STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY FINDINGS OF FACT

STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSE...
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STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY

IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED ELFORD-FULLERTON SANITARY RELIEF SEWER INSTALLATION ROCHESTER, MINNESOTA

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT Pursuant to Minn. R. 4410.1000 - 4410.1600 (2003), the Minnesota Pollution Control Agency (MPCA) staff has prepared an Environmental Assessment Worksheet (EAW) for the proposed Elford-Fullerton Sanitary Relief Sewer Installation (Project). Based on the MPCA staff environmental review, comments, and information received during the comment period, and other information in the record of the MPCA, the MPCA hereby makes the following Findings of Fact, Conclusions of Law, and Order: PROPOSED PROJECT DESCRIPTION Proposed New Construction The city of Rochester (City) is planning to install approximately 9,900 linear feet of 66-inch relief sanitary sewer to supplement the existing 48-inch sewer (originally called the Main Trunk Line), which will remain in place. A relief sewer is built to carry flows in excess of the capacity of an existing sewer, and is intended to carry the portion of the flow for which the existing sewer has insufficient capacity. A portion of the existing Main Trunk Line sewer was installed in 1946 and originally ran to the City’s first, and since decommissioned, wastewater treatment plant south of Elton Hills Drive and west of North Broadway. The sewer currently extends from the 13½ Street NW/North Broadway intersection to the Rochester Water Reclamation Plant (RWRP). The proposed Project will be constructed in the Zumbro River corridor from the 13½ Street NW/North Broadway intersection to just east of the 3rd Avenue NW/37th Street NW intersection. Figures 1 and 2 of the EAW identify the general Project location in Olmsted County, Minnesota, while Figure 3 of the EAW overlays the proposed relief sewer alignment on United States Geological Survey 7.5 feet Quadrangle Topographical base maps. The existing Main Trunk Line sewer has a maximum capacity of approximately 37.1 million gallons per day (mgd). The proposed Project will consist of a 66-inch diameter line at an approximately 0.06 percent slope with a maximum hydraulic capacity of approximately 53.1 mgd. The proposed Project will address inadequate capacity issues within its existing sewer service areas. This new line will supplement the existing 48-inch Main Trunk Line sewer and will provide for in-fill development, and additional protection against surcharge from peak wet weather flows within its existing sewer service areas.

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Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Findings of Fact Conclusions of Law And Order

The proposed Project is in the preliminary design stage and the conceptual alignment is shown on Figure 4 of the EAW. Although this conceptual alignment is described in the following text, final alignments will be refined as the final design process progresses and may differ slightly from the conceptual alignment shown. It is expected that any alignment changes will not be sufficiently dramatic to necessitate preparation of an amended EAW. Any changes will be reviewed by the MPCA. The average depth for the proposed relief sewer is projected to be about 15 feet. A 200-foot wide potential construction limit is identified on the Figures. Construction impacts are expected to be limited to the 200-foot corridor. The Project will be bid using standard trench and fill construction methods. These methods would result in the disturbance of surface conditions. All reasonable efforts will be made to restore the ground surface to original conditions. Excess soil will be generated by the Project: these materials will be managed in accordance with the applicable local and state regulations. The Project will also have a value engineering option for using tunneling construction methods. If construction methods utilizing tunneling are used there will be less material removed, no replacement of soils, and less surface disturbance. Lift-Station No. 1 will be abandoned and either demolished or re-used for another purpose, such as a storm shelter. If it is demolished, the demolition debris will be managed in accordance with the applicable local and state regulations. The proposed Project alignment follows the South Fork of the Zumbro River corridor and will cross the South Fork of the Zumbro River three times (Figure 6 of the EAW). The Minnesota Department of Natural Resources (DNR) has past records of three rare species of mussels in the river in the vicinity of this Project. Mussel surveys of the three crossing sites were completed in July 2005. Elktoe mussels were found at all three crossing sites, and they must be protected during and subsequent to construction. The DNR has indicated a preference for directional boring, while the City prefers open trench crossings following mussel surveys and translocation of any mussels found. If open trenching is to be conducted, rare mussels will be relocated to upstream areas of the South Fork of the Zumbro River that will not be affected by the river crossing activities. The City is working closely and will continue to work with the DNR to identify an acceptable method of constructing the Zumbro River Crossings. The three siphons to be abandoned will be abandoned in place by plugging the siphons. The following environmental concerns associated with the proposed Project were identified and addressed, in part, in the EAW. • • • • • • •

Temporary impacts to wetlands and protected waters; Limited conversion of wooded areas; Temporary impacts to recreational trails; Erosion potential during construction; Potential dewatering of excavations during construction; Noise and dust during construction; and Mitigation of any adverse impacts on a threatened species of mussels.

