2004-01-30 Engineering Letter to Accompany Wetland AppGME CONSULTANTS, INC.
CONSULTING ENGINEERS
14000 21st Ave. No. / Minneapolis, MN 55447
Phone (763) 559-1859 / Fax (763) 559-0720
January 30, 2004
City of Albertville
c/o Mr. Todd Udvig
Senior Wetland Scientist
Short Elliot Hendrickson, Inc.
3535 Vadnais Center Drive
St. Paul, Minnesota 55110-5196
Re: Wetland Conservation Act Exemption
documentation for the development
Albertville, Minnesota
Dear Mr. Udvig:
c~
E=~
GME Project No. 10744
for Approved Developments
of Potters Commercial Park in
This letter has been prepared on behalf of
accompany his application for the Wetland
Certificate of Exemption for the development
Park in Albertville, Minnesota (i.e., the
present a description of the project and
exemption.
Project Description
Mr. Michael Potter to
Conservation Act (WCA)
of Potters Commercial
Property). Below we
our rationale for the
The Property is located in the southwest corner of the intersection
of County Road 37 and McKinzie Avenue in the northwest quarter of
Section 6, Township 120 North, Range 23 West, in Wright County,
Minnesota. The development of Potters Commercial Park began in
1985, after Mr. Potter purchased the Property. .The Property covers
approximately 15.5 acres and the development plan required filling
approximately 3 acres of wetland on Lots 1, 2, .and 3, Block 1 (north
parcel), and Lot 1, Block 2 (south parcel) of Potters Commercial
Park. The filling would result in approximately 5 acres of
developable land on the north parcel and about 1.5 acres of
developable land on the south parcel.
Mr. Potter applied for and received a permit (permit # 88-252-12)
from the U.S. Army Corps of Engineers (COE) to fill portions. of the
wetlands; a copy of the permit is attached to this letter as
Appendix A. The COE permit was valid from 1988 through December 31,
WILLIAM C. KWASNY, P.E. THOMAS P. VENEMA, P.E. GREGORY R. REUTER, P.E., P.G.
RYAN F. SCHMIDT, P.E. WILLIAM E. BLOEMENDAL, P.E. RICHARD W. PENNINGS, P.E.
An Equal Opportunity Employer
Mr. Todd Udvig 2 January 30, 2004
GME Project No. 10744
1991. Mr. Potter stated that the
the wetland filling through 1993,
completed at the end of 1991.
COE issued a permit extension for
because the project was not yet
Mr. Potter obtained preliminary plat approval for the development of
Potters Commercial Park and had a recommendation for final plat
approval from Frankfort Township in 1989. Frankfort Township
subcontracted the original review of the preliminary plat to their
engineer, Hakanson Anderson Associates, Inc. (HAA) HAA recommended
preliminary plat approval in their letter dated June 5, 1989
(Appendix B). Mr. Potter stated that the Township's record of the
preliminary plat approval was lost, along with other township
records, during the merging of Frankfort Township with the City of
St. Michael in 1996, and that he-has been unable to locate copies of
several documents. The Town Board of Frankfort Township recommended
final plat approval for Potters Commercial Park in a document dated
December 4, 1989 (Appendix C).
Mr. Potter stated that the project has been progressing in stages
over the past several years as he has acquired fill soil for the
project. He plans to complete the development of the Property while
preserving certain wetland areas between the developable lots.
Exemption for Approved Development
The WCA Rules, Chapter 8420.0122 .Wetland Exemptions, Subpart 8,
Approved Development, state the following: "A replacement plan for
wetlands is not required for development projects and ditch
improvement projects in the st-ate that have received preliminary or
final plat approval or have infrastructure that has been installed
or has local site plan approval, conditional use permits, or similar
official approval by a governing body or government agency, within
five years before July 1, 1991." The proposed development at
Potters Commercial Park received final plat approval from Frankfort
Township on December 4, 1989.
Chapter 8420.0122, Subpart 8 (the rule) continues with the
definition of "infrastructure," but it is our interpretation that
infrastructure is not required when plat approval has been obtained.
The rule further states that, "Subdividers who obtained preliminary
plat approval in the specified time period, and other project
developers with one of the listed approvals timely obtained,
provided approval has not expired and the project remains active,
may drain and fill wetlands, to the extent documented by the
approval, without replacement."
elV! C~NSt1LTAMT3. INC.
