Loading...
5.2. SR 09-08-1997~ay of iver MEMORANDUM ITEM 5.2. TO: MAYOR AND CITY COUNCIL FROM: STEPHEN ROHLF, BUILDING AND ZONING ADMINISTRATOR DATE: SEPTEMBER 8, 1997 SUBJECT: ENVIRONMENTAL ASSESSMENT WORKSHEET (EAW) FOR EAST ELK RIVER URBAN SERVICE AREA An EAW is described by state statute as a "brief document which is designed to set out the basic facts necessary to determine whether an Environmental Impact Statement (EIS) is required for the proposed action". The purpose of an EAW is to disclose information about potential impacts of the project to determine whether a project has the potential for significant environmental effects and an EIS is needed. This information comes from three sources: (1) the EAW itself; (2) comments received on the EAW; and (3) responses made to the comments received. The Responsible Governmental Unit (RGU) determines, after reviewing the three sources of information, whether a project has the potential for significant environmental effects and whether an EIS shall be required for the proposed project. For the East Elk River Urban Area EAW, the City Council for the City of Elk River is the RGU. Notice of the East Elk River Urban Service Area EAW was published in the Environmental Quality Board Monitor on July 14, 1997. The comment period expired on August 13, 1997. A press release on the EAW was given to the Elk River Star News on July 3, 1997 and notice was posted at the Elk River Public Library, Elk River Municipal Utilities office, and Elk River City Hall. The EAW was available for review at the library, city hall, and upon written request. Attachments: · East Elk River Urban Area EAW 13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425 · Comment letter from the Minnesota Department of Health, dated July 29, 1997 · Comment letter from the Minnesota Historical Society, dated July 29 1997 · Comment letter from the Minnesota Department of Natural Resources, dated August 13, 1997 · Comment letter from Dorsey & Whitney LLP, attorneys for Cargill, Incorporated, dated August 13, 1997 The East Elk River Urban Service Area EAW was required by Minnesota Rules Part 4410 due to the newly proposed north/south collector street in this area (a realignment of County Road #13). Several comments the city received were aimed at the issue of expanding the urban service district into East Elk River. The City went beyond what most governmental agencies would have done for an EAW on a proposed road and described the urban expansion to more fully explore the potential impacts. The following are city staffs responses to the comments received: Minnesota Department of Health The Minnesota Department of Health commented on the regulation for sanitary sewer lines and their proximity to wells and municipal water lines as well as the requirement to seal abandon wells. Response Appropriate permits will be obtained by the city and all regulations will be adhered to when urban services are extended to this area. Minnesota Historical Society The Minnesota Historical Society feels there is a good probability that unreported archaeological properties may be present in the project area and recommend a survey of the area be conducted. Response City staff was in contact with Dennis Gimmestad on Agugust 26, 1997 in an attempt to have him further define this comment. Staff was not sure if the Historical Society considered the study area to be the proposed road corridor or the entire East Elk River Urban Service Area. Mr. Gimmestad indicated that he will have his associates further define their areas of concern and make a recommendation on where to conduct an archaeological survey. Mr. Gimmestad understands that there are no current development proposals in the defined urban service area and that the City of Elk River does not currently have the authority to conduct such a survey on these privately held properties. He was also satisfied with the archaeological surveying being done as development of the proposed road and/or other properties in this area occurs. Staff recommends the city requires an archaeological survey be conducted on all sites on which the city, after consultation with the Minnesota Historical Society, determines to have potential for significant archaeological findings, prior to the development of these properties. Minnesota Department of Natural Resources (DNR) The DNR is concerned with how surface water runoff could affect the water quality in the Mississippi River and Trott Brook, however, they do not recommend preparation of an EIS. Response The DNR's comments apply to the development of the East Elk River Urban Service Area to a greater extent than they do to the proposed collector road. At its closest, the proposed road is over a half mile from either the Mississippi River or Trott Brook. However, their comments are pertinent. Attention must be given in the design of both the road and development proposals in the East Elk River Service Area to incorporate sedimentation ponds, retention ponds, skimmers, and other Best Management Practices as well as the use of nutrient modeling. Urban services versus private sewage treatment facilities will have a beneficial effect on ground water. Lastly, all pertinent regulations for the Wild and Scenic River District or other DNR protected waters will be applied as properties develop. Dorsey & Whitney on behalf of Gargill, Incorporated Comment Dorsey & Whitney raised questions regarding procedural matters relating to how the city conducted the EAW. Response City staff had Greg Downing of the Environmental Quality Board review the East Elk River Urban Service Area EAW. Mr. Downing indicated the city followed proper procedure in regards to the environmental review process. Comment Dorsey & Whitney contend that the road in question is a connected action to the proposed urban expansion and therefore all potential environmental impacts of urban expansion must be identified in detail. Response Minnesota statute defines two projects as "connected actions" if a responsible governmental unit determines: (1) one project would directly induce the other; (2) one project is a prerequisite for the other; or (3) neither project is justified by itself. The proposed road is needed for proper traffic flow through the city even if the urban area as defined in the EAW remains rural. It is also true that the urban area defined in the EAW could and would develop with urban services without the proposed road. These are not connected actions as defined by Minnesota state statute. However, the city did go beyond would typically be done by other governmental agencies for EAWs regarding roads and identified the proposed urban area. In their criticism of the detail provided in the EAW on the development of urban service area, Dorsey & Whitney: (1) forget that the EAW was required for the proposed road not the sewer and water expansion; (2) confuse potential