HomeMy WebLinkAbout23373 Wetlands Review Bill Kleindl comments on 1st review 12 14 24
Susana Montana December 14, 2024 City of Bozeman
20 East Olive Ave
Bozeman, Mt 59771 RE: S&S Davis Apartments Aquatic Resource Review (#23373)
Ms. Montana:
On December 9, 2024, the City of Bozeman (COB) provided me with permit application materials related to potential impacts on aquatic resources from the development of the S&S Davis Apartments (#23373). Here, I am providing you with a review of this material in the form of a letter report. This report, intended to help you with your planning and permitting process,
consists of only my professional opinion. I am not an engineer; therefore, the following thoughts
and recommendations must be carefully considered by planners and approved by licensed engineers and architects. This reviews the materials required for permitted activities within the City’s aquatic resources code: Chapter 38, Sec(s) 38.220, 38.410, 38.610, and 38.700.
Some of the required materials are missing. Once those documents are provided, I can give a
more thorough opinion of the permit package. Ideally, a comprehensive document that follows
the clearly articulated requirements in the city code would facilitate a complete review. Table 1 lists salient requirements and a column stating if the documents are present. If there are elements that need to be added, I provide additional comments below.
Table 1. Sec. 38.220.020 and 38.220.130 Submittal Materials for Regulated Activities in
Wetlands
Required Item if Relevant to this Property
Present in this submission Package 38.220.020 – The developer must provide the community development department with a copy of all required streambed, streambank or wetlands permits, or written notification
from the appropriate agency that a permit is not required, prior to the commencement of any work on the site and/or final plat approval, whichever is sooner. See code for list.
38.220.130 (A) All parties applying for activity permits proposing action affecting federal, state, or City regulated wetlands, watercourses and/or buffers within the city limits must submit the following information:
(1) A wetland and watercourse delineation report must be submitted to the City for all projects
Wetland delineation report with the following: x Aquatic resource descriptions; x Functional assessments; Wetland Ratings Missing Wetland type (e.g., Cowardin, HGM); x Wetland acreages; x Maps: property boundaries, wetland, watercourse boundaries, and acreages; x Data forms x (2) If activities are planned in or around aquatic resources: Complete Wetland Checklist Site plan with proposed activities with direct impacts highlighted x Table of ratings, wetland acreages, buffers acreages, linear feet of watercourses x1 Table of impacts x2
List of indirect impacts Missing Map of proposed mitigation including types, buffers, and acreages Missing Source, type, and method of fill Missing Copies of all required permits and letters (e.g., USACE Jurisdictional Determination) x
(3) If there are unavoidable impacts to jurisdictional and city-regulated wetlands, the submittal must include the following. Because of the size and location of the site’s wetland,
this section applies: Avoidance and minimization Missing Impacts (based on professional survey) to aquatic resource and its buffer, including ratings and functions x1 Impacts on hydroperiod Missing Detailed conceptual mitigation plan for compensation of unavoidable impacts x3
Assessment of proposed mitigation location x3 Document of existing conditions of proposed mitigation location including field data (see 3.a.6) x3 Planting schedule (Appendix E) x3 Mitigation monitoring plan x3 Mitigation performance criteria x3
Plan sheets based on professional survey data of existing features, topography, and proposed activities x
Management plan. x3
1. Wetland buffers are not determined. 2. The table in the impact map does not match the total acreage in the wetland delineation map. Wetland buffer impact not calculated. 3. Wetland is under federal jurisdiction. It will likely be mitigated at the federal wetland bank. However, wetland buffers are not established, and their planting design and monitoring are not in the plan Sec. 38.610.080. – Wetland permit conditions
Below are my comments on the specific elements of this section. Items in red need to resolved.
A. The review authority may approve, conditionally approve or deny a regulated activity in a
regulated wetland if:
1. The applicant has demonstrated that all adverse impacts on a wetland have been avoided; or
- According to COB code Sec 38.610.020 – Intent and purpose: “Wetlands
perform many important ecological functions. It is the intent and purpose of this division 38.610 to protect, preserve and enhance wetlands ...” It appears that this project does not follow the intent of this section of code. - There is no evidence that adverse impacts to these wetlands have been
avoided. According to the “Davis Lane Property: Trail Map” 080TRAIL
MAP.pdf V2, the bulk of the wetland fill is to accommodate ‘site parking.” - For instance, the parking area could be stacked to eliminate the bulk of the wetland fill. 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 and the activity will not result in an adverse modification of habitats for, or
jeopardize the continued existence of, the following a. Plant, animal or other wildlife species listed as threatened or endangered by the United States Fish and Wildlife Service; and/or;
b. Plant, animal or other wildlife species listed as a species of concern, species of potential concern, or species on review by the state department of fish, wildlife
and parks and the state natural heritage program; or
c. Impacts are not within a defined floodplain, although they recognize that the
area has shallow groundwater. - There is no evidence that adverse impacts to these wetlands have been minimized. For instance:
- Lighting can be directed away from wetlands,
- Locate activity that generates noise away from wetland, - Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered - Establish covenants limiting use of pesticides within 150 ft of wetland,
- Use privacy fencing OR plant dense vegetation to delineate buffer edge and
to discourage disturbance using vegetation appropriate for the regional ecology - Place wetland and its buffer in a separate tract or protect it with a conservation easement
- Use best management practices to control dust
3. The applicant has demonstrated that the project is in the public interest, having considered and documented: a. The extent of the public need for the proposed regulated activity;
- The Community Housing Needs Assessment may address this.
b. The functions and values as determined by a state accepted method of functional
assessment of the wetland that may be affected by the proposed regulated activity; - The assessment forms need to be provided for its current condition, and
- To properly consider the project impacts, there needs to be a measure of the
loss of these functions and values after development by using the forms to forecast impact. This will inform the city of larger loss to the community of these functions. c. The extent and permanence of the adverse effects of the regulated activity on the
wetland and any associated watercourse;
- The area of the wetlands in the delineation report and the impact map do not match. The delineation report documents 1.62 acres of wetland, and the impact map documents 1.55 acres. d. The cumulative adverse effects of past activities on the wetland; and
- No documentation addresses this requirement.
