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HomeMy WebLinkAbout09-08-25 Public Comment - L. McLane - RE_ Draft Wetland and Watercourse CodeFrom:Lilly McLane To:Bozeman Public Comment; Terry Cunningham; Nicholas Ross; Jennifer Madgic; Douglas Fischer;morrison.joseph.w@gmail.com Cc:Holly Hill; Jared Trilling; Katherine Berry Subject:[EXTERNAL]RE: Draft Wetland and Watercourse Code Date:Saturday, September 6, 2025 1:46:33 PM Attachments:Wetland and Watercourse Code Comment GWC.pdfAnnotated Draft Wetland Watercourse Code.pdf 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. Please see the attached comment letter and annotated draft Wetland and Watercourse Code. We would like to submit these materials for the Community Development Board meeting on Monday, Sept 8, and the Commission meeting on Tuesday, Sept 9. Thank you for your consideration,The Gallatin Watershed Council -- Lilly McLane, Watershed Restoration DirectorGallatin Watershed Councilhttp://gallatinwatershedcouncil.org Cell: 410.371.8221 To: Community Development Board and City Commission From: Gallatin Watershed Council Date: September 6, 2025 Re: Wetland and Watercourse Code Update Dear Members of the Community Development and the Commission, Thank you for prioritizing the stewardship of Bozeman’s streams and wetlands and for your ongoing work to improve the development code. As you review the draft Wetland and Watercourse Code, there is a lot of great stuff in here, and there are some things that can be improved. That is the nature of a draft. We have tried to provide bite-size revisions so we can finish this process strong. In our recommendations, we focused on the intent of this project: prioritize impact avoidance, then minimization and mitigation. We have tried to ensure that there are explicit tools and processes in place for each of these steps that provide developers clear guidance and give you all the support you need as decision-makers to enforce the intent of the code. It is easy to get lost in the weeds and turned around in this 19 page draft (we sure did), so we want to offer a simplified framework to keep in mind: 1.Streams and wetlands need space and continuity to all the things we need them to do. Both streams and wetlands rely on their surrounding riparian areas and uplands provide habitat, flood mitigation, erosion control, clean water, and beautiful spaces within our neighborhoods. Once buildings and roads and lawns encroach within the setback, the ability to provide these functions and values can become compromised. 2.Therefore, establish setbacks around streams and wetlands, based on the best available science to protect their functions and values. Require setbacks to be vegetated with native riparian plants. Parks and other open spaces should be encouraged to align with setbacks. Where site constraints make the property undevelopable, relaxation in other areas of the code will be prioritized to ensure resource protection. 3.Then, developments may request relaxation from the code to build within the setback. There should be a standardized process to determine if/when/where reduced setbacks are allowable based on an “aquatic resource risk assessment” that quantifies adverse impacts. 4. Finally, any unavoidable, adverse impacts must be minimized and mitigated. Please see our attached recommendations and an annotated version of the draft Wetland and Watercourse Code. There are also a few questions for you to use, below. We hope that you will consider the intent of these recommendations and that your conversations are solution oriented. Thank you, The Gallatin Watershed Council Potential discussion questions for staff, board, and commission: 1. How can we simplify, shorten, and/or consolidate the draft? 2. What ideas do we have to better prioritize impact avoidance? 3. How can we make sure we are able to assess if/when/where impacts within stream and wetland setbacks are necessary and appropriate? 4. Do our wetland and watercourse setbacks/buffers reflect best available science to protect ecological functions and values of streams and wetlands? The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org Attachment A: Recommended revisions for the Draft Wetland and Watercourse Code 1. Apply setbacks to all streams and wetlands, where setback widths are based on best available science for maintaining ecological functions and values. Current code applies setbacks to streams. However, they are smaller than what current science recommends. Setbacks are also extended around “adjacent wetlands”–wetlands that fall within the watercourse setback–but not to isolated wetlands. The draft proposes only a 10 ft “buffer,” expandable through an unspecified process. We recommend applying setbacks to isolated wetlands, which expands the use of existing regulations, instead of creating something new and different. Setbacks establish a baseline level of protection based on the science, and then allow for encroachments on a case by case basis. This makes things consistent, straightforward, and establishes clear expectations right up front. We also recommend expanding setbacks for streams to update Bozeman’s code to reflect current best management practices. See Table 1 for a synthesis of recommendations from scientific literature. ➢ Recommended motion: Establish 100’ vegetated setbacks around isolated wetlands in the City of Bozeman to reflect best available science. ➢ Recommended motion: Edit Sec. 38.410.100. Watercourse Setbacks to include wetland setbacks. ➢ Recommended motion: Expand vegetated setbacks along streams, based on best available science as follows: 300’ on both sides of the East Gallatin River; 150’ on both sides of Bridger and Bozeman Creek; and 100’ on both sides of all other creeks. 