2006-03-08 Wright County Analysis of Potter -BWSR Decision®,�
OFFICE OF
MAR 13 POPS
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WRIGHT COUNTY ATTORNEY
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Thomas N. Kelly
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WrightGovernment
ght County oue nment Center
Brian J. Asleson
7e629
10 2nd Street NW
Chief Deputy Attorney
Assistants
Buffalo, Minnesota 55313-1189
VictimiWitness
Anne L. Mohaupt
Assistance Coordinator
Thomas C. Zins
Phone: (763) 682-7340
Jenn Pari
y povich
Terry D. Frazier
Scott M. Sandberg
Toll Free: 1-800 362 3667 Fax: (763) 682 7700
Investigator
Brian Johnson
Mark A. Erickson
Elizabeth M. Larson
Legal Assistant
Brian A. Lutes
Michelle Sandquist
Aaron D. Dais
Office Manager
Lee R. Martie
Cindy Hohl
Karen L. Wolff
Ryan C. Schmidt
March 8, 2006
Michael Couri
Attorney at Law
705 Central Avenue East
St. Michael, MN 55376
Re: Analysis of Potter situation 11
BWSR Decision of January 25, 2006
Dear Mike:
This letter is a follow up to our telephone conversation of February 24, 2006 and it is being
sent to you in your capacity as city attorney for the City of Albertville.
As you know the issues between the City, the TEP Panel (Colleen Allen) and Mr. Potter
have been considered and decided by the Minnesota Board of Water and Soil Resources. (See
Attachment 1). There can always be more clarity in these things, but the decision appears to be
as follows:
THE BWSR ORDER LANGUAGE
1. Mr. Potter has received his exemption to fill wetland areas under Minn. R . 8420.0122,
Subpart 8. That is, Albertville's decision to approve the "certificate of exemption is affirmed."
This approval is pursuant to Minn. Stat. § 15.99, and it is not being appealed by Allen.
2. However, the full BWSR Board felt that the City decision, and the decision of its own dispute
resolution committee (DRC), was not as clear as it should be regarding the extent of filling to be
Page 1 of 4
allowed under the Subpart 8 exemption. As such, the BWSR Board amended what the City and
the DRC decided.
a. The Order itself says nothing about the extent of any filling authorized, nor about
the lack of specificity by the LGU or of the DRC. The Order simply says it is
amending the recommendation of the DRC. And then the Order says "the attached
Memorandum is incorporated by reference and made a part of this Order." And so
any clarification by BWSR is in the memo. In short, the memo is more than a
memo; it is a continuation of the order language.
Furthermore, the Memo or amendment says:
b. The exemption is approved.
c. The exemption is limited by Breza v. City of Minnetrista, 2005 WL 3159732
(Minn.App. November 29, 2005). That is, the exemption is approved only to the
extent the City had any basic authority to approve of anything. Thus, the amendment
being made by BWSR (to the City and DRC approval) makes it clear that the
exemption is not open ended.
BWSR makes it clear that "the exemption" is limited to what was "previously
documented" in the "record" in 1989. The memo (amendment) refers to:
— the plat approved in 1989; and to
—the "Corps of Engineers permit number 88-252-12," which also dates from
1989.
The memo expressly says that these documents "show the extent of wetland
impacts."
[We make the following additional observations. (1) The BWSR could have
provided a map, a specific page reference, a legal description, or more details about
the outer edge of the fill; but they did not. They simply refer to the "plat" and to the
"record," all of which is vague. But they also refer to the Corps document 88-252-12
and this is very exacting. (2) They also could have limited the post -Subpart 8
approval fill area under the rule, but they did not.]
RELEVANT DOCUMENTS
The attached documents (Attachment 2) are the only ones that have any relevance to the fill
area that has been approved. These are taken directly from the record that was before BWSR.
The appellant and county staff take the position that no other documents can be referenced in
Page 2 of 4
assessing the limits of any fill. The documents attached relate back to 1989, they are from the
record submitted, and they coincide with one another. The indicated Corps fill area and the
precise plat blocks overlay one another, and they are consistent. Potter is constrained by the
Corps' permit of 1989 because it defines the limits of the fill exemption that was granted.
REMOVE OLD HAUL ROAD
The memo/amendment language indicates that Potter is to follow the limits of the 1989
Corps permit. On the one hand this means he may fill right up to the block/plat line designated.
