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HomeMy WebLinkAbout11-13-23 Public Comment - W. Weaver - Public Comments on Wetland Protection and Mitigation Code RevisionFrom:Wendy Weaver To:Agenda Subject:[EXTERNAL]Public Comments on Wetland Protection and Mitigation Code Revision Date:Monday, November 6, 2023 3:39:30 PM Attachments:Montana Freshwater Partners.png Facebook.png clear.png Instagram.png Rip Rap Ranglers.png 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. Thank you again for the City’s leadership in trying to develop code around protecting theCity’s wetlands. I took a few minutes to review the proposed regulations and have the following comments I would like to provide: Hierarchy: We recommend reordering the hierarchy to prioritize using established mitigation banks within the East Gallatin watershed first, an in-lieu fee option section (see comment below onthis) and on-site permittee responsible mitigation last. Exceptions could be allowed under special circumstances where the permittee can demonstrate that they have the specializedtechnical skills, funding and site protection in place to provide high quality, perpetual offsets for their impacts. Our recommendation to allow permittee responsible mitigation as a lastresort is based on a long history of failed permittee responsible mitigation sites in Montana and across the nation. In fact, the consistent failure of permittee responsible mitigation siteswas the impetus for the establishment of Montana Freshwater Partners In-Lieu Fee mitigation program in the first place - we saw a dramatic loss of wetlands and stream function across thestate because permittee responsible mitigation did not work. Our recommended hierarchy falls in line with the same mitigation hierarchy that the US. Army Corps of Engineers uses,and while the City isn't obligated to follow the federal 2008 mitigation rule, there is a long history and rationale developed with the public process of the 2008 Federal Mitigation Rulethat establishes permittee responsible as third in priority and the least favorable mitigation. If you need or want additional background or explanation on that rationale, it could be providedbut is quite extensive. Watershed Approach: the watershed approach should be stated explicitly with definition giving priority to in-kind, in proximity mitigation within the East Gallatin watershed formitigation. Mitigation Ratios to Incentivize Local Mitigation and Address Cumulative LocalizedImpacts: local mitigation could be further incentivized by establishing a tiered mitigationcredit ratio that would require greater mitigation offsets the further away from the impact you get. The tiered structure may look something like this which is similar to how the Army Corpshas set up the mitigation requirements in the Upper Yellowstone Special Resource Management Zone (SRMZ) to address cumulative impacts: If the impact occurs in the East Gallatin Watershed and is offset with mitigation within the Gallatin watershed, there is a 1:1 mitigation ratioif the impact occurs in the East Gallatin Watershed but is offset with mitigation outside of the watershed, but still within Gallatin County, the mitigation ratio could be 2:1if the impact occurs in the gallatin watershed but is offset with mitigation located outside of Gallatin County, but still within the Upper Missouri watershed, the mitigationratio could be 4:1 At a minimum, mitigation must occur within the Upper Missouri watershed. In-Lieu Option: It would be difficult for an authorized In-Lieu Fee provider (like Montana Freshwater Partners) to fulfill the ILF option as it is written in the draft wetland codesprimarily because the Gallatin valley has become so expensive that mitigation fees paid to an ILF provider would almost certainly not be enough to cover the cost of land acquisition,construction, monitoring and long-term maintenance for a mitigation site, without charging the permittee exorbitant fees for the mitigation credits. There are other administrative reasons whyit would be difficult for an established ILF program to fulfill this role which can be discussed later if needed. Instead, we suggest that the City administer the In-Lieu Fee option, wherebythe permittee pays a mitigation fee to the City which then goes into an established watershed restoration fund that pays for or contributes towards local projects that benefit stream andwetland projects in the local watershed. Local conservation groups could apply for the funding to implement and manage the projects. The City could accept funds, similar to in-lieufees paid for park/open spaces. We suggest requiring a minimum of 1.5:1 mitigation ratio for any in-lieu option to compensate for the temporal loss of wetland/stream function whenimpacts occur prior to the mitigation actually being implemented on the ground. Methods: Lastly, we recommend the City require the use of the Montana Wetland Functional Assessment method and Wetland Functional Mitigation Units to calculate mitigation debit andcredit requirements (as opposed to the Army Corps' antiquated Montana credit ratio system) ; and we also recommend using the Montana Stream Mitigation Procedure to calculate streamdebit and credit offset (the Montana Stream Mitigation Procedure is not ideal, but it is the most efficient tool we have in MT for stream mitigation right now). Both methodologies arewidely used across the state by consultants. Additional comments and consideration: One other point to make on the heirarchy and reason for being consistent with the Army Corps' hierarchy is to avoid the confusing cluster that would ensue if a property had 404jurisdictional wetlands that would have to follow the Army Corps hierarchy, AND non- jurisdictional wetlands that would have to follow the City's mitigation hierarchy. Thepermittee would effectively have to follow two sets of rules that are in opposition to one another which would make it extremely confusing and more expensive for the permittee. Here are three few resources that touch upon the subject and I suggest reading andunderstanding them thoroughly. 1) The full 2001 National Academies/National Research Council publication can be found anddownloaded at this link (see page 149 for more in depth PRM discussion) https://nap.nationalacademies.org/catalog/10134/compensating-for-wetland-losses-under-the-clean-water-act 2) Environmental Law Institute is an excellent resource for all things mitigation, https://www.eli.org/compensatory-mitigation/background-compensatory-mitigation#_ednref53 3) https://www.vnf.com/when-it-comes-to-wetland-mitigation-choose-wisely Again, I appreciate the City’s efforts to address wetland lost and hope you will take thisfeedback into consideration. Sincerely, Wendy Weaver Wendy Weaver, PE Executive Director Cell (406) 579-2355 FreshwaterPartners.org Montana Freshwater Partners (formerly known as Montana Aquatic Resources Services-MARS) is a non-profit organization that works to enhance and preserve the vitality, health and resilience of Montana's rivers, streams and wetlands.