Mr. Todd Udvig 3 January 30, 2004
GME Project No. 10744
Mr. Potter obtained one of the approvals for this project
asdescribed in the first paragraph (preliminary plat approval),
within the specified time period. According to Mr. Potter, the plat
approval has not expired. The project has remained active as Mr.
Potter has sought suitable fill material for the site.
The rule states that, "Those elements of the project that can be
carried out without changing the approved plan and without draining
or filling must be done in that manner." Mr. Potter plans to fill
the wetland area within the proposed lots, and does not plan to fill
the wetland areas in Outlot A of Potters Commercial Park.
The rule continues, "If wetlands can be avoided within the terms of
the approved plan, they must be avoided." Mr. Potter plans to fill
the lots necessary to develop the project, and not impact wetlands
outside the proposed development.
The final paragraph of the exemption is related to ditch projects
and not the Potter Commercial Park.
Discussion and Conclusions
Mr. Potter purchased the Property for the purposes of developing the
land, for which he obtained preliminary plat approval and COE
permits, and carried out a portion of the work. This application
for exemption has been prepared in response to a Department of
Natural Resources Cease and Desist Order issued to Mr. Potter on
April 18, 2003. Part of the misunderstanding between the Local
Governing Unit (LGU) and Mr. Potter has been a result of his
interpretation of the COE permit. Mr. Potter believed that building
berms around the development would separate. the development from the
wetland area in the central portion of the Property. It appears
that the building of berms did not create as much non-wetland area
as was intended.
Mr. Potter would like to complete the development of these platted
lots as approved in the late 1980s by Frankfort Township. Mr.
Potter is applying for a certificate of exemption to fill
approximately 3 acres of wetlands to complete his development that
began prior to July 1, 1991. Mr. Potter stated that the preliminary
plat approval is still valid; therefore, we assume that the WCA
requirement that the "approval" be valid supports our interpretation
that the approval has not expired and that the certificate of
exemption should be issued.
BM[ CONlULTANTl. INC,
Mr. Todd Udvig 4 January 30, 2004
GME Project No. 10744
We appreciate your thoughtful consideration of this sensitive
matter. Please contact us if you have questions or comments, or if
you wish to meet to review this matter.
Sincerely,
GME Consultants, Inc.
Aaron D. Brewer
Wetland Specialist
Project Manager
William C. Kwasny, P.E.
Principal Engineer/President
Appendix A: Copy of COE Wetland Permit
Appendix B: HAA Preliminary Plat Approval Recommendation
Appendix C: Frankfort Township Final Plat Approval
Appendix D: Potter Commercial Park Plat Map Copy
Enclosure: Application for Certificate of Exemption
cc: Ms. Colleen Allen, Wright County SWCD
Ms. Lynda Peterson, Board of Water and Soil Resources
a db C:\Aaron\10744 Potter Wetland\10744 exemption letter.doc
elulE COMSIILT~lIT!_ IMC
DEPARTMENT OF THE ARMY PERMIT
Permittee _ Michael Potter
Permit No. 88-252-12
St. Paul District
Issuing Off;ce Corps of Engineers
NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term
"this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted
activity or the appropriate official of that office acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions specified below.
Project Description: Placement of fill material into approximately 3 acres of wetland
during the construction of a public sports center and amini-storage facility
in Albertville, Minnesota. The limits of fill are. shown on the attached
drawing labeled 88-252-12, page 1 of 1.
Project Location:
The project is located in the NWl/4 of section 6, T120N, R23W,
Wright County, Minnesota.
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on December 31 . 1991 . If you find that you need
more time to complete the authorized activity, submit your request for a time extension to this office for consideration at ]east
one month before the above date is reached.
2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and condi-
tions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make
a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain
the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of
this permit from this office, which may require restoration of the area.
3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by
this permit, you must immediately notify this office of what you have found. We will initiate the Federal. and state coordina-
tion required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register
of Historic Places.
ENG FORM 1721, Nov 86 EDITION OF SEP 82 IS OBSOLETE.
(33 CFR 325 (Appendix A))
4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided
and forward a copy of the permit to this office to validate the transfer of this authorization.
5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified
in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it con-
tains such conditions.
6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure
that it is being or has been accomplished in accordance with the terms and conditions of your permit.
Special Conditions:
1. The permittee shall excavate the existing old haul road as shown on the
attached drawing. The excavation must be down to an elevation 2 to 3 feet.
below the current elevation of the surrounding wetland. The existing trees
along the haul road should be saved, if excavation of the roadbed will allow
this.