Additional Concerns Described in Comment Letters 2

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The Rochester (District 8) Office of the Minnesota Department of Transportation (MNDOT) noted that any work in the right-of-way (ROW) will require a permit, and provided a contact person. The Rochester-Olmsted Planning Department (ROPD) provided clarification regarding the Wetland Conservation Act (WCA) as it applies to the Project and also on the difference between the Floodway and Flood Fringe Districts in local zoning. An anonymous facsimile transmission received on August 30, 2005, expressed opposition to the sewer location, indicating that there is frequent flooding in the area already and asked why we don’t keep our sewer lines away from our waterways. A comment letter dated September 12, 2005, was apparently hand-delivered on or about the September 16, 2005. It requested that an archaeological survey be performed on the Project, since “there is a good probability that unreported archaeological properties may be located in the Project area.” Community Involvement in Process The 1996 Master Plan for the RWRP and trunk sewer extensions (which would have included the ElfordFullerton parallel relief line) was presented at a City Council meeting with opportunity for public input prior to Council adoption. The City discussed the Project with all of the affected private property owners regarding access, temporary and permanent easements, and the alignment options necessary to serve possible future development on those private parcels. In this case, the majority of land is owned by the City. As a standard practice, the City sends out notices to neighboring residents about two weeks prior to construction. PROCEDURAL HISTORY 1.

Pursuant to Minn. R. 4410.4300, subp. 18, Item A, an EAW was prepared by MPCA staff on the proposed Project. Pursuant to Minn. R. 4410.1500 (2003), the EAW was distributed to the Environmental Quality Board (EQB) mailing list and other interested parties on August 1, 2005.

2.

The MPCA notified the public of the availability of the EAW for public comment. A news release was provided to media located in Olmsted County, as well as other interested parties on August 17, 2005. In addition, notice of availability of the EAW was published in the EQB Monitor on August 1, 2005. The EAW was also available for review on the MPCA Web site at http://www.pca.state.mn.us/news/eaw/index.html on August 1, 2005.

3.

The public comment period for the EAW began on August 1, 2005, and ended on August 31, 2005. During the 30-day comment period, the MPCA received two comment letters from government agencies and received one unsigned facsimile from a private citizen. An additional letter was received from the Minnesota Historical Society on or about September 16, 2005.

4.

The MPCA prepared responses to all comments received during the 30-day public comment period. Comment letters received have been hereby incorporated by reference as Appendix A to these findings. The MPCA responses to comments received are hereby incorporated by reference as Appendix B to these findings. CRITERIA FOR DETERMINING THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS

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5.

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Under Minn. R. 4410.1700 (2003), the MPCA must order an Environmental Impact Statement (EIS) for projects that have the potential for significant environmental effects that are reasonably expected to occur. In deciding whether a project has the potential for significant environmental effects, the MPCA must compare the impacts that may be reasonably expected to occur from the project with the criteria set forth in Minn. R. 4410.1700, subp. 7 (2003). These criteria are: A.

the type, extent, and reversibility of environmental effects;

B.

cumulative potential effects of related or anticipated future projects;

C.

the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; 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 MPCA FINDINGS WITH RESPECT TO EACH OF THESE CRITERIA ARE SET FORTH BELOW

Type, Extent, and Reversibility of Environmental Effects 6.

The first criterion that the MPCA must consider, when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is the "type, extent, and reversibility of environmental effects," Minn. R. 4410.1700, subp. 7.A (2003). The MPCA findings with respect to each of these factors are set forth below.

7.

Reasonably expected temporary environmental impacts on wetlands and public waters: Construction impacts on wetlands and protected waters will include excavation of trenches or various tunneling methods, followed by placement of the sewer pipes and restoration of original contours of the wetlands and protected waters. Wetland delineations and any required permitting will be conducted prior to beginning construction activities and will provide a more accurate estimate of wetland impacts.

8.

The extent of any potential environmental impacts on wetlands and public waters that are reasonably expected to occur: As indicated in the EAW, there are approximately 16.22 acres of wetland within the 200-foot construction limit of the Project. The Project alignment will also cross the South Fork of the Zumbro at three locations and Rocky Creek at one location. The streambed of Cascade Creek will not be crossed by the Project but the stream banks of Cascade Creek may be impacted by construction related activities. The nature of construction impacts on these waters will include excavation of soil material, placement of the sewer pipe, and restoration to pre-construction contours. Additionally, the City and the DNR are discussing strategies to be used for stream crossings to protect populations of rare species of mussels. Those strategies will protect the species in question. Once the Project is completed, there will be no perceptible indication that a sewer has

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been constructed along the alignment. Impacts on mussels are further discussed in Findings 43 through 48. 9.

The reversibility of any potential environmental impacts on wetlands and public waters that are reasonably expected to occur: Construction, whatever methods are ultimately selected, will be followed by immediate restoration of preconstruction conditions. This restoration will include replacement of any excavated soils and restoration of pre-construction contours and flow patterns. Construction impacts will be totally reversible. The MPCA finds that any potential effect that is reasonably likely to occur from this Project would be reversible. As discussed above, the expected effects on wetlands and public waters are minimal. There is no reason to believe that this Project is reasonably expected to cause a significant negative effect on wetlands and public waters.

10.

Comments received that expressed concerns regarding potential impacts on wetlands and public waters: None of the comment letters expressed any concern for impacts on wetlands and/or public waters. As discussed above in Findings 7, 8, and 9, the analysis indicates that the effects on wetlands and public waters that are reasonably expected to occur are not significant.

11.

The MPCA finds that the environmental review is adequate to address the concerns because: All potential impacts to wetlands and public waters that are reasonably expected to occur from the proposed Project have been considered during the review process and methods to prevent these impacts have been developed.

12.

The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of environmental effects reasonably expected to occur as a result of its temporary impacts on wetlands and public waters.

13.