- This is not clearly defined in the city code, however under the Clean Water Act sec 404.b.1 guideline, cumulative impacts and cumulative effects are defined as CFR40.I.H.230.11.g.1&2: o Cumulative impacts are the changes in an aquatic ecosystem that are
attributable to the collective effect of a number of individual
discharges of dredged or fill material. Although the impact of a particular discharge may constitute a minor change in itself, the cumulative effect of numerous such piecemeal changes can result in a
major impairment of the water resources and interfere with the productivity and water quality of existing aquatic ecosystems.
o Cumulative effects attributable to the discharge of dredged or fill
material in waters of the United States should be predicted to the extent reasonable and practical. The permitting authority shall collect information and solicit information from other sources about the cumulative impacts on the aquatic ecosystem. This information shall
be documented and considered during the decision-making process
concerning the evaluation of individual permit applications, the issuance of a General permit, and monitoring and enforcement of existing permits. - In other words, it is not a cumulation of impacts on the proposed property but
the cumulation of effects in the region, watershed, and or city. For instance,
utilizing the MTNHP aquatic resource layer, we found that approximately 747 acres of aquatic resources existed within Bozeman city limits from 2005, and roughly 39 acres of those aquatic resources have been lost since 2005. This represents a 5% loss of aquatic resources within that timeframe, or
roughly 2.05 acres (0.3%) per year. This project has about a 1.6-acre fill of
wetlands or nearly our average annual wetland loss. e. The uniqueness or scarcity of the wetland that may be affected. - No documentation addresses this requirement. It is likely a category III and not scarce, however the assessment forms were not provided.
Sec. 38.610.090. – Wetland permit conditions A. The review authority may recommend conditions of approval for proposed regulated activities, and the City may conditionally approve proposed regulated activities, subject to
the following conditions:
1. Requiring the provision of a wetland buffer of a size appropriate for the particular
proposed activity and the particular regulated wetland area; - This portion of the code allows for buffers to any wetland within the city, regardless of its association with a waterway. This is not the same as a
setback from waterways, it is a buffer of a size appropriate for the particular
proposed activity. In an email communication from Brian Heaston, dated February 3, 2024, reminds the proponent that the wetland resource must be adequately protected. The plan must demonstrate adequate protection before and after the proposed action. There appears to be no buffer between the
development and the wetland after construction. This is not an appropriate
buffer to protect the wetland resources.
1. Requiring that structures be appropriately supported and elevated and otherwise protected against natural hazards; - This appears to be the case.
2. Modifying waste disposal and water supply facilities;
- This appears to be the case.
3. Requiring deed restrictions or covenants 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;
- I saw no evidence of a deed restriction.
4. Restricting the use of an area, which may be greater than the regulated wetland area; - I saw no evidence of protection of the remaining wetland areas. 5. Requiring erosion control and stormwater management measures;
- Designs for stormwater facilities and infrastructure that limit impacts to
wetlands were provided. However, these plans were not reviewed.
6. Clustering structures or development; - I saw no evidence of clustering or any design that would minimize wetland impacts (see note above).
7. Restricting fill, deposit of soil and other activities which may be detrimental to a
wetland; - I saw no evidence to support this. 8. Modifying the project design to ensure continued water supply to the regulated wetland; - The canal will remain.
9. Requiring or restricting maintenance of a regulated wetland area for the purpose of
maintaining wetland functions; - The performance standards, monitoring, maintenance, and contingency actions of the remaining wetland areas should be in one clear section to ensure a successful project.
- There is no monitoring plan or maintenance plan
10. Requiring a yearly mitigation monitoring report to be submitted to the review authority
on a yearly basis, with the due date to be determined on a case-by-case basis; - See above. 11. Requiring a deed restriction to be filed with the county clerk stating the measures that
will be taken to protect all water resources, mitigation, and buffer areas in perpetuity;
- I saw no evidence of a deed restriction.
12. Requiring that all reasonable effort has been made to limit indirect impacts to vegetation, faunal interspersion and connectivity, and hydrological connectivity in the site design (e.g., any structures, boardwalks, viewing platforms, or bridges, which are
constructed within wetlands will have at least a two-foot space between the bottom
chord of the structure and the wetland surface elevation to limit shading impacts and
allow wetland vegetation to persist); - I saw no evidence of efforts to limit the indirect impact on the remaining wetland area (see note above).
- There will likely be an impact on hydrological activity when the canal is
straightened, which will likely impact connectivity to the remaining wetland area. 13. Requiring conditions that mitigate locally-regulated (wetlands not connected to a water of the U.S.) infringement upon watercourses, buffers, or negative indirect or direct
effects on the functionality of wetlands, watercourses or buffers.
- The wetland is under federal jurisdiction, and unavoidable impacts will likely be mitigated at the local federal wetland bank.
I hope this brief review is helpful in your decision-making process. I will be happy to provide
more detailed information or discuss my opinions anytime.
Sincerely,
Naiad Aquatic Consultants, LLC.
William Kleindl, PhD, PWS