HomeMy WebLinkAboutOrdinance_2025-xxx_Aug_28__2025Version February 2023
Ord 2156
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ORDINANCE 2025-xxx
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), SECTION 38.410.100
(WATERCOURSES), AND DIVISION 38.610 (WETLANDS) IN THEIR ENTIRETY AND
WOULD AT THE SAME TIME REPLACE IT WITH A NEW SET OF STANDARDS AND
SUBMITTAL REQUIREMENTS, SECTIONS 38.700.190 (U DEFINITIONS) AND
38.700.120 (W DEFINITIONS) OF THE BOZEMAN MUNICIPAL CODE WILL BE
AMENDED, APPLICATION 23309.
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
as proposed; and
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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, after consideration the City Commission requested further revisions to the
draft text; and
WHEREAS, after revisions were made public notice was published and the draft
amendments made available for public review in multiple locations including electronic methods;
and
WHEREAS, after proper public notice the Community Development Board in their
capacity as the Zoning Commission, held a public hearing on September 8, 2025, to receive public
comment and consider the criteria for zoning amendments; and after completing their review
recommended [complete with recommendation once finished]; and
WHEREAS, the City Commission conducted a public hearing on September 9th to receive
public comment; 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 comply 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.
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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 the United States Army Corps of Engineers places the
City’s regulations as the primary regulatory protection for many wetlands in Bozeman’s
regulatory jurisdiction.
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:
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Sec. 38.220.130. Submittal materials for review of activities in or adjacent to wetlands and
watercourses.
A. An applicant for a permit under this chapter on a site where wetlands and/or watercourses
may be present or adjacent to the subject property must submit a wetlands and watercourses
delineation report including the following information:
1. If wetlands or watercourses are not present on or adjacent to the subject property, a
letter signed by a qualified wetlands professional must be submitted to the city
certifying there are no wetlands or watercourses within the subject property or adjacent
to the property and describing the methods used to determine that wetlands or
watercourses do not exist on or adjacent to the property.
2. If a wetland or watercourse is present or adjacent to the property, a wetland and
watercourse delineation report must be submitted to the city. When required to
determine the wetland or watercourse location and function, the delineation report
must consider land outside the boundary of the property proposed for development.
a. The wetland and watercourse delineation report must include the following which
must have been developed within five (5) years of the date of the submission of
the report:
(1) Wetland and watercourse descriptions;
(2) An Approved Jurisdictional Determination provided by the USACE;
(3) A functional assessment of the wetland, made in compliance with an
assessment tool currently accepted by USACE and/or the State of Montana.;
(4) All data collected must support accurate confirmation of the three positive
wetland indicators as included in the definition of wetland at 38.700.210;
(5) Wetland and watercourse acreages as determined by a licensed surveyor (the
review authority may approve the use of other survey grade GPS methods);
(6) Maps that depict property boundaries, watercourse centerlines, ordinary
high-water marks delineated in accordance with the procedures specified in
the current version of the Ordinary High Water Mark Field Delineation
Manual for Rivers and Streams sanctioned by the USACE Omaha District,
watercourse setbacks, delineated wetland boundaries and buffers, and
wetland acreages;
(7) Wetland data on forms established by the USACE;
(8) A determination of watercourse status issued by the Gallatin County
Conservation District; and
(9) A narrative description of how the applicant will first avoid and if avoidance is
not possible, minimize and mitigate impacts to wetlands and watercourses.
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3. If development activities are proposed in or adjacent to watercourses or wetlands the
following additional information is required in the wetlands and watercourse
delineation report:
a. A site plan consisting of an accurate scaled drawing which shows: the boundaries
of the subject property; delineated wetland and watercourse boundaries; wetland
buffer boundaries; watercourse setbacks; and all existing and proposed structures,
roads, trails, and easements. The site plan must provide a table of existing wetland
jurisdictional status, acreage and respective functional classes for each wetland,
previously required wetland buffers and acreage for each wetland, and linear feet
of all watercourses. In addition, all direct impacts to wetlands, watercourses,
setbacks, and buffers must be depicted and summarized in a table on the site plan.