Reasonably expected environmental effects of this Project related to limited conversion of wooded areas: During construction, trees and other vegetative material will be removed from the 200-foot construction limit, where the trench will be excavated. As a result, the wooded area will be converted to grassland. Impacts to wooded/forest cover types within the approximately 30-foot band above the sewer line will be permanent. However, wooded/forest cover types impacted outside this area will be allowed to re-establish to pre-construction conditions. It could take a very long time to re-establish this cover type to pre-construction conditions. In the interim it will be considered brush/grassland.

14.

The extent of any potential limited conversion of wooded areas that are reasonably expected to occur: An area about 30 feet in width, immediately above the sewer pipe will be permanently mowed. Over the entire length of the Project, this area will total 12.48 acres. This is a routine practice with

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sewers, and it is done to prevent the entry of tree roots into the sewer pipe joints, as well as to allow maintenance work involving excavation without the extensive removal of vegetation. The area involved is rather small, and is located within an urbanized area, and is not a unique habitat that supports a significant population of wildlife. Moreover, the sort of wooded area is common nearby. The MPCA finds that this limited conversion of wooded areas is not significant. 15.

The reversibility of any limited conversion of wooded areas that are reasonably expected to occur: The MPCA finds that any limited conversion of wooded areas that is reasonably likely to occur from this Project would not be reversible. There is no reason to believe that this Project is reasonably expected to cause a significant conversion of wooded areas.

16.

Comments received that expressed concerns regarding limited conversion of wooded areas: No comment letters expressed concern about conversion of wooded areas. As discussed above in Finding 14, the analysis indicates that the effects on wooded areas that are reasonably expected to occur are not significant.

17.

The MPCA finds that the environmental review is adequate to address the concerns because: All potential limited conversion of wooded areas that are reasonably expected to occur from the proposed construction of this Project have been considered during the review process and these impacts have been determined to be necessary to protect the future integrity and maintainability of the Project (Finding 14, above) and these impacts have been determined not to be significant.

18.

The MPCA finds that the Project as it is proposed does not have the potential for significant conversion of wooded areas based on the type, extent, and reversibility of environmental effects reasonably expected to occur.

19.

Reasonably expected environmental effects of this Project related to temporary impacts to recreational trails and other facilities that are reasonably expected to occur: Specific parks, trails and public lands that are in the study and construction areas are described in detail below. Any impacts to parks and public lands will be temporary and related to construction activities. Construction related noise and traffic may be noticeable to park users and may result in a temporary reduction in park usage or level of enjoyment by park users. Temporary impacts on park usage or access to portions of the parks during excavation and backfilling as part of relief line installation may occur. Segments of the trail system will need to be closed during parts of construction, so trail users will be detoured to non-impacted trail segments via connecting sidewalks. In very limited portions of the alignment, trees will be permanently removed from a 30foot band directly above the sewer and replaced with grassland/shrubland vegetation. Trees will be allowed to recolonize outside that area, but it will take many years, especially for upland woodland species to recover.

20.

The extent of any potential temporary impacts to recreational trails and other facilities that are reasonably expected to occur:

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The proposed Project will temporarily affect portions of the Recreation Center, Riverview West Park, Thompson Mill Race Park, and the River Trails bike and pedestrian trail system. Methods to minimize or avoid adverse impacts include maintaining access to as much of the public area as possible during construction and restoring the areas affected by construction as rapidly as possible after construction on a segment has been completed. 21.

The reversibility of any potential temporary impacts to recreational trails and other facilities that are reasonably expected to occur: Temporary impacts to recreational trails and other facilities are fully reversible. Once construction of the Project is completed, these facilities will no longer be impacted.

22.

Comments received that expressed concerns regarding potential temporary impacts to recreational trails and other facilities that are reasonably expected to occur: No comments were received that expressed a concern about temporary impacts to recreational trails and other facilities.

23.

The MPCA finds that the environmental review is adequate to address the concerns because: All potential temporary impacts to recreational trails that are reasonably expected to occur from the proposed construction of this Project have been considered during the review process and these impacts have been determined not to be significant, mainly because they will cease upon the cessation of construction.

24.

The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of temporary environmental effects on recreational trails.

25.

Reasonably expected environmental effects of this Project related to erosion potential during construction: During construction, vegetation is removed from the construction site to allow excavation and landforming. When precipitation falls on this devegetated area, erosion of sediment from the site can occur. This in turn may lead to sedimentation, where soil particles are entrained in the run-off water and may enter surface water such as lakes, stream, or rivers. Sedimentation can cause direct water quality problems and it can also affect fauna and flora resident in the surface water.

26.

The extent of any potential temporary impacts related to erosion potential during construction. The extent of erosion depends upon the length of time the de-vegetated area remains unprotected, the amount of precipitation that falls on the site, and the various mitigative measures that are applied. As a general rule, construction of a sewer occurs only on the area in which the pipe is to be immediately installed, the trench is backfilled quickly. Item 16 of the EAW describes the best management practices (BMPs) required in the National Pollutant Discharge Elimination System (NPDES) General Permit for discharge of stormwater during construction activities. These BMPs

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will also be incorporated into Contract Plans and Specifications. Item 17 of the EAW further describes measures to control erosion in the immediate vicinity of the surface water. 27.