for environmental impact with the standard for ordering an EIS, which is the potential for significant environmental effect; and (3) seem to be requesting a level of detail in the EAW that can not be provided without specific development proposals in the urban area. Comment In several locations in their letter, Dorsey and Whitney comment on the Mississippi River, Trott Brook, and the issue of surface runoff. Response Staff refers the Council to their response to the DNR regarding these issues. Comment Dorsey and Whitney question the detail in which the EAW describes impacts on wetlands and the mitigation of these impacts. Response The exact impact on wetlands due to development in the urban service area obviously can not be defined because no such development is being proposed at this time. The EAW was completed for the road project. Even the road project can not infinitely define the impact on wetlands nor absolutely identify the mitigative measures that will be required. The project requires a permit from the U.S. Army Corps of Engineers, review under the Wetland Conservation Act, and approval from the Sherburne County Ditch Authority. Any of these approvals can and most likely will modify the impacts and mitigation measures. The EAW identifies the potential for significant environmental effects. On March 3, 1997, the city met with representatives of the DNR, MPCA, BWSR, SWCD in regards to wetland impacts from the proposed road. The U.S. Corps of Engineers could not be present for this meeting so plans were sent to them for their review. Non of these agencies, who are experts on wetland issues, voiced concern regarding the potential for significant environmental effects on wetlands at this meeting or during their review of the EAW. Comment Dorsey and Whitney comment that the traffic analysis in the EAW is not premised on existing traffic, but rather on projected traffic. Response It is projected that the intersection at Highway 169 and Main Street will not function properly in the future due to traffic that has nothing to do with the East Elk River Urban Service Area. The first function of the proposed road is to bypass this intersection to alleviating traffic congestion, which will improve air quality. The road's secondary function is to serve as access to the East Elk River Urban Service Area. The Urban Service Area can be accessed without the proposed road. Comment Dorsey and Whitney comment that the proposed project will substantially alter or impair unique agricultural land. Response No prime agricultural land or agricultural land of statewide significance as identified by the U.S. Department of Agriculture or the Natural Resources Conservation Service will be affected by the proposed road. Conclusion The wording of the comments in staffs memo were paraphrased. Staff recommends the Council refers to the attached comment letters for the exact wording. The City Council as the RGU for this EAW shall order an EIS if they determine there is the potential for significant environmental effects. In deciding whether the road project has the potential for significant environmental effects the Council should compare the impacts that may reasonably be expected to occur from the project with the following criteria: · Type, extent, and reversibility of environmental effects · Cumulative potential effects of related or anticipated future projects · The extent to which environmental effects are subject to mitigation by ongoing public regulatory authority; and · The extent to which environmental effects can be anticipated and controlled as a result of other environmental studies. Staff feels the EAW accurately and adequately describes the proposed project and the potential of the project to have significant environmental effects. Mitigative measures to reduce environmental impacts have been identified in the EAW and the comment letters. Further mitigation of potential environmental effects will be regulated by the numerous governmental agencies that will be reviewing and permitting these activities. Staff recommends a negative declaration on the need for an EIS on the East Elk River Urban Service Area. A resolution to this effect is attached. IIc~I Minnesota Department of Health 121 East Seventh Place P.O. Box 64975 St. Paul, MN 55164-0975 July 29, 1997 Mr. Stephen Rohlf Building and Zoning Administrator City of Elk River 13065 Orono Parkway Elk River, Minnesota 55330 Dear Mr. Rohlf: The Minnesota Department of Health (MDH) staff has reviewed the Environmental Assessment Worksheet (EAW) for the East Elk River Urban Service Area project, Sherburne County, Minnesota. We understand that the project proposes to extend sanitary sewer and water services in the southeast Elk River area by construction of trunk sanitary sewer and water mains, and a new high-density collector street. We offer the following comments for your consideration: Minnesota Statutes, section 1031.205 prohibits the placement of buried sewers, or any other regulated source of contamination, any closer to an existing water supply well (active, unused, or unsealed) than the distances prescribed by Minnesota Rules, Chapter 4725 (rules regulating Wells and Borings, also termed the Well Code). The Well Code specifies the following setback distances between water supply wells and buried sewers, including building drains connected to the building sewer: 50 feet: A minimum setback distance of at least 50 feet must be maintained between a well and a buried sewer if the sewer: a. is a collector or municipal sewer; b. is pressurized and serves more than a single-family residence; c. is open-jointed; or d. is constructed of materials that do not meet the material, installation and testing requirements in the Minnesota Plumbing Code. 20 feet: The 50-foot separation distance may be reduced to 20 feet if the sewer meets the material, installation and testing requirements in the Minnesota Plumbing Code, AND it is: a. a buried, gravity sewer that serves a single-family residence or a single facility such as a business, church, school, or single commercial property. (This does not include collectors or municipal sewers); or b. a buried, pressurized sewer that serves a single-family residence. TDD: (612) 623-5522 (Twin Cities) 1-800-627-3529 (Greater Minnesota) An Equal Opportunity Employer Mr. Stephen Rohlf July 29, 1997 Page 2 Please note that the Minnesota Plumbing Code requires that a buried sewer or drain be located at least 10 feet from a buried water service line, or if this distance cannot be maintained, the installation and materials must comply with Minnesota Rules Chapter 4715.1710, subp. 2. Questions should be directed to the local plumbing administrative authority or the state plumbing regulation program at (612) 215-0836. We acknowledge and commend the proposer for efforts made which determined that 12 wells are known in the vicinity