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5.2. SR 03-14-2011ITEM S.Z. e~ V~~ MEMORANDUM TO: City Council FROM: Rebecca Haug, Environmental Administrator DATE: March 14, 201 I SUBJECT: Lake Orono Water Quality Improvement Committee Update The Lake Orono Water Quality Improvement Committee requested an opportunity to discuss with the City Council some of the items they have been working on. Specifically, they would like to discuss the following items: -Denial of Lake Drawdown permit request -Memorandum of Understanding (MOU) -The Wenck Sedimentation Study Report -Beach posting criteria changes -Plans for the upcoming year, which may include fish stocking. The City Council received a memo in their February 7, 2011 packet indicating the DNR denied the City's request for a drawdown of the lake and the reasons for the denial. MEMORANDUM TO: City Council FROM: Lori Johnson, City Administrator DATE: March 14, 201 I SUBJECT: Lake Orono Water Quality MOU As Rebecca Haug stated in her memo, the Lake Orono Improvement Association (LOIA) is asking the City to enter into a three party Memorandum of Understating (MOU). A copy of the draft MOU from the Lake Orono Water Quality Committee is attached. The City has a vested interest in Lake Orono and has and will continue to work to preserve and improve the lake without a MOU. The Council has been supportive of funding and approving projects for the lake, and the City has been active in working with the LOIA for many years, again without a MOU. The City takes entering into agreement and MOU's seriously and does not typically enter into MOU's with organizations such as the LOIA for ongoing commitments. A MOU is not necessary to the City's continued involvement in preserving and improving the lake. In the event that the Council does want to proceed with entering into a MOU with the LOIA, I requested that City Attorney Peter Beck review the MOA. A memo with his comments on the draft MOU is attached. The draft MOU is vague and broad in defining the City's responsibilities it "shall undertake" under the MOU. The MOU as drafted would require modificarions to more clearly define the City's obligations before being adopted. If the Council chooses to move forward with the MOU, I request that you direct staff to make those modifications and bring the MOU back at a future date for Council approval. N:\Public Bodies\City Council\Lori\2011\I,ake Orono MOU.docx s- Draft -March 3, 2010 Lake Orono Water Quality Committee (LOWQC) MEMORANDUM OF UNDERSTANDING (MOU) Between City of Elk River, Lake Orono Improvement Association and Sherburne County Soil and Water Conservation District This is an agreement between the City of Elk River, the Lake Orono Improvement Association, hereinafter called LOIA and the Sherburne County Soil and Water Conservation District, hereinafter called SWCD. I. PURPOSE & SCOPE The purpose of this MOU is to clearly identify the roles and responsibilities of each party as they relate to improving and protecting water "quality of use" and depth in Lake Orono and to affect the attitudes of the public regarding both. In particular, this MOU is intended to define each partner's role in: • Protecting and/or improving the water quality of Lake Orono • Protecting the water depth of Lake Orono • Improving the habitat of Lake Orono • Promoting environmentally friendly land use and zoning regulations • Controlling invasive species • Reducing duplication of efforts • Increasing awareness of water quality and depth issues and promote Best Management Practices II. BACKGROUND Prior to 1990, LOIA created a Sedimentation Task Force to study the perceived filling in of Lake Orono. They took extensive readings of the lake bottom and created marketing materials to promote their cause. Those readings were subsequently deemed not acceptable by State of Minnesota agencies because the volunteers were untrained. In 1995, Hank Duitsman became the Mayor of Elk River. In February of that year he attended a LOIA Annual Meeting and became aware of the sedimentation problem. After this meeting he assigned a City Staff person, the Building and Zoning Administrator, to the issue and to meet with LOIA. Regular meetings were set up by the City Staff person, and he coordinated efforts with