The reversibility of any impacts related to erosion potential during construction that are reasonably expected to occur: Erosion and sedimentation, if allowed to occur, is reversible only with difficulty and at substantial expense. Accumulated sediment must be removed from water bodies and eroded surfaces must be restored and stabilized against further erosion. It is a far more acceptable and productive strategy to rely on preventive measures established in the NPDES General Permit.

28.

Comments received that expressed concerns regarding any impacts related to erosion during construction that are reasonably expected to occur: No comments were received that expressed a concern about erosion during construction.

29.

The MPCA finds that the environmental review is adequate to address the concerns about erosion potential during construction because: All potential impacts related to erosion during construction that are reasonably expected to occur have been assessed and are subject to mediation by the conditions of the MPCA General Permit for discharge of stormwater during construction activity, which will also be conditions of the Construction Plans and Specifications.

30.

The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of effects associated with erosion during construction.

31.

Reasonably expected environmental effects of this Project related to dewatering of excavations during construction: During construction of the relief sewer, saturated subsurface conditions may be encountered, and dewatering of ground water may be required. Dewatering of excavation trenches, if not properly conducted, could result in adverse impacts on nearby wells and the lowering of the local water table.

32.

The extent of any potential temporary impacts related to dewatering of excavations during construction: The extent of impacts from construction dewatering will depend on the location of nearby wells, the depth of the excavation, and the depth of the ground water, and compliance of the contractor with DNR rules pertaining to dewatering. There are only nine water supply wells within 1,000 feet of the Project study area. This fairly great distance means that adverse impacts on water supply wells in the area are unlikely to occur. Dewatering will only be required in areas where the excavation lies below the local water table. This is true only in limited areas. The DNR has extensive experience in protecting water supply wells from water appropriations. During construction of the

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relief sewer, saturated subsurface conditions may be encountered, and dewatering of ground water may be required. If dewatering is necessary, an evaluation of the likely volumes of water to be removed will be made and a water appropriation permit will be obtained from the DNR, if necessary. All dewatering operations will be conducted in accordance with applicable DNR regulations. The City will require contracts for public projects to investigate and evaluate potential dewatering impacts to adjacent shallow wells with a requirement to install temporary water service if warranted by impacts. 33.

The reversibility of any impacts related to dewatering of excavations during construction: Impacts of dewatering of excavations are completely reversible, becoming negligible almost immediately upon the cessation of dewatering.

34.

Comments received that expressed concerns regarding any impacts related to dewatering of excavations during construction that are reasonably expected to occur: No comments were received that expressed concern about dewatering impacts.

35.

The MPCA finds that the environmental review is adequate to address the concerns about dewatering of excavations during construction because: All potential impacts of excavation dewatering that are reasonably expected to occur have been assessed and are subject to mediation by the conditions of the DNR Temporary Water Appropriation Permit, a program with which the DNR has extensive experience.

36.

The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of effects associated with dewatering of excavations during construction.

37.

Reasonably expected environmental effects of this Project related to noise and dust during construction: Construction activities associated with the proposed sewer installation include excavating and handling large volumes of soil. Especially when winds are high, this can result in generation of dust. Typical construction equipment noise will be generated during construction.

38.

The extent of any potential temporary impacts related to noise and dust during construction: The extent of noise and dust impacts depends upon hours during which construction takes place, the distance to sensitive receptors, and various mitigative measures required by contract Plans and Specifications. Construction will be scheduled only during daytime hours as is required by City ordinance. While there are houses located in the general area of construction, very few of them are in close proximity to the construction zone, so it is very unlikely that state noise standards will be exceeded at any receptors. Where possible, paved roads will be used to access construction areas in an effort to minimize dust from construction equipment. Water trucks will be used to treat excavation areas during dry and/or windy conditions. Permanent vegetation will be established both as an erosion control measure and to minimize dust generation after construction is complete.

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39.

Findings of Fact Conclusions of Law And Order

The reversibility of any impacts related to noise and dust during construction during construction: Noise and dust generation are completely reversible. Once construction ceases, noise and dust associated with it will cease as well.

40.

Comments received that expressed concerns regarding any impacts related to noise and dust during construction that are reasonably expected to occur: No comments concerning noise and dust were received.

41.

The MPCA finds that the environmental review is adequate to address the concerns about noise and dust during construction during construction because: The expected noise and dust that will be generated by the construction was evaluated and determined to by of minimal extent, totally reversible and subject to mitigative measures that are stipuated in City Ordinances and contract specifications. Noise and dust impacts of construction were therefore found not to be significant.

42.

The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of effects associated with noise and dust during construction.

43.

Reasonably expected environmental effects of this Project related to any adverse impacts on a threatened species of mussels: At the request of the DNR, the City performed mussel surveys in the river in the vicinity of the Project in July 2005. Elktoe mussels, a species that is state-listed as threatened with extinction, were found at all three crossing sites. Excavation of trenches for and the placement of a sewer line across a stream or river can cause direct and indirect adverse impact to resident species of mussels. Direct impacts would include the destruction of specimens by the excavation equipment. Indirect impacts would include the adverse effects on water quality associated with riverbed substrate disturbance. Mussels are particularly vulnerable to siltation and sedimentation. Siltation and sedimentation, if not properly mitigated could cause the death of individual specimens of mussels.

44.