But there is a further implication that Potter must "excavate [the] old haul road as shown on the
attached drawing." (See Attachment 2 hereto, designated in Appellant's Appendix as pages 89
and 91.) Keep in mind that according to BWSR's own analysis under Breza, approval relates
back to 1989 and is limited by that past approval. The approval under Subpart 8 is fixed in time
(1989). This approval can not be changed now, even if the Corps were hereafter to tell Potter
the road can stay. Note that the BWSR staff (Jim Haertel's cover letter at Attachment 1) seems
to see things the same way: "the Corps permit defined wetland impacts that would be allowed,
along with a requirement for adequate mitigation to be completed." (Emphasis added).
CONCLUSIONS
1. Potter may fill up to the horizontal limits designated in the 1989 Corps permit. He may not
fill beyond the limits designated in the 1989 Corps permit.
2. Under the Subpart 8 rule and within the plan -fill area approved, Potter has no post plan
approval obligation to mitigate or "avoid" wetlands.
3. Under the Order, Potter must remove the old haul road because it is part of the plan
approved. Potter may argue that he does not have to remove the road if he can get the Corps to
change its mind, but we oppose this interpretation of the Order.
4. Potter still has the obligation to convince the Corps to be able to fill up to the complete limits
of its 1989 permit. But clearly he can not begin filling until that federal permission is granted.
The old 1989 Corps permit expired in December 1991.
FURTHER COMMENT
1. We note that notwithstanding the State (BWSR) approval to fill wetlands up to the limits
documented in 1989 (Corps document 88-252-12 and related documents), Potter does not have a
present Corps permit to fill all of the 1989 area. The Corps has only recently given Potter a
limited and cautionary approval to place limited fill on the property. This includes a previously
illegally placed "berm" and "the area between the berm and the upland on the north portion of
[the ] site." (See Attachment 3-3, Appellant's Appendix at xiv.) Any permits issued by the City,
that involve fill, should be expressly contingent upon receiving all necessary Corps approvals.
Page 3 of 4
The history of this case has involved significant violations of law, now covered over by a default
ruling. This behavior, and the playing of one jurisdiction against another, should be discouraged.
2. Keep in mind that Potter has obtained a BWSR (State of Minnesota) permit. This permit
relates back to documents "approved" in 1989, including a specific Corps document. It is only
incidental that the limits of a state permit are defined in a federal document. This does not mean
that should the Corps change its mind hereafter (to allow the haul road to stay, or to expand the
fill area previously allowed in 1989—though we do not anticipate that) that the BWSR permit is
amended accordingly. The state permit is fixed by the 1989 documents that fit within the five
year window specified in Subpart S.
3. A close inspection of the property should be made by the City and the Wright Soil and Water
Conservation District to determine if any fill has been placed (and yet remains) beyond what the
Corps has ever allowed. Any such fill should be ordered removed.
Very truly yours,
Thomas C. Zins
Assistant County Attorney
Attorney for TEP Panel Member Colleen Allen
cc: Colleen Allen
Kerry Saxton
Page 4 of 4
Apt clmf,/—t 1
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Water oo&ttSoi!
Resources
January 25, 2006
Thomas C. Zins
Wright County Attorney's Office
10 Second Street NW
Buffalo, MN 55313
Jack Y. Perry
Briggs and Morgan, P.A.
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Michael C. Couri
Court, MacArthur and Ruppe, P.L.L.P.
P.O. Box 369
St. Michael, MN 55376-0369
RE: Wetland Conservation Act Appeal of an Exemption Decision
City of Albertville, Wright County, File 04-25
Gentlemen:
Please find enclosed an Order of the Board of Water and Soil Resources on the above -referenced Wetland
Conservation Act appeal.
The Board's Order affirms the City of Albertville's decision to approve the wetland exemption request of
Michael Potter, however, the approval is clarified. The Board found the City's approval of the exemption
request lacked clarity in defining the scope of the permit. The Order defines the scope of the permit the
City issued as the extent of wetland impacts documented by the plat approved in 1989 and the Corps of
Engineers permit also issued in 1989. The Corps permit corresponded to the plat that was approved. The
Corps permit defined wetland impacts that would be allowed, along with a requirement for adequate
mitigation to be completed. Approval of the exemption request means wetland impacts allowed under the
