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HomeMy WebLinkAbout11-02-23 Public Comment - B. Naiad - Additional edits to 38.610 and 38.220From:bill naiadllc.com To:Nicholas Ross Subject:[EXTERNAL][WARNING: ATTACHMENT UNSCANNED]Additional edits to 38.610 and 38.220 Date:Friday, October 27, 2023 9:26:28 AM Attachments:Draft COB 38.610_WJK.docx Draft DIVISION 38.220.130_WJK.docx CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Nick, To speed things up, I am sending this to you without including the Gallatin Watershed team. I think my edits are self-explanatory, but if you have any questions, please let me know. 38.220.130 is heavily commented, so be sure to read through those. For 38.610, I think it is very important to get this correct and I recommend a meeting with myself, Wendy Weaver – Montana’s in-lieu-fee lead, and maybe ACOE to make sure the language here is in line with the federal compensatory mitigation rule. That way if there are issues in the future, you can say you used federal guidance. But there needs to be room for when a permit will ask to fill a bit of wetland on one side and expand a different side for compensation. But everything needs to be perfect for that to succeed. We should also consider balancing setbacks in the same way – fill a bit of one side, but expand a different side. Maybe? This section will need careful consideration. Let me know if you have any questions or would like to talk more about this. Bill ____________________________________________________________________________ William Kleindl, Ph.D. Immediate Past-President Society of Wetland ScientistsNaiad Aquatic Consultants, LLC - President406-599-7721 “We don’t see things as they are, we see them as we are.” ~ Anaïs Nin DRAFT Wetland Protection & Mitigation Code Revision Public Meeting Thursday October 5th, 2023 Page 1 of 2 DISCLAIMER: the selected language presented here is for purposes of public feedback prior to drafting final code. This is not a final draft, nor a complete account of all sections of Chapter 38 to be revised. A final draft will be provided ahead of the Community Development Board meeting on November 7th, 2023 and City Commission meeting on December 5th, 2023. ……………………………………………………………………………………………………………………………………………………. PART II - CODE OF ORDINANCES Chapter 38 - UNIFIED DEVELOPMENT CODE ARTICLE 6. - NATURAL RESOURCE PROTECTION DIVISION 38.610. WETLAND REGULATIONS DIVISION 38.610. WETLAND REGULATIONS 38.610.100. Wetland mitigation. Unavoidable impacts to all wetlands must have compensatory mitigation mitigated. Mitigation of impacts is subject to the following prioritizations: 1. Impacts must be mitigated on-site where feasible to on-site mitigation. Onsite mitigation must be conducted in accordance with methods and standards of USACE federal regulations [CFR cite]. Factors the review authority may consider in determining feasibility of on-site mitigation include but are not limited to: available area, water availability, soil and vegetation types, wetland size and functional class, land use and land use plan, and transportation network. 2. If mitigation is not feasible on-site, impacts must be mitigated through the purchase of wetland mitigation credits from a wetland bank authorized by the U.S. Army Corp of Engineers and which is located within the East Gallatin River watershed. 3. If an authorized wetland bank [cite to above] is not available in the East Gallatin watershed, impacts must be mitigated through the purchase of wetland mitigation credits from a wetland bank authorized by USACE and which is located within the lower Gallatin watershed; 4. If an authorized wetland bank [cite to above] is not available within the lower Gallatin watershed, permittee-driven mitigation may occur off-site within the lower Gallatin watershed pursuant to a plan approved by the review authority (include requirements such as ownership in fee transferred to someone or, preferably, an easement that cannot be removed without consent of the city); 5. If off-site permittee-driven mitigation as provided for in [cite to above] is not available then the developer must provide a proportional payment to a in-lieu-fee provider authorized by the US Army Corp of Engineers to develop wetland mitigation projects within the East Gallatin River or Gallatin River watershed; 6. If a wetland in-lieu-fee provider authorized by the USACE is not available within the East Gallatin River or Gallatin River watershed, the developer must obtain wetland mitigation credits from the geographically nearest wetland bank authorized by the USACE. …………………………………………………………………………………………………………………………………………………… DRAFT Wetland Protection & Mitigation Code Revision Public Meeting Thursday October 5th, 2023 Page 2 of 2 CONTINUED Sec 38.700.120. – M definitions Mitigation. Actions taken to offset adverse impacts. Such actions include the following: 1. Avoiding an impact altogether by not taking a certain action or parts of an action; 2. Minimizing an impact by limiting the magnitude or duration of an activity, or by controlling the timing of an activity; 3. Rectifying an unavoidable impact by repairing, rehabilitating, or restoring the affected environment; 4. Rectifying an unavoidable impact by repairing or rehabilitating or expanding the capacity of affected public facilities and services. 