STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY FINDINGS OF FACT

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1 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED ELKO NEW MARKET INTERCEPTOR, CSAH 2 SEGMENT SCOTT COUNTY, ELKO, NEW MARKET, AND NEW MARKET TOWNSHIP, MINNESOTA FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER FINDINGS OF FACT Pursuant to Minn. R (2003), the Minnesota Pollution Control Agency (MPCA) staff has prepared an Environmental Assessment Worksheet (EAW) for the proposed Elko New Market Interceptor, CSAH 2 Segment Project. Based on the MPCA staff environmental review and other information in the record of the MPCA, the MPCA hereby makes the following,, : FACILITY HISTORY Background The cities of Elko and New Market are proposing to construct a package wastewater treatment plant to provide interim treatment capacity until late in this decade. At that time, a wastewater interceptor will be constructed that will divert flows from New Market Township to the Metropolitan Council Environmental Services Division facility at Empire. A two-mile portion of this interceptor will be constructed within the road right-of-way of County State Aid Highway (CSAH) 2, which will be constructed in The project will consist of the construction of approximately 10,000 feet of 48-inch pipe. After construction, the pipe will be temporarily plugged until construction of the remainder of the Elko-New Market Interceptor. No increase in flows will occur as a result of this project, as it represents the first leg of a separate project to be covered by a separate EAW that will address increases in flow and other service area conditions. Previous Environmental Review Environmental Review was performed on the Elko-New Market Wastewater Treatment Facility (WWTF) that was permitted in January of 2005 by the MPCA. That EAW was distributed on February 16, 2004, and a Negative Declaration on the need for an Environmental Impact Statement (EIS) was issued on June 24, An EAW entitled CSAH 2 from West of CSAH 91 to I-35 was prepared by the Scott County Highway Department and distributed on November 18, This EAW evaluated the environmental impacts of the CSAH 2 construction. The County Highway Department issued a Negative Declaration on the need for an EIS on February 3, TDD (for hearing and speech impaired only): (651) Printed on recycled paper containing at least 30% fibers from paper recycled by consumers

2 PROPOSED PROJECT DESCRIPTION Proposed New Construction The two-mile segment of the Elko-New Market Interceptor is proposed to be constructed before the rest of the interceptor in order to coordinate construction with Scott County s County Road 2 reconstruction project, and thereby minimize disruption to the environment as well as to people in the area. The County Road 2 segment of the interceptor has been sized to accommodate average wastewater flows of 7.3 million gallons per day (mgd) (peak flows will be 16.2 mgd); it will convey sanitary wastewater to the Empire WWTF in Empire Township after construction of the later phase of the interceptor extension. At this time, no wastewater will be conveyed by the pipe, and therefore, no increase in flows will occur as a result of the project. A separate EAW will be prepared for the remaining seven miles of interceptor to be installed in the future to serve portions of Elko, New Market and New Market Township. That EAW will address increases in flow as well as other service area conditions. Wastewater to be conveyed by the completed interceptor project will be within the range of normal strength domestic wastewater. The County Road 2 segment of the interceptor will begin at the intersection of County Road 91/Natchez Avenue in New Market and will proceed eastward along the north side of the County Road 2 reconstruction for approximately 10,000 feet to an endpoint just west of I-35. Construction of the sewer pipe will involve grading, excavation, backfilling, potential de-watering, and re-vegetation activities. Equipment to be used will include standard construction machinery such as trucks, backhoes, graders, compactors, bobcats, cranes, loaders, compressors, and possibly de-watering pumps. Construction of the project is anticipated to begin in the summer of 2005 and be completed in The proposed County Road 2 Segment of the Elko-New Market Interceptor will be needed to convey future wastewater flows from New Market Township. Eventual beneficiaries of the project will include residents and business operators in these areas, although service will not be provided as a result of this project. Service to these areas will be provided by construction of an additional seven miles of the Elko-New Market Interceptor sewer to be covered under a separate EAW. Environmental Concerns The following environmental concerns associated with the proposed CSAH 2 Segment of the Elko New Market Interceptor, were identified and addressed, in part, in the EAW. Several of these issues will be addressed at greater length in the EAW that will ultimately be prepared on the interceptor in its totality. Impacts of the construction of CSAH 2 upon wetlands in the area were discussed in the EAW prepared by the County in 2003: Short and long term impacts of construction on area flora and fauna. Stormwater runoff and erosion during construction of the interceptor and enabled development. Dust and noise caused by sewer construction. Impacts of enabled development on prime farmlands, infrastructure, and public services. 2