of this project, and that the wells will be sealed as the project proceeds. However, it is not clear how the well information was obtained. We frequently caution project proposers that written records and computer databases are not all-encompassing. Therefore, to ensure that the isolation distances will be met, we recommend a field well inventory be performed to actively determine in advance the locations of all existing water supply wells (active or unused, unsealed) along the routes of all new sewer lines and any sewer line(s) to be replaced. (Please see attached Well Inventory fact sheet, especially the "Site visitation" section.) Particular attention should be made in the areas shown on air photos, old maps, etc. where any farmsteads or homes have been located on this property, as well as along property boundaries where wells on adjacent properties may still exist. Once a well is sealed by a licensed well contractor in accordance with requirements of the Well Code, the isolation distance is no longer an issue. Thank you for the opportunity to review this EAW. If you have questions or need further information, please contact Betty Wheeler at (612) 215-0807. Sincerely, Lin M. Nelson Environmental Review Coordinator Division of Environmental Health LMN:BJW:dlm Enclosure cc: James Nye Betty Wheeler Curtis Wunderlich MINNESOTA ttlSTORICAI~ SOCIETY STATE HISTORIC PRESERVATION OFFICE July 29, 1997 City of Elk River Attn: Stephen Rohlf Building and Zoning Administrator 13065 Orono Parkway Elk River, MN 55330 Re: Sanitary' sewer improvements/expansion Elk River, Sherbume County SHPO Number: 97-3187 Dear Mr. Rohlf: Thank you for providing this office with a copy of the Environmental Assessment Worksheet for the above-referenced project. It has been reviewed pursuant to responsibilities given to the Minnesota Historical Society by the Minnesota Historic Sites Act and the Minnesota Field Archaeology Act and through the process outlined in Minnesota Rules 4410.1600. The response to question 26a acknowledges the proximity of the Kelly Farm to the project sites. However, we also aelieve that there is a good probability that unreported archaeological properties may be present in the project area. Therefore, we recommend that a survey of the area be completed. The survey must meet the requirements of the Secretary of the Interior's Standards for Identification and Evaluation, and should include an evaluation of National Register eligibility for any properties which are identified. For your information, we have enclosed a list of consultants who have expressed an interest in undertaking such surveys. If the project area can be documented as previously disturbed or previously surveyed, we will re-evaluate the need for survey. Previously disturbed areas are those where the naturally occurring post-glacial soils and sediments have been recently removed. Any previous survey work must meet contemporary standards. Please note that this comment letter does not address the requirements of Section 106 of the National Historic Preservation Act of 19,36 and 36CFR80,3, procedures of the Advisory Council on Historic Preservation for the protection of historic properties. If this project is considered for federal assistance, or requires a federal license or permit, it should be submitted to our office with reference to the appropriate federal agency. If you have any questions on our review of this project, please contact me at 62-296-5462. Sincerely, Dennis A. Gimmestad Government Programs and Compliance Officer Enclosure: List of Consultants cc: Jim Mattson, Kelley Farm Minnesota Department of Natural Resources 500 Lafayette Road St. Paul, Minnesota 55155-40__ 10 August 13, 1997 Stephen Rohlf, Administrator Elk River Building & Zoning 13065 Orono Parkway Elk River, MN 55330 RE: Elk River Urban Service Area Environmental Assessment Worksheet (EAW) Dear Mr. Rohlf, The Department of Natural Resources (DNR) has reviewed the EAW for the Elk River Urban Service Area project. We offer the following comments for your consideration, which focus upon how the project could affect the water quality of the Mississippi River, specifically pollutant and nutrient loading from stormwater runoff originating from the development area. The Mississippi River is designated as a Wild and Scenic River at this stretch and supports an excellent smallmouth bass fishery from the site to (at least) Dayton, Minnesota. Therefore, project aspects that could influence the Mississippi River's water quality, and therefore affect the quality of this fishery, are of concern to DNR. Item 18, Surface Water Runoff, indicates the projected 25 % increase in runoff production will be treated through a combined use of sedimentation ponds and wetlands prior to discharge to natural waters. Although such an approach can prove effective, it is uncertain how effective the approach will be given the level of detail available in the EAW. In general, the success of runoff retention and treatment depends greatly upon the rate of discharge from the sedimentation basins to the wetlands in question. Also, to provide adequate treatment, detention times within the basins should be sufficient to allow the settling of most of the runoff's sediment load. It should be noted that the capacity of wetlands to "filter out pollutants" and nutrients prior to discharge to Trott Brook is limited. Historically, the land in the project area has been in agricultural use and ag-related runoff has been entering the wetlands. Given this history, the ability of these wetlands to serve the proposed function of "filtering out pollutants" associated with new development (i.e., lawn chemicals, road salts, dust, oil, greases, household chemicals)may be limited. We recommend that runoff quality reflect improvement relative to the current condition. Use of nutrient loading models run on similar wetlands may offer an opportunty to determine the loading potential to downstream waters so that improvements to runoff quality can be realized. Thank you for the opportunity to review this project. We do not recommend preparation of an environmental impact statement (EIS) based upon natural resource considerations. We look forward to receiving your record of decision and responses to comments. Minnesota Rules part 4410.1700, DNR Information: 612-296-6157, 1-800-766-~000 · TTY: 612-296~5484, 1-800-657-3929 An Equal Opportunity Employer ~,.