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2300 Silver Creek
520 Lafayette Road N.
Bernidii, MN 56601
Suite 202
Room 403
Fergus Falls, NIN 56537
Box 267
New Urn, MN 56073
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Saint Paul. MN 55155
phone (218) 755-4235
Brainerd, MN 56401
Duluth. MN 55802
phone (218) 736-5445
Marshall. MN 56258
phone (507) 359-6074
Rochester,
#o 296-3767
fax (218) 755-4201
phone (218) 828-2383
phone (218) 723-4752
fax (218) i36-72li
phone (507) 537-0060
tax (507) 359-6018
phone (50-1) 280-2874
fa2 97-5615
fax (218) 828-6036
fax (218) 723-4794
fax (507) 537-6368
fax (507) 285-7144
Web: www.bwsr.state.mn.us
TTY: MOM
F-27-3529 An enual onnortuniiv emnlover
ARPrintPri nn rrcvderl nanar
WCA Appeal File 04-25
January 25, 2006
Page 2
exemption require no mitigation under the Minnesota Wetland Conservation Act.
Please feel free to contact me at (651) 297-2906, or at the Saint Paul address, if I may be of further
assistance in this matter.
Sincerely,n
;Jim Haertel
Water Management Specialist
Enclosure
cc: Colleen Allen, Wright SWCD
Todd Udvig, SEH
Tim Fell, Corps of Engineers -St. Paul
DRC Members
Dulcie Brand, Office of the Attorney General
Doug Norris, DNR-Ecological Services
BWSR: Ron Harriack, Steve Woods, David Weirens, Dan Girolamo, Tom Mings, Lynda Peterson,
Brad Wozney
R -3 - 3
Minnesota Board Of Water And Soil Resources
520 Lafayette Road North
St. Paul, Minnesota 55155
BWSR File No. 04-25
In the Matter of Michael Potter's Petition for
an Exemption to Drain and Fill Wetland, ORDER
Without a Replacement Plan, for the Purpose
of Developing "Potter's Commercial Park",
Albertville, Minnesota.
This is an appeal of the grant of an Application for Certificate of Exemption submitted by
Michael Potter ("Potter") to the City of Albertville ("City"). Potter applied for a Certificate of
Exemption pursuant to Minn. R. 8420.0122, subp. 8. The City acted as the local government
unit ("LGU") under the Wetland Conservation Act ("WCA"). The City failed to approve or
deny Potter's Application within 60 days, as required under Minn. R. 8420.0210 and Minn. Stat.
§ 15.99. The City issued its decision on September 7, 2004, approving the application because
the City failed to timely approve or deny the exemption request and by operation of Minn. R.
8420.0210 it is automatically approved. Colleen Allen, a member of the Technical Evaluation
Panel ("TEP") appealed to the Board of Water and Soil Resources ("BWSR").
On January 5, 2006, the Dispute Resolution Committee ("DRC") of BWSR heard oral
arguments. Thomas C. Zins, Wright County Attorney's Office, Government Center, 10 - 2nd
Street NW, Buffalo, Minnesota 55313 appeared on behalf of Colleen Allen, Appellant. Jack Y.
Perry, Briggs and Morgan, P.A., 80 South Eighth Street, 2200 IDS Center, Minneapolis,
Minnesota 55402 appeared on behalf of Michael Potter, Respondent.
The attorneys for the parties agreed that the record before the City consisted of
Items A-G, as identified in an LGU Record provided by the City.
Following oral arguments, the DRC by a 3-2 vote, adopted a resolution recommending
that the decision of the City be affirmed.
At its meeting on January 25, 2006, BWSR amended the recommendation of the DRC
and authorized the Chair of BWSR to issue this Order.
Based upon the entire record of this proceeding, BWSR makes the following:
1. The September 7, 2004 decision of the City of Albertville to grant the Application
for Certificate of Exemption for Michael Potter is affirmed, and the scope of the permit issued by
the City is defined consistent with this Order.
2. The attached Memorandum is incorporated by reference and made a part of this
Order.
Dated: Januarya 2006 Board of Water and Soil Resources
Its Chair
MEMORANDUM
The standard of review for appeals to BWSR is established in Minn. R. 8420.0250, subp.
3 (2005). The Rule provides:
The board will affirm the local government unit's decision if the local government
unit's findings of fact are not clearly erroneous; if the local government unit
correctly applied the law to the facts, including this chapter; and if the local
government unit made no procedural errors prejudicial to a party. Otherwise, the
board will reverse the decision, amend it, or remand it with instructions for further
proceedings.
