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Nyle Zikmund, City Administrator Don Peterson, Public Works Director January 25, 2019 Page 3 II. Options/Discussion Points It should first be noted that relief from the Board of Water and Soil Resources ("BWSR") is unlikely, as BWSR has no jurisdiction over what amounts to a contractual dispute/request between the City and RCWD. There is no rule, statute, or other provision that gives BWSR any say in this matter or any other right to go over RCWD's head in terms of rule enforcement or change the terms of these maintenance agreements. As discussed above, the City is contractually obligated to maintain these rain gardens and so its options for seeking relief are likely limited to the following. (1) First, the City could provide a formal letter to RCWD that outlines the City's concerns with these rain garden requirements and asks for lenience. RCWD is not required to give in to the City's request for mercy, but they might be inclined to do so out of good faith if the City can make a compelling case. The letter should specifically include a request by the City to come address the issue before the RCWD board, especially because they failed to invite the City last time this was addressed. A letter to RCWD should focus more on the arbitrariness and capriciousness (Mounds View was apparently the only city these strict requirements were imposed upon, maintenance is difficult and expensive, etc.), and less on the shifting opinions on rain gardens and their effectiveness. We still would like staff to provide resources on that from the City engineer's office and the Department of Health. The RCWD members are likely well -versed in drainage issues and many might truly believe that rain gardens are effective. Arguing otherwise could rub them the wrong way and may appear to question their intelligence or judgment, and thus could prove counterproductive. As part of a letter to RCWD, it might also provide useful to make a public data request to determine what other ces within RCWD's jurisdiction were required to install rain gardens and enter into these maintenance agreements. It has been speculated that Mounds View is the only city that was forced to incur these rather burdensome obligations but before presenting that argument, we should determine the extent to which it is true. (2} A second option, which was suggested by RCWD, is to replace the maintenance agreements with one, City-wide programmatic maintenance agreement. That suggestion was premised on the notion that the City is already obligated to maintain its stormwater facilities as part of its MS4 permit. The sample programmatic agreement provided by RCWD seems to incorporate similar language to the individual agreements, including requiring annual inspections and maintenance of rain gardens "when inspection indicates this is necessary to restore design performance." Although the sample language provided does not seem to alter the City's obligations, RCWD's willingness to come to the table 552997v2 MU210-263