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Home My WebLink About11-06-23 CDB Agenda and Packet MaterialsA.Call to Order - 6:00 pm This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in- person United States Toll +1 346 248 7799 Access code: 954 6079 2484 B.Disclosures C.Changes to the Agenda D.Consent Items D.1 Recommendation to City Commission Regarding Fire/EMS Impact Fees Annual Capital Improvement Program for FY25-29(Waldo ) D.2 FY25-29 Street Impact Fee Capital Plan(Ross) E.Public Comments This is the time to comment on any matter falling within the scope of the Community Development Board. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once per topic. THE COMMUNITY DEVELOPMENT BOARD OF BOZEMAN, MONTANA CDB AGENDA Monday, November 6, 2023 General information about the Community Development Board is available in our Laserfiche repository. If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net or by visiting the Public Comment Page prior to 12:00pm on the day of the meeting. Public comments will also be accepted in-person and through video conference during the appropriate agenda items. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. For more information please contact Anna Bentley, abentley@bozeman.net 1 Please note, the Community Development Board cannot take action on any item which does not appear on the agenda. All persons addressing the Community Development Board shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and place of residence in an audible tone of voice for the record and limit your comments to three minutes. General public comments to the Board can be found in their Laserfiche repository folder. F.Action Items F.1 Ordinance 2156, to Replace Division 38.610 (Wetland Regulations) and Section 38.220.130 (Submittal Materials for Regulated Activities in Wetlands), and amend Section 38.700.190 U Definitions, and Section 38.700.220 W Definitions within Chapter 38 of the Bozeman Municipal Code, Application 23309.(Ross) G.FYI/Discussions G.1 Upcoming Items for the November 20, 2023 and December 4, 2023, Community Development Board Meetings.(Bentley) H.Adjournment This board generally meets the first and third Monday of the month from 6:00 pm to 8:00 pm. Citizen Advisory Board meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). 2 Memorandum REPORT TO:Community Development Board FROM:Waldo SUBJECT:Recommendation to City Commission Regarding Fire/EMS Impact Fees Annual Capital Improvement Program for FY25-29 MEETING DATE:November 6, 2023 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:I move to recommend approval of the Fire/EMS impact fee capital improvement program as presented STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:One of the responsibilities of the Community Development Board is to act as the impact fee advisory committee. One duty of the advisory committee is to review and recommend updates to the annual capital improvement program for impact fees. The City implements a Fire/Emergency Medical Services impact fee. The Fire/EMS fee pays for capital expansion of the system to provide increased service to new development. Examples are acquisition of property, construction of fire stations, and purchase of qualifying durable equipment. The impact fee is guided by the City's fire service master plan and impact fee cost of service study. Staff prepares a recommended annual update to respond to changing conditions. UNRESOLVED ISSUES:None ALTERNATIVES:As recommended by the Board FISCAL EFFECTS:None, the CIP does not commit money to expenditure. It is a planning and coordination tool. Only adoption of the annual City budget can authorize expenditure of public money. Attachments: FD Impact Fees FY25-29.pdf Report compiled on: November 2, 2023 3 Monday November 7, 2022 4 Highlights •Construction of Fire Station 2 o Includes the addition of space for a quick response vehicle (QRV) o QRV is a new program that would be housed at Fire Station 2 o FY-25 project •Purchase of land for Fire Station 4 o Purchase of land for Fire Station 4 o FY-25 project 5 Fire Station 2 •Construction began in April 2023, est. completion Summer 2024 •Station to include new QRV program •Requires additional apparatus bay and living space for Firefighters •$3,800,000 6 Fire Station 4 Property •Secure property for future Fire Station 4 •Looking to secure in 2024 •$1,500,000 7 Summary •$3,800,000 in FY-25 to add QRV to Station 2 •$1,500,000 in FY-25 to purchase land for Station 4 •Will leave impact fee fund with a balance of $174,000 8 Memorandum REPORT TO:Community Development Board FROM:Nicholas Ross, Director of Transportation and Engineering SUBJECT:FY25-29 Street Impact Fee Capital Plan MEETING DATE:November 6, 2023 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Perform duties of the Impact Fee Advisory Committee STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The city of Bozeman is required by charter to maintain an annual 5-yr Capital Improvement Plan (CIP) for all Impact Fee funds, including Streets. The Community Development Board, in their role as Impact Fee Advisory Committee, oversees the annual plan for compliance to Bozeman Municipal Code. Prior to the Staff presentation, the Board may find it useful to review the FY24-28 Capital Improvement Plan. A Staff Report is attached for more information. UNRESOLVED ISSUES:None ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:None, funding is not obligated until annual budget approval. Attachments: FY25-29 SIF CD Board Staff Report.pdf Report compiled on: October 25, 2023 9 October 26, 2023 Staff Report FY25-29 Street Impact Fee Capital Plan Community Development Board November 6, 2023 Background The city of Bozeman is required to maintain an annual 5-yr Capital Improvement Plan (CIP) for all Impact Fee funds, including Streets. The Community Development Board, in their role as Impact Fee Advisory Committee, has oversight of the annual plan for compliance to Bozeman Municipal Code. The CIP selects projects out of the Transportation Master Plan (TMP) and proposes timing of project implementation over a running 5-yr period. This plan is required to be fiscally balanced by the end of each 5-yr period. Street Impact Fees must only be spent on capacity-expanding projects. Projects utilizing Street Impact Fees must be paired with supplementary funding to cover the “local share” of the project, defined as the cost to construct the base capacity of a local street above which capacity improvements are required. This typically results in approximately a 60/40 split of construction costs between Impact Fee and supplemental funding. Additionally, all right of way acquisition costs are inherently for capacity- expanding purposes and therefor funded by Impact Fees. Approach Proposed project selection is done collaboratively between Community Development, Public Works, Finance, and the City Manager’s Office to ensure alignment between land use, infrastructure, fiscal responsibility, and adherence to Bozeman City Commission policy goals. The city currently faces substantially more demand for capacity-expanding infrastructure improvements than our current rate of impact fee collection can support, therefor a manner of project prioritization is necessary. Staff has proposed the following metrics from which projects were selected to be scheduled: · Infill Connectivity, defined as transportation capacity improvements within the existing arterial and collector network. Commission land use policy prioritizes infill development before expansion into undeveloped land and therefor we are aligning our infrastructure choices such that they do no themselves induce sprawl. Infill connectivity also reduces demand on parallel routes, including local residential streets where “cut-through” traffic reduces safety and quality of life. · Support of housing creation, defined as projects that support housing starts which may not otherwise be viable or would be substantially more expensive if required to carry an outsized burden of infrastructure expansion. · Multimodal safety and capacity, defined as projects which build, connect, and extend multimodal networks such that person-trip capacity is expanded across all modes of travel. The city of Bozeman understands that infrastructure supporting all modes of travel contribute to the capacity of a transportation corridor and therefor is justified in using impact fee funding for expansion of multimodal capacity at the time of street capacity expansion. 10 Changes from the FY24-28 CIP include a consolidation of scheduled projects necessitated by substantial increases in construction and right of way acquisition costs. Staff has proposed corridor projects over intersection capacity enhancements as the best-value choices given a constrained budget. That has resulted in the following FY24-28 impact fee projects being unscheduled: · Cottonwood & Fallon Intersection o Adjacent development may induce the need for signalization or access control. Project unscheduled due to anticipated timing of need. · Oak & 19th Intersection and Oak St Widening of 19th to 27th o This section of Oak currently functions as a 3-lane facility and carries approximately 12,000 vehicles per day. 3-lane facilities provide capacity for approximately 18,000 vehicles per day, which implies that constrained funding may be better spent on more significant capacity needs. · Durston & Laurel Parkway Intersection o This project was originally scheduled to assist adjacent development that projected a need for capacity improvement only at the current evaluation threshold of LOS C at the end of the 15-year study period. Proposed BMC revisions currently under consideration would revise those thresholds to LOS D and 5 years, at which point the capacity improvement would not be necessary. · Fowler – Baxter to Cattail o This project was originally scheduled to align with the completion of the Fowler Avenue Connection project from Huffine to Oak. It is proposed to be unscheduled due to timeline of need and cost. The following chart is an estimate of annual transportation capital revenue