~ Printed on Recycled Paper Containing a Who Values Diversity ~l~l~ Minimum of 10% Post-Consumer Waste Stephen Rohlf, Administrator August 13, 1997 subparts 4 & 5, require you to send us your Record of Decision within five days of deciding this action. Please contact Bill Johnson of my staff at (612) 296-9229 if you have questions regarding this letter. Sincerely, Thomas W. Balcom, Supervisor Natural Resources Environmental Review Section Office of Planning c: Bob Hance Kathleen Wallace Con Christianson Pete Otterson Lynn M. Lewis, USFWS Gregg Downing, EQB Patrick Klaers, City of Elk River //980004-01 ELK.WP6 2 DORSEY & WHITNEY LLP MINNEAPOLIS xHASHINGTON, D.C. LONDON HONG KONG DES MOINES ROCHESTER. COSTA MESA PILLSBURY CENTER. SOUTH 220 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA 55402-1498 TELEPHONE: (612) 340-2600 FAX: (612) 340-2868 GREGORY A. FONTAINE (612) 340-8729 NE'~V YOR`K DENVER` SEATTLE FAR`GO BILLINGS MISSOULA GR. EAT FALLS August 13, 1997 Mr. Stephen Rohlf City of Elk River Building & Zoning Administrator 13065 Orono Parkway Elk River, MN 55330 Dear Mr. Rohlf: These comments are submitted on behalf of Cargill, Incorporated (Cargill) in response to the Environmental Assessment Worksheet for the East Elk River Urban Service Area, dated June 23, 1997, prepared on behalf of the City of Elk River by MSA Consulting Engineers ("Urban Services EAW"). It is Cargill's understanding that the Urban Services EAW expands the possible urban services area previously studied by Elk River, and contains new proposals for various infrastructure projects, including sewer and water systems and transportation corridors, in the eastern portion of the City. For the reasons set forth below, Cargill believes that further environmental review must be completed in connection with these matters. Background As City officials and staff are aware, Cargill has operated its Animal Nutrition Center (ANC) at its present location in Elk River since 1958. The ANC is a research and development center located on approximately 980 acres within the present city limits. Its mission includes supporting Cargill's activities in improving animal nutrition, nutrient utilization, product development, livestock and nutrition management, quality control, information management, and technology development and adaptation. The ANC includes laboratories, animal housing and containment units, feed processing plants, waste management systems, and numerous other structures and facilities for conducting beef, dairy, swine, and preservative research. The ANC site also includes, among other things, tilled fields, DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 2 August 13, 1997 pasture land, storage areas, caretaker residences, buffer zones, and other ancillary areas and uses supporting the company's research and development activities. The ANC has conducted agricultural-related research at its present location for four decades, and Cargill intends to continue and expand these operations. Cargill is very concerned by the fact that the Urban Service EAW indicates that over 300 acres of the ANC would be included in the expanded urban services area, and that certain utility facilities would be physically constructed on the Cargill property. No analysis is contained in the Urban Service EAW as to the impacts of these proposal on Cargill's operations. This lack of analysis is particularly troubling since it appears likely from the document that the proposed facilities may interfere directly with various ANC buildings and activities. Cargill has invested millions of dollars in its research center over the years. Since 1994 alone, the company has expended over $4 million to construct new, state-of-the-art laboratory facilities and a swine research complex. Cargill has emphasized to City officials its intention to remain permanently at its current location. Despite the company's repeated efforts to communicate with the City on matters of concern involving possible expansion of public services, Elk River in the Urban Service EAW again has elected to proceed without any attempt to involve Cargill in the process, or to even provide the most minimal type of notice. Procedural Issues Before turning to the specifics of the Urban Service EAW, we must note as an initial matter that Elk River, by failing to provide Cargill with a copy of the EAW when it was distributed for comment, has violated the rules of the Minnesota Environmental Quality Board (EQB) regarding publication and distribution of environmental documents. See Minn. Rules pt. 4410.1500. Cargill has made repeated requests to the City that it provide the company with all pertinent documents involving the proposed extension of utilities and other major municipal projects into the so-called East Elk River urban service area. Accordingly, Cargill was entitled under Minn. Rules pt. 4410.1500(A)(12) to a copy of the Urban Service EAW at the time of its initial distribution and to notice of the comment period. The City failed to meet this requirement. Elk River's failure to provide timely notice has prejudiced Cargill severely. The company became aware of the Urban Service EAW only yesterday, the day before today's deadline for filing comments. Although Cargill is submitting DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 3 August 13, 1997 comments today as a result of that deadline, it is also objecting to the City's noncompliance with the EQB's publication and distribution rules, and is preserving all legal rights to challenge Elk River's action. Cargill, moreover, is requesting that the comment period by extended so that the company will have time to more adequately respond to the Urban Service EAW. Please advise as to whether this request will be granted. MEPA Requirements The Minnesota Environmental Policy Act (MEPA), Minn. Stat. ch. l16D, sets forth Minnesota's overarching environmental policy and establishes procedures for review of proposed projects to ensure that the policy objectives set forth in the Act are achieved. The EQB is responsible for administering MEPA. EQB's rules provide that MEPA "recognizes that the restoration and maintenance of environmental quality is critically important to our welfare .... A first step to achieving a more harmonious relationship between human activity and the environment is understanding the impact which a proposed project will have on the environment." Minn. Rule 4410.0300, subpt. 3. To further the goals established by MEPA and the EQB, an EAW must "set out the basic facts necessary to determine whether an EIS [environmental impact statement] is required for proposed action." EQB, EAW Guidelines: Guidance and Information for the Preparation of Environmental Assessment Worksheets (1990) [hereafter "EAW Guidelines"] at 3. The EAW also is intended to be used as a guide "in issuing, amending and denying permits and carrying out other responsibilities of governmental units to avoid or minimize adverse environmental effects and to restore and enhance environmental quality." Minn. Rules 4410.0300, subpt. 