3 Additional Concerns Described in Comment Letters No comment letters were received. Community Involvement in Process Community involvement regarding the EAW, per se, is limited to the standard Environmental Quality Board (EQB) required activities (mailing of the public notice to media in Scott and Dakota Counties and others who have expressed an interest in Public Notices and wastewater issues, publication in the EQB Monitor, distribution to EQB Monitor list plus all the added local contacts, copies available at proposer's office and local library, etc). The extra step taken by the MPCA has been to post the document on their Web site. PROCEDURAL HISTORY 1. Pursuant to Minn. R , subp. 18, Item A, an EAW was prepared by MPCA staff on the proposed project. Pursuant to Minn. R (2003), the EAW was distributed to the EQB mailing list and other interested parties on January 28, The MPCA notified the public of the availability of the EAW for public comment. A news release was provided to media in Dakota and Scott counties, as well as other interested parties on January 27, In addition, the EAW was published in the EQB Monitor on January 31, 2005, and available for review on the MPCA Web site at January 28, The public comment period for the EAW began on January 31, 2005, and ended on March 2, The MPCA did not receive any comment letters during the 30-day comment period. CRITERIA FOR DETERMINING THE POTENTIAL FOR SIGNIFICANT ENVIRONMENTAL EFFECTS 4. Under Minn. R (2003), the MPCA must order an 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 , 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 3

4 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 5. 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 , subp. 7.A (2003). The MPCA Findings with respect to each of these factors are set forth below. Reasonably expected short- and long-term impacts of construction on area flora and fauna: 6. The type and nature of potential short-term impacts on wildlife will include the disruptive effects of construction, including excavation, stockpiling of soils and materials, noise, potential erosion and sedimentation, and vehicle movement. Habitat and individual animals will be destroyed by the actual excavation or placement of stockpiled earth or bedding. Surviving small species may be forced to leave their territories and compete with established individuals in other areas. Larger species may be forced to relocate to portions of their territories that are not impacted. Seasonal activities such as nesting may be disrupted or curtailed, depending upon the season of construction. The project itself will not permanently displace wildlife; however, urban development enabled by the sanitary sewer line will cause a shift in the types and numbers of species present. Species tolerant of urban areas will remain, while others less tolerant will not. 7. The extent of reasonably expected short-term impacts of construction on area flora and fauna will initially be limited to the immediate area of construction, as described in Findings 6. However, long-term disruption will occur throughout the service area of the interceptor, as a consequence of enabled development and land use conversion from low density residential and agricultural land use to suburban residential land use. 8. The reversibility of reasonably expected short-and long-term impacts of construction on area flora and fauna will vary. Short-term disruption that does not include destruction of individual species or habitat will be reversible upon the cessation of construction. Long-term changes in species numbers and composition due to land use conversion would be, practically speaking, irreversible. 9. Comments received that expressed concerns regarding short-and long-term impacts of construction on area flora and fauna: No comment letters were received during the comment period. 4