The extent of any potential temporary impacts related to adverse impacts on a threatened species of mussels: Adverse impacts on mussels can be avoided by implementation of mitigative measures. Two strategies are under consideration. The DNR has indicated a preference for directional boring, which would avoid any disturbance of riverbed substrate. The City has indicated a preference for open-trench construction, employing a mussel survey and relocation of mussels to areas upstream of the crossings. Relocation has been implemented in the past at this and other sites and it has successfully been used to protect mussel species during utility crossings of streams. Open trenching would also require the use of silt curtains and other erosion and sedimentation control (ESC) BMPs. Open-trench construction combined with ESC BMPs is entirely capable of protecting the water quality of areas downstream of the crossings. Regardless of the mitigative strategy employed, state law requires protection of threatened species of mussels. The DNR issues

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a Utility Crossing License, the conditions of which will stipulate measures necessary to protect the mussels. 45.

The reversibility of any impacts related to adverse impacts on a threatened species of mussels: Provided either mitigative strategy (directional boring or open trenching with ESC BMPs) is implemented reversibility is a moot point as with appropriate mitigation the extent of impacts would be nil.

46.

Comments received that expressed concerns regarding any adverse impacts on a threatened species of mussels that are reasonably expected to occur: The DNR expressed a preference for direction boring.

47.

The MPCA finds that the environmental review is adequate to address the concerns about adverse impacts on a threatened species of mussels because: The expected impacts upon threatened species of mussels by the construction was evaluated and determined to be subject to mitigative measures that will be stipulated in the DNR Utility Crossing License, Public Waters Work Permits, and Contract Specifications. Impacts of construction on threatened species of mussels were therefore found not to be significant.

48.

The MPCA finds that the Project, as proposed, does not have the potential for significant environmental effects based on the type, extent, and reversibility of adverse impacts on a threatened species of mussels.

49.

Reasonably expected environmental effects of this Project related to any adverse impacts on archaeological properties: Excavation of a sewer trench up to 15 feet in depth could result in the destruction of some artifacts and the total disruption of existing stratigraphy of artifacts, soils, and sediments. While the artifacts might survive, the archaeological value of those artifacts is considerably diminished, because their relationship to one another is destroyed, unless careful excavation can record the location of artifacts and their relationship to one another.

50.

The extent of impacts on archaeological resources would depend on where the alignment of the wastewater interceptor was placed, as well as the existence of archaeological resources along the Project alignment. Paleoindians tended to establish campsites near water on high ground, so the Project alignment appears likely to contain such sites. The alignment of the sewer can be revised to avoid valuable archaeological sites. If revision of the Project alignment is not possible, a site excavation can be performed by an archaeologist, who can preserve the artifacts and record their relationship to each other.

51.

The reversibility of impacts on archaeological resources would be practically nonexistent. Once the context of the archaeological material within the site is destroyed, the value of that material is limited. Revision of the Project alignment would be far preferable.

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52.

Comments received concerning impacts on archaeological resources include one letter from Dennis A. Gimmestad, the State Historical Preservation Officer (SHPO) of the Minnesota Historical Society. SHPO has indicated that there is a good probability that unreported archaeological properties may exist in the Project area, and has recommended that a survey be completed.

53.

The MPCA finds that the environmental review is adequate to address the concerns because all potential impacts on archaeological resources that are reasonably expected to occur from the proposed Project have been considered during the review process and methods to prevent these impacts are available. Those methods include an initial reconnaissance to identify sites where a Phase I evaluation is required. The purpose of a Phase I survey is to determine if an archaeological site exists within a proposed development area. If a site is found and cannot be avoided, a Phase II survey is done to evaluate the importance of the site and whether or not it is worth saving. Once the Phase II evaluation is completed the SHPO would be consulted to determine what subsequent action is appropriate.

54.

The MPCA finds that the Project, as it is proposed, does not have the potential for significant environmental effects on archaeological resources based on the type, extent, and reversibility of environmental effects reasonably expected to occur.

Cumulative Potential Effects of Related or Anticipated Future Projects 55.

The second criterion that the MPCA must consider, when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is the "cumulative potential effects of related or anticipated future projects," Minn. R. 4410.1700, subp. 7.B (2003). The MPCA findings with respect to this criterion are set forth below.

56.

The EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to identify any potential cumulative environmental impacts that are reasonably expected to occur.

57.

Public comments concerning cumulative impacts: No comments concerning cumulative impacts of related or anticipated future projects were received. Based on MPCA staff experience, available information on the Project, and absent information presented by commentors, the MPCA does not reasonably expect significant cumulative effects from this Project.

58.

In considering the cumulative potential effects of related or anticipated future projects, the MPCA finds that the reasonably expected effects from this Project will not be significant.

The Extent to Which the Environmental Effects Are Subject To Mitigation by Ongoing Public Regulatory Authority

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59.

The third criterion that the MPCA must consider, when determining if a project has the potential for significant environmental effects that are reasonably expected to occur, is "the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority," Minn. R. 4410.1700, subp. 7.C (2003). The MPCA findings with respect to this criterion are set forth below.

60.