The summary table must include: the wetland/watercourse identification number;
labeling of the corresponding wetland buffer or watercourse setback with its width
and acreage; the acreage of the subject property and of each wetland, watercourse,
and wetland buffer or watercourse setback; notation of the wetland jurisdictional
status; proposed impacts within all wetland buffers and watercourses setbacks;
and, proposed mitigation methods and acreages.
b. All indirect impacts must be summarized in a narrative section of the application.
c. Application materials for all applicable permits identified in 38.220.020.
d. A wetland review checklist with each element confirmed as complete.
4. Mitigation Report. If in review of the required submittal materials the review authority
determines adverse impacts to wetlands or watercourses will occur, the following
information must be submitted to the city in the form of a mitigation report:
a. The mitigation report must:
(1) Identify proposed mitigation consistent with the priorities listed in
38.610.100 and the rationale for the applicant’s preferred mitigation.
(2) Include the following: 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 mitigation proposal; a summary of the
direct and indirect impacts; identification of all local, state, and federal
wetland or watercourse-related permits required for the proposed mitigation;
and a vicinity map for the project.
(3) 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.
(4) An assessment of the potential changes in wetland hydroperiod for the
proposed project.
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(5) A description of the proposed mitigation actions for wetlands, watercourses,
setbacks, and buffer areas and how the design has been modified to first
avoid, and if avoidance is not possible then minimize or reduce impacts to
the wetland hydroperiod. Provide specifications for all proposed
compensatory mitigation for unavoidable impacts to wetlands and their
buffers and to watercourses and their setbacks. Include a map and table with
all proposed mitigation areas and their required buffers.
(6) Field data that documents the existing conditions of the proposed mitigation
sites.
(7) An analysis of the anticipated post development hydrologic and soil
conditions on the project site hydrologic and soil conditions of the mitigation
wetlands based on the proposed mitigation (e.g., data that demonstrate
hydrologic conditions (e.g. piezometer data, staff/crest gage data, hydrologic
modeling, visual observations; data that demonstrate soil conditions (e.g.,
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 plan and 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.
(9) A mitigation monitoring plan must include a period of not less than five
years and establish the entity responsible for long-term operations,
maintenance, and monitoring and the methods the applicant will use to
ensure the mitigation meets the objectives established by the plan.
(10) Wetland mitigation performance criteria for mitigation wetlands and buffers
(measurable standards reflective of expected development goals established
for each year after the mitigation site is established, e.g., "At the end of five
years there will be an 80 percent survival of the planted shrubs and trees").
(11) Contingency plans which clearly define courses of action or corrective
measures if performance criteria are not met including strategies for adaptive
management and change in mitigation option and the entity responsible for
implementing any required contingency plans.
b. The mitigation report must include scaled plan sheet(s) for the mitigation plan.
The scaled plan sheet(s) must contain, at a minimum:
(1) The surveyed edges of existing wetlands and buffers; the proposed location
and acreage of wetlands and buffer impacts; and the location of proposed
wetland and buffer mitigation areas.
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(2) Surveyed topography at half-foot contour intervals in the area of the
proposed mitigation if any grading activity is proposed in the proposed
mitigation area.
(3) Provide an existing and proposed mitigation design cross section for the
wetland and/or buffer proposed mitigation areas.
c. A description of ongoing management practices that will protect and maintain the
any nonimpacted wetland areas and the proposed mitigation wetland, watercourse,
and buffer areas.
B. If agricultural water user facilities are present then the development application must
include application materials required pursuant to 38.220.060, 38.360.280, and 38.410.060.
C. An as-built plan of the affected area within six months of completion.
Section 3
That Section 38.410.100, Watercourse Setback, Bozeman Municipal Code shall be repealed in its
entirety and replaced as follows:
Sec. 38.410.100. Watercourse setback.
A. The purpose of this section is to protect watercourses and the land adjacent to ensure bank
stabilization; sediment, nutrient and pollution removal; provision of habitat and shade; and
flood control.
B. Where a parcel proposed for development contains a watercourse, the development is
prohibited from placing structures (such as buildings, parking lots, or other impervious
surfaces), an addition to an existing structure, any fill material (other than that required for
exempt uses), other similar improvements within required watercourse setbacks.
