - Print Page Page 2 of 2 But more than half of the state's population lives in cities and municipalities that are affected by the new rules, the large Rochester. "On the fundamental goals, to protect and improve water quality, there is complete agreement and always has been," s Randy Neprash, an engineer for the Minnesota Cities Stormwater Coalition, an affiliate of the League of Minnesota Citil But the cities object to several aspects of the rules. For instance, each one will have to figure out how to regulate construction companies and developers so that they com with the no new stormwater rule. That means that if a new shopping mall is built on prairie, for instance, then the new mall has to replicate how the prairi, handled water. And redevelopments, such as a new shopping mall built on an old one, will have to actually reduce the volume of water comes off the site. Together, the new requirements "are huge" steps toward improving water quality, said Trevor Russell, program managf Friends of the Mississippi River. They will also require cities to manage the water coming off constructions sites, a significant contributor to sediment in I and rivers. Duane Duncanson, permit manager for the PCA, said that uncontrolled construction sites can release 30 to tons of sediment per acre per year into surface waters. Neprash, however, said the state is intruding too far into each city's regulatory business, and requiring them to control V volume even when it doesn't necessarily make sense. The cities also objected to the potential costs. Each city will estimate its costs when it submits the water management p that will be required starting later this year. PCA officials said that the new rules are designed to be flexible and designe match the demands and capabilities of each city. Richard Freese, Rochester's director of public works, said estimates the new permit would cost each Rochester resider about $55 per year. And Rochester's stormwater utility hasn't had a rate increase in four years, he said. Neprash said that cities aren't trying to get out of managing their stormwater. "They are just trying to find cheaper ways to do it," he said. Josephine Marcotty • 612 - 673 -7394 © 2013 Star Tribune http: / /www.startribune.com/pri... http: / /www.startribune.com/pri... 6/13/2013 Discussion I Let'sTalk CITY DILEMMA: Granting Shoreland Variances A DISCUSSION WITH DAN PETRIK, LAND USE SPECIALIST WITH THE DEPARTMENT OF NATURAL RESOURCES Making decisions on variances is an JIM &I important but challenging respon- W sibility for local governments, especially when such requests affect the I state's shorelands and other protected waterways. Cities must make sure to follow state law when issuing variances I for shoreland properties. Minnesota Cities talked with Dan Petrik, land use specialist with the Department of Natural Resources (DNR), to shed some light on this topic. Minnesota Cities What exactly is your role at the DNR? Dan Petrik My role is to coordinate the implementation of our statewide shoreland programs, which means that I work with the DNR's area hydrologists throughout the state to administer the programs through cities and counties. I'm also involved with the agency's rulemaking and training. MC Could you explain what shoreland is and why the DNR has a shoreland management program? DP Shoreland is defined as any land within 1,000 feet of a public water body, and land within 300 feet or the furthest extent of a floodplain for rivers and streams. The DNR program guides land development within these boundaries, including its location with respect to sensitive resources, development density, and measures for protecting and restoring habitat and water resources. MC What do the shoreland rules address? DP The rules primarily deal with the setback of structures from the ordinary high water level. They also deal with lot sizes, lot widths, vegetation management procedures, and the amount of impervious surface allowed on a lot. There are other regulations, but those are the most important for protecting water bodies. MC Can you talk about what the DNR expects cities to do in terms of administering these rules? DP The expectation is that, when a property owner wants to build on or redevelop a shoreland area property, the city ensures compliance with the rules in its own ordinance. So, for example, if somebody wants to build a new house, the city makes sure it is set back 150 feet from the water or whatever the requirement is for that particular water body. 26 1 MAY /JUN 2013 1 MINNESOTACITIES MC What is a shoreland variance? DP Technically, a shoreland variance isn't any different than any other variance from a city�s zoning code. However, shoreland variances are different from a policy perspective because we are dealing with public waters, so we feel the city should give shoreland variances a higher level of scrutiny and really consider the public value of these resources. Shoreland variances are different ... because we are dealing with public waters, so we feel the city should give [them] a higher level of scrutiny. MC Can you give an example of how a variance might relate to different kinds of rules? DP A property owner may want to exceed the impervious surface requirement to add on a new garage. In a non - shoreland area, that may violate a city's zoning ordinance, but it wouldn't have the same level of importance that it would in a shoreland area. These areas are more susceptible to runoff, and the more impervious surface you have, the greater amount of