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Because when the applicant is the Winona Port Authority and the agency reviewing applications is the city of Winona, and the project involved is the high-profile, taxpayer supported filling and building at Riverbend Retail Park, state wetland law might be compromised.
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Equipment stands silent this weekend at the Riverbend Retail Park construction site at the corner of Mankato and Frontenac Streets in Winona. Due to an alleged conflict of interest, the state has issued an audit saying that the city of Winona's Community Development department has until Tuesday to submit a plan showing it can effectively administer state wetland law or say it is turning its authority over to Winona County.
Jenny Butler/WDN |
That is what the state has alleged in an audit of city files. The city of Winona's Community Development department has until Tuesday to submit a plan showing it can effectively administer state wetland law or say it is turning its authority over to Winona County.
The two choices were mandated by the Minnesota Board of Water and Soil Resources in an Oct. 17 letter to the city, saying it mishandled wetland filling permits and exemptions under the state's Wetland Conservation Act of 1991.
Mark Moeller, City Planner, said the city will respond in writing by the deadline. The city does not agree with all the criticisms in the state's letter, he said, but he did not say what those disagreements are.
"We feel, of course, that we worked through the processes and have done things right," Moeller said. "There is a difference of opinion there."
Moeller said the city "concurs with the purpose" of the Act.
"As far as we're concerned we tried to follow it but apparently there are some things there that they have concerns with and we'll just try to work through it," he said.
The state recommends the city relinquish its permitting control to the county. Eric Johnson, Winona County Interim Planning Director, could not say if the county is equipped to handle oversight of wetland laws within the city of Winona, or if it is willing to do so. County administration and the Board of Commissioners would have to weigh in, Johnson said.
"Being in the budget situation that we are in, with program and service cuts right across the board, I don't know what their position or what their view will be, too," he said.
The state's letter originally was drafted by Lenore Marken, who since has left the state board. Marken investigated wetlands damaged from two mud spills in the fall of 2001 on Winona's east side as the Winona Port Authority's contractor, J.F. Brennan Co., dumped sediment dredged from Lake Winona into Riverbend Industrial Park, now called Riverbend Retail Park.
Last year, the city was issued a wetland restoration order by the Minnesota Board of Water and Soil Resources, and was fined $40,000 by the Minnesota Pollution Control Agency for its failure to contain dredged sediment.
These problems, and "inadequate and premature review and approval of the Menards Development," prompted the January audit of city files, said Mary Kells, Board Conservationist. It was Kells who signed the letter, which said the city:
Failed to follow Wetland Conservation Act procedures when it approved exemptions for filling 96 acres of wetlands in Riverbend and 12 acres of wetland on Menards property, with sediment dredged from East Lake Winona.
Failed to include and address findings and recommendations from a technical evaluation panel when it approved Menards' wetland replacement plan.
Failed to provide public notice of a 30-day appeal period following approval of wetland permit decisions.
Lacked staff with knowledge and training to administer the Wetland Conservation Act. Mark Moeller failed to attend a training session last fall on updates to the Wetland Conservation Act. Moeller said he attended training sessions, but not all sessions. "It's not that I haven't attended sessions. I've certainly done that. New rules come out and I have attended sessions on that," he said.
But Kells said no one from the city attended training in October 2002. If a local government lacks training or knowledge to administer the law, it must allow more rigorous review by a Technical Evaluation Panel, she said.
Harbored a conflict of interest as it oversaw compliance with wetland law and sought exemptions from it while developing Riverbend.
Judy Bodway — the city's Director of Economic Development and the Winona Port Authority's Assistant Executive Secretary — represented the city as it oversaw wetland law, and represented the Port Authority as the applicant for wetland permits and exemptions.
"I am not going to comment on the letter other than to say that we are reviewing it and preparing an appropriate response," Bodway said on Oct. 31.
Bodway represented the city when the state investigated wetland violations regarding the mud spills, and Bodway managed the development and the applicant doing the wetland filling — the Winona Port Authority.
"After the Riverbend violations and so forth, Judy was involved with the resolution of the cease and desist order and the restoration order," Kells said. "And so it got to be confusing on who was actually managing (the Wetland Conservation Act)."
A handbook explaining the act says: "In making Wetland Conservation Act determinations, local government units should be aware of potential conflicts of interest. For example, when the applicant for a replacement plan or other determination is the local government unit itself, the local government unit should make special efforts to be sure that the requirements of Wetland Conservation Act are complied with and that the record provides support for the local government unit's determination."
That record, according to the state, does not support compliance.
After unsnarling disagreements with the state last year, the city of Winona issued the Winona Port Authority an exemption to fill 96 acres in Riverbend. The Wetland Conservation Act allows exemptions to wetland permits when it is determined that planning for filling of wetlands began prior to approval of the Act — a grandfather clause.