C. The development may integrate the watercourse and watercourse setbacks with required
parklands and open space subject to division 38.420.
D. The requirements of this section may not be less restrictive than the requirements of the city
floodplain regulations or any other applicable regulation of this chapter.
1. The watercourse setbacks must be measured from the ordinary high-water mark as
defined in 38.700.090 and as depicted on Figure 38.410.100-1. When no ordinary high-
water mark is discernible, the watercourse setback must be measured from the top of
the watercourse bank.
2. The following apply to all developments.
a. Setbacks. The following setback requirements must be met:
(1) East Gallatin River. A minimum 100-foot setback must be provided along
both sides of the East Gallatin River.
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(2) Sourdough/Bozeman Creek and Bridger Creek. A minimum 75-foot setback
must be provided along both sides of Sourdough/Bozeman and Bridger
Creeks.
(3) Other watercourses. A minimum 50-foot setback must be provided along
both sides of all other watercourses.
(4) All watercourse setbacks must be extended as necessary to address the
following additional requirements;
(a) The setback must extend to the delineated boundary of the regulated
flood hazard area pursuant to 38.600.130.B where the regulated flood
hazard boundary is larger than the setbacks established in this
subsection D.2.a (see Figure 38.410.100-2);
(b) The setback must incorporate a minimum 50-foot wetland setback from
the delineated boundary of any wetlands adjacent to the watercourse. A
larger setback may be established per 38.610. A wetland is adjacent to a
watercourse when some or all of the wetland lies within the required
watercourse setback. Figure 38.410.100-3.
b. The relocation of a watercourse, if approved by the review authority, is not
subject to the restrictions of subsection D.2.a.
c. Allowed encroachments. The watercourse setback is divided into two zones. Zone
1 consists of the 60 percent of the setback closest to the watercourse, and Zone 2
consists of the 40 percent of the setback furthest from the watercourse. The
following describes exceptions for development in Zone 1 and Zone 2:
(1) On-site stormwater treatment facilities may be located in Zone 2.
(2) Trails and trail-related improvements may be placed within the watercourse
setback subject to the following:
(a) Trails, and trail-related improvements such as benches and trail signage,
may be placed in Zone 2;
(b) Limited, non-looping developed spur trails to the edge of the
watercourse may cross all zones. Benches and limited
informational/interpretive signage may be placed in Zone 1 at the
terminus of spur trails;
(c) Due to topography, avoidance of wetlands, or geographical constraints,
portions of non-spur trails may be placed in Zone 1. Trail construction
within Zone 1, inclusive of watercourse crossings and spur trails may
not exceed the length of 300 percent of the width of the applicable
watercourse setback per 500 lineal feet of watercourse;
(d) All trails must be constructed to minimize bank instability,
sedimentation, nutrient and pollution runoff. Trails must be aligned to
minimize damage to plant and wildlife habitat; and
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(e) Trails crossing the watercourse and trail-related bridge structures may
be located within all zones provided that the appropriate local, state and
federal permits are obtained.
(3) Streets, active transportation pathways, utility lines, or similar public
construction may be permitted within all zones for the purpose of crossing a
watercourse, compliance with an adopted city plan, or protecting public
health and safety. The following practices must be observed:
(a) Crossings must be minimized to the greatest extent feasible while still
complying with other applicable standards of this code;
(b) Crossings with direct angles (90 degrees) must be used to the greatest
extent feasible instead of oblique crossing angles;
(c) Construction must be capable of withstanding 100-year flood events;
and
(d) A bank stabilization plan for all watercourse crossings must be prepared
and approved by the review authority prior to site preparation and
installation of the improvement.
(4) Outlets from stormwater treatment facilities may pass through all zones,
provided that all required permits are obtained. Stormwater facilities must be
designed to prevent the discharge of untreated stormwater directly into a
watercourse.