3. Under MEPA, an EIS is required whenever an EAW shows that a proposed project has the "potential for significant environmental effects. Minn. Rule 4410.2000 (emphasis added). In deciding whether an EAW is adequate within the standards set by MEPA, and in determining whether an EIS will be required for a proposed project, the EQB rules require the responsible governmental unit (RGU) to consider four factors: (a) the extent and reversibility of environmental effects; the cumulative potential effects of related or anticipated future projects; DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 4 August 13, 1997 (c) the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and (a) the extent to which environmental effects can be anticipated and controlled as a result of other environmental studies undertaken by public agencies or the project proposer, or of EISs previously prepared on similar projects. Minn. Rule 4410.1700, subpt. 7. It must be emphasized that in applying these factors, the RGU must not consider only part of a project; all phases to the project and all connected actions associated with the project must be considered so that the cumulative environmental impacts are reviewed before final decisions are made. Minn. Rules 4410.1000, subpt 4. Under the EQB rules, "connected actions" include projects that are related in the sense that one induces another or neither project is justified by itself. Minn. Rule 4410.0200, subpt. 9b. The term "cumulative impact" is defined to include all incremental environmental effects of a project and "past, present and reasonably foreseeable future projects" related to the initial activity. Id at subpt. 11. The Urban Service EAW The Urban Service EAW prepared by MSA for the various utility, roadway and other facilities identified in the document does not meet the requirements of MEPA and the EQB in several ways. Perhaps its most fundamental flaw, however, is that the report fails to provide any meaningful analysis of the real cumulative environmental impacts associated with the project, as it is narrowly described in the MSA report, and the ultimate development that would follow construction of the proposed utility and road systems. As outlined above, the EQB's rules do not permit Elk River to evaluate the potential environmental impacts of its proposed municipal infrastructure project in isolation. The residential, commercial and industrial development for which Elk River is planning in connection with the proposed project defined in the EAW, as well as the cumulative impacts of all of the anticipated urban development that would result from the proposed sewer and water, water-resource management structures and enlarged traffic system, all must be analyzed. There cannot be piecemeal analysis of the infrastructure project as if it exists in a vacuum unrelated to the development it would serve if the project were constructed. Unfortunately, DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 5 August 13, 1997 the Urban Service EAW ignores these EQB requirements on related projects, connected actions and cumulative impacts. Beyond the technical requirements of EQB's rules, it is not idle rhetoric to recognize that construction of the municipal infrastructure envisioned by this project will transform the study district from one that is largely rural in character to a highly-developed urban area. To conclude that there is no potential for significant environmental impact in creating additional urban sprawl upon land devoted principally to open space, wood lands and agricultural activities is, to say the least, to ignore the obvious. Yet, the EAW performs just this feat by failing to analyze most of the real-world consequences that would follow the proposed infrastructure were it to be built. Indeed, Elk River's extended planning process over the last few years has been aimed precisely at shaping (and candidly, encouraging) these development consequences. Cargill respectfully urges the City of Elk River to recognize that MEPA simply does not permit the potential cumulative environmental impacts of such a fundamental transformation to be ignored. A. Specific Defects Elk River's failure to provide timely notice of the Urban Service EAW has prevented Cargill from completing a thorough review of the proposed project. Even a brief review of the document, however, demonstrates its failure to provided the disclosure and analysis required by MEPA of the fundamental issues at stake in connection with the proposed project. The following provides a brief summary of some of the most obvious concerns. 1. Analytical Omissions In numerous areas the Urban Service EAW simply ignores potential environmental impacts. The discussion in this section identifies some of the issues that are not addressed in any substantive fashion by MSA. Items 9 and 10 of the Urban Service EAW, addressing land use and cover types, indicate that less than 10 percent of this 2400-acre plus area is devoted to urban development. Item 10 claims that the project will result in the loss or less than 20 acres in aggregate of wetland, woodland, open space and farmland. Yet the reality is that if the sewer, water and road facilities included in the project are built, economic and development pressures will result in dense and intense development DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 6 August 13, 1997 of most of the 2400 acres. Perhaps the only area that would not be developed would be the approximately 300 acres in Cargill's ANC. Nowhere in Items 9, 10 or 11 does the Urban Service EAW discuss potential impacts associated with this fundamental transformation. There are a number of ecologically sensitive and other important environmental resources in the study area, including the Mississippi River, wildlife habitat, plant and animal species, and unique agricultural lands (including the ANC). These areas, to varying degrees, would be substantially altered or impaired by the extension of urban sprawl to the study area. Items 9 through 11 of the EAW form are intended to address such "big-picture" issues, but the document is essentially silent on these questions. Of particular concern to Cargill is the fact that the Urban Service EAW fails to even identify the ANC or its sensitive research functions when mentioning that there is a large Cargill property in the study area. Indeed, the document obscures this fact through its inclusion of an inaccurate zoning map which identifies the Rla district as "Single Family Residential." In fact, the Rla district is a rural residential zoning classification in which significant agricultural activities, including those of Cargill, are conducted. The company repeatedly has made it clear to the City that Cargill is committed to retaining its present site as the permanent home for the ANC operations. The Urban Service EAW makes no attempt to address the environmental implications of large-scale urban development immediately adjacent to the agricultural activities that will continue within the study zone. EAW also fails to consider the implications of the physical extension of certain sewer and water facilities directly onto Cargill's