City Council Meeting Date: October 5, 2021
To: Mayor and City Council
City Administrator
From: Mitzi A. Baker, AICP, Community Development Director
Title
Consider a Citizen Petition for the Preparation of an Environmental Assessment Worksheet (EAW) to be Completed for the Proposed Kraewood Development.
Body
Action Requested:
The Northfield City Council will consider a citizen petition for the preparation of an Environmental Assessment Worksheet (EAW) to be completed for the proposed Kraewood development.
Summary Report:
By letter, dated September 17, 2021, from Katrina Hapka, Environmental Review Program Coordinator with the Minnesota Environmental Quality Board (“EQB”), the City of Northfield (“City”) received a petition for an environmental assessment worksheet (“EAW”), dated August 26, 2021 (the “Petition”), for the proposed Kraewood Development. The Petition is signed by over 600 individuals and has been submitted pursuant to Minnesota Rules, part 4410.1100. The Petition is requesting that an EAW be prepared on the proposed Kraewood Development project.
MN Rules include categories of projects and thresholds that trigger a mandatory EAW. A copy of the mandatory categories is attached for reference. The proposed development does not meet criteria for a required EAW.
The Rules also include a petition process, whereby a petition is first submitted to the Environmental Quality Board (EQB) who determines the “responsible government unit” (RGU), forwards the petition to the RGU and the RGU then must make a determination as to whether to order the preparation of an EAW or not by applying the standard set forth in the Rules. The City of Northfield was determined to be the RGU in this case, and the determination on the need for an EAW must now be made by the City Council.
The EQB describes the EAW as “a brief document designed to lay out the basic facts of a project necessary to determine if an Environmental Impact Statement (EIS) is required for the proposed project. The EAW also provides permit information, informs the public about the project, and helps identify ways to protect the environment. The EAW is not meant to approve or deny a project, but instead act as a source of information to guide other approvals and permitting decisions. The EAW is completed by the Responsible Governmental Unit (RGU) designated according to Minnesota Rules 4410.05000.”
Attorney Hood provided basic EAW legal guidance to the Council, which is attached for reference. Also, Assistant City Attorney Robert Scott has included an additional email providing added clarity around language in the LDC that relates to the EAW criteria as well.
If the City Council determines an EAW will be required for the project, it is recommended that the developer hire a consultant to complete the EAW and submit it to the City, and that the City hire a separate consultant to act as an extension of staff to review and process the EAW.
If the City Council determines an EAW will not be required for the project, the Council could consider adding a condition to the pending preliminary plat requiring the applicant to secure an incidental take permit from United States Fish and Wildlife Service (USFWS), and another condition requiring that a wetland investigation be completed.
An incidental take permit: Section 7 of the Endangered Species Act protects listed species by requiring that other federal agencies formally consult with the Service to ensure that their actions are not likely to jeopardize the continued existence of a listed species or adversely modify critical habitat. Through this consultation, the Service works with the federal agency and advises on whether the actions would affect the species or critical habitat as well as ways to avoid those impacts. Though not required under the act, a private property owner can voluntarily seek an incidental take permit, which would include consultation with USFWS.
An on-site wetland investigation would include a field visit by trained professionals to verify whether any portion of the site meets the prescribed criteria for being defined as a Wetland under the Wetland Conservation Act. The investigation includes review of soils, hydrology and plants.
Procedural Considerations:
The City Council may choose to grant the Petition and thereby order the developer to prepare an EAW on the Project. The Council may also deny the Petition and not require the preparation of an EAW.
In making this decision, the City Council must order the preparation of an EAW if the material evidence presented by the Petitioners demonstrates that, because of the nature or location of the proposed Project, the Project may have the potential for significant environmental effects. The City Council must deny the Petition if the evidence presented fails to demonstrate that the project may have the potential for significant environmental effects. In considering the evidence, the Council must take into account the factors listed in Minnesota Rules, part 4410.1700, subp. 7, which provides as follows:
Criteria. In deciding whether a project has the potential for significant environmental effects, the following factors shall be considered:
A. type, extent, and reversibility of environmental effects;
B. cumulative potential effects. The RGU shall consider the following factors: whether the cumulative potential effect is significant; whether the contribution from the project is significant when viewed in connection with other contributions to the cumulative potential effect; the degree to which the project complies with approved mitigation measures specifically designed to address the cumulative potential effect; and the efforts of the proposer to minimize the contributions from the project;
C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority. The RGU may rely only on mitigation measures that are specific and that can be reasonably expected to effectively mitigate the identified environmental impacts of the project; and
D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.
The City Council must make specific findings of fact of its decision based upon the above criteria on the need for an EAW and must make such decision within 30 days from the date of receipt of the Petition, which was September 17, 2021. Thus, the City Council must make a decision on the Petition to either grant or deny/dismiss the same with findings supporting the decision by no later than October 17, 2021 and then communicate that decision in writing to the EQB and Petitioner’s representative.
Alternative Options:
The City Council is provided with two alternate resolutions. The City Council could adopt either as written, or could adopt with modifications to the findings if they are specified by Council in their action.
Financial Impacts:
If the City Council grants the Petition and orders the preparation of an EAW, staff would direct the developer contract with a consultant to complete an EAW to submit to the City. Staff would contract with a separate consultant to serve as an extension of staff to review and finalize the document, distribute, and prepare responses to agency and public comments as well as a record of decision for the EAW. The estimated cost for a consultant the City would hire is between $8,000-15,000. The City’s fee schedule includes an application fee and escrow up to $5,000 for EAW’s. Any cost for the review of the EAW review above the $5,000 would be cost the City would incur. Therefore, we are estimating $3,000 to $7,000 cost to the City for review of this EAW if ordered.
The estimated cost for preparing an EAW for the project is not known, but would be the responsibility of the developer.
Tentative Timelines:
The proposed Kraewood plat item was previously postponed to October 19, 2021, along with a zone change for small portions of the site. These items will be on the October 19, 2021 agenda, unless an EAW is required which would result in delaying those items until the EAW is completed. The EAW process, once an EAW document is completed and submitted to the City by the developer, can take 90-120 days.