We find that the City's findings of fact were not clearly erroneous but they lacked clarity in
defining the scope of the permit, that the City correctly applied the law to the facts, and that there
were no procedural errors in the City's proceedings.
Under Minn. R. 8420.0210 (2005), the LGU "decision must be made in compliance with
Minnesota Statutes, section 15.99." Section 15.99 establishes a 60-day time limit for an agency
to make a decision on a written request. If an agency fails to deny a request in writing within 60
days of the request, the request is approved. See Minn. Stat. § 15.99, subd. 2 (2004).
In this proceeding, the LGU reviewed the application and determined it to be incomplete.
It complied with Minn. Stat. § 15.99, subd. 3(a) (2004) by timely informing Potter in writing
what information was missing from the application. Potter subsequently supplied the missing
information. The information was received by the LGU on June 25, 2004. The City found that
Potter's application was complete as of June 25, 2004.
The LGU attempted to extend its deadline for approving or denying the application by
letter dated August 26, 2004. Under Minn. Stat. § 15.99, subd. 3(f) (2004), a 60-day extension is
allowed if certain requirements are met. Those requirements are that the LGU give written
notice of the extension, that the notice be given prior to the expiration of the original deadline,
that the notice provides the reasons for the extension, and that the notice identifies the anticipated
length of the extension. See Minn. Stat. § 15.99, subd. 3(f). The City found that the
requirements of Minn. Stat. § 15.99, subd. 3(f) were not met. Specifically, the notice of
extension was not timely provided to Potter because the City's 60-day deadline expired on
August 24, 2004 and the City prepared a letter dated August 26, 2004, received by Potter on
August 27, 2004, regarding the extension.
The City concluded that the extension was not effective. The City also concluded that it
had not denied Potter's application in writing within 60 days of the submission of the
application, so the application was automatically approved by operation of Minn. Stat. § 15.99,
subd. 2 and Minn. R. 8420.0210. The City made no deternninations on the merits of the
application.
Because we find that the City's findings of fact were not clearly erroneous, that the City
correctly applied the law to the facts, and that there were no procedural errors in the City's
proceedings, the decision of the City to approve the application for exemption under Minn. R.
8420.0122, subp. 8 (2005) is affirmed.
However, as decided in the recent case Breza v. City of Minnetrista, _ N.W. 2d ,
2005 WL 3159732 (Minn. App. Nov. 29, 2005), the LGU can only approve the application to the
extent that it has the authority to grant the exemption. The court emphasized that Minn. Stat.
§ 15.99 is a tinning statute and that it does not alter the underlying statutory authority of the LGU
to approve an application. Potter's Application requested an exemption under Minn. R.
8420.0122, subp. 8 (2005). Minn. R. 8420.0122, subp. 8 (2005) provides:
Subp. 8. Approved development. A replacement plan for wetlands is not
required for development projects and ditch improvement projects in the state 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. As used in this subpart, "infrastructure" means public water
facilities, storm water and sanitary sewer piping, outfalls, inlets, culverts, bridges,
and any other work defined specifically by a local government unit as constituting
a capital improvement to a parcel within the context of an approved development
plan.
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.
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. If
wetlands can be avoided within the terms of the approved plan, they must be
avoided.
For county, joint county, and watershed district ditch projects, this exemption
applies to projects that received final approval in the specified time period.
(emphasis added). Because the LGU only has the authority to grant an exemption to allow
draining and filling of wetlands "to the extent documented by the approval," Potter should only
have an exemption to drain or fill wetlands as documented in the approval.
The City did not make specific findings as to what wetlands drainage and filling is
documented by the plat approval. The plat that was approved and the corresponding Corps of
Engineers permit, file number 88-252-12, were both approved in 1989, are a part of the record,
and show the extent of wetland impacts. Therefore, BWSR finds the extent of wetlands drainage
and filling allowed by the pennit the City issued is the extent that was documented by the plat
approval and corresponding Corps of Engineers permit, file number 88-252-12, both approved in
1989.
AG: tt 1544067-v 1
jq��CA �,, / /-f 2,
DEPARTMENT OF THE ARMY PERMIT
Perm ittee_ Mich
Permit No. 88-252-12
St. Paul District
Issuing Office 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 a mini -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 NW1/4 of section b, 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 least
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 56 EDITION OF SEP 82 IS OBSOL-ETE.
(33 CFR 325 (Appendix A))
I
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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.