across the FY25-29 planning period. When taking current Street Impact Fee fund balance into account, the city projects to have approximately $53,000,000 available over the FY25-29 planning period. Please note that Impact Fees are the most 11 volatile source of transportation revenue and any slowdown in construction will trigger a loss of impact fee revenue that would trigger the need to unscheduled a certain amount of projected work or supplement the loss of revenue with higher levels of taxation. The following chart are the proposed major projects for the FY25-29 planning period: Please note that costs for the Kagy Boulevard reconstruction are assumed to be covered by outstanding grant opportunities. If unsuccessful, the SIF commitment will rise to a maximum of $5,000,000. Additionally, minor proposed SIF projects include right of way acquisition outside of scheduled projects (returned to fund if unspent) and an impact fee commitment of $850,000 to the previously-constructed Highland and Main Intersection as approved by Commission. N 27th from Baxter to Cattail fills a gap in the multimodal network, supports several proposed developments, and will alleviate congestion on N 19th. Fowler Avenue Connection from Huffine to Oak fills a gap in the multimodal network, supports existing development, and will alleviate cut-through traffic on adjacent residential streets as well as reduce vehicle miles traveled due to diversion to N 19th and Fergusson Ave. Babcock from 11th to 19th has been split into two segments for purposes of timing. The section from 15th to 19th will support adjacent mixed-use development of higher intensity than previous land use by adding 12 left turn lane capacity and extend the multimodal network. The section from 11th to 15th will extend the multimodal network, however, project planning is still determining need for additional lane capacity. If unwarranted, this project will need unscheduled from SIF and alternative funding found. Kagy Boulevard will provide multi-lane capacity and greatly expand the multimodal network in the south of Bozeman. Final project scope was approved by Commission in the summer of 2023. Stucky from Fowler to S 19th will reconstruct the roadway to a 3-lane standard while adding shared use paths for multimodal connectivity. This project supports intensive planned development in the south of Bozeman and compliments Kagy as one of the few parallel east-west routes in south Bozeman due to discontinuities caused by Montana State University. Staff presentation to the Community Development Board will expand on these projects and provide opportunity for questions. 13 Memorandum REPORT TO:Community Development Board FROM:Shawn Kohtz, City Engineer Nick Ross, Director of Transportation and Engineering Elizabeth Cramblet, Associate Planner Chris Saunders, Community Development Manager Anna Saverud, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Ordinance 2156, to Replace Division 38.610 (Wetland Regulations) and Section 38.220.130 (Submittal Materials for Regulated Activities in Wetlands), and amend Section 38.700.190 U Definitions, and Section 38.700.220 W Definitions within Chapter 38 of the Bozeman Municipal Code, Application 23309. MEETING DATE:November 6, 2023 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 23309 and move to recommend adoption of Ordinance 2156. STRATEGIC PLAN:6.6 Habitat: Work with partner organizations to identify at-risk, environmentally sensitive parcels contribute to water quality, wildlife corridors, and wildlife habitat. BACKGROUND: The City Commission conducted a work session on July 25, 2023, (Meeting Video-Action Item K.1.) [External Video Link], regarding the proposed Wetland Protection Mitigation procedures. The purpose of the work session was to provide the Commission with information related to: i. The current approach of the City to its wetlands regulatory program under UDC; ii. Provide information on the Sackett decision and the issues resulting from the decision; iii. Provide information on future approaches to local regulation of wetlands. Specific topics in detail discussed at the work session are available in the July 14 25, 2023 City Commission Memorandum [External Link, PDF]. City Commission provided specific guidance on mitigation measures for wetland areas which were discussed at two follow-up meetings open to the general public on October 5th, 2023. On October 5th, 2023 City staff presented updates to the proposed Wetland Regulations including policy guidance from the City Commission, followed by Q & A sessions that were open to the general public at two different meetings. There was a virtual meeting at noon on Zoom followed by an in person meeting at the Bozeman Public Library at 6:00 p.m. The City of Bozeman first adopted local regulations to protect wetlands in 2003 by Ordinance 1604 [External Link, PDF]. Local regulations have been in effect continuously since initial adoption. Mitigation of impacts to wetlands that occurs during land development is subject to both federal and local regulation. Federal regulation pursuant to the Clean Water Act is enforced by the United States Army Corps of Engineers (USACE). Local regulation occurs per the City’s Unified Development Code (UCD) Division 38.610, titled Wetlands Regulations. Prior to the United States Supreme Court’s recent decision in Sackett v. Environmental Protection Agency, 142 S. Ct. 1322 (2023), the USACE (and the EPA) regulated wetlands using a broad definition that included many wetlands within the City. The recent Sackett decision significantly narrows federal regulations of wetlands. Historically, for the majority of wetlands impacted by land development, the City had concurrent jurisdiction with the federal agencies and deferred to the federal agencies for decisions on mitigation. After Sackett, federal jurisdiction is much more limited resulting in the City’s jurisdiction being the sole authority to regulate the majority of wetlands within the City. Since the recent Sackett decision, the City continues to regulate impacts to wetlands, which federal agencies can no longer regulate. This project replaces Division 38.610.020 (Wetland Regulations) within Chapter 38 of the Bozeman Municipal Code and amends Section 38.220.130 [External Link] (Submittal materials for regulated activities in wetlands) to reflect this change. UNRESOLVED ISSUES:None ALTERNATIVES:1. Recommend adoption of Ordinance 2156 2. Recommend denial of the ordinance based on findings of non-compliance with the applicable criteria contained 15 within the staff report; 3. Recommend modifications to the text within the ordinance. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Amendment. Attachments: Clean Copy_23309 Wetland Regs-ZCA CDB SR.pdf Ordinance 2156 Rev CDB Public Hearing Draft.pdf Report compiled on: October 26, 2023 16 Page 1 of 13 23309 Staff Report for the Replacement of the Wetland Regulations Public Hearing Dates: Community Development – November 6, 2023 City Commission – December 5, 2023 Project Description: Replace Division 38.610 (Wetland Regulations) and Section 38.220.130 (Submittal Materials for Regulated Activities in Wetlands), and amend Section 38.700.190 U Definitions, and Section 38.700.220 W Definitions within Chapter 38 of the Bozeman Municipal Code. Project Location: Revision to the text is applicable City-wide. Recommendation: Meets applicant criteria. Recommended Community Development Board Motion: Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 23309 and move to recommend adoption of Ordinance 2156. Report: October 26, 2023 Staff Contact: Elizabeth Cramblet, Associate Planner Chris Saunders, Community Development Manager Agenda Item Type: Action - Legislative EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. Unresolved Issues None Project Summary The City of Bozeman first adopted local regulations to protect wetlands in 2003 by Ordinance 1604 [External Link, PDF]. Local regulations have been in effect continuously since initial adoption. Mitigation of impacts to wetlands that occurs during land development is subject to both federal and local regulation. Federal regulation pursuant to the Clean Water Act is enforced by the United States Army Corps of Engineers (USACE). Local regulation occurs per the City’s Unified Development Code (UCD) Division 38.610, titled Wetlands Regulations. Prior to the United States Supreme Court’s recent decision in Sackett v. 17 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 2 of 13 Environmental Protection Agency, 142 S. Ct. 1322 (2023), the USACE (and the EPA) regulated wetlands using a broad definition that included many wetlands within the City. The recent Sackett decision significantly narrows federal regulations of wetlands. Historically, for the majority of wetlands impacted by land development, the City had concurrent jurisdiction with the federal agencies and deferred to the federal agencies for decisions on mitigation. After Sackett, federal jurisdiction is much more limited resulting in the City’s jurisdiction being the sole authority to regulate the majority of wetlands within the City. Since the recent Sackett decision, the City continues to regulate impacts to wetlands, which federal agencies can no longer regulate. In response to the recent Sackett decision and the future of federal regulation of wetlands, the City believes it must consider any new federal rule and guidance to understand how the City could move forward regulating based solely on the UDC requirements. This includes regulation of wetlands that were but are no longer regulated federally and how the City will integrate its mitigation requirements (including a bank) into the ongoing federal wetland bank program. This project replaces Division 38.610.020 (Wetland Regulations) within Chapter 38 of the Bozeman Municipal Code and amends Section 38.220.130 [External Link] (Submittal materials for regulated activities in wetlands) to reflect this change. Strategic Plan 1.2 Public Agencies Collaboration Foster successful collaboration with other public agencies and build on these successes. e) Enhance our relationship with State and Federal Agencies. 