The following permits or approvals will be required for the Project: Unit of Government A. U.S. Army Corps of Engineers (USACE)

Permit or Approval Required Section 10 Permit for activities affecting navigable waters of the U.S. Section 404 Permit for dredging and filling of navigable waters/jurisdictional wetlands Coordination regarding any impacts to the flood control project Section 401 Water Quality Certification of USACE Section 404 Permit NPDES General Permit for Discharge of Stormwater During Construction Activities (for construction that will disturb more than one acre of non-impervious surface) Sewer Extension Permit Plans and Specifications Review for Construction Utility Crossing License Public Waters Work Permit

Status To be applied for

Unit of Government J. DNR

Permit or Approval Required General Permit 97-0005 for Temporary Water Appropriation

K. DNR L. SHPO

Endangered Species Permit Concurrence on Findings of Cultural Resource Impacts Utility Permit on Trunk Highway ROW (Form 2525) Certificate of WCA Exemption Floodplain Conditional Use Permit

Status To be applied for if ground-water dewatering will exceed 10,000 gallons per day or one million gallons per year Applied for To be obtained

B. USACE C. USACE D. MPCA E. MPCA

F. MPCA G. MPCA H. DNR I. DNR

M. MNDOT N. ROPD O. ROPD

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To be applied for To be conducted To be applied for To be applied for

To be applied for To be obtained To be applied for To be applied for

To be applied for To be applied for The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human,

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animal or plant life is prohibited. Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the zoning administrator. 61.

The above-listed permits include general and specific requirements for mitigation of environmental effects of the Project, as follows: A. USACE, Section 10 Permit for activities affecting navigable waters of the U.S. Section 10 of the Rivers and Harbors Act of 1899 requires approval prior to the accomplishment of any work in, over, or under navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Typical activities requiring Section 10 permits include: construction of intake structures, cable or pipeline crossings; work such as dredging or disposal of dredged material; and excavation, filling, or other modifications to navigable waters of the United States. B. USACE, Section 404 Permit for dredging and filling of navigable waters/jurisdictional wetlands. This general permit provides language describing procedures and permissions regarding excavation and placement of excavated material within a wetland during various activities, including placement of wastewater sewers. C. USACE, Coordination regarding any impacts to the flood control project. The coordination between the USACE will ensure that there is no adverse impact by the sewer on the USACE flood control project. D. MPCA, Section 401 Water Quality Certification of USACE Section 404 Permit. The Project is subject to the review requirements of the MPCA’s Water Quality Certification for the USACE Section 404 Wetlands and Section 10 (Rivers and Harbors) Permits. E. MPCA, NPDES General Permit for discharge of stormwater during construction activities (for construction that will disturb more than one acre of non-impervious surface). The Project owner and operator (contractor) must apply to the MPCA for a NPDES Permit because construction of the Project will disturb greater than one acre of land. The NPDES application includes a series of statements, which must be affirmed by the permittee. These statements include assurances that a Stormwater Pollution Prevention Plan (SWPPP) has been prepared, that the plans will be compliant with the NPDES General Permit and that the proposer and operator will adhere to this SWPPP. The SWPPP will be incorporated into the Project’s plans and specifications. The SWPPP will address: temporary and permanent ESC measures; dewatering and basin draining; inspections and maintenance; pollution prevention management measures; and will incorporate stormwater related mitigation measures from any environmental reviews. The NPDES General Permit is enforceable by the MPCA. F. MPCA, Sewer Extension Permit. After completion of administrative and technical reviews by MPCA staff, State Disposal System Permits will be required for the interceptors and each lateral sewer that will connect to them. Review of sewer extension permits will verify that 14

Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Findings of Fact Conclusions of Law And Order

hydraulic capacity exists in the receiving wastewater interceptor systems and the treatment facility. The City will have a legal obligation to enforce adopted local stormwater laws. If the MPCA discovers that the community has failed to implement and enforce its stormwater laws in a manner that protects receiving water quality and quantity, the MPCA may subject it to administrative penalties including denial of future sanitary sewer extensions. G. MPCA, Plans and Specifications Review for Construction. Construction plans and specifications for the Project are submitted to the MPCA for technical review and approval. This review is performed to ensure that the facility design is consistent with good engineering practice and state and federal criteria. H. DNR, Utility Crossing License. A license is required for the passage of any utility over, under or across any state land or public waters. Standards and criteria of the DNR include route design, structure design, construction methods, safety considerations, and ROW maintenance to provide maximum protection and preservation of the natural environment and to minimize any adverse effects, which may result from utility crossings. This permit will include measures necessary to protect threatened or endangered species of mussels. I.

DNR, Public Waters Work Permit. The Public Waters Work Permit Program regulates activities that change or diminish the course, current or cross section of public waters within the state, by any means, including filling, excavating, or placing materials in or on the beds of public waters. This permit would be required for any activity that impacts wetlands.

J.

DNR, General Permit 97-0005 for Temporary Water Appropriation. This permit is for certain temporary appropriations for construction dewatering, landscaping and hydrostatic testing projects involving less than 50 million gallons. Temporary water appropriation applies to projects involving a one time, limited time (not more than 12 months), non-recurring appropriation of state water totaling one million gallons per year or 10,000 gallons per day. Examples of work requiring this permit include road construction, hydrostatic testing, dust control and dewatering.