state agencies. A rep from the SWCD also attended those meetings. In 1996 a sedimentation study was completed by an independent consultant, Wenck & Associates, a public hearing was held, and the lake was dredged in 1998. Page 1 of 4 03/10 Draft -March 3, 201 After the lake was dredged, the group decided to continue as there were outstanding water quality issues as evident in the study and a Lake Assessment Program completed by the DNR. Later they changed the name to the Lake Orono Water Quality Task Force and subsequently to Committee as it was evident that the issues were long term. III. RESPONSIBILITIES UNDER THIS MOU The City of Elk River shall undertake the following activities: Y~ Provide staff expertise and time ~ Write, modify and enforce ordinances "~ ; ``• Provide funding support ~(,~ Coordinate, inform, seek advice, permits, funding or labor from other agencies and City departments (e.g. DNR, MPCA, BOWSR, Army Corps of Engineers, Sherburne County, STS, the City of Elk River City Council, Parks and Recreation, Planning and Environmental Departments, Elk River Municipal Utilities) • Promote and adhere to Best Management Practices (e.g. buffer strips, rain gardens, erosion control, stormwater management, silt fencing, sedimentation ponds, cluster developments, etc.) • Notify parties of opportunities and concerns (grants, events, meetings, variances, workshops, etc.) ~ s~„sv • Pursue funding opportunities, writergrants • Refer • Review • Comply ~t \~, ~~ ,~~.~ a c~ 0^.~~:~ • Train • Maintain records --~-~~~ '~-~r~-,~~ • Sponsor • Evaluate `~a~~~,SS ~~ ;~~.~G,,~°S IV. LOIA RESPONSIBILITIES UNDER THIS MOU LOIA shall undertake the following activities: • Write agendas, chair LOWQC meetings, take minutes and post on web • Provide volunteers and equipment for water quality and depth related projects (e.g. pontoons/boats, waders, rakes/cutters, cameras, chemical testing) • Participate in the MPCA Citizen Lake Monitoring Program (SECCHI disk), report data annually to MPCA and share data with other parties • Provide funding support • Promote Best Management Practices (e.g. buffer strips, rain gardens, erosion control, stormwater management, silt fencing, sedimentation ponds, cluster developments, etc.) • Notify parties of opportunities and concerns (grants, events, meetings, variances, workshops, etc.) • Refer • Review • Comply Page 2 of 4 03/10 .. Draft -March 3, 2010 • Maintain records • Sponsor • Evaluate ~/. SWCD RESPONSIBILITIES UNDER THIS MOU The SWCD shall undertake the following activities: • Provide staff expertise and time • Train volunteers in approved methods (i.e. collecting water samples, water quality monitoring, planting buffers, etc.) • Coordinate, inform, seek advice, funding or labor from other agencies (e.g. Elk River Watershed Board, Sherburne County, DNR, MPCA, BOWSR) • Promote Best Management Practices (e.g. buffer strips, rain gardens, erosion control, stormwater management, silt fencing, sedimentation ponds, cluster developments, etc.) • Notify parties of opportunities and concerns (grants, events, meetings, variances, workshops, etc.) • Sponsor watershed-wide activities • Refer • Review • Comply • Maintain records • Evaluate V. IT IS MUTUALLY UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES THAT: VI. FUNDING This MOU does include the reimbursement of funds between the three parties. Reimbursement requirements: Activities must be mutually agreed upon in advance. A receipt is required and must be submitted within the fiscal year. Other activities may be funded in part or whole by the respective parties. Program activities should not supplant existing outreach programs, and where operating in conjunction with existing programs, enhance and supplement them. Page 3 of 4 03/10 .