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2006-03-08 Wright County Attorney Analysis of Potter SituationJNTY c,Ot OFFICE OF o �z WRIGHT COUNTY ATTORNEY o Thomas N. Kelly 4 O Zj dY Wright County Government Center 7e5$ 10 2nd Street NW Assistants Buffalo, Minnesota 55313-1189 Anne L. Mohaupt Thomas C. Zins Terry D. Frazier Phone: (763) 682-7340 Scott M. Sandberg Toll Free: 1-800-362-3667 Fax: (763) 682-7700 Mark A. Erickson Elizabeth M. Larson Brian A. Lutes Aaron D. Duis Lee R. Mamie 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 BWSR Decision of January 25, 2006 Dear Mike: MAR I ti Pon; Brian J. Asleson Chief Deputy Attorney Victim/Witness Assistance Coordinator Jenny Paripovich Investigator Brian Johnson Legal Assistant Michelle Sandquist Office Manager Cindy Hohl 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: 11 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 1.989 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 8. I 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 Iq / 1 GLC.!'1 Yn -Q, Al_� _..L Minns to WB ateerr&Soi! 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 Couri, 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 cornpleted. Approval of the exemption request means wetland impacts allowed under the Bemfr j'i Brainard Dukif./r Fcryr.rs Fc7lls Mar414711 Ncu, Lllnr Pachester 5a7mt Fair/ 3217 Bemidji Avenue N. 211 S. 7th Street 394 S Lake Avenue 1004 Frontier Drive 1400 E. Lyon Street 261 Highnai 15 S. 2300 Silver Creek 521) Lafayette Road N. Bemidji, MN 56601 (218) 755-4235 Suite 202 Brainerd, Room 403 Fergus Falls, N1N 56537 Box 267 New Ltlm, MN56073 Road N�IAr Saint Pani. MN 55155 phone MN56401 Duluth. AKIN 55802 phone (-18) 736 544.5 Marshall, ib7N 56258 plione (507) 35()-6074 Rochester, A N )62 6511296-3767 fax (218) 755-4201 phone (218) 826-2383 phmie (218) 723-4752 fax (218) 736-7215 phone (507) 537-0060 fas (507) 359-6018 _ 00 phone (W) 280-2874 [a 975615 fax (218) 828-6036 fax (218) r'2 -4794 fax (5071 537-6368 fax (507) 2M-7144 Web: www.bwsr.slate.mn.us TTY: i800) 627-3529 An enual nonorhrnity emnlovar a Printpd nn rpevc p nanpr A-1-2- 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, , 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 Harnack, Steve Woods, David Weirens, Dan Girolamo, Tom Mings, Lynda Peterson, Brad Wozney R -2 -- 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: JanuaryZ 2006 Board of Water and Soil Resources Its Chair A , I - 6 --- 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 infornation was missing from the application. Potter subsequently supplied the missing information. The infoi-ination 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 determinations 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 timing 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, stornl 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 snake 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 permit 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: #I544067-v1 1pqa�1&4, a �,, -el / -t 2- DEPARTMENT OF THE ARMY PERMIT Permittee_ Micha 1 Potter Permit No. 88-252-12 St. Paul District Issuing Office Corps of En--ineers 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 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 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 B6 EDITION OF SEP 82 IS OBSOLETE. (33 CFR 325 (Appendix A)J I ! j -2-2 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 bQen 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: �}—Section 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). ___7'7--S-ection 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. n 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 'bistructures 'caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. I � • 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 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 art for the ,Secretary of the Army, has signed below, (DISTRICT ENGINEER) (DA T E) 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 O sU S GOVERNMENT PRINTiNC, ncFu-c- 1PAr — 717425 N usl I,u •r�✓� uL)Y,f/ I ' I • - 5(o(y. 68 -- 7 •ILA _-- � --4) EZ.o4--€rf .4 iiu xlug4 0� i I+a �Su'J4^ f S i z .-arn ax-no r nx� i•-^a'j P••n 1 San Q; J''lP ]^•'Y 4••rn]•• c •eN rn �n :•nw [2 • ] �i•c �n nn^ +.c: n s ] P o r 0- ua ^] Gn•� n•^Y •—• 0 J ,j ^ �� p n T n ^ . • n 1 ^� .� " n� •oo an Y ^nr w p wo ^°nL z]con w E i�3 e��or ^r7ar.•n° a •n]^n nco • x^a- _ ten'• za] orn°°:M 77. • S n • — Z ^ •car n n •. • ran.. • ... .......--._. _. _ ......_ .. ........ ._ _ _. _..- 9� - -•-------•• �- a�••c•�+ •uu �NEcial ConaiClons. this . folloti•ing standard conditions, at applicable; permit it subject to the 1. +kll work or discharges to a watercourse resulting 'from permitted construction activities, particularly hydraulic dredging, must beet applicable Federal. Scare, and local water quality and effluent standards on a continuing basis. 2. Heasures must be adopted to prevent potential pollutants from entering the watercourse. Construction materials and debris, including fuels, oil. and other liquid. cubs tances,, will not: be stored in the construction area in a manner that would allow them to enter .the watercourse as s a reult of spillage, natural runoff, oflooding. r 3. If dredged or excavated material is placed on an upland disposal site (above rbe ordinary bigh—water mark), the site 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 leacb'ng. 'be containment area. whether bulkhead or upland disposal site. must be fully completed prior to placement or any dredged material. 