5 10. The MPCA finds that the environmental review is adequate to address the concerns because: All potential short-and long-term impacts of construction on area flora and fauna 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. 11. 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 short- and long-term impacts of construction on area flora and fauna. Reasonably expected environmental effects of this project associated with stormwater runoff and erosion during construction of the interceptor and enabled development: 12. The type and nature of any impacts associated with stormwater runoff and erosion during construction of the interceptor and enabled development: During construction of the interceptor, vegetation will be removed from the alignment of the project, and when precipitation falls on this devegetated earth, erosion can occur. Stormwater runoff can entrain sediment, and the sediment can be deposited in open water. The interceptor project is intended to provide sewer service to areas that are presently undeveloped. This will enable development to occur at a much higher density than exists at present. One consequence of such development is a substantial increase in the area of impervious surfaces, in the form of rooftops, sidewalks, driveways, roadways, and to a certain extent lawn grass. This impervious surface results in runoff, which entrains pollutants such as phosphorus and nitrate and contaminants present on the impervious surface, and which can cause soil erosion and entrained sediment. In addition, the amplitude of flow in receiving streams may increase, leading to additional erosion. 13. The extent of any impacts of stormwater runoff and erosion during construction of the interceptor and enabled development. The extent of construction stormwater impacts will depend upon the length of time required to reestablish vegetative cover, and the effectiveness of interim erosion control measures. Effects of stormwater from enabled development will depend on the density of development and upon mitigative measures implemented. Density of development is dictated by the City s Comprehensive Plan. This plan includes a Stormwater Management Plan. Subsequent residential development within the service area of this project will also be subject to a National Pollutant Discharge Elimination System (NPDES) General Permit for discharge of stormwater during construction activities (see Findings 37). Finally, proposed developments over 80 acres must undergo independent EAWs that will be performed on more specific development plans than are presently available. 14. The reversibility of any impacts of stormwater runoff and erosion during construction of the interceptor and enabled development. If stormwater runoff and erosion occur during construction, those effects are reversible if prompt implementation of Best Management Practices occurs. If stormwater runoff and erosion occurs as a result of development enabled by the project, it will be reversible to the extent that construction of stormwater controls, conveyance, and treatment facilities can be constructed retroactively. It is a far more acceptable strategy to provide such controls prior to or during the construction of the interceptor and enabled development. 5

6 15. Comments received that expressed concerns regarding impacts of stormwater runoff and erosion during construction of the interceptor and enabled development: No comment letters were received for this project. 16. The MPCA finds that the environmental review is adequate to address the impacts of stormwater runoff and erosion during construction of the interceptor and enabled development. All potential impacts of stormwater runoff and erosion during construction of the interceptor and enabled development 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. 17. The MPCA finds that the project as it is proposed does not have the potential for significant erosion and stormwater runoff during construction of the interceptor and enabled development based on the type, extent, and reversibility of environmental effects reasonably expected to occur. Reasonably expected impacts associated with dust and noise during construction: 18. Type and nature of impacts of dust and noise during construction: Construction of a wastewater interceptor is accomplished by the use of typical construction equipment, including trucks, backhoes, graders, compactors, bobcats, cranes, loaders, compressors, and possibly de-watering pumps. This equipment generates noise during its operation. 19. The extent of impacts of dust and noise during construction depends on the location of receptors and on the duration of construction as well as the time of construction. Nearest receptors are farmsteads and businesses along CSAH 2. Average exposure times are estimated at between two and four weeks. Construction will be limited to daytime hours. 20. The reversibility of impacts of dust and noise during construction: Dust and noise will cease upon the end of construction, and these impacts are completely reversible. 21. Comments received concerning dust and noise: No comments were received. 22. The MPCA finds that concerns about dust and noise during construction will be addressed by restricting construction to daytime hours and by the generally short duration of construction at any given point on the project alignment. 23. The MPCA finds that the environmental review is adequate to address the concerns because: All potential impacts associated with dust and noise during construction 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. 24. The MPCA finds that the project, as it is proposed, does not have the potential for significant environmental effects related to construction dust and noise based on the type, extent, and reversibility of environmental effects reasonably expected to occur. 6

7 Reasonably expected impacts associated with the enabled development on prime farmlands, infrastructure, and public services: 25. The type and nature of impacts associated with the enabled development on prime farmlands, infrastructure, and public services: Development enabled by wastewater interceptors occurs at a far higher density than that supported by individual sewage treatment systems. This density results in the conversion of agricultural and open space land use to suburban residential land use. The land use conversion also creates a demand for infrastructure and services such as stormwater collection, conveyance and treatment, utilities such as gas, water, and power, residential and arterial streets, schools, police, and fire protection. 26. The extent of impacts associated with the enabled development on prime farmlands, infrastructure, and public services: Enabled development is the result of a consciously intended, designed provision of wastewater collection services to areas undergoing urbanization. In such areas, comprehensive plans are prepared that channel this development in an orderly fashion, so that infrastructural needs are met, and so that adverse environmental impact is minimized. 27. The reversibility of impacts associated with the enabled development on prime farmlands, infrastructure, and public services: Enabled development and land use conversion, practically speaking, are irreversible. Once the development occurs, demand on infrastructure is irreversible as well. 28. Comments received concerning the impacts of enabled development on prime farmlands, infrastructure, and public services: No comments were received. 29. The MPCA finds that the environmental review is adequate to address the concerns because: all potential impacts associated with enabled development 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. 30. The MPCA finds that the project, as it is proposed, does not have the potential for significant environmental effects associated with enabled development based on the type, extent, and reversibility of environmental effects reasonably expected to occur. Cumulative Potential Effects of Related or Anticipated Future Projects 31. 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 , subp. 7.B (2003). The MPCA findings with respect to this criterion are set forth below. 32. There are, and will be, several related projects in the area. Lateral sewer extensions will further enable development. The ultimate proposed land use for the area is urban residential and commercial development, with the timing of urbanization varying according to demand for housing, commercial and industrial property, the intention of local developers, and the availability of infrastructure. The consequences of this enabled development are varied and multiple. Change of land use from open space, farmland, and wildlife habitat to urban neighborhoods is the most obvious. 7