3.1 Public Safety Support high quality public safety programs, emergency preparedness, facilities, and leadership. 6.5 Parks, Trails & Open Space Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. 6.6 Habitat Work with partner organizations to identify at-risk, environmentally sensitive parcels contribute to water quality, wildlife corridors, and wildlife habitat. 18 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 3 of 13 7.3 Best Practices, Creativity, & Foresight c) Improve Departmental Collaboration – Identify opportunities to improve collaboration between City departments and create subgroups on communications, community interactions, long-range planning, and other matters of common concern. Community Development Board The Community Development Board in their role as the Zoning Commission is scheduled to hold a public hearing on November 6, 2023. The advisory board is charged with making recommendations regarding regulations that will affect zoning. Wetland protection is a zoning requirement. As of writing this report, public comments have been received. City Commission Alternatives 1. Adoption of the recommended ordinance; 2. Denial of the ordinance based on findings of non-compliance with the applicable criteria contained within the staff report; or 3. Open and continue the public hearing on the application, with specific direction to staff to supply additional information or to address specific items. 19 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 4 of 13 TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................ 1 Unresolved Issues ........................................................................................................ 1 Project Summary.......................................................................................................... 1 Strategic Plan ............................................................................................................... 2 Zoning Commission/Planning Board…………………………………………………..….3 City Commission Alternatives…………………………………………………….………3 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS………………………….5 SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS……………....5 PROTEST NOTICE FOR ZONING AMENDMENTS ....................................................... 9 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND ............... 9 APPENDIX B - NOTICE AND PUBLIC COMMENT ..................................................... 12 APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF ................... 13 FISCAL EFFECTS .......................................................................................................... 13 ATTACHMENTS ........................................................................................................... 13 20 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 5 of 13 SECTION 1 – RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a text amendment, staff recommends approval as proposed. The Community Development Board is scheduled to hold a public hearing on this amendment on November 6, 2023 at 6:00 p.m. A recommendation will be forwarded to the Commission on the text amendment. The City Commission will hold a public hearing on the text amendment on December 5, 2023 at 6:00 p.m. SECTION 2 – TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria. As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. In considering the following criteria, the analysis must show that the amendment accomplishes zoning criteria A-D. Zoning criteria E-K must be considered and may be found to be affirmative, neutral, or negative. A favorable decision on the proposed application must find that the application meets all of criteria A-D and that the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In addition, the application must be evaluated against subdivision criteria 1-17. A favorable decision on the proposed application must find that the positive outcomes of the amendment outweigh negative outcomes for criteria 1-17. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion Met. The Bozeman Community Plan (BCP) 2020, Chapter 5, p. 73, in the section titled Review Criteria for Zoning Amendments and Their Application, discusses how the various criteria in 76-2-304 MCA are applied locally. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. “In a text amendment, policy statements weigh heavily as the standards being created or revised implement the growth policy’s aspirations and intent. The City must balance many issues in approving urban development.” The proposed amendment does not change the zoning map. Therefore, it is not necessary to analyze compliance with the future land use map. The basic planning precepts on page 20 of the Bozeman Community Plan 2020 include, “The health and well-being of the public is an essential focus and influences and is influenced in turn by urban design and land development.” Also, “The City intends to create a healthy, safe, Community Commercial Mixed Use 21 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 6 of 13 resilient, and sustainable community by incorporating a holistic approach to the design, construction, and operation of buildings, neighborhoods, and the City as a whole.” The proposed amendments provide for public health, safety, and welfare of the community by providing clear standards and administrative processes for development around regulated wetland areas and by providing consistent language, clear definitions, and references throughout the Bozeman Municipal Code. Under Theme 4, A City Influenced by Our Natural Environment, Parks, and Open Lands, there are several relevant goals and objectives that will be met through the collaborative approach to developing these amendments to the Wetland Regulations. Goal EPO-202 - Work with the U.S. Army Corps of Engineers to keep wetlands, mitigation within the Gallatin Valley rather than locating to other watersheds. EPO-2.3 - Identify, prioritize, and preserve key wildlife habitat and corridors. EPO 4.2 - Update floodplain and other regulations that protect the environment. The proposed amendments to the Wetland Regulations would help to meet these objectives. RC-2.1 Prohibit development in environmentally-sensitive or hazard-prone areas. No conflicts with the growth policy have been identified. The criterion is met. B. Secure safety from fire and other dangers. Criterion Met. The proposed regulations are specifically intended, designed, and include provisions to ensure they can be carried out to manage development within regulated identified wetland areas. Wetlands can present significant constraints which typically form in areas characterized by poor drainage conditions that are ill-suited for most types of development. Development in these areas often involves extra expense resulting from considerations for site drainage, flood protection and facility maintenance. The intent of these regulations is to protect public and private facilities and structures from damage, and to minimize public and private development and maintenance costs. Compliance with the proposed and other existing standards such as building permits, access, and stormwater control standards mutually support this criterion. The wetland regulations partner with other watercourse protection, 38.410.100 [External link] and floodplain standards, 38.600 [External link] in the Unified Development Code to limit construction in these areas. C. Promote public health, public safety, and general welfare. Criterion Met. The proposed regulations provide standards and procedures that regulate development in wetland areas to protect public health and safety, safeguard water quality, and provide for wildlife habitat. Additionally, the preservation of wetlands offers opportunities for open space, education and research, and historical, cultural and archaeological resources. The intent of these regulations is to encourage the avoidance of regulated activities within the regulated areas and to require best management practices in regulated areas. 22 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 7 of 13 As noted in Criterion B, further development and redevelopment must be in accordance with modern building, access, stormwater, pedestrian circulation, ingress and egress to the site, and full connection to the greater transportation network for users ensuring the promotion of public health, safety and general welfare. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion Met. The regulations provide submittal requirements and standards that apply to any regulated activity which may impact wetlands as defined in 38.700 known prior to or discovered through the development review process, and verified through a site-specific wetlands boundary determination. If wetlands are found on the subject site, the proposal is subject to these regulations. As mentioned in Criterion C, wetlands typically form in areas characterized by poor drainage conditions which are ill-suited for most types of development. Wetlands are characterized by hydric soils that are unstable for most types of development. The proposed regulations reduce the likelihood of damage to public facilities such as streets and private facilities. This process of identifying, verifying, and mitigating wetland sites ensures appropriate setbacks from identified wetlands and protection of existing infrastructure including water, sewer, transportation, and roadways to ensure they are minimally affected by these regulated areas. E. Reasonable provision of adequate light and air. Criterion Met. The regulations make provision for adequate light and air by limiting certain types of development in and around wetland areas. These limitations provide the opportunity for open space and natural areas that can be utilized for a number of ecological functions. F. The effect on motorized and non-motorized transportation systems. Criterion Met. The effect on long range transportation systems (motorized and non-motorized) should be minimal. Existing roads that will need