4. Upon completion of tartbwork operations, all expoced slopes, fills, and disturbed areas mutt be given sufficient ptotection. by appropriate means such as landscaping, or planting and maintaining vegetative cover, to prevent subsequ,ent erosion. 5. All fill (including riprap). if authorised under this permit. must consist Of suitable material free from toxic pollutants in other than trace quantities. In addition, rock or fill material used for activities dependent upon thir. permit and obtained by excavation -must either be obtained from existing quarries or. if a new borrow rite is opened up to obtain fill material. the State Historic Preservation Officer (SHPO) must be notified ce_ prior to use of the new site. Evidence of this consultation with the SP.PO wi11 be forwarded to the S,t. Paul District office. .6. If salt-araZ. archaeological, or bistcrical resources% are nneartbed d=ing activities autborised bj this permit. work must be stopped immediately and the State Historic Fraser -ration Officer must bi contacted for fur Cher instruction. 7. An investigation nuct be made to identify rater intakes or other activities that may be affected by suspended colidr and turbidity increases caused by work in the watercourse. Sufficient notice must be given to the ovnerc of property where the activities would take place to allow them to prepare for any cbangec in water quality.' B. A contingency plan must be formulated that would be effective in the event of a spill. 'Ibis requirement is particularly applicable in operations involving the handling of petroleum products.- If a spill of any potential Pollutant should occur, it is the responsibility of the permittee to remove such material, to minimize any conta.aination resulting from this spill, and to immediately notify the State Department of Natural itesourcer and the D.S. Coast Guard at telephone number 800-4Z4-8802. Appendix D: Potter Commercial Park Plat Map Copy R � no POTTER'S COMMERCIAL PARK ,ro' t ... •, su. J, S89•IS.59�E " r .rr•r.r _-- 495.24- -UUUUJ4,f- •'• ' '+ l o C. S. A. H. /•/ - R Na 37 0 ` 160tk Si7eet/ye.I i 200. 00 796. 23 g D 'ro. 00 T— W , O �o ti h rl 3 h I N B9'!1.39 w� - 1 b 2 a •' L zno.00 I I _. J �.. _ _ _ 304.80 = 1 I y3 S88'34'/6NE I n O" a - --275.0 mr�...-_T .00-- _' '••. J04.BO N891/5*59 w 0 h o - -.�_ 4 rq r �A•.:•.f• L.Iw•...r \ y��ti��, ado OUTL OT Aco // y j Ste_ 27T. 0p �. \ N89'JdJB-E Sr o • �� I l i I e Do o T !,\ / ,•'� see o ti `O c NI 00* -\ -- zr7co r l-T84.2/- -- � S e9'.50'S8'ey r ,•• ,.+ r .r rw. r• 0 >Q 100 TOO 000 �TOII.INIc SC.L[ N r[[T 0 4-- MEYER - POHLIN, INC EhVIWEERS-UNO SURVEYOAS DN.YI.cE .w0 YTILITI e,it.r Nil .AC SNONN TnVSI 10 —Ip a .c— IO,ccT r. .rol N, uw.ES. OTn[11wIyC I 01c.TC 0, .w0 .DJOr NiNC LOT UICS. .wO t0 re(T .. .IOTN w.ND SOJOINIwp ST.EE♦ LINES NwD IL.} Bo..o.Al .S SNO.N ow 1NC IL NT, iv 01/10/2005 09:18 7636820262a / .WRIJWCD � PAGE 03 C/h DEPARTMENT OF THE ARMY ST. PAUL DISTRICT; COR➢S OF FJYGINEERS 1. P FIFTH STREET EAST C'ERT"F STAUL, MN 5619-Rut.y7o01-7638 MAIL ECEIPT UESTED A' rtZMin V 0F1 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 bath Street__ , in the City 'of Albertville.. The project site is in the NW ;/4 of Sec. '5 120N., R. 23W.,•Wright County, Minnesota. , T. A review of our files indicates that a Department of the Army (DA) permit was issued in 1989 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 January 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 fillizag authcrized 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 requirements to provide compensa violation of the Ctory mitigation, is also a knowledge o the Corps Because it is' clear that you had prior permit program and the need to request a permit extension, work performed after the per flagrant in nature. mit expa.red appears 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 rastorati on, .nor submitted a complete wetland replacement plan, we understand a. formal -complaint was recently filed in state District Court; The Wetland Conser­ration Act of•1991 has goals similar to the CWA• After.evaluating the informa that enforcement action, tion gathered, we have decided Including but not limited to administrativeor civil penalties, and injunctive relief such as restoration will not be initiated by the Corps .if you . satisfactorily. restore .Lhe.site as ordered 'by the State. lease in wri restoration ofSthedsite. t'ngoug to Your intentions- regarding If we will re-evaluate our position on1the oa pzopriate respond' -within 45 days, administrative or.civil penalties, includ_rngoreterrYng'this matter to the U.S. Environmezltal Protection Agency. - xli 01/10/2005 09:18 7636820262 WRIGHT SWCD PAGE 04 If you have any questIOns, contact Timothy J. Fell in our St, Paul of fi.ce At .(651) 2 9 b -53 60 . . In .any.. correspondence. or inquiries, please .xefez..to, the fil,'e- hUmber.ahown ab.ov - •- -.�� :Sincerely,. ..: Robert J. whitizig Chief, Requl.atory RrAn-1., X1Ii DEPARTMENT OF THE ARMY St. Paul District coips of Engineers 190 Fifth Street East St. Paul, Minnesota 55101-1683 MAY 19 2005 REPLY TO ATTENTION OF Operations Regulatory (2004-3076-TJF) Mr. Michael Potter 11650 57`t' 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 Entn gineers 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 GME 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 sidecasting 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 X!V Printed cn Recycled Paper -2- lq-3 ^ (� 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 S WCD County Assistant Attorney BWSR GME, Inc. Sincerely, Robert J. Whiting Chief, Regulatory Branch xy mob,