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• vegetation, susceptibility to erosion and siltation, susceptibility to flooding, and drainage are suitable for the type and density of development and uses contemplated". Walkouts were originally proposed in this diva, but were purposely excluded because of the existing conditions with the waterway, steep slopes, mature trees and other stabilizing vegetation. This was a thought through decision at the time to avoid improper construction practices that were not suitable for this particular piece of land and the adjacent property, which is designated Wild and Scenic River District. Section 1008.14 (7) (A) of the City of Elk River's Subdivision Ordinance titled, Tree Removal and Conservation of Vegetation states in Subpart(A) that: "Existing healthy trees and native vegetation on the site shall be preserved to the maximum extent feasible and shall be protected by adequate means during construction". The City of Elk River has the authority through the platting process to protect trees for the trees sake, let alone the protection of the bank of a waterway in the Wild and Scenic River District. This authority was not over exercised in this plat. In the case of the trees in question,they were protected during the original platting process to avoid the potential for environmental damage. Variance on the one hundred foot setback from the Mississippi River When Mr. Moldenhauer submitted his request to modify the development plan for Mississippi Oaks Second Addition, he argued that the backwater in question was not part of the Mississippi River. To be part of the Mississippi, the backwater would have to • connect to the River below its ordinary high water mark. Apparently, whether or not the backwater was actually part of the Mississippi River before, it could be argued that it is now. Mr. Moldenhauer lowered the backwater where it connections to the Mississippi River to allow water to enter at a lower elevation. Staff requested an interpretation from the DNR on this issue. Structures are required to be set back one hundred(100) feet from the ordinary high water mark of the Mississippi. If the backwater was found to be part of the Mississippi River and this setback was required, it would be impractical to build on Lots 1 through 11, Block 3, Mississippi Oaks Second Addition. In order to have all of the issues associated with Mississippi Oaks Second Addition reviewed simultaneously and since staff could not tell Mr. Moldenhauer whether or not a variance was needed until they received the DNR's interpretation, staff advertised for a variance at no charge to Mr. Moldenhauer. It is the DNR's interpretation that whether or not the backwater is part of the Mississippi River, the one hundred foot setback is not required since Mississippi Oaks Second Addition itself is not the Wild and Scenic River District. Therefore,the variance request is withdrawn. • cc5.docs:\b&z\stever\cc5.doc