to be extended to accommodate proposed developments will follow the same guidelines. In some instances where a linear path for roadways or pathways is not possible due to existing wetlands or, where construction is unavoidable, such as utility or street crossings, the proposed regulations provide processes and standards to minimize impacts and lessen the likelihood of damage or injury. The process of determining the wetland boundary is similar with requirements for watercourse setbacks where the developer must mitigate the impacts of the development on or near a watercourse which are often alongside existing wetland areas. Additionally the process can help guide the design phase of a project early on when determining the location of roads, pedestrian paths and open space based on results of the wetland boundary determination. G. Promotion of compatible urban growth. Criterion Met. The proposed amendments provide for land uses and permitting processes that ensure development in regulated wetland areas is compatible with natural conditions as those 23 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 8 of 13 conditions fluctuate from time to time. The regulations also provide standards for development that will prevent construction in areas not suitable for development, thereby, creating a safer more suitable environment, and create building and site standards that are compatible with the natural environment. The regulations will create consistency of standards and processes that would be applicable on any parcel with wetlands throughout the City. H. Character of the district. Criterion Met. The draft regulations do not modify the standards that are unique to individual zoning districts. The wetland regulations are equally applicable in all zoning districts. The regulations are specifically designed to address characteristics of land within and surrounding wetland areas within the City. Parcels with wetland areas are unique. Providing specific regulations to protect them and mitigate during construction maintains the character of the site and ensures their preservation. Wetlands provide important values both aesthetic and functional that enhance the quality of life of community residents. Protecting wetland areas ensures their preservation for future generations I. Peculiar suitability for particular uses. Criterion Met. The regulations specifically address and limit the development of new buildings in identified wetland areas through a site-specific wetlands boundary determination when applicable. Preservation of wetlands is significant when considering they provide a number of important ecological functions including aquifer recharge, water storage, regional stream hydrology (discharge and recharge), flood control and storage, sediment control, nutrient removal from urban or non-point source runoff, and erosion control. Preservation of existing wetland functions is less costly, faster, and more efficient than replicating those functions elsewhere. Therefore, the preference of the city is to first avoid wetland impacts with the prioritized mitigation preferences following. J. Conserving the value of buildings. Criterion Met. Wetlands are a unique and distinct ecosystem that perform many important ecological functions. Wetlands are aquatic environments that are covered by freshwater, saltwater, or a mix. They can provide flood control, clean water, storm protection, sediment control, and vital habitat. The regulations may apply independently or may apply for development that may impact wetlands. It is the intent and purpose of these regulations to protect, preserve and enhance wetlands to provide a number of vital functions (see Criterion C & H). Further, the regulations act to proactively conserve the value of buildings by preventing building construction in and too close to wetland areas where soils are typically unstable and not appropriate for construction (see Criterion D). 24 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 9 of 13 K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion Met. The regulations provide standards and steps in determining the status of a wetland, the setback requirement, and any mitigating factors with proposed development. This will allow for uses that are appropriate and functional with existing wetland areas. The proposed amendments seek to regulate development around wetland areas that will have limited impacts on wetlands aiding in public health, safety, and general welfare. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A – DETAILED PROJECT DESCRIPTION AND BACKGROUND Mitigation of impacts to wetlands that occurs during land development is subject to both federal and location regulation. Federal Regulation pursuant to the Clean Water Act is enforced by the United States Army Corps of Engineers (USACE) and the Environmental Protection Agency. Local regulation occurs per the City’s Unified Development Code (UDC), Division 38.610 titled Wetland Regulations. Prior to the United States Supreme Court’s recent decision in Sackett v. Environmental Protection Agency, 142 S.Ct. 1322 (2023), the federal agencies 25 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 10 of 13 regulated wetlands using a broad definition that included many wetlands within the City. Federal agencies regulated wetlands that were not only immediately adjacent to traditionally navigable waters, but also wetlands that had a continuous surface connection to such water or had a significant nexus to interstate or traditional navigable waters. This “significant nexus” required federal agencies to analyze a number of factors. A significant nexus exists, under federal guidance, when “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of those waters.” The result is that the federal agencies regulated millions of acres of wetlands nationwide that were not immediately adjacent to or indistinguishable from traditionally navigable waters. That all changed with the Sackett decision. The majority of the Court determined “that the Clean Water Act (CWA) extends to those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right so that they are ‘indistinguishable’ from those waters.” The result is that many wetlands that were formerly regulated by the federal agencies are no longer under federal jurisdiction. The Supreme Court remanded this decision back to the 9th Circuit of Appeals. Additional litigation will most likely be necessary to finally resolve the specific issue in the case. In the meantime, EPA and USACE implemented an interim rule to address the Supreme Court decision. The City’s regulation of wetlands address wetlands historically regulated by the federal agencies resulting in concurrent (but not identical) regulations. The Sackett decision significantly narrows federal regulation of wetlands resulting in the City’s regulatory program now being the sole regulatory authority for many wetlands within the City. In response to the recent Sackett decision and the future of federal regulation of wetlands, the City believes it must consider any new federal rule and guidance to understand how the City could move forward regulating based solely on the UDC requirements. This includes regulation of wetlands that were but are no longer regulated federally and how the City will integrate its mitigation requirements (including a bank) into the ongoing federal wetland bank program. The City Commission conducted a work session on July 25, 2023, (Meeting Video-Action Item K.1.) [External Video Link], regarding the proposed Wetland Protection Mitigation procedures. The purpose of the work session was to provide the Commission with information related to: i. The current approach of the City to its wetlands regulatory program under the UDC; ii. Provide information on the Sackett decision and the issues resulting from the decision; iii. Provide information on future approaches to local regulation of wetlands. Specific topics in detail discussed at the work session are available in the July 25, 2023 City Commission Memorandum [External Link, PDF]. City Commission provided specific 26 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 11 of 13 guidance on mitigation measures for wetland areas which were discussed at two follow-up meetings open to the general public on October 5th, 2023. On October 5th, 2023 City staff presented updates to the proposed Wetland Regulations including policy guidance from the City Commission, followed by Q & A sessions that were open to the general public at two different meetings. There was a virtual meeting at noon on Zoom followed by an in person meeting at the Bozeman Public Library at 6:00 p.m. The noon session included an overview of current wetland regulations and the role of the Army Corps of Engineers. City goals were discussed in regard to wetland mitigation measures within the existing watershed including discussions on local wetland bank options. Policy guidance from the July 23rd City Commission meeting was discussed followed by a Q and A session with people who attended the online meeting. Several people asked about the inline edits and recommendations from the Gallatin Watershed Council to the proposed Wetland Regulations in the UDC. There were requests for clarification and the City’s response to these edits and recommendations. People felt they should be carefully considered since the recommendations and suggestion came from experts in the field. The comments were primarily focused on clarifying and defining terms in the existing codes with a goal to minimize and avoid impacts to wetlands before the city resorts to mitigation and that local mitigation was a priority over mitigating outside the City’s watershed. One person asked about the process for smaller, individual wetland areas or ponds not connected to a stream and options for cash in lieu. A follow up question asked about the option of submitting a wetland application prior to a site plan application, Additional questions included progress with wetland revisions to date. Meeting Video to the online Zoom meeting [External Link, meeting video]. On the