8 This, in turn, results in alterations of species types and numbers. Increased impervious surfaces can cause the generation of greater volumes of stormwater runoff, which if not properly provided for, can cause erosion and water quality degradation. Increased populations can result in traffic congestion and vehicle-related air emissions. Increases in demand on all infrastructures, including schools, police and fire protection, utilities such as gas, water, and power, and transportation will also occur with development. However, development has been occurring throughout our history and the means of avoiding adverse environmental impacts associated with it are well understood. Development of the area will be subject to compliance with the City s comprehensive plans, including Sewer Policy Plans, Recreational Plans, Stormwater Management Plans, and various ordinances. 33. Related projects will also be subject to additional environmental review, pursuant to Minn. R and Minn. R , including under the residential, commercial, or industrial mandatory categories for EAW preparation. Lateral sewer extensions may require additional EAWs under the wastewater category, Minn R , subp. 18 A. An EAW on the entire Elko New Market Interceptor will also be prepared. 34. Other than the discussion in Findings 32 above, the EAW and MPCA follow-up evaluation did not disclose any specific 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. 35. In considering the cumulative potential effects of related or anticipated future projects, the MPCA finds that the reasonably expected cumulative effects from this project will not be significant. The Extent to Which the Environmental Effects Are Subject To Mitigation by Ongoing Public Regulatory Authority 36. 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 , subp. 7.C (2003). The MPCA findings with respect to this criterion are set forth below. 8

9 37. The following permits or approvals will be required for the interceptor project: Unit of Government Permit or Approval Required Status A. U.S. Army Corps of Engineers (USACE) Application for Wetland/Water Project Public Linear Utility Project (GP/LOP-98-MN-Section 404 Activities in Minnesota) B. MPCA Approval of Facility Plan and Construction Plans and Specifications (for Minnesota Public Facilities Authority funding eligibility) C. MPCA Application for NPDES General Permit for discharge of stormwater during construction activities for construction that will disturb more than one acre of non-impervious surface D. MPCA Application for Sewer Extension Permit E. Minnesota Department of Natural Resources (DNR) F. Minnesota Department of Health (MDH) G. Minnesota Department of Transportation (MnDOT) H. Scott County Highway Department Application for General Permit for Temporary Water Appropriations Application for Water Well Permits Application for Utility Permit on Trunk Highway Right of Way (form 2525) Application for Utility Permit on County Highway Right of Way by construction contractor if more than 10,000 gallons per day of water is appropriated (if dewatering wells are necessary) I. Scott County Application for Grading Permit J. City of Elko Application for Minnesota Wetland Conservation Act (WCA) Certificate of No Loss or Exemption for temporary wetland impacts in the city of Elko 9