2. Complete an “aquatic resource delineation” to have an accurate map of streams, wetlands, and irrigation ditches BEFORE lot lines, buildings, roads, and parks are planned. In the current code, Division 38.220. - Applications and Noticing, specifies that for the Subdivision Review Process, applicants must map “watercourses,” “drainage channels,” “areas of seasonal ponding,” “marsh areas,” “wetlands,” “critical lands,” “riparian areas,” “streams,” “fish and wildlife resources,” and “agricultural water user facilities” during pre-application. An aquatic resource delineation is not specified until preliminary plat, at which stage developers are also submitting their Subdivision Layout, Development Plan, and Parks Concept Plan. For the Plan Review process, while a map of “surface water, including: Holding ponds, streams, and irrigation ditches; Watercourses, water bodies, and wetlands” is required, an aquatic resource delineation is never mentioned. Sec.38.22.130. Submittal materials for regulated activities in wetlands clearly defines and requires an aquatic resource delineation, however, this section does not specify when in the development review process this documentation is due. An example of this challenge is playing out with the West Park Phase 1 project, just south of Bronken Park. The parcel is rich with streams, wetlands, and ponds, which are currently being dewatered due to groundwater pumping for construction. Yet, we cannot find an aquatic resource delineation submitted with the planning documents through the Community Development Viewer. When projects move forward without an aquatic resource delineation, it can result in unnecessary conflict, costly redesigns, and/or ecological losses. An aquatic resource delineation is a highly standardized way of cataloging streams, wetlands, and ditches that requires an on-site assessment of soils, vegetation, and hydrology. Aerial images and publicly available maps of wetlands, riparian areas, and watercourses are useful for broad-scale land use planning, but they lack the accuracy and completeness needed for site-specific design. We recommend specifying that an aquatic resource delineation be completed at pre-application and concept plan review to allow significant site constraints to be accurately identified early, and ensure that impact avoidance is prioritized from the outset. Ideally, the delineation should occur before time and money are invested in locating buildings and infrastructure. We also recommend that an aquatic resource delineation be defined as a standalone submittal requirement, decoupled from jurisdictional determinations made by the US Army Corps and Gallatin Conservation District. While JDs are important, they are their own process: an aquatic resource delineation report is completed by a wetland professional, and submitted to each applicable regulatory entity; jurisdictional determinations are made by the Army Corps and Gallatin Conservation District as part of the 404 and 310 permitting process. An aquatic delineation report can be completed relatively quickly, whereas the permitting processes can take over a year and are outside the City’s control. During early planning, what matters most is knowing where wetlands and watercourses are, since all wetlands over 400 square feet are regulated and represent major site constraints. Separating these requirements will give the City and applicants critical data early without delaying projects with external permitting processes. ➢ Recommended motion: Specify that an “aquatic resource delineation” is required at Pre-application and Concept Plan Review in the development review process. Revise the draft so that an “aquatic resource delineation” is a separate submittal requirement from jurisdictional determinations made by the US Army Corps and Gallatin Conservation District. 3. Clarify and strengthen departure, deviation, and and departure criteria for streams and wetlands that allows for reduced setbacks where it is appropriate and necessary, determined based on an “aquatic resource risk assessment.” The City’s standard variance criteria—focused on historical appropriateness, minimal effects on neighboring properties, and general public welfare—do not adequately address natural resource management. This gap leaves us vulnerable to cumulative impacts and the repetition of poor past practices. The draft Wetland and Watercourse Code requires ecological impact considerations only when reducing watercourse setbacks under the departure process. This is where we ran into trouble with the Boutique Hotel. Was the reduced watercourse setback OK? Maybe—but without the right framework, the necessary information wasn’t available to support an informed, science-based discussion. Lacking a standardized process for evaluating impacts to streams and wetlands, decision-makers and developers are left to navigate complex technical issues without clear guidance. As a result, applicant justifications, staff evaluations, and commission discussions become subjective and inconsistent, effectively reinventing the wheel for each project. We recommend standardizing an “aquatic resource risk assessment” process for all relaxation requests (departures, variances, deviations) and applying it to both streams and wetlands. This becomes the other half of the setback equation: establish a best practice baseline as the standard, and then have a clear process to consider exceptions on a case-by-case basis. For example, many urban streams and wetlands are not appropriate for roaming moose and bears, but may still serve as a pocket of bird habitat. An “aquatic resource risk assessment” would quantify proposed impacts by comparing the functions and values of the streams and wetlands in a reasonably restored state, given the surrounding land use and existing infrastructure constraints (resource potential), to the proposed conditions of the developed site. This framework helps decision makers distinguish between areas with high functional potential, such as new developments on the city’s edge, versus more limited options in the denser downtown core. ➢ Recommended motion: Revise the draft to require an Aquatic Resource Risk Assessment process for any proposed reduction in stream or wetland setbacks. 4. Take advantage of the similarities between streams and wetlands and make their regulation as consistent as possible, instead of having two very different sets of rules and processes. The current draft is difficult to follow, and it appears there are several redundancies and inconsistencies. Despite the practical similarities between streams and wetlands–ecologially, legally, and how they are identified, mapped, and managed–the sections pertaining to each are entirely different, creating two different sets of rules. For example: planting and revegetation requirements differ; wetlands get a big “purpose and intent” section, but watercourses do not; applicants have a process to request relief from watercourse setbacks, but not from the wetland regulations; setbacks are applied to watercourses and adjacent wetlands, but isolated wetlands get a buffer. The draft also devotes significant attention to the US Army Corps and the jurisdiction of wetlands, and even though the US Army Corp also has authority over watercourses (along with the Gallatin Conservation District and the Montana Department of Environmental Quality), jurisdiction is hardly mentioned in the Watercourse Setback sections. We recommend combining and standardizing things to the extent possible, including the section organization and submittal material requirements. We’ve provided a suggested outline that we hope will get you thinking. We challenge you to cut the Wetland and Watercourse Code draft in half! ➢ Recommended motion: Consolidate code sections and submittal materials for wetlands and watercourses, as follows: ○ Title/applicability/jurisdiction ○ Intent/purpose ○ Regulated activities and exceptions ○ Submittal materials ● Aquatic resource delineation ● Wetland and watercourse setback planting plan ● Aquatic resource risk assessment ● Wetland and watercourse mitigation plan ● Wetland and watercourse review checklist ○ Application procedures ○ Impact assessment and consideration ○ Adverse impact mitigation ○ Definitions Source: Gallatin Watershed Council, et al. The Watercourse Commons Report. Gallatin Water Collaborative, 2024. 