same day at 6:00 p.m. staff presented this information at another meeting in the Bozeman Public Library. Discussions revolved around the proposed amendments to the wetland regulations, application processing for proposals with wetland areas, progress on local options for wetland mitigation, and policy guidance from the City Commission. People had questions about how the City will regulate wetlands normally covered by the ACOE and the method of determining the amount of credits for wetland mitigation. Additional discussion focused on wetland delineation and who decides who has jurisdiction and the overall permitting process. There were concerns about the size of the wetland bank and the process of mitigating using wetland bank credits. There were additional concerns about delineating wetland setbacks and holding people accountable to their limits. People were wanting to fully understanding who has jurisdiction, and understand steps outlined in the regulations to determine the best course of action based on the proposal. Additional information can be found on the Minutes to the 6:00 p.m., meeting [External Link, PDF]. The City wetlands code and USACE regulations have a general strategy that is summarized by the following priorities: 1) avoid wetlands impacts, 2) where wetlands impacts cannot be avoided, minimize wetlands impacts, and 3) when wetlands impacts are incurred, mitigate the impacts. Where the impacts of land development to wetlands are unavoidable, mitigation of 27 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 12 of 13 such impacts regulated by federal agencies may occur in locations distant from the City including the Upper Missouri Wetland Bank located in Twin Bridges, Montana. Currently, a local wetlands bank is under development by the Sacajawea Audubon Society (SAS) in the vicinity of Haggerty Lane and East Main Street intersection. If this bank qualifies as a wetland bank for purposes of federal regulation, landowners seeking to mitigate wetlands impacts that fall within the jurisdiction of federal agencies may be able to access the SAS bank, once established. The SAS bank may also be available to the City to provide mitigation for wetlands now regulated only by the City. The City first adopted local regulations to protect wetlands in 2003 by Ordinance 1604. Local regulations have been in effect continuously since initial adoption. The local regulations are supplementary to federal regulations in that historically, the City’s regulations have also regulated wetlands covered by the Clean Water Act. But there are key differences between the historical federal regulatory scheme and the City’s regulations.. A key difference is that the City’s regulations apply to wetlands as small as 400 sq. ft. and to isolated wetlands not connected to waters of the United States. This is more restrictive that federal regulations; in practice, however, the City has typically defaulted to USACE regulation as a measure of compliance with the more restrictive local wetland code. Bozeman’s regulations for wetlands are also coordinated with our requirements for protecting watercourses. If a wetland is located within the required setback for a watercourse then the setback is expanded to include the wetland area. It should also be noted, the City’s regulations exclude artificially created wetlands related to irrigation and stormwater facilities. These facilities require periodic maintenance, which is likely to conflict with wetland protection requirements. This project replaces Division 38.610.020 (Wetland Regulations) within Chapter 38 of the Bozeman Municipal Code and amends Section 38.220.130 [External Link, PDF] (Submittal materials for regulated activities in wetlands) to reflect the change in federal regulation of wetlands resulting from the recent Sackett decision. The project establishes a new section for Wetland Regulations within the Unified Development Code, in compliance with the requirements of the Clean Water Act and the Unified Development Code. The standards and procedures restrict certain construction and land alterations, require issuance of permits for construction and land alterations, and set necessary administrative procedures integrated with the City’s zoning development review procedures. These regulations apply to any regulated activity which may impact wetlands as defined in 38.700 known prior to or discovered through the development review process and verified through a site-specific wetlands boundary determination. These wetland regulations pertain to wetlands with a direct hydrologic connection to “waters of the U.S.” (those wetlands that connect to a federally-regulated stream or river directly or via a series or watercourse, wetlands, or ditches), and also to isolated wetlands with no direct connection to a water of the U.S. and exhibit positive wetland indicators for all three wetland parameters defined in most current 28 Staff Report for the Replacement of Wetland Regulations, Application 23309 Page 13 of 13 version of the U.S. Army Corps of Engineers Wetland Delineation Manual of the U.S. applicable to the U.S. Army Corps of Engineers Omaha District. This amendment is to the City’s zoning regulations regarding wetlands. This zoning regulation also addresses related purposes of environmental protection, public safety, and other subdivision criteria. Subdivision review must demonstrate zoning compliance. APPENDIX B – NOTICING AND PUBLIC COMMENT Notice for text amendments must meet the standards of 38.220.410 & 420. Notice was published in the Bozeman Daily Chronicle as required and contained all required elements. Notice was provided at least 15 business days before the Zoning Commission and Planning Board public hearing, and not more than 45 days prior to the City Commission public hearing. The City exceeded the required notice provision. Hearing dates are on the first page of this report. As of this writing, public comments have been received for this application. APPENDIX C – APPLICANT INFORMATION AND REVIEWING STAFF Owner/Applicant: City of Bozeman, PO Box 1230, Bozeman, MT 59771 Representative: Department of Community Development, City of Bozeman, PO Box 1230, Bozeman, MT 59771 Report By: Elizabeth Cramblet, Associate Planner, Community Development Department FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS Digital access of the full application (23309) and file of record is available at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Draft Wetland Regulations can be found on engage.bozeman.net/wetlands 29 Version February 2023 Ord 2156 Page 1 of 19 ORDINANCE 2156 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA TO REPEAL AND REPLACE SECTION 38.220.130, SUBMITTAL MATERIALS FOR REGULATED ACTIVITIES IN WETLANDS AND DIVISION 38.610, WETLANDS, AMENDING SECTION 38.700.190, U DEFINITIONS TO ADD A DEFINITION FOR THE US ARMY CORPS OF ENGINEERS, AND AMENDING SECTION 38.700.210, W DEFINITIONS TO REVISE THE DEFINITION OF WETLAND. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the applicable purposes of state law; and WHEREAS, pursuant to the Bozeman City Charter, the City of Bozeman has adopted and is hereby relying upon its self-government powers recognizing pursuant to Montana law such self-government powers must be liberally construed in favor of such power; and WHEREAS, after proper notice, the City Commission held a public meeting on July 25, 2023 to receive information on wetlands and changing federal regulations and to give direction on preparation of proposed amendments to the City’s wetland regulations; and WHEREAS, after proper notice, the Community Development Board in their capacity as Bozeman Zoning Commission held a public hearing on November 6, 2023, to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the Community Development Board in their capacity as Bozeman Zoning Commission recommended to the Bozeman City Commission that Ordinance 2156, be approved/not approved as proposed; and 30 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 2 of 19 WHEREAS, after proper notice, the City Commission held its public hearing on December 4, 2023, to receive and review all written and oral testimony on proposed Ordinance 2156; and WHEREAS, the City Commission has reviewed and considered the applicable amendment criteria established in Montana Code Annotated § 76-2-304, and found that the proposed amendments are in compliance with the criteria; and NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings The City Commission hereby makes the following findings in support of adoption of this Ordinance: 1. The City has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501. 2. The City adopted regulations and standards to protect and mitigate impacts to wetlands and watercourses in 2003. The City’s regulations have concurrent jurisdiction with other regulatory agencies. 3. The City adopted a growth policy, the Bozeman Community Plan 2020 (BCP 2020), by Resolution 5133 to establish policies for development of the community. 4. The BCP 2020, Theme 4 and Theme 7 encourage protection of the natural environment. 5. The US Supreme Court issued a decision in Sackett v. Environmental Protection Agency, 142 S. Ct. 1322 (2023), which significantly altered the scope of authority of the United States Army Corps of Engineers (and the United States Environmental Protection Agency) in regulating wetlands. 6. The reduction in scope of authority of United States Army Corps of Engineers places the City’s regulations as the primary regulatory protection for many wetlands in Bozeman’s regulatory jurisdiction. 31 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 3 of 19 7. A staff report analyzing the required criteria for an amendment to the City’s regulations for zoning review, including the amendment’s accordance with the BCP 2020, and has found that the required criteria of Montana Code Annotated § 76-1-304 are satisfied. 8. The necessary public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the applicable materials and provide comment. 