- Draft -March 3, 2010 ` -4 VII. RECORD RETENTION All records must be retained indefinitely. This requirement applies to fiscal records, reports, studies, maps, data, agendas, minutes. VIII. EFFECTIVE DATE AND SIGNATURE This MOU shall be effective upon the signature of the City of Elk River, LOIA and SWCD authorized officials. It shall be in force from the date of signatures until modified or rescinded by all three parties. City of Elk River, LOIA and SWCD indicate agreement with this MOU by their signatures. Signatures and dates City of Elk River Date LOIA Date SWCD Date Page 4 of ~ 03/10 MEMORANDUM TO: Lori Johnson FROM: Peter K. Beck DATE: March 10, 2011 RE: Lake Orono Water Quality Committee Memorandum of Understanding I have reviewed the proposed Lake Orono Water Quality Committee Memorandum of Understanding (MOU) and have a few concerns. First, I am a little unclear as to the purpose of the MOU. Section I of the MOU states that its purpose and scope is to identify the roles and responsibilities of the parties and to define each parties role with respect to the lake. However, the MOU goes on to identify virtually the same responsibilities for each of the three parties. My main concern is what, if any, responsibilities and obligations the MOU would impose on the city beyond the city's current responsibilities and obligations pursuant to law. It is unclear from the MOU whether it is intended to merely identify the city's existing responsibilities and obligations, or to impose additional responsibilities and obligations on the city. My concern is that the city not commit to undertake responsibilities, and incur costs, beyond those to which it is currently obligated pursuant to state law and city ordinance, without knowingly doing so. Second, I am concerned that the responsibilities identified in Section III of the MOU for the city are quite vague and could be interpreted as imposing significant obligations and costs on the city. For instance: o The undertaking to "provide staff expertise and time" has no limits on how much time and no explanation as to what staff expertise. I am concerned that this language could be interpreted as an obligation on the part of the city to staff an entire position to the Lake Orono Committee. o The undertaking to "write, modify and enforce ordinances" similarly provides no guidance as to the purpose or scope of such ordinances. o The undertaking to "provide funding support" is perhaps of the most concern because it does not establish any guidelines or limits on the amount of such funding support. o Finally, the last 7 undertakings of the city consist of one or two words. I am very concerned about the city entering into an agreement that does not specifically define the responsibilities that the city is undertaking. The second section V of the MOU is apparently intended to address modification and termination of the agreement. This section needs to be completed. Typically, an agreement such as this would provide that it can only be modified by written agreement of all the parties. With respect to termination, my suggestion is that the MOU provide for termination by any party (in other words, not require agreement of the parties) upon written notice. Section VI of the MOU on funding is vague with respect to the funding obligations of the three parties. The statement that "this MOU does include the reimbursement of funds between the three parties" is of concern. This language could be interpreted as requiring the city to provide funds to one of the other parties. Section VII of the MOU regarding record retention must be amended to incorporate the city's record retention policies. My suggestion is that the city initially determine whether it intends to undertake responsibilities and obligations, and devote resources and funds, beyond what its current obligations are. If not, then there is no need to enter into an agreement. If the city does decide to commit to more than its current obligations, then an agreement setting forth that commitment should clearly define what responsibilities and obligations the city is undertaking, and in particular what costs the city is committing to. Another option would be for the city to agree to participate in the Lake Orono Water Quality Committee including, perhaps, a commitment to staff participation in monthly meetings of the committee, but clearly reserve the right of the city council to make decisions in the future as to: o any commitment of staff time and resources beyond participation in monthly meetings; o any commitment with respect to the preparation and consideration of an ordinance or ordinances related to the Lake Orono. No commitment can be made in a contract to adopt an ordinance; o any commitment with respect to funding