1 Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 NOTE: This document contains proposed revisions to the Bozeman Municipal Code to implement the City Commission’s priority to reform the regulation of development in or adjacent to wetlands and watercourses within the City of Bozeman. This draft is subject to revision prior to the hearing before Bozeman Community Development Board on August 18, 2025. The proposed revisions contained in this draft entirely replace Sections 38.220.130, 38.410.100, and all of chapter 38, division 610 (wetlands) of the Bozeman Municipal Code (BMC). In addition, this draft seeks to replace and create definitions contained in chapter 38, division 700, BMC. Public hearings on these proposed regulations will be held before the City’s Community Development Board on August 18, 2025, and before the City Commission on September 9, 2025. As the proposal contained in this document is subject to change, please refer to the Community Development Board and City Commission final agenda upon publication for the final proposed regulations. 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 be 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; Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 2 of 19 (3) A functional assessment of the wetland, made in compliance with the methodology of the USACE Wetland Delineation Manual applicable to the USACE Omaha District; (4) All data collected must support accurate determination 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, watercourse setbacks, delineated wetland boundaries and buffers, and wetland acreages; (7) Wetland data on forms established by the USACE; (8) A watercourse jurisdictional determination 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. 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 include a table of existing wetland functional ratings, notation of the wetland jurisdictional status and respective acreages of wetland function for each wetland, acreage 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 3 of 19 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. (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 mitigation for 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 4 of 19 (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. (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. 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 5 of 19 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. (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; Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 6 of 19 (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 (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 Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 7 of 19 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 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; Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 8 of 19 (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; 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 Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 9 of 19 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. FIGURE 38.410.100 - 1. WATERCOURSE MINIMUM NUMERIC SETBACKS FIGURE 38.410.100 - 2. WATERCOURSE SETBACKS WITH A REGULATORY FLOOD HAZARD AREA Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 10 of 19 FIGURE 38.410.100 - 3. WATERCOURSE SETBACKS WITH ADJACENT WETLANDS 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. 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: Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 11 of 19 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. 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 12 of 19 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 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 13 of 19 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: 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; Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 14 of 19 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; 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 Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 15 of 19 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 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 adverse impacts on the wetland have been minimized; and b. the activity will result in minimal impairment to any wetland function, including the following: Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 16 of 19 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 L. Requiring that all reasonable effort be made to limit indirect impacts to vegetation and hydrological connectivity in the site design. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 17 of 19 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 value of the on-site mitigation wetland must meet or exceed the functional value 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 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. Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 18 of 19 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 Sec 38.700.190. - U definitions USACE. When referred to in this chapter, USACE means the United States Army Corps of Engineers. Sec. 38.700.210. - W definitions 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 prevalence of vegetation typically adapted for life in saturated soil conditions, and meet the established criteria briefly described below: Proposed DRAFT City of Bozeman Wetland and Watercourse Regulations Version 7/29/25 Page 19 of 19 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.