2004-07-13 Exemption DeniedSEH
July 13, 2004
Honorable IVlayor and Council Members
City of Albertville
5975 Main Avenue
P. O. Box 9
Albertville, MN 55301
Dear Honorable Mayor and Council Members:
RE: Albertville, Minnesota
Michael Potter Site
SEH No. A-ALBEV0301.00
The Technical Evaluation Panel (TEP) has reviewed the Wetland Conservation Act application for
Exemption 8 -Approved Development. The TEP has determined that the Exemption should be denied based
on several facts related to the WCA Exemption, associated Board of Water and Soil Resources (BWSR)
guidance related to Exemption 8, and activities conducted on the site from 1994 to 2003. The following
Findings of Fact related to the Exemption 8 application have been determined by the TEP:
1. The applicant was issued a Cease and Desist Order on April 18, 2003, a Restoration Order in July
2003. The applicant currently has a criminal complaint issued against him as a result of being in non-
compliance with the Restoration Order.
2. The applicant applied for and was denied a Certificate of No-Loss in October 2003 since the above
orders had been previously issued.
3. The applicant applied for an Exemption 8 -Approved Development in February 2004 and that
application was reviewed for adequate documentation supporting the Exemption claim as required
under Chapter 8420..0210. Exemption 8 requires that the project site have an approved preliminary or
final plat or similar type approval and the approval has not expired and that the project remains
active. The TEP determined that the Exemption documentation was not adequate to make a
determination. The TEP requested additional supporting documentation related to the project
remaining active be submitted.
4. The applicant had applied for and received a U.S. Army Corps of Engineers Section 404 permit in
1988 to fill approximately 3 acres of wetland. The applicant requested a permit extension from the
Corps and the extension was granted to 1993. However the Corps permit expired in 1993 and no
additional extensions were applied for. Additionally, once the Corps permit expired,. either a
certificate of exemption or wetland replacement plan application would also have been necessary to
have been applied for since the Minnesota Wetland Conservation Act was in effect.
5. The applicant submitted additional documentation related to the project remaining active on June 28,
2004. The TEP reviewed this information and determined that the project had not remained active
since the applicant did not have the necessary government approvals to fill wetlands and had not had
these approvals since 1993. Meanwhile filling activities continued to occur on the site from1994
until the Cease and Desist Order was issued in Apri12003.
Short Elliott Hendrickson Inc., 3535 Vadnais Center Drive. 5t. Paul, MN 5 5 1 1 0-51 96
SEH is an equal opportunity employer ~ www.sehinc.com ~ 651.490.2000 ~ 800.325.2055 ~ 651.490.2150 fax
Honorable Nlayor and Council Members
July 13, 2004
Page 2
Guidance developed by BWSR related to Exemption 8 addresses that wetlands may be filled by
construction projects without replacement if: The landowner has received governmental approvals
required by federal, state, county, city, or towns to fill wetlands and these approvals have not
expired. It also states that no wetland filling or drainage can occur beyond that documented by the
approval.
Based on the findings of fact it is the recommendation of the TEP that the application for Exemption 8 -
Approved Development for Michael Potter be denied.
If you have any questions or comments, please feel free to contact me.
Sincerely,
SHO ELLIOTT HENDRICKSON INC.
r
T add Udvig
Senior Wetland Scientis
ms
c: Lynda Peterson, BWSR
Colleen Allen, WSWCD
Patty Fowler, MnDNR
Jason Neuman, MnDNR
Tim Fell, USACOE
o:\water~lpcojectlalbcvWbev0308.Wbutlecs ph3~mayoAlll.doc
Main Entry: active ~~}
Pronunciation: 'ak-tiv
Function: adjective
Etymology: Middle English, from Middle French or Latin; Middle French actif, from
Latin activus, from actus, past participle of agere to drive, do -- more at AGENT
1 : chazacterized by action rather than by contemplation or speculation
2 : producing or involving action or movement
3 a of a verb form or voice :asserting that the person or thing represented by the
grammatical subject performs the action represented by the verb chits in "he hits the ball"
is active> b :expressing action as distinct from mere existence or state
4 : quick in physical movement :LIVELY
5 : marked by vigorous activity :BUSY <the stock mazket was active>
6 : requiring vigorous action or exertion <active sports>
7 : having practical operation or results :EFFECTIVE can active law>
8 a :disposed to action :ENERGETIC <took an active interest> b :engaged in an action
or activity can active club member> c of a volcano :currently erupting or likely to erupt -
- compaze I}oIt1~1ANT 2a, EXTINCT lb d : chazacterized by emission of lazge amounts of
electromagnetic energy can active galactic nucleus>
9 : engaged in full-time service especially in the armed forces <active duty>
10 : marked by present operation, transaction, movement, or use <active account>
11 a :capable of acting or reacting :reacting readily <active nitrogen> b :tending to
progress or to cause degeneration <active tuberculosis> c of an electronic circuit element
capable of controlling voltages or currents d (1) :requiring the expenditure of energy
<active calcium ion uptake> (2) : functioning by the emission of radiant energy <radaz is
an active sensor>
12 : still eligible to win the pot in poker
13 : moving down the line :visiting in the set -- used of couples in contredanses or
square dances
- active noun
- ac•tive•ly adverb
- ac•tive•ness noun
Main Entry: action ~~}
Pronunciation: 'ak-sh8n
Function: noun
1 : the initiating of a proceeding in a court of justice by which one demands or enforces
one's right; also :the proceeding itself
2 : the bringing about of an alteration by force or through a natural agency
3 : the manner or method of performing: a :the deportment of an actor or speaker or his
expression by means of attitude, voice, and gesture b :the style of movement of the feet
and legs (as of a horse) c : a function of the body or one of its parts
4 : an act of will
5 a : a thing done : DEED b :the accomplishment of a thing usually over a period of time,
in stages, or with the possibility of repetition c plural :BEHAVIOR, CONDUCT
<unscrupulous actions> d :INITIATIVE, ENTERPRISE <a man of action>
6 a (1) : an engagement between troops or ships (2) :combat in war <gallantry in action>
b (1) : an event or series of events forming a literary composition (2) :the unfolding of
the events of a drama or work of fiction :PLOT (3) :the movement of incidents in a plot
c :the combination of circumstances that constitute the subject matter of a painting or
sculpture
7 a : an operating mechanism b :the manner in which a mechanism or instrument
operates
8 a :the price movement and trading volume of a commodity, security, or market b :the
process of betting including the offering and acceptance of a bet and determination of a
winner c : an opportunity for financial gain <a piece of the action>
9 : the most vigorous, productive, or exciting activi in a particular field, area, or group
<they itch to go where the action is -- D. J. Henahan>