(5) Ongoing control of noxious weeds by the property owner is required and
activities required within limits outlined in any approved noxious weed
control plan may occur in all zones.
d. Setback planting. To ensure watercourse setback function, a setback planting plan
must be prepared by a qualified landscape professional and must be reviewed and
approved by the review authority prior to the commencement of development or
site preparation. The plan must include a schedule, and plantings must be depicted
on the plan as follows:
(1) Zone 1: Zone 1 must be (re)vegetated with new or existing native materials
suited for a riparian area based on the following. One hundred percent of the
disturbed areas of Zone 1 must be planted with a ground cover of native
riparian trees, sedges, forbs, and grasses suited for the area. In addition, a
minimum of one shrub for every ten linear feet and one tree for every 30
linear feet of the watercourse must be planted along each side of the
watercourse. Grouping or clumping of trees and shrubs as appropriate in a
riparian area is encouraged. Species that are appropriate to the soil
hydrologic conditions are required. Tree and shrub species selected must be
suitable for the climate and for planting in a riparian area with an emphasis
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on native species. Incorporation of existing healthy vegetation of types
required in this section within the setback planting plan is encouraged.
(2) Zone 2: Disturbed areas of Zone 2 must be revegetated with new or existing
native grasses suited for the area. plantings in this area must be maintained in
a natural state consistent with the approved setback planting plan and
managed for good plant health.
(3) The property owner is responsible for maintenance of the watercourse
setback landscaping. If it can be demonstrated that irrigation is present for
the trees and shrubs, and fencing is provided for the trees and shrubs, the
number of required trees may be reduced to one tree for every 60 linear feet
and one shrub for every 20 linear feet of the watercourse along each side of
the watercourse.
(4) Planting materials are exempt from the size requirements of 38.550.050.F.
(5) To prevent soil erosion and the invasion of noxious weeds, the watercourse
setbacks must be covered with existing vegetation or must be seeded with
native grasses as soon as seasonally feasible.
(6) Use of native grasses, forbs, sedges, trees, and other herbaceous plants in
areas of disturbance (e.g., bridges, culverts, utilities installation, trails) within
the watercourse setback is required.
e. If irrigation is to be installed in the setback, an irrigation plan must be provided
pursuant to 38.220.100 and the irrigation system, but not the plantings, must
comply with requirements outlined in the most recent version of the City of
Bozeman Landscape and Irrigation Performance and Design Standards Manual.
f. Except as otherwise allowed in subsections D.2.c and D.2.d of this section,
disturbance of soils and existing vegetation is prohibited in the setback.
g. Nothing in this section prohibits an owner of affected property from:
(3) Combining two or more lots to assemble a larger and more usable lot;
(4) Petitioning the state department of fish, wildlife and parks and the county
conservation district to reclassify the watercourse as exclusively an irrigation
water user facility; or
(5) After receipt of required permits, and prior approval by the review authority,
relocating the watercourse and associated setbacks and requirements.
E. An applicant may request relief from the provisions of this division by:
1. Applying for a variance to dimensional standards of the watercourse setbacks as
allowed by and subject to the requirements of division 38.250;
2. When applicable, seeking a deviation to dimensional standards of the watercourse
setback as allowed by and subject to the requirements of division 38.430;
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3. A departure from the watercourse setback may be approved by the review authority
when the review authority has made the following findings:
a. The applicant has demonstrated by sufficient evidence the site cannot be
developed in compliance with the setback standards;
b. The property received preliminary plat approval or other final approval to
develop prior to July 10, 2002;
c. Application of the applicable watercourse setback and other applicable
setbacks causes an existing parcel to have its buildable area reduced to 25%
or less of the total lot area. Notwithstanding the above, the review authority
may grant a departure greater than 25% from the applicable watercourse
setback if the review authority determines other criteria of this subsection E.3
are met and the encroachment on the watercourse setback will not adversely
affect sediment, nutrient and pollution removal or the provision of habitat and
shade or flood control and will not have an adverse effect upon the
stabilization of the watercourse bank; and
d. The departure may not reduce a setback to less than:
(1) 100-foot setback adjacent to or within the regulated flood hazard area of
the East Gallatin River.
(2) 35-foot setback adjacent to or within any regulated flood hazard area of
any other watercourse.