In a February 2002 meeting, the city council addressed a request by the Minnesota Board of Soil and Water Resources and the Winona County Soil and Water Conservation District to provide documentation supporting the city's assertion that filling 96 acres of wetlands in Riverbend was exempt from the Wetland Conservation Act.
The city council approved a report by its environmental consultant, Jeff Broberg, saying this provided the needed documentation. The Port Authority filled 96 acres of wetlands in Riverbend using sediment from Lake Winona. The former wooded swamp and wetland complex now supports a Menards store and is Wal-Mart's hoped-for future site of a jumbo-sized retail store.
The city issued a permit to Menards to fill 12.55 acres of wetlands for its home improvement store. This permit required protecting twice as many wetland acres at a site in Wabasha County. The permit also included wetland acres filled on property owned by Ernie Gorman and Tom Thompson along Mankato Avenue, Kells said.
The city must apply a sequence of steps before issuing a permit. It must consider how the wetland can be avoided. If avoidance is impossible, wetland impacts should be minimized, the Act says. This includes protecting wetland acres elsewhere as compensation.
In applying this sequencing, the city told the state there was no other land available for Menards in Winona, Kells said. A wetland replacement plan was submitted by Menards, but the store and lot later were shifted to include land sold to Menards by the Port Authority, land not included in the original wetland filling permit, Kells said.
This came after the Port Authority said it wasn't going to sell any more land to Menards, Kells said.
Since the January audit, the city complied with state law when it permitted a 0.9-acre wetland to be filled by the Walgreens project in Riverbend, Kells said. A plateau of sand now stands at the site. The lost habitat will be compensated by the developer, GNI Development Co. of Rockford, Ill., by purchasing wetland acres in Houston County.
The Wetland Conservation Act was fully implemented in 1994. To administer it locally, the state handed authority to local units of government.
Outside the Twin Cities metro area, counties took over authority to provide what Kells called "seamless coverage" within each county. Also in 1993, cities were asked to pass a resolution allowing county delegation, or to do it themselves.
The city of Winona chose to do it themselves, overseeing the filling, draining or excavation of wetlands within the city. Yet, Moeller characterized the city's burden of handling of state wetland permits as "an unfunded mandate."
"The city's taken it on and somebody has to take it on for the city and it's another part of the workload," he said. "In a perfect world, sure, we would have a person that deals with this stuff."
The city was, and is not, mandated to handle permitting. And counties are best equipped to do so. Winona County will get more than $13,800 of state matching funds in 2004, Kells said. It's up to the county if it wants to disperse funds to cities for policing wetland law, she said.
The county has more employees than does the city of Winona devoted to environmental regulations and land use. The county environmental services department alone handles health issues, hazardous waste, recycling and solid waste. The county also has an officer that oversees environmental impacts from feedlots and a water planner overseeing water quality issues.
The county has been contracted by the city of Winona to inspect septic systems within the city and enforce state rules regarding septic systems.
It is not clear if the county would have to accept authority if the city hands it to them, Kells said. But somebody better accept authority, she said, because if it's left unresolved, the state could install a temporary ban on all wetland filling projects, she said.
In the Twin Cities metropolitan area there are about 200 local units of government overseeing adherence to the Wetland Conservation Act, Kells said.
In most of the rest of the state, counties are the designated local units of government, on all land within the boundaries of the counties, including cities, Kells said.
"That has helped a lot because it simplifies things and it reduces the amount of staff time that is required, not only from the (counties') point of view but also from the state participation in it," Kells said.
Wetland oversight in Houston County is done by the county. Within Wabasha and Fillmore counties, Soil and Water Conservation District offices oversee compliance.
In the higher-populated regions of Olmsted County, the cities of Byron, Rochester, Eyota and Stewartville administer state wetland permits. For the rest of Olmsted County, the Soil and Water Conservation District office handles permits.
Multiple authorities within a county can place more work on technical evaluation panels, groups of land use professionals within a county that advise permitting and verify compliance, Kells said.
"The more local government units (overseeing wetland law) you have within a county, the more laborious, time consuming it is for these technical evaluation panels to be able to respond to the local government units . . . ," Kells said.
Most government units are working with less money, as state budget cuts create local shortages, Kells said.
"We're finding that it's tough for small cities that don't have staff, or even mid-sized cities that don't have enough staff, to take on that workload," Kells said.
But Moeller said the workload isn't the reason problems occurred with the city.
"I'm usually pretty fussy about things in particular and I guess that if there was a step missed, I'm not sure where it was," Moeller said.
Outside the city of Winona, Winona County is the designated authority for implementing the Wetland Conservation Act, including within cities like St. Charles, Goodview and Lewiston.
Winona County's Johnson said the workload within its boundaries is increasing because of increasing development pressure.
"The lands that are being developed, there is more attention brought to those issues, and it's getting into those (lands) that are probably more sensitive," he said.
Contact reporter Jeff Dankert at (507) 453-3513, or jdankert@winonadailynews.com.