runoff and pollution that can go into the adjacent water body. MC What should city officials think about when deciding whether to grant a variance? DP There are five criteria outlined in state statute. Three of those deal with practical difficulties, which is probably what most people think about. The other two criteria that must be considered are: (1) that a variance be consistent with the city's comprehensive plan, and (2) that it should also be in harmony with the purposes and intent of the city ordinance. MC You mentioned "practical difficulties, and sometimes people talk about "hardship °Can you discuss those terms? DP The three other criteria aze the standards needed to prove practical difficulties. State rules say you must show that practical difficulties exist in order to grant a variance. "Practical difficulties" is the new term for "hardship," It was included in the 2011 update to state statute. So if a city's ordinance still talks about hardship, it should be updated. MC What are these three criteria to prove practical difficulties? DP The first one is that you need to show there are unique circumstances to the property that were not created by the landowner. The second one is that the variance would not alter the essential character of the locality. And the third one is that the owner proposes to use the property in a reasonable manner not permitted by the ordinance. MC What are some of the challenges of assessing these criteria? DP With the unique circumstances requirement, it's important to keep in mind that were talking about a shoreland area that's adjacent to a public resource. For example, people talk about physical characteristics of a piece of land, such as steep slopes or a wetland, as being unique circumstances. These might be unique in some areas, but in shoreland areas, these are not unique —they are typical characteristics of the landscape. MC The essential character of the locality factor —are there many challenges in meeting that standard? DP This also can be difficult. People might think essential character means, how does this building plan fit into the neighborhood? Does it look like the neighbors, or is it earth tone to fit into the natural landscape? It could be those things, but character is more about shoreland characteristics. One example is hydrology. Hydrology within the landscape of a lake or river is very different than a non - riparian area. And when you build structures or remove vegetation, you're affecting the hydrology on and below the soil in terms of how and where the water flows. If you have steep slopes or bluffs, you can have additional problems with slumping or eroding soils. So ifs important to think about these real physical issues. If the project is affecting the hydrology, that may be a more important local character issue than how the structure aesthetics fit into the landscape. The reason we protect the shoreland area is that ... it's the last opportunity to protect the quality of the water body. MC Sometimes when a city issues a variance, it will put conditions on the variance. Does that make sense in a shoreland context? DP Yes, we think it often makes sense. And, in fact, Minnesota Statutes 462.357 discusses conditions for shoreland areas. The statute says that communities shall require property owners to address stormwater management by reducing impervious surface, increasing setbacks, and restoring wetlands and vegetative buffers as conditions to offset the deviation from the rule. The idea here is to try to mitigate some of the protections lost through the variance by adding a shoreland buffer or putting in some type of stormwater filtration system or something else. Any conditions need to be related to the deviation in the rule, and have to be proportional to the amount of the deviation that somebody's requesting. MC Why is it important to protect shoreland areas? DP Within a watershed, there are a lot of opportunities for pollution to get into our water bodies. But the reason we protect the shoreland area is that in manyways, its the last opportunity to protect the quality of the water body before stormwater runoff goes into it, and that's why vegetation along that riparian edge is important. Especially in residential areas, vegetation is a far more practical and effective means of lasting stormwater protection or treatment than engineered solutions. It looks better, and its easier to manage for the long term. But it can be easily removed by land- owners, so cities need to think about how they administer condi- tions of approval. Ideally there would be some way of monitoring these conditions, and assuring that they remain in place. MC Is there anything else local officials should keep in mind when considering variance requests in shoreland areas? DP I think one of the most challenging things is the difficulty of saying no to your neighbors, or placing conditions on them. But rigorously assessing each variance application on the five statutory criteria will help overcome this difficulty. It's important for city officials to see their role as a judge, not as a neighbor. That's your role as a member of a planning commission or board of adjustments in considering variances— you're a judge applying the rule of law in a fair and equitable manner, and you're considering facts in making a decision. If you put that hat on, perhaps it will make your job a little easier. Need more information? Check out the DNR's shoreland variance resources at httpJ/hit.ty /1 HMO. MINNESOTACITIES I MAY /JUN 2013 1 27