requests. We have learned recently that contracts the city enters into can be misinterpreted and used as a weapon against the city. The lesson from that experience is to be very careful in drafting and entering into contracts so that we clearly identify the intent of the contract, the responsibilities the city is undertaking and those that it is not committing to. I will be happy to work with the council and staff to develop a more narrowly tailored agreement with respect to Lake Orono. However, I believe that there should be some initial policy decisions made by the city council with respect to whether or not the council intends to go beyond its current statutory obligations with respect to Lake Orono and, if so, what exactly the city will commit to beyond its current obligations and responsibilities. Let me know if you have any further questions. GP:2942266 vl Lake Orono Improvement ~-ssociation ~N C:. Lake Orono 2011 Plan City of Elk River Update March 2011 ''201 1 Keep Lake Orono a Valuable Economic and Environmental Resource - take Urono improvement Hssociation, inc. Lake Opportunities Impaired Water Quality - The most public of issues; Fecal Coliform & Phosphorus are the main offenders - Working to identify largest contributors - Proposing revised test result parameters for Beach area closings later in this presentation • Adopt a revised threshold for Beach postings based on MN Dept of Health and CDC recommendations Invasive Aquatic Vegetation Issue (Curly Leaf Pondweed) - Application to DNR for a Permit to draw down the Lake was ultimately denied - Continuing manual removal activities Dredging Strategy - 12 years have passed since the Dredging - An analysis was completed by Wenck to ascertain the current sedimentation status and determine best path forward - Summary Findings: The Lake is filling in with sediment roughly as predicted in 1998 - The Lake Orono Water Quality Committee will evaluate the Wenck recommended action plan in the spring of 2011 Lake Studies - TMDL (Total Maximum Daily Loads) - a calculation of the maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards - Major Watershed Restoration and Protection Project Initiative Lake Testing - Water Depth - Chemical Testing - SECCHI disk water clarity (MPCA Citizen Lake Monitoring Program [CLMP]) .r.rWCVxk ~_-. 2 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved Lake Opportunities • Conservation Activities - Fish Stocking Planed for 2011 • Lake Management Plan - Addresses long term lake viability - A comprehensive plan that includes: • Impaired Water Quality • Invasive Aquatic Vegetation Control • Waterway Navigation Preservation • Erosion Control • COnServatlOn - Describes the Partnerships between the City, County, State & Community - Seeking grant funds to update this living document • Business Continuity of the Lake Orono Water Quality Committee - The Lake Orono Water Quality Committee (LOWQC) is made up of representatives from the City of Elk River, Sherburne Soil and Water Conservation District and the Lake Orono Improvement Association members - The Lake Orono Improvement Association has put forth a Memorandum of Understanding (MoU) that more formally defines this group along with the roles and responsibilities of the participating organizations - The LOWQC activities represent a "Best Practice" Lake Management model - The MoU is designed to preserve this model on a long term basis to ensure continuity across our respective Administration cycles Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved I. ~cr: )1 ~~ u:n~rr yr P_w ,.,, Lake Orono LO(,UQC G~kr urnrm taafrr ~ualfty tnmmitt~r 3 About the Lake Orono Water Quality Committee (LOWQC) Lake Orono Improvement Association ., • The LOWQC was established in 1995 to address lake depth issues that eventually lead to a Lake Dredging solution in 1998 • Comprised of members from the City of Elk River Environmental Staff, the Sherburne County Soil and Water Conservation District and the Lake Orono Improvement Association • LOWQC continues to engage on the environmental and recreational concerns of Lake Orono and the inflowing Elk River. Specific activities include: - Perform water quality and clarity testing on the lake and submit to MPCA - Survey Curly leaf pondweed (CLP), coordinate with the Sherburne County Jail `Sentence To Serve' crew and LOIA volunteers to help with manual CLP removal in public areas - Serve as liaison between DNR Fisheries, City of Elk River and LOIA regarding fish stocking - Identify and work issues that adversely affect the lake (i.e., sedimentation, lack of habitat, goose population, invasive species, erosion, etc ) - Call in advisors such as the DNR, the Board of Soil and Water Resources, MPCA and others to discuss issues and establish a plan for resolution LO(~UC,~C (akc orona ruatcr goal ty cvmmrftec Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved 4 Lake Orono 2010 Plan Review . ... LOIA, Elk River A Permit Community, City of Elk Application to the River, Sherburne LOIA, City of Elk River, DNR was denied. Curly Leaf Pond SWCD, DNR, Elk River DNR, Elk River Mechanical Weed Control Oct 2010 Utilities, S2S Labor Utilities,S2S removal continues Deferred in 2010 due to planned lake Fish Stocking draw down n/a n/a n/a LOIA, City of Elk River, Labor and Lab LOIA, City of Elk River, Water Testing On Going Sherburne SWCD Costs Sherburne SWCD SWCD: $1,500 Labor & Equip LOIA: $500 Labor & Equip LOIA, City of Elk River, City: $2,000 LOIA $900 Cost Share: Sherburne SWCD, : LOIA, City of Elk River and Dredging Study Summer 2010 Wenck Total =$5,000 Sherburne SWCD 5 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved Lake Orono 2011 Plan ... SWCD has provided a Lake Orono Water preliminary indication of Quality Committee Labor Share: acceptance (LOWQC). Consists Lake Orono Water Quality MoU Submitted to the of LOIA, City of Elk Committee (LOWQC) LOIA, City City of Elk River review LOWQC Business River and Sherburne of Elk River and Sherburne and decision to Continuity Planning Spring 2011 SWCD Labor SWCD approve Cost Share LOIA, City of Elk $1,000 City of Elk River Fish Stocking 2011 River $2,000 $1,000 LOIA Planned LOIA, City of Elk Labor Share: Summer River, Sherburne Labor and LOIA, City of Elk River, Sherburne Water Testing Months 2011 SWCD Lab Costs SWCD Planned Labor Share: Lake Orono Water Quality Dredging Study Results LOIA, City of Elk Committee (LOWQC) LOIA, City - Recommend Path River, Sherburne of Elk River and Sherburne Forward Spring 2011 SWCD Labor SWCD In Progress Labor Share: Lake Orono Water Quality LOIA, City of Elk Committee (LOWQC) LOIA, City Will submit for City of Elk Revise criteria for River, Sherburne Labor of Elk River and Sherburne River City Council Beach area postings Spring 2011 SWCD SWCD Approval Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved LOWQC Beach Posting Recommendations Lake Orono Improvement Association ~~~ Lake Orono Beach Posting Concerns Lake Orono has a reputation in the community as being a "dirty" lake. This perception is perpetuated by very restrictive posting criteria The MN Department of Health has a much less constrained recommendation posted on their website LOWQC made contact with Colleen Paulus, Manager of Environmental Health Services Minnesota Department of Health MN Dept. of Health recommendations were established through a joint committee of the MN Dept. of Health, MN Pollution Control, and the CDC The recommendations are as follows: "Although coliform bacteria themselves are not usually harmful, these bacteria can be associated with other disease causing bacteria or parasites. In order to maintain healthy swimming beaches, the State of Minnesota established the following recommendations: 1. The average of five swimming beach samples in a 30-day period should not exceed a count of more than 200 fecal coliform bacteria cells per 100 mL of water. 2. No one sample should have a fecal coliform count greater than 1,000 bacteria colonies per 100 mL of water. If a sample exceeds 1,000 bacteria colonies per 100 mL, consideration should be given to closing the swimming beach." 