property, which apparently is contemplated under this new project. The Similarly, the discussion in Items 11, 12 and 13 of water resources (wetlands, streams and other surface waters) is cursory at best. In these Items, the Urban Service EAW fails to analyze the extent of anticipated impacts to the environmental resources, and offers unsupported conclusions to the effect that undefined "best management practices" or other control measures will be developed at some later date to mitigate whatever impacts do occur. As discussed in detail below, this approach to environmental review under MEPA has been rejected by the Minnesota courts. DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 7 August 13, 1997 Elsewhere in the EAW, MSA turns the environmental review process on its head by concluding it its traffic analysis in Item 22 that project will reduce air pollution by relieving traffic congestion. This conclusion, however, is premised not on existing traffic levels, but on projections of future traffic that will be generated by development that will occur in the study area only if the infrastructure project is built. The EQB rules require current baseline air quality conditions--and other pertinent factors such as noise, dust, odors, and visual impacts that are addressed in Items 22 through 26--to be compared to conditions that will exist as a result of the urban development associated that will result from the proposed utilities and roadway extensions. The EAW may not ignore these environmental impacts by assuming certain deteriorated conditions will occur regardless of whether the proposed project is constructed, and then suggesting the project will help alleviate these conditions. 2. Incomplete Review The discussion above highlights essentially complete omissions of required analysis in the Urban Service EAW. In other areas, the MSA report is inadequate because while its identifies potential environmental impacts, it fails to determine the extent and significance of such impacts and fails to employ a proper mitigation analysis. This incomplete review is wholly inadequate under EQB's rules and guidelines. For example, in Item 12, the Urban Service EAW indicates that wetlands will be dredged and filled, and that mitigation will be necessary. The report, however, states the extent of necessary mitigation cannot be identified because "actual volume of fill has not yet been determined." MEPA requires information on the extent of impact and required mitigation of potential impacts such as this one to be available before the decision on the need for an EIS can be made. In Item 13, the Urban Service EAW indicates that there will be substantial increases in water use due to development associated with the proposed infrastructure, which will require substantial increases in either, or both, ground water or surface water appropriations and construction of new municipal wells. In Item 29, the report also states that additional municipal water towers and wells are anticipated, although the water supply sources are not identified. Most importantly, neither the current character of these resources, nor the environmental impacts of more intensive use of them, is discussed in any meaningful way in the EAW. Indeed, despite the environmental significance of these matters, the EAW concedes DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 8 August 13, 1997 that "the extent of [impact on water resources] has not been determined." These issues cannot be glossed over in this fashion. The importance of evaluating these concerns before large-scale urban development occurs is highlighted by recent published reports on the serious environmental implications (as well as hundreds of thousands, perhaps millions, of dollars in public investment) associated with possible use of new, deeper ground water resources due to development in the Savage, Burnsville, Shakopee, Prior Lake and surrounding areas. See Kaszura, "In the suburban search for water, how deep can you go?" Minneapolis Star Tribune, Metro Section, August 3, 1997. In Item 14, the Urban Service EAW claims that neither Trott Brook nor the Mississippi River "will be significantly impacted by the preliminary stage of this project." The report, however, does not indicate what impacts in fact are anticipated, what standard for determining significance was applied by MSA, and most importantly, whether completion of the infrastructure project and related development beyond the preliminary stage may create substantial impacts to these two water resources as well as others not identified in the Urban Service EAW. The report attempts to deflect consideration of such concerns by indicating that future development will be limited by regulation, but this type of reliance on regulatory and permitting processes to mitigate potential environmental impacts was expressly rejected in the Trout Unlimited case discussed below. In Item 18, the Urban Service EAW recognizes that there could be significant adverse effects on water quality due to surface water runoff, but the report fails to identify the cause and extent of such impacts. While the report suggests the impacts may be mitigated by NURP ponds, it fails to analyze at all the extent of mitigation required, what alternatives may be available, and whether the NURP ponds recommended will be sufficient to address the concerns. Indeed, since neither the extent of runoff anticipated nor the number or location of ponds required is identified, this entire mitigation discussion is nothing more than boilerplate. In Item 20, the Urban Service EAW identifies potential ground water contamination associated with the project. In Item 26, moreover, the EAW indicates that cleanup of a closed city dump is necessary. Again, however, the report fails to identify the location, extent and character of these potential contamination concerns. Nothing at all is said about possible contaminant sources, migration pathways, sensitive receptors or other obvious concerns. Without such analysis, MSA's conclusion that contamination can be "minimized by excavating and maintaining stormwater detention ponds" is meaningless. DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 9 August 13, 1997 Finally, Item 20 addresses a variety of other important concerns, including historic resources, "prime or unique" farmlands, recreation areas, scenic views and vistas and "other unique resources". This item contains only the most cursory mention of the Historic Kelley Farm (there is one sentence, the unsubstantiated conclusion that the farm "is not expected to be impacted by the project"), and no discussion whatsoever of either the Mississippi River or the ANC. 3. Summary The foregoing highlights some of the substantial flaws in the details of the Urban Service EAW. This summary is not comprehensive, but it provides a sense of the extent of specific