10 Unit of Government Permit or Approval Required Status K. City of New Market Application for Minnesota WCA Certificate of No Loss or Exemption for temporary wetland impacts in the city of New Market L. New Market Township Application for Minnesota WCA Certificate of No Loss or Exemption for temporary wetland impacts in the New Market M. Minnesota Public Facilities Authority (jointly with MPCA) Township Application for State Revolving Loan Fund Program for Construction The above-listed permits include general and specific requirements for mitigation of environmental effects of the project, as follows: A. USACE, Application for Wetland/Water Project Public Linear Utility Project (GP/LOP-98- MN-Section 404 Activities in Minnesota). 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. B. MPCA, approval of facility plan and construction plans and specifications (for Minnesota public facilities authority funding eligibility) 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. C. MPCA, Application for NPDES General Permit for Discharge of Stormwater During Construction Activities. The project owner must apply to the MPCA for a NPDES Permit. That application includes a series of statements, which must be affirmed by the permittee. These statements include assurances that sediment and erosion control plans have been or will be prepared, that the plans will be compliant with the NPDES General Permit and that the proposer will adhere to these plans. The sediment and erosion control plan will provide more detail as to the specific measures to be implemented and will also address: phased construction; vehicle tracking of sediment; inspection of erosion control measures implemented; and time frames in which erosion control measures will be implemented. The requirements of the NPDES General Permit referenced above provide that all exposed soil areas within 100 lineal feet of a water of the state, or within 100 feet of a curb, gutter, storm-sewer inlet, drainage ditch or stormwater conveyance system, shall have temporary protection or permanent cover for those exposed areas. The requirement is dependent upon the slopes in the area. The NPDES General Permit is enforceable by the MPCA. 10

11 D. MPCA, Application for 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 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. E. DNR, Application for General Permit for Temporary Water Appropriations Approval of dewatering through a DNR Water Appropriation Permit is required when the amount of appropriation exceeds 10,000 gallons per day, or one million gallons per year. This permit regulates the appropriation of ground water so that any water supply wells are not adversely impacted by dewatering activities. F. MDH, Application for Water Well Permits. This permit will assure that any dewatering wells will be compliant with the State Well Code. G. MnDOT, Application for Utility Permit on Trunk Highway Right of Way (form 2525)* this permit assures that the crossing under State Trunk Highway 61 is accomplished in a manner that will not adversely impact the highway. H. Scott County Highway Department, Application for Utility Permit on County Highway Right of Way (form 2525)* this permit assures that the construction under CSAH 2 is accomplished in a manner that will not adversely impact the highway. I. Scott County, Application for Grading Permit. Assures review of the grading plan, erosion and sediment control plan, Stormwater Management Plan and other natural resource issues, such as wetlands. J. City of Elko, Application for Minnesota WCA Certificate of No Loss or Exemption for temporary wetland impacts in the City. Minn. R , subp. 6 exempts utilities from WCA. Impacts upon the wetland are to be minimized to the extent practicable. K. City of New Market, Application for WCA Certificate of No Loss or Exemption for temporary wetland impacts in the City. Minn. R , subp. 6 exempts utilities from WCA. Impacts upon the wetland are to be minimized to the extent practicable. L. Township of New Market, Application for Minnesota WCA Certificate of No Loss or Exemption for temporary wetland impacts in Township of New Market. Minn. R , subp. 6 exempts utilities from WCA. Impacts upon the wetland are to be minimized to the extent practicable. 38. The MPCA finds that ongoing public regulatory authority will address any significant potential environmental effects that were identified as reasonably expected to occur. 11

12 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. 39. 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 , subp. 7.D (2003). The MPCA findings with respect to this criterion are set forth below. 40. The following documents were reviewed by MPCA staff as part of the potential environmental impact analysis for the proposed project. This list is not intended to be exhaustive. The MPCA also relies on information provided by the project proposer, commenters, staff experience with literally hundreds of sewer extensions, and other available information. Completed data portions of the County Road 2 Segment of the Elko New Market Interceptor EAW. The January 28, 2005, EAW. 41. 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. 42. 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. 43. 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 44. The MPCA has jurisdiction in determining the need for an EIS for this project. The EAW, the permit development process, the facility planning process, 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. 45. 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. 46. Based on the criteria established in Minn. R (2003), there are no potential significant environmental effects reasonably expected to occur from the project. 12

13 47. An EIS is not required. 48. Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such. ORDER The Minnesota Pollution Control Agency determines that there are no potential significant environmental effects reasonably expected to occur from the CSAH 2 Segment of the Elko New Market Interceptor Project and that there is no need for an Environmental Impact Statement. IT IS SO ORDERED Commissioner Sheryl A. Corrigan Minnesota Pollution Control Agency Date 13