K. DNR, Endangered Species Permit. The taking, including transporting, of endangered or threatened plant or animal species without a permit, is prohibited. For animals, taking includes pursuing, capturing, or killing. Permit issuance is discretionary and based on DNR's assessment of all relevant information. This permit will be required if mussel species are relocated. L. SHPO, Concurrence on Findings of Cultural Resource Impacts. SHPO Concurrence assures that archaeological sites and resources are avoided, or, if avoidance is impossible, those sites are salvaged and their information is preserved. M. MNDOT, Utility Permit on Trunk Highway ROW (Form 2525). The ROW Permit ensures that the work will be accomplished in a manner that will not be detrimental to the ROW and that will safeguard the public, and that the right of way on trunk highways is restored to its original condition. N. ROPD, Certificate of WCA Exemption. Minn. R. 8420.0122, subp. 6 exempts utilities from WCA. Impacts upon the wetland are to be minimized to the extent practicable. The City may require the Public Works Department to apply for an exemption from WCA, unless all wetlands 15

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are located within public waters, in which case the DNR will become the Local Unit of Government for WCA purposes. O. ROPD, Floodplain Conditional Use Permit. This permit will regulate activities within the floodplain and flood fringe areas. 62.

The MPCA finds that ongoing public regulatory authority will address any significant potential environmental effects that were identified as reasonably expected to occur.

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. 63.

The fourth criterion that the MPCA must consider is "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," Minn. R. 4410.1700, subp. 7.D (2003). The MPCA findings with respect to this criterion are set forth below.

64.

The following documents were reviewed by MPCA staff as part of the potential environmental impact analysis for the proposed Elford-Fullerton Sanitary Relief Sewer Installation. This list is not intended to be exhaustive. The MPCA also relies on information provided by the Project proposer, commentors, staff experience, and other available information. • • •

Completed data portions of the Project EAW; The August 1, 2005, EAW; and Correspondence from various state and local agencies, including EAW comment letters.

65.

In addition, the process of designing and constructing wastewater interceptors is very routine. The community of civil engineers that are involved in design and construction, as well as the community of regulators of the industry, are very familiar with the routine principles of design and construction of interceptor sewers.

66.

There are no elements of the Project that pose the potential for significant environmental effects that cannot be addressed in the Project design and permit development processes, or by regional and local plans.

67.

Based on the environmental review, previous environmental studies, and MPCA staff expertise on similar projects, the MPCA finds that the environmental effects of the Project that are reasonably expected to occur can be anticipated and controlled. CONCLUSIONS OF LAW

68.

The MPCA has jurisdiction in determining the need for an EIS for this Project. The EAW, the permit development process, the facility planning process, responses prepared by MPCA staff in response to comments on the proposed Elford-Fullerton Sanitary Relief Sewer Installation EAW,

16

Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Findings of Fact Conclusions of Law And Order

and the evidence in the record are adequate to support a reasoned decision regarding the potential significant environmental effects that are reasonably expected to occur from this Project. 69.

Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigation measures have been incorporated into the Project design and permits. The Project is expected to comply with all MPCA standards.

70.

Based on the criteria established in Minn. R. 4410.1700 (2003), there are no potential significant environmental effects reasonably expected to occur from the Project.

71.

An EIS is not required.

72.

Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such.

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Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Findings of Fact Conclusions of Law And Order

ORDER The Minnesota Pollution Control Agency determines that there are no potential significant environmental effects reasonably expected to occur from the proposed Elford-Fullerton Sanitary Relief Sewer Installation project and that there is no need for an Environmental Impact Statement.

IT IS SO ORDERED

__________________________________________ Sheryl A. Corrigan, Commissioner Minnesota Pollution Control Agency __________________________________________ Date

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APPENDIX B Minnesota Pollution Control Agency Elford-Fullerton Sanitary Relief Sewer Installation Environmental Assessment Worksheet (EAW) RESPONSES TO COMMENTS ON THE EAW 1.

Comments by Fred Sandal, Acting Planning Director, Minnesota Department of Transportation (MNDOT) – District 6. Letter received August 17, 2005.

Comment 1-1: “Any work within Mn/DOT’s right-of-way will require a Mn/DOT permit. You may contact Lee Gierok, Roadway Regulations Supervisor, at (507) 285-7362, to start the permitting process for the intersection at 13½ Street NW and North Broadway.” Response: Thank you for your comment and the MNDOT’s input throughout the EAW process. The comment has been forwarded to the Rochester Department of Public Works for their information. The MNDOT Permit is included in Table 8.1, List of Potential Permits and Approvals. The appropriate application will be submitted to MNDOT for approval prior to beginning any construction activities that may impact State Trunk Highway 63. 2.

Comments by John Harford, Senior Planner, Rochester-Olmsted Planning Department. Letter received August 22, 2005.

Comment 2-1: Pertains to Question 12, Physical Impacts on Water Resources. “Minnesota Wetland Conservation Act (WCA) information states certain wetland activities are exempt from WCA, allowing projects with minimal or temporary impacts or projects located on land where certain pre-established land uses are present to proceed without regulation. This statement is inaccurate in that the actions are regulated by WCA, but more importantly the City of Rochester Wetland Ordinance, a local adoption of the state rules, requires that those wetlands that fall within one of the “Exemptions” categories obtain the “Exemption.” If all wetlands are located within Public Waters, however, the Minnesota Department of Natural Resources will be the Local Governmental Unit responsible for wetland impact review.” Response: This comment has already been forwarded to the city of Rochester, Department of Public Works, which will be responsible for making application to obtain all permits. Comment 2-2: Pertains to Question 14 Water-related Land Use Management Districts “Under the Floodplain section of the EAW states “During flooding events, the storage or processing of materials that are flammable, explosive, or potential injurious to human, animal, or plant life is prohibited.” This statement is consistent with the city of Rochester Zoning Ordinance and Land Development Manual, Section 62.843(2) that covers the Flood Fringe District. Section 62.854 addressing the Floodway District, however, provides a separate standard as follows: “The storage or processing of materials that are in time of flooding buoyant, flammable, explosive, or which could be injurious to human, animal, or plant life, or are likely to cause pollution of waters, as defined by Minnesota Statutes, Section 115.01, if subject to floating, is prohibited. Storage of other material or equipment may be allowed if not subject to major damage by floods and firmly anchored to prevent floatation or readily removable from the area within the time available after a flood warning. The EAW should be correct to recognize this difference in

Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Responses to Comments on the Environmental Assessment Worksheet

construction standards between the Flood Fringe and the Floodway Districts. No storage or processing of materials that are buoyant, flammable, explosive will be permitted in the Floodway District along the South Fork Zumbro River.” Response: The majority of the proposed Elford-Fullerton Sanitary Relief Sewer Installation (Project) will occur within the floodway associated with the South Fork of the Zumbro River. The floodway is shown on Figure 8 of the EAW. Since the proposed Project will be underground and existing surface elevations will be restored after construction, no alterations of floodways or floodplains are anticipated. However, the City of Rochester Zoning Ordinance and Land Development Manual, Section 62.854, as discussed in comment 1-2, will require that a staging area outside the floodway be established for temporary storage of equipment and stockpiled material. This information has been forwarded to the Rochester Department of Public Works so the information about this requirement can be provided to their selected contractor. Since both the Comment Letter and the Response to Comments are incorporated by reference into the Findings of Fact, there is no reason to amend or correct the EAW. 3.

Comments by Concerned Citizens. Unsigned facsimile received August 30, 2005.

Comment 3-1: “We object to the two mile 66-inch sanitary sewer. There is frequent flooding in this area already. Why do we not keep our sewer lines away from our waterways?” Response: The commenter, while concerned about the proximity of the sewer to the river, and presumably the crossing of the river, has not demonstrated that adverse impacts on the river would result from this route. In fact, there are frequent instances throughout Minnesota where interceptor sewers are constructed near and across bodies of water where no adverse environmental impacts have been the result. Comment 3-2: “There are alternate routes for this sewer line along Highway 63 N., or thru Rochester Public Utilities property, or the Morris property. Either route is a further distance from the river.” Response: Unless adverse environmental impacts are expected from a proposed Project, the MPCA has no reason to order the selection of an alternative route for such Project. The commenters have not demonstrated that adverse environmental impacts would result from the proposed Project. 4.

Comments by Matt Langan, Environmental Planner, Minnesota Department of Natural Resources (DNR), Environmental Review Unit. Facsimile received August 31, 2005.

Comment 4-1: “The EAW states that this project involves the installment of 66-inch sewer line across the South Fork Zumbro River at three separate locations, each using open-trench construction methods that would result in substantial, albeit temporary, riparian and in-stream fish habitat disturbance. Most of the fish habitat in the Zumbro River through the city of Rochester has been degraded, except for the reach between the Silver Lake dam and the wastewater treatment plant – the Elford Fullerton project site.” “Because the area of impact for this project represents the last remnants of a natural stream habitat within Rochester, DNR recommends the use of directional boring techniques to minimize the lose and/or disturbance of remaining fish habitat. If open trench methods are used, DNR will need to specify adequate restoration requirements on DNR permit applications.”

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Elford-Fullerton Sanitary Relief Sewer Rochester, Minnesota

Responses to Comments on the Environmental Assessment Worksheet

Response: The comment has been forwarded to the Rochester Department of Public Works for their consideration. The city of Rochester has been and will continue to work closely with the DNR to assure that whatever method is employed to cross the South Fork Zumbro River, the species present in the river, including threatened species of mussels, are protected from adverse impact. 5.

Comments by Dennis A. Gimmestad, Government Programs and Compliance Officer, State Historical Preservation Officer (SHPO), Minnesota Historical Society (MHS), Letter received September 16, 2005.

Comment 5-1: “We believe that there is a good possibility 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 for National Registry eligibility for any properties which are identified.” “If the project area can be documented as previously disturbed or previously surveyed, we will reevaluate the need for survey. Previously disturbed areas are those where the naturally occurring postglacial soils and sediments have been recently removed. Any previous survey work must meet contemporary standards.” Response: The 9,900-foot alignment of the proposed relief sewer contains both disturbed areas and areas that have been previously surveyed, as well as undisturbed and unsurveyed areas. The Rochester Department of Public Works has indicated it will complete a cultural resources reconnaissance of the previously undisturbed areas within the construction limits of the project. If the reconnaissance findings warrant further investigation in any locations within the construction limits, the contractor will be directed to proceed with a Phase I evaluation. The city of Rochester is in the process of obtaining quotes, and as soon as they get someone hired and the alignment cleared of brush, they will proceed. The city of Rochester will work closely with the SHPO if any archaeological properties are found along the project area, to determine what action needs to be implemented. If such sites are found, mitigative action could consist of re-routing the sewer, formal excavation of the property, or salvage excavation, depending on the nature of the site.

3

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