defects in this document. Cargill anticipates that it will provide additional information when it has had further time to review MSA's report. B. Significance and Mitigation of Potential Impacts Apart from the details addressed above, a major conceptual problem with the Urban Service EAW is that incorrectly applies MEPA's provisions with regard to evaluating the significance of potential environmental impacts and mitigation of such impacts. Under EQB's guidelines, an EAW must include information sufficient in quantity and quality to allow resolution of the statutorily-required inquiry of whether the project in question has the "potential for significant environmental effects." EQB, EAW Guidelines at 9. This information must identify the likelihood and significance of possible environmental impacts and the availability and scope of possible mitigation measures. If the quality or quantity of information disclosed in the EAW leaves too much uncertainty about potential impacts and their significance and about mitigation measures specifically designed to decrease such impacts, the RGU must either require the EAW to be redone or an EIS to be prepared. Id. at 9. The Minnesota Court of Appeals decision in Trout Unlimited, Inc. v. Minnesota Department of Agriculture, 528 N.W.2d 903 (Minn. App. 1995), provides further guidance on these issues. In that case, the Court ruled that a RGU cannot rely on future monitoring, permitting or other mitigation measures with regard to a potential environmental effects identified in the EAW process to determine that an EIS will not be needed. The Court also held that under the EQB's rules on related actions and cumulative impacts, potential, not merely existing or currently planned, DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 10 August 13, 1997 related projects must be considered in the EAW process. The Court ruled that the Department of Agriculture in Trout Unlimited, by deferring the full analysis of the environmental implications of possible environmental impacts to later permitting and mitigation decisions, violated its duty under the EQB rules to require an EIS where there exists a "potential for significant environmental effects." Id. at 909. The Trout Unlimited case is particularly instructive for projects such as the one addressed in the Urban Service EAW. The Court of Appeals there recognized that the EAW represents only a starting point in the environmental review process. The Court emphasized that the "very purpose of an EIS... is to determine the potential for significant environmental effects before they occur." 528 N.W. 2d at 909 (original emphasis). Recognizing that the EAW is a brief document designed essentially to identify potential concerns, the Court emphasized that when the EAW indicates "that a project may harm the environment, use of that indication to conclude that an EIS is unnecessary, 'makes a mockery of the EAW as a decision-making tool.'" Id. The Trout Unlimited ruling makes it clear that before a negative declaration on the need for an EIS can be issued, an EAW must first identify all potential environmental impacts that may require further investigation, and second, identify project-specific resource protection measures to be incorporated in a project so that those impacts can be avoided to the extent possible. An EAW which does not comprehensively identify anticipated impacts or does not carefully consider available mitigation measures that may be appropriate in the specific circumstances presented, including avoidance of impacts, but instead relies on development of mitigation measures or restrictions during a later permitting process is not permissible under MEPA. MSA's Urban Service EAW clearly fails to meet the standards established in Trout Unlimited. The MSA report repeatedly identifies potential environmental impacts, but fails to address their significance under the requirements of MEPA. It also acknowledges with regard to several topics (e.g., wetlands, water appropriation, runoff, etc.) that there are likely environmental impacts but the scope of these effects has not yet been determined. The report also frequently substitutes vague recommendations for future mitigation or permit restrictions (e.g., fish and wildlife, water resources and use, groundwater, etc.) for the required analyses of the unmitigated impacts or project-specific mitigation measures. Indeed, the Urban Service EAW is practically a model for the type of boilerplate environmental review DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 11 August 13, 1997 document that fails to satisfy the requirements of Minnesota law for meaningful environmental review. Community-Based Planning Goals The proposed project is also fundamentally at odds with the goals for municipal and county community-based planning enacted by the Minnesota Legislature on May 30, 1997. Minn. Stat. 1997, Ch. 202, Article 4A.08. In the Act, the Legislature articulated eleven goals for sound, community-based planning. These stress the importance of consideration of all the downstream consequences of public projects, and the critical need to preserve open space and agricultural land. In particular, the proposed project ignores the pattern, placement, and spillover effects of the residential, commercial and industrial development that would be drawn to the extension of city utilities, and the impact of new development on existing land uses. The narrowly focused, piecemeal approach to development embodied in the Urban Service EAW is contrary to over half of the Act's goals: (1) Balanced distribution of growth (Article 4A.08(3)); (2) Conservation of agricultural land and open space (Article 4A.08(5)); (3) Livable Community Design (advocating "...mixed land uses and compact development [and] green spaces..." Article 4A.08(6)); (4) Transportation Planning ("...maximize the efficient use of the transportation infrastructure by increasing the availability and use of appropriate public transit throughout the state through land use planning and design..." Article 4A.08(7)); (5) Evaluation of the Full Consequences of Public Projects ("...account for the full environmental, social, and economic costs of new development, including infrastructure costs such as transportation, sewers, and wastewater treatment, water, schools, recreation, and open space..." Article 4A.08(9)); and DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 12 August 13, 1997 (6) Sustainable Development ("...maintain[] nature's ability to function over time by minimizing waste, preventing pollution, [and] promoting efficiency..." Article 4A.08(11). Immediately after the Minnesota Legislature has emphasized the State's commitment to comprehensive planning, it appears Elk River is attempting to turn back the clock to ignore these objectives. The Urban Service EAW should not be permitted to ignore this new legislation. MEPA