S. If a conditioned water quality certification has bgen 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;
,ction 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).
---('r—Sgction 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
0
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.
e. Damage claims associated with any future modification, suspension, or revocation of this permit.
4. 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.
5. 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 he 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)
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iai Conaltlons, this permit is subject to the
folloL•ing standard conditions, as applicable:
1. kll work or discharges to a watercourse resulting from permitted
construction activities, particularly hydraulic dredging, must meet applicable
Federal. Sate, and local water quality and effluent standards on a continuing
basis.
2. Measures must be adopted to prevent potential pollutants from entering the
watercourse. Construction materials and debris, including fuels, oil. and
other 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 it placed on an upland disposal site
(above, the ordinary high—water mark), the cite must be securely diked or
contained by come other acceptable method that prevents the return of
potentially polluting materials to the watercourse by surface runoff or by
leaching, The conrainment area. whether bulkhead or Upland disposal site.
must be fully cmpleted prior to placement or arty dredged material.
4. Upon completion of earthwork operations, all exposed sloper, fills, and
disturbed areas must be given sufficient protection, by appropriate means such
as landscaping, or planting and maintaining vegetative cover. to prevent
subsequent erosion.
5. All fill (including riprap), if authorized under this permit. must consist
of suitable material free from toxic pollutants in other than trace
quantities. In addition. rock or fill material tred for activities dependent
upon this permit and obtained by excsvatiom-must either be obtained fro=
existing quarries or, if a new borrow site is opened up to obtain fill
material, the State Historic Preservation Officer (SRPO) must be notified
prior to use of the new site. Evidence of this consultation with the SFPO
will be forwarded to the S.t. Paul District office.
6. If cultural., a archaeological, or bistcrical iesourcerl are. tneartbcd du=ing
activities authorised by this permit.. work must be stopped immediately and the
State Risroric Fraser -ration Officer must bt contacted for further instruction.
7• An investigation must be made to identify dater intakes or other
activities that may be affected by suspended solidr and turbidity increases
caused by work in the watercourse_ Sufficient notice must be given to the
ovnerr of property where the activities would take place to allow them to
prepare for any changes in rater quality.
8. A contingency plan must be formulated that would be effective in the event
Of a a:pi11. Tbir requirement it particularly applicable in operations
involving the handling of petroleum productr_ If a rpill of arty potential
Pollutant sbould occur. it is the responsibility of the permittee to remove _
much material, to minimize any cont&mination resulting from this spill, and to
immediately notify the State Department of Natural Resourcer and the D.S.
Coast Guard at telephone number 800-424-8802. r
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Appendix D: Potter Commercial Park Plat Map Copy
POTTER'S
COMMERCIAL
PAR-K
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01/10/2005 09:18 7636820262 / WRI WCD PAGE 03
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DEPARTMENT OF THE ARMY
ST. PAUL DISTRICT. CORPS OF ENGINEERS
1SO FIFTH STREET EAST
ST. PAUL. MN 56101-1638
CEPT"F� = D MAIL , - RE Rl�' RECEI P RE UE9TED
R WLY TQ '
A-MIMON QM
Construction -Operations
Regulatory (04-03076-TJF)
Mr. Michael Potter
11650-57th Street NE
Albertville, -Minnesota 55301
Dear Mr. Potter:
It has come to our attention that you, or persons acting for
you,, have discharged. fill material in an unnamed wetland west of
MacKenzie Avenue and south of 60th Street_, in the City'of
Albertville.. The project 'Site is in the NW 1/4 of Sec. '6, T.
120N., R. 23W.,• Wright County, Minnesota.
A review of our files indicates that a Department of the
Army (DA) permit was issued in a9e9 for a proposed fill project
in this general area (file 88-0-252-12). However'this.permit
expired in December 1993,, after it was extended in Januazy 1992.
Any wetland. filling occurring after the permit expired would be
in violation of Section 301 of.the Clean Water Act (CWA).
Records also indicate the wetland filling authorized by that
permit was started, but. not. completed within the required time
frame, and the compensatory mitigation was not performed.
Failure to comply with DA permit conditions, including
requirementa to provide compensatory mitigation, is also a
violation of the CWA. Because it is clear that you had ,prior
knowledge of the Corps permit program and the need to raquest a
permit extension, work performed after the permit -expired appears
flagrant in nature.
