09-06-2013 - re: wetland delineation code interpretation

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, 1L,O.Ai CITY OF ORONO Street Address: Mailing Address: Telephone(952)249-4600 '�� 2750 Kelley Parkway P.O.Box 66 Fax (952)249-4616 OIL t�kFSHO��G Orono,MN 55356 Crystal Bay,MN 55323 www.ci.orono.mn.us September 6, 2013 Timothy&Amy Hubbard 945 Willow View Drive Orono, MN 55356 Re: Wetland Delineation Code Interpretation Dear Mr. and Mrs. Hubbard, The City Council at its August 26 meeting reviewed your expressed concerns regarding interpretation and applicability of the City's wetland ordinances with regard to the Willow View subdivision and other Orono properties in general. Specifically,you had asked for clarification regarding the need for a new wetland delineation for a permit application for a new pool for your residence. Your neighbor, Jay Kanive, also had expressed a concern regarding whether a 1999 wetland delineation is still valid. Per the Council's direction, this letter provides you with the City's position on this matter. In the case of Mr.Kanive,he submitted an application for a permit in 2012 for a sport court in his back yard. While a buffer was not required to be planted, per the City wetland rules in place at the time City staff asked for a wetland delineation to evaluate if the sport court met the required setbacks in order to avoid creating a future nonconformity. Mr. Kanive requested we use a wetland delineation which was performed when the development was created in 1999. We would not accept that, and he proceeded to have Arrowhead Environmental complete a new wetland delineation. The new delineation showed the wetland did not match the 1999 delineation, but had expanded. He submitted this to the MCWD for delineation approval,but withdrew his application to them before their approval process was complete because MCWD staff told him he did not need a delineation. Wetlands will change over time because of environmental factors. In the past, according to the Wetland Conservation Act(WCA),wetland delineations were only valid for 3 years. Recent rule changes now allow for most wetland delineations to be valid for 5 years. The delineation which was approved as part of the original development for Willow View Drive in 1999 is no longer valid. Furthermore,this delineation should not be shown on surveys as an accurate wetland boundary. A copy of these recent rule changes is attached (see 103G.2242 Subd. 2a,Decisions and Appeals, effective 8-1-11, on page 5 of 7). Minnehaha Creek Watershed District(MCWD)complicated matters because MCWD staff originally told Mr.Kanive the 1999 wetland boundary was acceptable and valid. Unfortunately,this is not accurate information or in accordance with WCA regulations. Based on subsequent conversations with MCWD, the information MCWD should have told Mr. Kanive was that the wetland buffer boundary associated with the approved development plan would not have to be changed even though the actual wetland boundary may have changed. To a property owner,this means that once the final plat for a new development(such as Willow View)is approved and a buffer area is designated and approved by MCWD on an approved grading plan or plat,it is a permanent buffer boundary(according to MCWD policies). If in the future, a homeowner proposes significant work on the property and a new wetland delineation shows the wetland increased in size,the homeowner would not be required to now install a new buffer based on the new delineated boundary. MCWD's policy is in place to not penalize future homeowners for a future change in a wetland. Typically these buffer areas are recorded as easements against the properties by MCWD, but MCWD failed to record this against the properties on Willow View Drive.