9. The Community Development Board acting in its capacity as the municipal Zoning Commission considered the application materials, staff analysis and report, all submitted public comment, and all other relevant information and recommended approval. 10. The City Commission considered the application materials, staff analysis and report, recommendation of the Community Development Board acting in their capacity as the municipal Zoning Commission and Planning Board, all submitted public comment, and all other relevant information. 11. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of the decision, the required criteria for approval of this Ordinance are satisfied. 12. The City Commission determines that this Ordinance provides a proper balance of interests, rights, and responsibilities of all parties affected by this Ordinance and is necessary to protect public health, safety, and the general welfare. Section 2 That Section 38.220.130 Submittal materials for regulated activities in wetlands, Bozeman Municipal Code shall be repealed in its entirety and replaced as follows: Sec. 38.220.130. Submittal materials for regulated activities in wetlands or watercourses. A. An applicant for a permit under this chapter and 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 a wetland is present. When required to determine applicability and scope of wetland location and function the delineation must consider land outside the boundary of the property proposed for development. If no wetlands or watercourses 32 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 4 of 19 are present, a letter must be submitted to the city certifying there are no wetlands or watercourses within the subject property. a. The wetland and watercourse delineation report must include, but not be limited to, the following: (1) Wetland and watercourse descriptions; (2) Include the opinion of a qualified wetlands professional regarding the jurisdictional status of city and/or federal regulated wetlands; (3) A functional assessment of the wetland, as determined by the USACE Wetland Delineation Manual applicable to the USACE Omaha District; (4) All data collected must allow for accurate determination of the three positive wetland indicators as included in the definition of wetland at 38.700.210; (5) Wetland and watercourse acreages; (6) Maps with property boundaries, watercourse centerlines and ordinary high- water marks, delineated wetland boundaries, and wetland acreages; (7) Wetland data on forms established by the USACE; and (8) Watercourse jurisdiction determination as completed by Gallatin County Conservation District. 2. If development activities are proposed in and/or adjacent to watercourses or wetlands the following information is required: a. An accurate scaled drawing which shows: the property boundary; delineated wetland and watercourse boundaries; wetland buffer boundaries; watercourse setbacks; opinion of wetland jurisdictional status; and all existing and proposed structures, roads, trails, and easements. The drawing must include a table of existing wetland functional ratings, notation of the wetland jurisdictional status and respective acreages of wetland function for each wetland, required wetland buffers and acreage for each wetland, and linear feet of all watercourses. (1) All direct impacts to wetlands, watercourses, and buffers must be highlighted and summarized in a table on the site plan. The summary table must include: the wetland/watercourse identification number; labeling of the corresponding buffer with its width and acreage; total site, wetland, watercourse, and buffer acreages; notation of the wetland jurisdictional 33 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 5 of 19 status; impacts to all wetlands and watercourses and buffers; and, proposed mitigation methods and acreages. (2) All indirect impacts (e.g., shading from boardwalks or agricultural water user facility relocation) must be summarized in a narrative section of the application. b. Permit application materials for all applicable permits identified in 38.220.020. c. A completed wetland review checklist. 3. Mitigation Report. If a proposed development will impact wetlands, the applicant must submit a wetland report as described herein. If in review of the required submittal materials the review authority determines that there are impacts to wetlands and a wetland report has not been provided, the review authority shall require the following information be submitted to the city for all wetlands in the form of a mitigation report: a. The mitigation report must: (1) Identify proposed mitigation consistent with priorities subject to 38.610.100 and, if necessary, the rationale for the applicant’s preferred mitigation option if onsite mitigation is not requested. (2) Include: the name and contact information of the applicant; the name, qualifications, and contact information for the primary author of the 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) Include a description of: the existing wetland, any related watercourses and buffer 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, any related watercourses and buffer areas. Provide specifications for all proposed 34 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 6 of 19 mitigation for wetland, watercourse, and buffer impacts. Include a map with all proposed mitigation areas and their required buffers. (6) An assessment of existing conditions in the area of the proposed mitigation including vegetation community structure and composition, existing hydroperiod, existing soil conditions, and existing wetland functions. (7) Field data that documents the existing conditions of the proposed mitigation sites and an analysis of the future hydrologic and soil conditions of the mitigation wetlands based on the proposed mitigation (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 damage. 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 entity responsible 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, e.g., "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 plan including a schedule and reporting requirements to the city, and maintenance schedule and proposed actions for each year of monitoring. (11) Contingency plans which clearly define course of action or corrective measures if performance criteria are not met. b. The scaled plan sheets for the mitigation plan must contain, at a minimum: (1) Existing wetland and buffer surveyed edges; proposed areas of wetland and buffer impacts; and the location of proposed wetland and buffer mitigation action. 35 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 7 of 19 (2) Surveyed topography at one- to two-foot contour intervals in the zone of the proposed mitigation actions if any grading activity is proposed in the proposed mitigation area. Provide an existing and proposed mitigation design cross section for the wetland and/or buffer proposed mitigation areas. (3) Required wetland buffers for existing wetlands and proposed mitigation areas; c. A discussion of ongoing management practices that will protect and maintain the any nonimpacted wetland areas and the proposed mitigation wetland, watercourse, and buffer areas. 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. Section 3 That Division 38.610 Wetland Regulations, Bozeman Municipal Code shall be repealed in its entirety and replaced as follows: Sec. 38.610.010. Title and applicability/Jurisdiction. These regulations are known as the city wetland regulations and may be cited as the “wetlands regulations.” These wetland regulations pertain to wetlands with a direct hydrologic connection to "waters of the U.S." as defined by federal law. These wetland regulations also pertain to isolated wetlands with no direct connection to “waters of the U.S.” and which exhibit positive wetland indicators for all three wetland parameters defined in 38.700.210. The provisions contained in these regulations do not apply to wetlands created by a wholly manmade water source used for irrigation or stormwater control. These wetland regulations may apply to requests to modify or impact a wetland not associated with a development proposal, or may apply to applications for development that may impact wetlands. The city has concurrent jurisdiction over federally jurisdictional wetlands, defined as wetlands that are regulated by a federal agency. Sec. 38.610.020. Intent and purpose. A. Wetlands perform important ecological and public health, safety, and welfare functions. It is the intent and purpose of this division 38.610 to protect, preserve and enhance wetlands to provide: 1. Aquifer recharge; 36 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 8 of 19 2. Water storage; 3. Regional stream hydrology (discharge and recharge); 4. Flood control and storage; 5. Sediment control (filter for sediments and nutrients); 6. Nutrient removal from urban and non-point source runoff; 7. Habitat for fish, wildlife and plants (including those that are endangered or threatened); and 8. Erosion control. B. Wetlands provide important values that enhance the quality of life of community residents and benefit the public welfare of the community. It is the intent of this division 38.610 to protect, preserve and enhance wetlands to provide: 1. Recreation; 2. Open space; 3. Aesthetic considerations; 4. Education and research; 5. Historical, cultural and archaeological resources; and 6. Reduce discharge permit compliance costs and water quality enhancements and protections. C. Wetlands can present significant constraints to development. Wetlands typically form in areas characterized by poor drainage conditions which are not suited for most types of development. Development in these areas often involves additional expense resulting from considerations for site drainage, flood protection and facility maintenance. In addition, wetlands are characterized by hydric soils that are unstable for most types of development. Hydric soils compress under the weight of structures and decompose when drained. Therefore, costs of development may be greater due to complex engineering design requirements, or the need to excavate and replace soils. It is the intent of these regulations to protect public and private facilities and structures from damage, and to minimize public and private development and maintenance costs. D. It is not the intent of this division 38.610 to prohibit all activities within areas subject to these wetland regulations, but rather to encourage the avoidance of regulated activities and require best management practices in areas subject to these wetland regulations. 