3. httpJ/www_health.state.mn.us/divs/eh/beaches/howsafe.html It is the recommendation of the LOWQC that we adjust the Lake Orono Beach posting criteria to align with the MN Dept. of Health recommendations 200 on one day Average 200 over 30 days or 1,000+ on one day 7 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved Summary of Requests to the City of Elk River .. Memorandum of Understanding MoU Submitted to the City of Elk River review in 2010 Need City decision to accept or decline Note: A Decline decision would not impact current LOWOC activities. (Detail on chart 3) Spring 2011 City of Elk River Labor N/A Cost Share: $1,000 from the City of Elk River Fish Stocking -Requesting $1,000 from LOIA, City of Elk (currently in the City Budget) the City of Elk River 2011 River $1,000 LOIA will also contribute $1,000 Adopt Beach Posting Criteria to be consistent with MN Dept of Heath and CDC Guidelines (Detail on chart 7) Spring 2011 City of Elk River $0 N/A Keep Lake Orono a Valuable Economic and Environmental Resource 8 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved L1ake Orono Improvement Association ~ N (.. Back up Charts Lake Orono 2011 Plan "'I</YEAR 40t" Year Celebration -Evening of Wed, June 8 -Lake Orono Park Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved 9 Lake Orono Ma ~o~-~~~ p La k~. o Improvement Association ,.,~ ~o~ N \., ~,~ 1. -- flC6NU '.pYy r/ Kd'.Tr Il yyw•r M' (~ . u n.. ~ . ~+ I _W ... .,. ~,~ Y ..... nw.v I r... .• ~ I ~~' - W ~~4 gJWMrd,nw 1~I wP `• ~i a:wsaw •iv~ ..a ...n.... r, r:~• as bt+a yM.n'wCV W' ~+0'f~ W ,. aJYA,: ORON~ LAKE ht ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved Y •OR ~. of+ , v.v.e w .. i u. ~y P ~ '' "_ _ 4 Y(N 10 Lake Orono Water Quality Committee Calendar A.7JV~. ^fib^ V ^ ^ ~0~~ ! N C `~""'"'"'"'"''°"'""""""`"" 2011 Calendar of Action ttems Jsnuarv (meeting 1-6-111 I. SelyearlyealendaroteventsatmeePing 11. Verify lake depthtestingwitlbecompletedbYCitystaff(8pointsyearty) III. Tree remove( from river FeWuarv I. None Much (meeting 3-2-111 I. DeterminewhatwillbediscussedetLOlAAnnualDinner j 11. LOIAAnnual Dinner 111. Apply forDNRpermittoremovesquaticvegetation Agrd (meeting 4-6-11) I. Review springcalerWarofevmtsandadJustesneeded Mav (meeting 5-4-111 L Diseusiwho.what.vvhenandvrheretestingwillbedoneatmeeting • Volunteer Secehi disk testing-May through October (yeary) • Note: Chemical tesfing (ctfbrophylEA, total Phosphorus. reachtest) schedulcdto be conducted every Year I. Evaluate goose population II. Distributelnformationabouicurlyleatpondwetd.stormwater.fertilizes,etato j residents (email. The CurrerY. artidesin paper) III. ConductelargeenimalunitloationsurveyontheElkRiver IV. Begm fecal colifarm testing by City steft(aRcr Memorial Day) V. Fishstocking(asneededandtwdgetavailsble) VI. Surveylakeforwrlyleatpondweed(IastweekotMay) June. July, b August Imeetinga 6-1-11.7-6-11.8-3-111 II I In sped for curly leaf pondweed II. Re-inspectforcurty leafpondweedandpullthewee~ III. Continue testing IV. Trap for geese. if applicade(July) ~ V. Discuss curlyleatstatu5:presentpetitiOntoCityCoundltordrawdawn(itneeded) (August) VI. ApplytorCleanWaterLegacyFundstorTMDL(August) VII. Start budgetplannirg(August) • Laketestingchemicals(totalPhosptwrusandchkxoptryl-A)andtabanalysis • Drswdown dam rNated expenses September fineeting 9-7-111 I. Discuss thetests from the summer as well as depth tests II. Public hearing for drawdown. City Coanca approval and presentto DNR (dneeded} III. Flsh stockrrq October (meeting 10-5-111 I. Finalize budgettornextyear II. Lskedrawdown(itneeded} November I. None December f None 11 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved About the Lake Orono Improvement Association Lake Orono Im rovement Association ~, The Lake Orono Improvement Association, Inc. (LOIA), anon-profit organization, was formed in 1971 in response to water quality and lake management issues. LOIA remains actively engaged on the environmental and recreational concerns of Lake Orono and the inflowing Elk River. Members of the Lake Association enjoy four main events throughout the year. The Annual Dinner and Meeting in March, when most the Official Association business is conducted, a Smelt Fry in mid May, a Progressive Dinner in late July and the Luau on the Lake in September. These events facilitate the gathering and friendship of our lake neighbors and help keep us informed of the latest environmental lake efforts. Website: http://www.lakeorono.org/index.html E-mail Address: inf~lakeorono.org J~~~~ "11lYEAR 40th Year Celebration -Evening of Wed, June 8 -Lake Orono Park 12 Copyright ©2011 -Lake Orono Improvement Association, Inc. All Rights Reserved