5. Reducing or eliminating an unavoidable impact over time through preservation and maintenance operations during the life of the project; and 6. Compensating for an unavoidable impact by replacing affected resources, public facilities, or environments. Sec. 38.700.210. - W definitions. Wetland. A. Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, and meet the established criteria briefly described below: 1. Vegetation. A prevalence of hydrophytic vegetation. Hydrophytic species, due to morphological, physiological, and/or reproductive adaptation, have the ability to grow, effectively compete, reproduce, and/or persist in anaerobic soil conditions; 2. Soils. A hydric soil is a soil that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part; and 3. Hydrology. The area is inundated either permanently or periodically, or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation at a duration sufficient to induce anaerobic and reducing conditions. DRAFT Wetland Protection & Mitigation Code Revision Public Meeting h Page 1 of 3 DISCLAIMER: the selected language presented here is for purposes of public feedback prior to drafting final code. This is not a final draft, nor a complete account of all sections of Chapter 38 to be revised. A final draft will be provided ahead of the Community Development Board meeting on November 7th, 2023 and City Commission meeting on December 5th, 2023. ……………………………………………………………………………………………………………………………………………………. PART II - CODE OF ORDINANCES Chapter 38 - UNIFIED DEVELOPMENT CODE ARTICLE 6. - NATURAL RESOURCE PROTECTION DIVISION 38.220.130 WETLAND REGULATIONS DIVISION 38.220.130 WETLAND REGULATIONS Sec. 38.220.130. Submittal materials for regulated activities in wetlands or watercourses. A. All parties applying for activity permits proposing action affecting federal, state or city regulated wetlands, watercourses and/or buffers within the city limits must submit the following information: 1. A wetland and watercourse delineation report must be submitted to the city for all projects, if such are present. When required to determine applicability and scope of wetland location and its functions the delineation shall go beyond the boundary of the property. If no wetlands or watercourses are present, a letter must be submitted to the city certifying that there are no wetlands or watercourses within the subject property. a. This wetland and watercourse delineation report must include, but not be limited to, the following: (1) Wetland and watercourse descriptions; (2) Wetland delineations following protocols articulated in the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual of the U.S. (1987 Corps Manual), and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Regions, Version 2, May 2010, or most current supplement. (3) Functional assessment, as determined by methods applicable to the U.S. Army Corps of Engineers Omaha District; (4) Watercourse ordinary high water marks (OHWM) or, when appropriate, top of bank delineations following protocols articulated the most Army Corps of Engineers OHWM Delineation Manuals, (5) Wetland, watercourse, and setback acreages as determined by professional survey; (6) Maps with property boundaries, watercourse centerlines and ordinary high water marks, delineated wetland boundaries from professional survey and jurisdictional status, and wetland acreages; (7) Wetland data forms (U.S. Army Corps of Engineers data forms); and (8) Include certification of jurisdictional status of City and/or federal regulated wetlands signed by a qualified wetlands professional; (9) Watercourse jurisdiction determination as completed by Gallatin County Conservation District. DRAFT Wetland Protection & Mitigation Code Revision Public Meeting h Page 2 of 3 2. If activities are planned in and/or adjacent to watercourses or wetlands the following information is required: a. A description of actions that demonstrate avoitdance of impacts to aquatic resources. b. A description of actions that demonstrate minimization of impacts to aquatic resources. c. An accurate scaled drawing which shows: the property boundary; delineated wetland and watercourse boundaries; wetland setbacks boundaries; watercourse setbacks; certified wetland jurisdictional status, and all existing and proposed structures, roads, trails, and easements. The drawing will include a table of existing wetland functional ratings, jurisdictional status and respective acreages, required wetland and watercourse setbacks and acreage, and linear feet of all watercourses. (1) For all remaining, unavoidable impacts, a description of all direct impacts to wetlands, watercourses, and setbacks must be highlighted and summarized in a table on the site plan. The wetland and watercourse setback summary table must include wetland/watercourse identification number; corresponding setback width and acreage; total site, wetland, watercourse, and setback acreages; wetland jurisdictional status; impacts to all wetlands and watercourses and setback; and, mitigation types and acreages. (2) All indirect impacts (e.g., shading from boardwalks or agricultural water user facility relocation) must be summarized in the document. d. Permit application materials for all applicable permits identified in 38.220.020. e. A completed wetland review checklist. 3. If in the preparation or review of the required submittal materials it is determined that there are unavoidable impacts to wetlands and/or watercourses, then the following information must be submitted to the city for all wetlands or watercourses in a compensatory mitigation report: a. The compensatory mitigation report must include: (1) Identify proposed mitigation with priorities subject to 38.610.100. (2) The name and contact information of the applicant; the name, qualifications, and contact information for the primary author of the compensatory mitigation report; a description of the proposal; summary of the direct and indirect impacts and proposed mitigation concept; identification of all the local, state, and federal wetland/stream-related permits required for the project; and, a vicinity map for the project. (3) A description of the existing wetland, watercourse and setback areas that will be impacted including area based on professional surveys; dominant vegetation; and functional assessments; wetland ratings for the entire wetland and the portions proposed to be impacted; and opinion of wetland jurisdictional status. (4) An assessment of the potential changes in wetland hydroperiod for the proposed project and how the design has been modified to avoid, minimize or reduce impacts to the wetland hydroperiod. (5) A description of the proposed mitigation actions for wetland, watercourse and buffer areas. Provide specifications (including setbacks) for all proposed mitigation for wetland/watercourse/ setback impacts. Include a map with all proposed mitigation areas and their required setbacks. DRAFT Wetland Protection & Mitigation Code Revision Public Meeting h Page 3 of 3 (6) An assessment of existing conditions in the zone of the proposed mitigation including vegetation community structure and composition, existing hydroperiod, existing soil conditions, and existing wetland functions. (7) Field data that was collected to document the existing conditions of the proposed mitigation sites, if any, and on which the future hydrologic and soil conditions of the mitigation wetlands are based (e.g., hydrologic conditions: piezometer data, staff/crest gage data, hydrologic modeling, visual observations; soil conditions: data from hand-dug or mechanical soil pits or boring results). The applicant may not rely on NRCS soil survey data for establishing existing conditions. (8) A planting schedule by proposed community type and hydrologic regime, size and type of plant material to be installed, spacing of plants, "typical" clustering patterns, total number of each species by community type, timing of installation, nutrient requirements, watering schedule, weed control, and where appropriate measures to protect plants from destruction. Native species must comprise 80 percent of the plants installed or seeded within the mitigation site. (9) A mitigation monitoring plan must include a period of not less than three years, and establish the responsibility for long-term removal of invasive vegetation. (10) Wetland mitigation performance criteria (measurable standards reflective of expected development goals established for each year after the mitigation site is established, i.e., "At the end of three years there will be an 80 percent survival of the planted shrubs and trees.") for mitigation wetlands and buffers, a monitoring schedule, reporting requirements to the city, and maintenance schedule and actions for each year of monitoring. (11) Contingency plans which clearly define course of action or corrective measures needed if performance criteria are not met. b. The scaled plan sheets for the compensatory mitigation must contain, at a minimum: (1) Existing wetland and buffer surveyed edges; proposed areas of wetland and buffer impacts; and, location of proposed wetland and buffer compensation action. (2) Surveyed topography at one- to two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed in the compensation area. Provide existing and proposed mitigation design cross section for the wetland and/or buffer compensation areas. (3) Required wetland setbacks for existing wetlands and proposed mitigation areas; (4) An as-built plan set will be required with six months after the installation of the mitigation area. c. A discussion of ongoing management practices that will protect and maintain the nonimpacted and mitigation wetland, watercourse and buffer areas in perpetuity. 4. If agricultural water user facilities are present then the development application must include application materials required at 38.410.060 and applicable sections of 38.220.060.