Our office was also notified .that you have been ordered to
restore the wetland fill area pursuant to a restoration order
through the•WCA. Because you have not done the restoration, nor
submitted a complete wetland replacement plan, we understand a.
formal complaint was recently filed in State District Court;
The Wetland Conservation Act of'1991 has goals similar to the
CWA. After, evaluating the information gathered, we have decided
that enforcement action, including but not limited to
administrative or civil penalties, and inJunctive'relief such as
restoration will not be initiated'by the Cons .if you
satisfactorily restore .the .Site as ordered 'by the State.
Please respond in writing as'to your intentions regarding
restoration of the site. If you fail to respond'.within 45 days,
we will re-evaluate our position on the appropriate
administrative or
.civil penalties, including referring'this
matter to the U.S. Environmental Protection Agency.
01/10/2005 09:18 7636820262 WRIGHT SWCD PAGE 04
If you have any questions, contact Timothy J. Fell in our
St, Paul offi.ce .at ,(651) 29.0-5360_.. In .any..correspondence, or.
inquiries, please .ref et. .to. the fi1'e- number .a.hown, above
_ . .Sincerely.
1q'
Robert J. Whiting ,
Chief, Regulatory Branch
Enclosure (s)
Copies furnished:
U. nvi r'o=ental Protection Agency
a.ght County SWCD
City of Albertville
Minnesota BWSR
X1! I
DEPARTMENT OF THE .ARMY
St. Paul District Corps of Engineers
190 Fifth Street East -
St. Paul, Minnesota 55101-1683
MAY 19 2005
REPLY TO
ATTENTION OF
Operations
Regulatory (2004-3 076-TJF)
Mr. Michael Potter
11650 57th Street Northeast
Albertville, Minnesota 55301
Dear Mr. Potter:
This is in reference to the wetland filling that has occurred on your property in the City of
Albertville near the intersection of County Highway 37 and Mackenzie Avenue.
Your wetland consultant, Mr. Aaron Brewer, has provided our office with a wetland
delineation report and a discussion of the fill activities that have taken place on the site since you
were granted a Corps of Engineers permit (file number 88-252-12) in 1989. This permit was
extended until December 31, 1993.
You have stated that much of the wetland filling occurred either during the time the
Corps permit was valid, or was placed in an area between a berm and the upland on the north
portion of your site. You indicated that the Corps advised you that it was acceptable to continue
filling wetland between the berm and the upland after the permit expired. We can find no
evidence to support this claim. Therefore, we must conclude that the wetland filling done after
December 31, 1993, was in violation of Federal law. Also, no wetland replacement was
conducted to offset any of the area of wetland that was filled.
Based on previous discussions, it was our understanding that the report prepared by GIVE
Consultants, Inc. was to include a formal request to retain the existing wetland fill material, and
to seek approval to complete the project. The report indicates that you do not intend to pursue
the project for approximately 2 years. However, you have indicated a willingness to compensate
for the wetland area filled by purchasing mitigation credits from a mitigation bank.
The Corps will accept the purchase of 74,000 square feet of wetland mitigation bank
credits to compensate for the wetland areas filled. This appears to be the amount of wetland that
was filled both for the berm and the area between the berm and the upland. Within 60 days of
the date of this letter you must provide evidence that these mitigation credits have been
purchased. You also indicated that smaller areas of fill and sidecastino near the outlet at
Mackenzie Avenue would be removed. According to information from Wright County these
areas total about 7,600 square feet. See the attached map. Fill from these areas must be removed
within 60 days. Fill material shall be removed down to the level of the adjacent wetland, so that
Xlv
Printed an AQ Recyded Paper
' fi-3-N
wetland vegetation becomes re-established. Please notify our office after completion of this
restoration, so that Corps staff can verify that restoration has been accomplished.
Although we have accepted this resolution for the past placement of fill material into
wetlands, it should not be construed that a Corps permit will be issued for additional filling in the
future. We will expect you to submit a complete Department of the Army permit application,
with appropriate justification, and a full discussion of a project purpose and need, so that we can
evaluate a request for any additional wetland filling.
If you have any questions regarding this matter, please contact Mr. Tim Fell at (651) 290-
5360. In any correspondence or inquiries, please refer to the file number shown above.
Copy furnished:
Wright County SWCD
fight County Assistant Attorney
BWSR
GME, Inc.
Sincerely,
l�-c��, C • UGI.�%i.,�c�-�
Robert J. Whiting
Chief, Regulatory Branch
xy
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