(3) A portion of the required setback, immediately adjacent to the ordinary
high-water mark, must be left in a natural vegetative state or be subject
to a setback planting plan as follows:
(a) East Gallatin River—60 feet.
(b) Other watercourses—21 feet.
4. Miscellaneous.
a. The watercourse setback must be depicted on all preliminary plats and plans. A
note identifying presence of watercourse and setbacks must be provided on final
plats and plans and include notice that setback standards are subject to change
prior to future development within the subdivision.
b. This section does not apply to uses, activities, and structures which existed on or
before July 10, 2002, including agricultural uses, agricultural water user facilities,
lands controlled in the conservation reserve program. Any agricultural uses,
activities, or structures established after July 10, 2002 must comply with these
regulations.
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FIGURE 38.410.100 - 1. WATERCOURSE MINIMUM NUMERIC SETBACKS
FIGURE 38.410.100 - 2. WATERCOURSE SETBACKS WITH A REGULATORY FLOOD HAZARD
AREA
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FIGURE 38.410.100 - 3. WATERCOURSE SETBACKS WITH ADJACENT WETLANDS
Section 4
That Division 38.610, Wetland Regulations, Bozeman Municipal Code shall be repealed in its
entirety and replaced as follows:
DIVISION 38.610, WETLAND REGULATIONS
Sec. 38.610.010. Title and applicability/Jurisdiction.
A. This division may be cited as the “wetlands regulations”.
B. These wetland regulations apply to land which exhibit positive wetland indicators for all
three wetland parameters defined in 38.700.210.
C. These wetland regulations apply to applications for development that may impact wetlands,
and these regulations also apply to actions that modify or impact a wetland on land not
associated with the development proposal.
D. The city has concurrent jurisdiction over federally jurisdictional wetlands, defined as
wetlands that are regulated by a federal agency.
E. The regulations in this division do not require mitigation of wetlands created by agricultural
water user facilities or wetlands created by stormwater facilities.
F. The obligation to comply with issued approvals and maintain approved mitigation runs with
the land.
G. This division 38.610 does not repeal, abrogate, supersede, or impair any existing restriction
imposed by federal or state law. This division may impose more stringent requirements than
federal or state law. If this division imposes greater or more stringent requirements than a
privately imposed deed restriction or agreement, the provisions of this division control.
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Sec. 38.610.020. Intent and purpose.
A. Wetlands perform important public health, safety, and welfare functions. The intent and
purpose of this division 38.610 is to protect, preserve and enhance wetlands to provide:
1. Aquifer recharge;
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 public costs related to wastewater discharge permit compliance and water
quality enhancements and protections.
C. Wetlands can present significant constraints to development. It is the intent of these
regulations to protect public and private facilities and structures from damage, minimize
risk to public and private development, and reduce maintenance costs.
D. This division requires an applicant to first avoid impacts to wetlands and if avoidance is not
feasible to minimize impacts and mitigate impacts. Minimization of regulated activities
within regulated areas may be achieved by integration of regulated areas with required
parklands and open space. This division recognizes that impacts to regulated areas may
occur to advance other adopted policies and goals of the city.
E. Nothing in this division 38.610 may be construed to prevent irrigators from diverting water
pursuant to water rights or owners of such rights from exercising those rights including
maintenance of agricultural water conveyance facilities.
F. Nothing in this division 38.610 may be construed to prevent compliance with applicable
state or federal statutes and regulations.
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G. The purpose of this division is to balance the benefits of land development, such as housing
and job creation, with the benefits wetlands provide to the community.
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 and which impacts are known prior to, or discovered through the
development review process, and which are verified through a site-specific wetland
boundary delineation. When any regulated activity is proposed, a wetlands boundary
delineation must be conducted. If the wetlands delineation indicates wetlands are not
present on or adjacent to the property, the review authority may determine these regulations
do not apply. If wetlands exist 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 code. If site conditions exist 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 38.220.130 and 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 and Regional Supplement to the Corps of Engineers Wetland
Delineation Manual: Western Mountains.
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 in a wetland related
field, and/or a professional wetland scientist certification.