37 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 9 of 19 E. Nothing in this division 38.610 may be construed to prevent irrigators from diverting and carrying water pursuant to water rights or owners of such rights from exercising those rights. F. Nothing in this division 38.610 may be construed to prevent compliance with applicable state or federal statutes and regulations. Sec. 38.610.030. Application of wetland regulations. A. These regulations apply to any regulated activity as described in 38.610.050 which may impact wetlands as defined in 38.700 and which impacts are known prior to, or discovered through the development review process, and which are verified through a site-specific wetlands boundary delineation. When any regulated activity is proposed, a wetlands boundary delineation must be conducted. If the wetlands delineation indicates that there are no wetlands present on the property, the review authority may determine these regulations do not apply. If wetlands are found on the property the proposed development is subject to these wetland regulations and the provisions of this division 38.610 will be applied in addition to any other applicable regulations of this chapter. If site conditions exist, such as the presence of hydric soils or surface waters, that indicate wetlands could potentially be present on the property, the review authority may require the following be provided with the submittal of an application for development: 1. A wetlands boundary delineation pursuant to 38.610.040 must be prepared by a qualified wetland professional in accordance with the most current version of the USACE Wetland Delineation Manual of the U.S. applicable to the USACE Omaha District. 2. A qualified wetland professional is an individual with a minimum of a bachelor's degree in a water resource related field, five years' experience, and/or a professional wetland scientist certification. B. Wetlands which are outside the jurisdiction of a federal agency and which are less than 400 square feet are exempt from this division 38.610 unless the wetland provides habitat for the following species as confirmed by a state or federal agency: 1. Plant, animal or other wildlife species listed as threatened or endangered under federal law; and/or 2. Plant, animal or other wildlife species listed as a species of concern, species of potential concern, or species on review as determined by the state. 38 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 10 of 19 C. Any development for which the watercourse setback requirements of section 38.410.100 are provided and do not result in any wetland impact is considered to have addressed the concerns of this division 38.610 and therefore any such development is exempt from this division 38.610. D. This division 38.610 does not repeal, abrogate, supersede, or impair any existing federal, state, or local law, easement, or deed restriction. If this division imposes greater or more stringent requirements than federal, state, or local regulation, or private agreement, the provisions of this division control. Sec. 38.610.040. Wetlands jurisdictional determinations. A. Wetland boundary delineation and jurisdictional determinations must be performed in accordance with the procedures specified in the most current version of the USACE Wetland Delineation Manual of the U.S. applicable to the USACE Omaha District. The determination of whether a wetland may fall within the jurisdiction of the USACE must be provided pursuant to an opinion provided to the city by a qualified wetlands professional. The USACE is the only entity that may issue a final determination of federal jurisdiction. B. The application must include a wetlands delineation and the opinion of a qualified wetlands professional whether the wetlands are within federal jurisdiction and include the submittal materials required pursuant to Sec. 38.220.130. C. The review authority may rely on the wetlands delineation and the opinion of jurisdictional status submitted with the application to determine jurisdiction. 1. If the opinion indicates federal jurisdiction over the wetland(s) exists, the applicant must submit a Clean Water Act Section 404 permit application to the city concurrent with the application for development under this chapter. If the opinion of jurisdictional status indicates federal jurisdiction does not exist, the review authority may seek an independent opinion on the jurisdictional status of the wetland. 2. Regardless of jurisdictional status, the city will process the city wetland permit application under local jurisdiction for any regulated activities in a delineated wetland set forth in 38.610.050. 3. If federal jurisdiction is later determined to exist, the applicant must comply with any requirements of USACE. 4. Approval by the city of a permit to impact wetlands in no way implies a determination by the city of USACE jurisdiction or federal regulations. 39 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 11 of 19 D. If the delineation report and the opinion of jurisdictional status report indicates both local and federal jurisdiction exists over the wetland, the applicant must obtain both a Clean Water Act Section 404 Permit and a city permit. The city in consultation with USACE will determine the extent of and means of mitigation subject to Sec. 38.610.100. E. A wetland delineation expires after five years. If an applicant seeks to rely on a delineation that is greater than five years old a new wetlands delineation is required. Sec. 38.610.050. Regulated activities. A. No person may conduct any of the following regulated activities within a wetland, regardless of federal or city jurisdictional status as described in 38.610.030, without first having the proposed activity approved by the entity having jurisdiction and approved pursuant to any required federal, state or local wetland permit. Any activity which reduces the size of a wetland or reduces the degree to which a wetland performs any function identified in the wetland delineation report is subject to the requirements of this division 38.610. Such activities include but are not limited to: 1. Placement of any material, including any soil, sand, gravel, mineral, aggregate, organic material or water; 2. Construction, installation or placement of any obstruction or the erection of a building, trail, boardwalk or other structure; 3. Removal, excavation or dredging of solid material of any kind, including any soil, sand, gravel, mineral, aggregate or organic material; 4. Removal of any existing vegetation or any activity which will cause any loss of vegetation; 5. Alteration of the water level or water table by any means, including draining, ditching, trenching, impounding or pumping; and 6. Disturbance of existing surface drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics by any means, including grading and alteration of existing topography. Sec 38.610.060. Activities allowed without a permit. A. Except for wetlands under federal jurisdiction, the following activities are permissible without prior approval by the review authority, if such activity does not reduce the size of a wetland or does not significantly reduce the degree to which a wetland performs any 40 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 12 of 19 function. Notwithstanding the above, such activity must be in compliance with any other applicable local, state, or federal law. Activities permissible without an approved city wetland permit may include: 1. Maintenance of an existing and lawful public or private road, structure or facility, including but not limited to drainage or stormwater facilities, water conveyance structures, dams, fences, trails, or any facility used to provide transportation, electric, gas, water, telephone, telecommunications or other services provided that these activities do not materially change or enlarge any road, structure or facility; 2. Maintenance of an existing farm or stock pond, water conveyance structure, agricultural fence or drainage system; 3. Weed control consistent with a Noxious Weed Management and Revegetation Plan approved by the county weed control district or other maintenance activities to remove or control state or city-identified noxious weeds; 4. Continuation of existing agricultural practices such as the cultivation and harvesting of hay or pasturing of livestock, or change of agricultural practices which has no greater impact on wetland function; 5. Conservation or preservation of soil, water, vegetation, fish and other wildlife; 6. Outdoor recreational activities, such as fishing, bird watching, hiking, floating, and swimming which do not harm or disturb the wetland; 7. The harvesting of wild crops; 8. Education and scientific research; 9. Minor improvements and landscape maintenance outside a wetland but within a previously approved wetland buffer, including but not limited to the pruning of trees, mowing of grass, and removal of dead vegetation and debris; and 10. Activities in a wetland previously approved pursuant a wetland permit, including but not limited to removal of debris and maintenance of vegetation and wildlife habitat. B. If federal jurisdiction exists, the applicant must comply with all requirements of the USACE or any other state or federal agency having jurisdiction. Sec. 38.610.070. Application requirements and procedures for activities in wetland areas. A. Review. All proposals for regulated activities in wetlands areas must be reviewed by the review authority. If the wetland impact is proposed in association with a development permit, then the review authority follows the review process for the development permit. 41 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 13 of 19 If a regulated activity is proposed for a regulated wetland area, but the regulated activity is not proposed in conjunction with a land development proposal, the applicant must submit a sketch plan application for decision by the review authority. B. Decision. The review authority must make a final decision prior to commencement of the regulated activity. The review authority may approve, conditionally approve or deny a proposal. C. Submittal materials. The information required in 38.220.130 must be submitted for all regulated activities proposed for regulated wetland areas. Sec. 38.610.080. Review standards. A. The review authority may approve an application under this division 38.610 if: 1. The applicant has demonstrated that all adverse impacts on a wetland have been avoided; or 2. The applicant has demonstrated that any adverse impact on a wetland has been minimized; the activity will result in minimal impact or impairment to any wetland function, or materially harm the continued existence of, the following: a. Plant, animal or other wildlife species listed as threatened or endangered under federal law; and/or b. Plant, animal or other wildlife species listed as a species of concern, species of potential concern, or species by the state; or 3. The review authority determines the project is in the public interest, having considered the applicant’s documentation of: a. The extent of the public need for the proposed regulated activity versus the impact to the wetland; b. The functions and values described in 38.610.030 and as determined by a USACE accepted method of functional assessment of the wetland that may be affected by the proposed regulated activity; c. The extent and permanence of the adverse effects of the regulated activity on the wetland and any associated watercourse; d. The effects of past activities, permitted by the city or other agencies, on the same wetland; and e. The uniqueness or scarcity of the wetland that may be affected. 42 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 14 of 19 Sec. 38.610.090. Wetland permit conditions. A. The review authority may require mitigation as provided for in 38.610.100 and conditions of approval for proposed regulated activities that are necessary to mitigate impacts to wetlands, or which are necessary to mitigate infringement upon watercourses, buffers, or negative indirect or direct effects on the functionality of wetlands, watercourses, or buffers. Conditions of approval may include but are not limited to, the following: 1. Requiring the provision of a wetland buffer of a size appropriate for the particular proposed activity and the particular regulated wetland area; 2. Requiring that structures be appropriately supported and elevated and otherwise protected against natural hazards; 3. Modifying proposals for waste disposal, stormwater, or water supply facilities; 4. Requiring deed restrictions or protective covenants between the landowner and the city regarding the future use and subdivision of lands, including but not limited to the preservation of undeveloped areas as open space and restrictions on vegetation removal; 5. Requiring a deed restriction or protective covenant between the landowner and the city stating the measures that will be taken to protect all water resources, mitigation, and buffer areas; 6. Restricting the use of an area, which may be greater than the regulated wetland area; 7. Requiring erosion control and stormwater management measures; 8. Clustering structures or development; 9. Restricting fill, deposit of soil and other activities which may be detrimental to a wetland; 10. Modifying the project design to ensure continued water to the regulated wetland; 11. Requiring or restricting maintenance of a regulated wetland area for the purpose of maintaining wetland functions; 12. Requiring a mitigation monitoring report to be submitted to the review authority. The period and frequency of the reporting will be determined on a case-by-case basis; and 13. Requiring that all reasonable effort has been made to limit indirect impacts to vegetation and hydrological connectivity in the site design. 38.610.100. Wetland mitigation. 43 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 15 of 19 A. Adverse wetland impacts must be mitigated regardless of wetland jurisdictional status in the following order of priority except as may be required or authorized by the USACE for wetlands within USACE jurisdiction: 1. Impacts must be mitigated on-site where feasible to do so. On-site mitigation must be substantially similar in area and functionality as the impacted wetland. If conditions are not suitable for establishing on-site mitigation, the review authority may authorize an alternative mitigation as described in subsections 2-6, below. On-site mitigation must be conducted in accordance with methods and standards of USACE pursuant to 33 CFR 332. Factors the review authority may consider in determining feasibility of on-site mitigation include but are not limited to: available area, the availability of water to serve the mitigation site, soil and vegetation types, wetland size and functional class, existing and future land use, compliance with adopted land use plans, and the current and future planned 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 USACE and which is located within the East Gallatin River watershed. 3. If an authorized wetland bank 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 Gallatin River watershed; 4. If an authorized wetland bank is not available within the Gallatin River watershed, mitigation must occur off-site within the Gallatin River watershed pursuant to a plan approved by the review authority; 5. If off-site mitigation as provided for in is not available, then the developer must provide a proportional payment to an in-lieu fee wetland mitigation provider authorized by the USACE 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. C. The city commission may, pursuant to Resolution, establish standards that: 1. Require a decrease in value of mitigation bank credits as distance to the bank increases from the location of wetland adversely impacted; and 44 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 16 of 19 2. Ensure the amount of mitigation credits or acreage of wetland mitigation required are reasonably related to the area and functional class of the impacted wetland. 38.610.110. Administrative procedures authorized. A. The city manager or designee may adopt and amend administrative procedures to implement this division. The administrative procedures include, but are not limited to, the following items: 1. Guidelines necessary to conduct an analysis of alternatives to the proposed action related to the prioritization of mitigation as provided for in 38.610.100; 2. Coordination with stormwater management practices; 3. Coordination with USACE to avoid duplication of wetland mitigation bank credits; 4. Procedures for provision of payment to USACE authorized in lieu fee provider for wetland impacts or mitigation; 5. Requirements for wetlands delineation and opinion of wetland jurisdictional status reports; 6. Procedures for certification of wetland delineation and opinion of wetlands jurisdictional status reports; 7. Guidance related to the content of any required monitoring report; 8. Procedures to implement 38.610.100 including procedures related to timing of mitigation prior to construction of construction of improvements; and 9. Requirements for wetland mitigation plans including ensuring long-term protections for off-site mitigation such as an easement or protective covenant that cannot be removed without consent of the city. Section 4 That Section 38.700.190. - U definitions, Bozeman Municipal Code shall be amended as follows to add: USACE. When referred to in this chapter, USACE means the United States Army Corps of Engineers. Section 5 That Section 38.700.210. - W definitions, Bozeman Municipal Code shall be amended as follows: Wetland. 45 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 17 of 19 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. Section 6 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 7 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 8 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so 46 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 18 of 19 decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 9 Codification. This Ordinance shall be codified as indicated in Section 2 – 5. Section 10 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of ________________, 2023. ____________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk 47 Ordinance No. 2156, Replacement of Division 38.610 Wetlands Ord 2156 Page 19 of 19 FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 2023. The effective date of this ordinance is ______________, 2024. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 48 Memorandum REPORT TO:Community Development Board FROM:Chris Saunders, Community Development Manager Erin George, Community Development Deputy Director Anna Bentley, Community Development Director SUBJECT:Upcoming Items for the November 20, 2023 and December 4, 2023, Community Development Board Meetings. MEETING DATE:November 6, 2023 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Information only, no action required. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The following non-project review items are presently scheduled for the November 20, 2023, Community Development Board meeting. 1. Water and Wastewater capital improvement program recommendation - Considered in role as Impact Fee Advisory Committee. The following non-project review items are presently scheduled for the December 4, 2023, Community Development Board meeting. 1. Sensitive Lands Protection Plan - Considered in role as Planning Commission. Document text is available at https://gallatinvalleyplan.bozeman.net/ [External Link]. UNRESOLVED ISSUES:None. ALTERNATIVES:None. FISCAL EFFECTS:None. Report compiled on: October 12, 2023 49