2. All excavated material must be placed in an upland location.
3. Refer to the Standard Conditions attachment.
Further Information:
1, Congressional Authorities: You have been authorized to undertake the activity described above pursuant to:
~}-SPCtion 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
( ~XSection 404 of the Clean Water Act (33 U.S.C. 1344).
-('-)--SECtion 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law.
b. This permit does not grant any property rights or exclusive privileges.
c. This permit does not authorize any injury to the property or rights of others.
d. This permit does not authorize interference with any existing or proposed Federal project.
3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following:
a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural
causes.
b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf
of the United States in the public interest.
c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity
authorized by this permit.
d. Design or construction deficiencies associated with the permitted work.
2
e. Damage claims associated with any future modification, suspension, or revocation of this permit.
~. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public
interest was made in reliance on the information you provided.
~, Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances
warrant. Circumstances that could require a reevaluation include, but are not limited to, the following:
a. You fail to comply with the terms and conditions of this permit,
b. The information provided by you in support of your permit application proves to have been false, incomplete, or
inaccurate (See 4 above).
c. Significant new information surfaces which this office did not consider in reaching the original public interest decision.
Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation
procedures contained in 33 CFR 325,7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5, The
referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms
and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any
corrective measures ordered by this office; and if you fail to comply with such directive, this office may in certain situations
(such as those specified in 33 CFR 209,170) accomplish the corrective measures by contract or otherwise and bill you for the
cost.
6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless
there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest
decision, the Corps will normally give favorable consideration to a request for an extension of this time limit.
Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit.
(PERMITTEE)
(DATE)
This permit becomes effective when the Federal official, designated to act for the secretary of the Army, has signed below.
(DISTRICT ENGINEER) (DATE)
When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and
conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit
and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.
(TRANSFEREE)
(DATE)
3
eU.S. GOVERNMENT PRINTING OFFICE: 1986 - 717.425
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-•• -------•• -~ a..••c.ai ~~~~ •yrc:isu conditions, this permit is subject to the
follcn•ing ctnndard conditions, ac applicable:
1. All work or dicchnrgee to a watercouree recalling from permitted
construction activities, particularly hydraulic dredging. must Heel applicable
Federal. Sate, and local water quality and effluent standards on a continuing
basis.
2. He sautes must be adopted to prevent potential pollutants from entering the
watercourse. Construction matetiale and debris, including fuels. oil, end
ocher liquid. substances, will not be stored in the construction area in a
manner that would allow them to enter the watercourse as a result of spillage.
natural runoff, or flooding.
3. If dredged or excavated material is placed on an upland disposal site
(above the ordinary high-valet mark), the site must be securely diked or
contained by come other acceptable method that prevents the return of
potentially polluting materials to the ratercource by eurfece runoff or by
leaching. 'Ibe containment area. whether bulkhead or upland disposal cite.
must be fully. completed prior to placement or any dredged aaterial.
4. Upon completion of earthwork operations, all a=posed eloper, fills, and
dieturbed areas mutt be given sufficient protection. by appropriate-means each
as Landscaping, or planting and saintaining ~regetative cover. to prevent
subsequent erocio'n.
5. All fill (including ziprap), if authorised under this permit, must consist
of suitable aaterial free from toxic pollutants in other than trace
quantities. In addition, rock or fill aaterial Iced for activities dependent
upon this. permit and obtained by excavation oust either be obtained from
existing quarries or, if anew barrow rite it opened np to obtain fill
materiel. the State Historic Preservation Officer (SHPO) mutt be notified _
prior to use of the new site. 8vidence of thin consultation rith the SP.PO
rill be forwarded to the S.t. Paul District Office.
5. Zf cnlt~.ra2, archaeological, oz historical zecouzcer are_ unearthed during
activities authorised by this permit, cork neat be stopped immediately and the
State Historic Prsaerration Officer ^ust be contacted for fu=that instruction.
7. M investigation suet be sade [o identify rater intakes or other
activities that nay be affected b9' suspended solids and turbidity increases
sauced by rock in the ratercoursa Sufficient notice oust be given to the
owners of property where the activities would take place to allow them to
prepare for any changes in valet quality.
8. A contingency plan mutt be formulated that would be effective in the event
of a spill. lbic requirement is par titularly applicable in operations
involving the handling of petroleum producte. If a epill of any potential
pollutant sbovld occur, it ie the reeponcibility of the permittce to remove _
such material, to miniaize arty contamination recalling from this spill. and to
immediately notify the State Department of Natural Recoutcee and the D.S.
Coast Guard at telephone number 800-424-8802. ~