3. If wetlands do not exist on the subject property, a letter from a qualified wetland
professional must be submitted certifying the same.
B. Wetlands which are not within 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. Habitat for plant, animal or other wildlife species listed as threatened or endangered
under federal law;
2. Habitat for 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; or
3. A portion of a mosaic of wetland areas interspersed with upland areas and other habitat
types with interconnected ecological functions.
C. Any development for which the watercourse setback requirements of 38.410.100 are
provided and do not result in any wetland impact is considered to have addressed the
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requirements of this division 38.610. Notwithstanding the above, the permitting regulations
of this division for activities identified in 38.610.050 apply.
D. Applicants must avoid impacts to regulated wetlands. If the applicant demonstrates impacts
to wetlands cannot be avoided, the review authority may approve development that impacts
wetlands if such impacts are minimized, and appropriate mitigation is provided.
Sec. 38.610.040. Wetlands boundary and jurisdictional determinations.
A. The USACE is the only entity that may issue an Approved Jurisdictional Determination.
B. The review authority may rely on the wetland delineation and the Approved Jurisdictional
Determination submitted with the application.
1. If the Approved Jurisdictional Determination indicates federal jurisdiction over the
wetlands exists, and impacts to the wetlands are proposed, the applicant must submit a
copy of the applicant’s Clean Water Act Section 404 permit application to the city
concurrent with the application for development under this chapter.
2. If the Approved Jurisdictional Determination indicates federal jurisdiction over the
wetlands does not exist, and impacts to the wetlands are proposed, the applicant must
comply with the regulations of this chapter and obtain approval from the review
authority for any impacts and the required mitigation. The city will determine the extent
of and means of mitigation subject to 38.610.100.
3. Regardless of jurisdictional status, the city will review the submitted material under
local jurisdiction for any regulated activities in a wetland. All development is subject to
the review process of division 38.230.
4. If federal jurisdiction is later determined to exist, the applicant must comply with any
requirements of USACE.
5. Approval by the city to impact wetlands in no way implies a determination by the city of
USACE jurisdiction or federal regulations.
6. A wetland delineation and boundary determination are valid for five years from the
original report date.
Sec. 38.610.050. Regulated activities.
A. The activities listed in this section are prohibited within a wetland, regardless of federal or
city jurisdictional status unless the proposed activity is approved by the entity having
jurisdiction.
B. 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:
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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 surface water level or ground 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 activities listed in this section 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 function. Notwithstanding the above, such activity must comply with any
other applicable local, state, or federal law. Activities permissible without a city
development approval 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, an agricultural water user facility,
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 identified noxious weeds;
4. Continuation of existing agricultural practices such as the cultivation and harvesting of
hay or pasturing of livestock, or a 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;
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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 watercourse setback or 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 or city
development approval, 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. All proposals for regulated activities in wetlands areas must be reviewed by the review
authority. The applicant must prepare a functional assessment for all wetlands using an
assessment tool currently accepted by the Omaha District of the USACE or the State of
Montana. If wetland impacts are proposed in association with a development permit,
application must follow the review process for the development permit.
B. 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.
C. The applicant is prohibited from taking or engaging in a regulated activity that impacts a
wetland until authorized to do so by the review authority.
D. The applicable information required in division 38.220 must be submitted for all regulated
activities proposed for regulated wetland areas.
Sec. 38.610.080. Review standards/Minimum Wetland Buffer.
A. The review authority may approve an application under this division 38.610 after having
considered the applicant’s documentation of:
1. 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;
2. The extent and permanence of adverse effects of the regulated activity on the wetland
and any associated watercourse;
3. Any proposed mitigation; and
4. The applicant’s demonstration:
a. that any unavoidable adverse impacts on the wetland have been minimized; and
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b. the activity will result in minimal impairment to any wetland function, including
the following:
1. Plant, animal or other wildlife species listed as threatened or endangered
under federal law; or
2. Plant, animal or other wildlife species listed as a species of concern, species
of potential concern, or species by the state.
B. Minimum Wetland Buffer. All development must provide a minimum wetland buffer of
ten feet from the edge of the delineated wetland wherein any disturbance to the wetland
buffer including construction activities is prohibited. The review authority may require a
larger wetland buffer based on the wetland delineation report.