Review Alternatives Ultimately, Cargill is skeptical that the EAW process will satisfy MEPA's requirements with regard to the necessary review of potential cumulative impacts associated with the type of large-scale development and fundamental ecological modification that Elk River envisions will begin with this project. For environmental review under MEPA permissibly to be limited to an EAW alone, the potential impacts must be minimal and the project relatively confined. When a project covers a large area that could be substantially transformed by the proposed development, an alternative form of environmental review is required to meet MEPA's proscriptions against piecemeal analysis. The mechanisms provided in the EQB's rules for the type of comprehensive, integrated review of major new urban development are the EIS process and the alternative urban area-wide review (AUAR) established in Minn. Rule 4410.3610. The City of Savage recently completed the AUAR process before proceeding with the extension of urban services to a 2600-acre portion of that municipality. The AUAR was used to identify a variety of sensitive environmental resources and to develop specific mitigation measures to avoid significant environmental impacts. Once an AUAR has been completed, any commercial or residential projects consistent with the development scenarios and protections identified in the AUAR may proceed without the need for project-specific environmental review under MEPA. Minn. Rule 4410.3610, subpt. 2. Elk River may wish to consider this alternative form of environmental review rather than requiring an EIS to be completed for the project study area. Absent some form of comprehensive review that goes beyond the EAW process, however, it is unlikely that Elk River will be able to satisfy MEPA's requirements in connection with its proposed urban services project. DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 13 August 13, 1997 CONCLUSION For the reasons outlined in these comments, Cargill respectfully urges the City of Elk River to complete further environmental review of the proposed project to satisfy the requirements of MEPA and the EQB. As discussed above, Cargill will supplement this response when it has had an opportunity to complete further review of the Urban Service EAW. Grego~,~6ntaine GAF:gle cc: Timothy A. Thomas, Esq. Ms. Rita Schmahl RESOLUTION 97- RESOLUTION FOR THE CITY OF ELK RIVER A resolution of the City Council of the City of Elk River regarding the environmental review process for the proposed East Elk River Urban Service Area Road Project; setting forth the City Council's findings of fact regarding the need for an Environmental Impact Statement; and declaring that the preparation of an Environmental Impact Statement is not necessary. WHEREAS, the City of Elk River proposes to construct 1.25 miles of high-density collector street from 171st Avenue North to CSAH #12, and relocate 0.5 miles of CSAH #13 to align with the proposed collector street at CSAH #12 (the Project); and, WHEREAS, pursuant to Minnesota Rules, Part 4410.4300, Subpart 22 (EQB Rules) the Project requires the preparation of a mandatory environmental assessment worksheet (EAW) under Minnesota Environmental Policy Act (MEPA); and, WHEREAS, pursuant to the EQB Rules, the City is the responsible governmental unit (RGU) for the preparation of the EAW as required by the EQB Rules. NOW, THEREFORE, the City Council of the City of Elk River makes the following findings of fact and determination regarding the need for an Environmental Impact Statement (EIS) for the Project. 1. An EAW has been prepared for the Project. 2. Notice of availability of the EAW was published in the EQB Monitor on July 14, 1997; a press release was given to the Elk River Star News on July 3, 1997; posted notice was given at the Elk River Public Library, Elk River Municipal Utilities office, and the Elk River City Hall on July 3, 1997; and copies of the EAW were supplied to all persons and agencies on the EQB official EAW distribution list. 3. Preparation and distribution of the EAW has complied in all respects with the EQB Rules. 4. Comments have been received on the EAW from the following persons and agencies: the Minnesota Department of Health, by letter dated July 29, 1997, from Lin Nelson; Minnesota Historical Society, by letter dated July 29, 1997, from Dennis Gimmestad; the Minnesota Department of Natural Resources, by letter dated August 13, 1997, from Thomas Balcom; and Dorsey & Whitney on behalf of their client, Cargill, Incorporated, by letter dated August 13, 1997, from Gregory Fontaine. 5. All substantive comments have been responded to as required by the EQB Rules by the City as RGU in the staff memorandum to the City Council, dated September 8, 1997, from Stephen Rohlf, Building and Zoning Administrator. 6. The environmental review process mandated by the Minnesota Environmental Policy Act and implemented through the EQB Rules has been followed, and this resolution shall be the City's record of its compliance with the EQB Rules and decision in this matter. 7. The City, as RGU, may order the preparation of an EIS only if the Project has the potential for significant environmental effects. 8. In deciding whether a project has the potential for significant environmental effects, the City is to apply the criteria set forth in Section 4410.1700, Subparts 6 and 7 of the EQB Rules. NOW, THEREFORE, BASED ON THE INFORMATION CONTAINED IN THE EAW, THE COMMENTS RECEIVED ON THE EAW AND THE RESPONSES THERETO FROM CITY STAFF IN THE MEMORANDUM TO THE COUNCIL DATED SEPTEMBER 8, 1997, THE CITY COUNCIL OF THE CITY OF ELK RIVER FINDS THAT THE PROJECT DOES NOT HAVE THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS AND THEREFORE DOES NOT REQUIRE THE PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT, FOR THE FOLLOWING REASONS: A. The environmental effects of the Project are minimal. The Project will be undertaken by a governmental entity, the City of Elk River, and will be subject to ongoing regulatory authority by other state agencies. The Project will not cause future development to occur, but will reduce the environmental effects of future development which will occur with or without the Project. BeckP 527933.1 2 Future development in the area of the Project will be subject to the requirements of the EQB Rules and will be subject to the ongoing regulatory authority of the City and other governmental agencies. The foregoing resolution was introduced by Council Member and duly seconded by Council Member voted in favor of the resolution: The following The following voted against the resolution: The following were absent: Whereupon the resolution is adopted. Passed and adopted by the City Council of the City of Elk River this 8th day of September, 1997. Henry A. Duitsman, Mayor ATTEST: Sandra A. Thackery, City Clerk BeckP 527933.1 3