Sec. 38.610.090. Wetland approval conditions.
The review authority may require mitigation as provided for in 38.610.100 and impose
conditions of approval for proposed regulated activities that are necessary to mitigate impacts to
wetlands, or which are necessary to mitigate infringement upon wetlands and wetland buffers, or
negative indirect or direct effects on the functionality of wetlands and wetland buffers.
Conditions of approval may include but are not limited to, the following:
A. Notwithstanding the minimum wetland buffer, requiring a wetland buffer of a size
appropriate for the proposed activity and the regulated wetland as determined by the review
authority;
B. Requiring structures be appropriately supported and elevated or otherwise protected against
hazards;
C. Modifying proposals for waste disposal, stormwater, or water supply facilities;
D. Requiring protective covenants between the landowner and the city regarding the future
development, use, and subdivision of lands, including but not limited to the preservation of
undeveloped areas as open space and restrictions on vegetation removal;
E. Requiring a protective covenant between the landowner and the city stating the measures
that will be taken to protect all water resources, mitigation, and buffer areas;
F. Requiring erosion control and stormwater best management practices (BMPs);
G. Clustering structures or development;
H. Restricting fill, deposit of soil, and other activities which may be detrimental to a wetland;
I. Modifying the project design to ensure a reliable source and flow of water to the regulated
wetland;
J. Requiring or restricting maintenance of a regulated wetland area for the purpose of
maintaining wetland functions;
K. 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
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L. Requiring that all reasonable effort be made to limit indirect impacts to vegetation and
hydrological connectivity in the site design.
Sec. 38.610.100. Wetland mitigation.
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. Using an approved wetland
functional assessment methodology, the replacement function and value of the on-site
mitigation wetland must meet or exceed the functions and values of 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 A.2-6.
On-site mitigation must be conducted in accordance with methods and standards
established by the USACE. Factors the review authority may consider in determining
feasibility of on-site mitigation include but are not limited to: available area; the
availability and reliability 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 city’s current and future planned transportation
network.
2. If mitigation is not suitable 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 a wetland bank is not available within the Gallatin River watershed, 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 Gallatin
River watershed; and
5. If a wetland in-lieu fee provider authorized by the USACE is not available within the
Gallatin River watersheds, the developer must obtain wetland mitigation credits from
the geographically nearest wetland bank authorized by the USACE.
B. The city commission may, pursuant to Resolution, establish standards that:
1. Require a decrease in the compensatory value of mitigation bank credits as distance to
the bank increases from the location of wetland adversely impacted; and
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.
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Sec. 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 wetland Jurisdictional Determination
reports;
6. Procedures for certification of wetland delineation and opinion of wetlands
jurisdictional status reports;
7. Guidelines related to the content of a required monitoring report;
8. Procedures to implement 38.610.100 including procedures related to timing of
mitigation prior to construction of construction of improvements;
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;
10. Fees for wetland review and mitigation prioritization; and
11. Guidelines for local in-lieu-fee program
Section 5
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 6
That Section 38.700.210. - W definitions, Bozeman Municipal Code shall be amended as follows:
Watercourse Setback. A fixed distance applied from the ordinary high-water mark.
Wetland.
A. Those areas that are inundated or saturated by surface water or groundwater at a frequency
and duration sufficient to support, and that under normal circumstances do support, a
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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.
Wetland Buffer. Except for the minimum buffer established by this chapter, a variable distance
applied from the edge of a delineated wetland and determined by the review authority based on
an analysis of the resource and expected adjacent activities as necessary to protect the wetland
from adverse impacts to its function and value.
Section 7
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 8
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 9
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
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decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 10
Codification.
This Ordinance shall be codified as indicated in Section 2 – 6.
Section 11
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 ________________, 2025.
____________________________________
TERENCE CUNNINGHAM
Mayor
ATTEST:
____________________________________
MIKE MAAS
City Clerk
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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
____________________, 2025. The effective date of this ordinance is ______________, 2025.
_________________________________
TERENCE CUNNINGHAM
Mayor
ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney